Judicial impartiality and the Constitution

With President Barack Obama’s nomination of federal judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter, the nation is in a debate about both the qualifications of the nominee and the proper criteria for selection. That the nation is divided over both obligates us to clarify their relationship to each other. Judge Sotomayor, whose Puerto Rican descent should not matter but it does because the President and she have that said it matters, is undergoing the by-now familiar microscopic examination that has attended these nominations since Judge Robert Bork was savaged by Senate Democrats in 1986. On paper the lady who has made much of her ethnicity is qualified, and she will be confirmed because her party has the votes.

I oppose this nomination for the simple reason that Judge Sotomayor does not understand, if she does not actively oppose, the United States Constitution as it was understood by its framers and ratifiers. But it is more important to set forth the grounds upon which this decision should be made than to emphasize the reasons why she should be rejected.

Both liberals and conservatives have a legitimate point about the requirements of constitutional jurisprudence but both have a blind spot. Liberals make much of the fact that the judges will inevitably bring to the table certain predispositions and preconceptions which will shape their decisions. This can hardly be doubted, but the question is whether the judges’ "baggage" will keep them from performing their duties well.

For if those predispositions and preconceptions are inconsistent with the character of the Constitution, not to mention the political philosophy which informs it in the Declaration of Independence, they carry no weight and should be disregarded. Hence, what race or gender one belongs to is irrelevant.

Conservatives contend that judges should not legislate from the bench but apply the Constitution and laws to the case before them. Their logic is unassailable but they are too prone to give bad laws the benefit of the doubt when they may in fact be unconstitutional. After all, most conservatives believe that Roe v. Wade (1973) was wrongly decided and even unconstitutional.

If this criticism seems unfair, consider the oft-repeated conservative criticism of "activist" judges who, pretty much as conservatives claim, go well beyond the role of judge and make up constitutional law that has no warrant in either the language of the Constitution or the judicial precedents relevant to a case. Is a judge who upholds the Constitution by striking down a state or federal statue in conflict with it a "passivist" judge?

Liberals criticize conservatives on the grounds that judges of their political philosophy are no less activist than liberals when it comes to their constitutional priorities. I grant the criticism, at least to this extent, that defense of the Constitution demands more of judges than simply applying the laws to a case.

However, judging is fundamentally different from legislating, as the former deals with specific cases and the latter devises general rules. We don’t want a Congress to decide who has violated its laws or to affix penalties for doing so. But we want all our public officials to abide by the Constitution because it is the supreme law and because it embodies justice.

The Constitution requires judges to be neutral between the parties in the cases which they decide, but it is not neutral about the requirements of justice. Its conception of justice entails "secur[ing] the blessings of liberty to ourselves and our posterity." The document empowers the federal and state governments to rule but also limits their powers in numerous ways. Beyond these limitations, ours is a republican constitution, that establishes rule by the people through their chosen representatives on behalf of purposes which their constitution spells out.

Our quarrel with judicial activism should be focused on a judge’s predilection to corrupt our Constitution with doctrines calculated to "transform" it from a guarantee of equal rights for all to a device for empowering government officials to favor allegedly underprivileged groups at the expense of everyone else. It is no accident that President Obama nominated a Latina woman with a class-based notion of justice, for such is what both of them want.

Our Constitution should be protected from the efforts of anyone to subvert it for unjust ends. The judges’ impartiality is in the service not of a neutral constitution but one which favors equal justice over class rule.

Why Jack Kemp matters

By Sean Duffy In tributes since he succumbed to cancer last week, Jack Kemp has been rightfully called a statesman, patriot and visionary. The architect of a key pillar of the Reagan Revolution. But, as I look back at powerful and memorable encounters with him over the years, I remember boundless energy, constant searching for new ideas and new converts, and most of all, one hell of a guy.

Jack (and it was always "Jack", not "Congressman", or "Mr. Secretary"), preached the gospel of true hope, and the politics of the open door. He believed in the power of individuals to change and improve their lives and saw government as one partner in helping spark real opportunity, family by family.

Kemp's open door and enthusiasm for the future was, and is, a political magnet that helped sparked Republican growth and success. But some liberal observers in recent days have mistook the positive, welcoming philosophy for an absence of governing principles, or an "anything goes" view of public policy.

If you believe that, you don't know Jack.

There is a difference between a big tent with flaps, and a roof and structure, and a big tarp - a shapeless covering. To Jack, there was a right and wrong to how the American economy was to be organized, and the role government played in it.

The first time I met Jack was in 1996, when he was running for vice president. I was working for Pennsylvania Gov. Tom Ridge doing media relations on education issues. Kemp and Bob Dole brought their campaign to Chester, an economically struggling, largely African-American community that was the home of a wide range of education reforms aimed at empowering families. Two aspects of the day still paint a vivid picture, nearly 13 years later.

First, black men and women sought out Kemp, as he did them. In Jack, they saw a leader - and a Republican - who sincerely and personally wanted them to succeed. And he offered a vision not of more of the paternalistic government programs that had already done damage to communities like Chester.

Instead, Jack's gospel was that of a helping hand that you must grasp to, in Theodore Roosevelt's phrase "make your life." Kemp believed that whether is was choosing a better school for your kids, owning your own home or starting a small business, government must open the door and give you the chance, but you must seize it. That's real freedom.

The second aspect I remember is his energy. At that visit - and I suspect throughout much of that ill-fated campaign - he seemed like a caged tiger, pacing back and forth, ready to get out.

He was standing next to me during a typical campaign small-group meeting for an elite group of supporters, and he kept saying under his breath, "Let's go. Let's go. Let's get outta here." He wanted to get outside to the rally of working-class folks with whom Republicans hadn't closed the deal yet.

When I came to Colorado to join Gov. Bill Owens" administration, I had the chance to be with Jack several times at meetings and retreats for groups he was involved with, most notably Empower America. Each time, his boundless energy, curiosity and passion for ideas was infectious.

In what was consistently a fire hose of words and ideas, he always had a new book to recommend, a new innovative thinker or emerging leader to tout, a new project to discuss. Most of all, he made us understand that in every one of God's children there exists the potential for a bright, independent and successful future.

Like many conservatives who came of age during the Reagan years, I owe much of my optimistic belief in the future to Jack Kemp, the evangelist of empowerment. He shaped my view of what it means to be a Republican who can offer real, substantive hope and opportunity to Americans, particularly to those at the bottom of the ladder.

Not every Kemp position was right or perfect. But, in the main, his ideas and his memory should provide the GOP with a real, relevant roadmap back to power. In Kemp there is a positive, practical antidote to the currently fashionable but ultimately fatally flawed wave of "government as savior" policies.

America, and particularly the Republican Party, needs more Jack Kemps. And today we miss his energy, solid ideas and infectious hope for the future. I know I do.

Sean Duffy (sean@thekenneygroup.com) is a principal at a Denver public relations firm and served as Deputy Chief of Staff to Gov. Bill Owens from 2001-2005.

Useful idiots & how not to be one

The term “useful idiots” was attributed to Soviet dictator Vladimir Lenin describing intellectual idealists persuaded to adopt communism. Later after a fait accompli, with their idealism supremely disappointed and dangerously reactive, they would of course have to be eliminated. Wikipedia explains how Lenin’s, “‘useful idiots of the West,’ described Western reporters and travelers who would endorse the Soviet Union and its policies in the West.”

From www.usefulidiots.com , the question, “Why This Web Site?”: "Useful idiots is a name no group of people would like to be called. It is however, what most Americans are relied upon to be by the powers that be. When the voting segment ... allows itself to fall for the same old word games and mind manipulation, it sadly earns the title of useful idiots ... too many Americans are naive about their political ‘system’ and its politicians ... America is a land of plenty. Plenty of food, plenty of money, plenty of gods, plenty of corrupt politicians and alas, plenty of useful idiots that repetitively vote for them.”

From five million Coloradans, 65 House and 35 Senate members emerge to serve public office in the Legislature. They take an oath to support the Colorado and U. S. Constitutions. This is their only required oath -- not to their constituents, the government, their political party, nor the citizens, voters and taxpayers of Colorado, not even to their families or themselves. Just to the rich heritage, words, meaning, expression, majesty and magnificence of those documents.

Question: How many elected officials have read both documents, before or after entering office? The oath presumes familiarity with, understanding of, and a full, recent read and determination to honor them. Otherwise it’s easier to create, cultivate and control “useful idiots.”

Officeholders are prote cted in this ignorance. Those who voted them into office too are “useful idiots.” They have little familiarity, interest or knowledge of those documents whose power is to contain and control only the government, not the people.

Once public officials, they are in intimate contact with “the system” – elected colleagues, special interests, partisan political parties, government bureaucracy and employees, bond dealers, lobbyists and friends of same, and far removed from those who sent them there. The Legislature meets for 120 days creating legislation presumably to make Colorado a better place. However, officeholders’ limited political, economic, business, financial, constitutional and governmental acumen put them at the mercy of the true, long-term professionals, well-paid, who know how to manipulate people, opinions, legislative bills and votes.

With accompanying “spotlight and applause,” many of these “useful idiots” can be persuaded to perform in ways anathema to what they otherwise would want done, or perhaps more importantly, not done. They sponsor, sign on to, or support bills that on their face violate their oath of office and the Constitution.

Examples of the Useful Idiot Dodge (UID) are abundant. Colorado’s executive, legislative and judicial branches too often misapply, misinterpret or ignore the Constitution when it threatens their agenda or very existence. Good job, “useful idiots,” on the following:

** “FASTER” legislation politically morphed an in-fact tax increase into an automobile fee increase, to obtain more revenue, and avoid submitting it to the electorate, in compliance with the Taxpayer’s Bill of Rights, Article X, Section 20 of the Colorado Constitution.

** The General Assembly could have put on the ballot a gasoline tax increase, but no. Instead, this UID was an intentional end-run around TABOR, depriving taxpayers of their power to accept or reject this tax increase.

** The general assembly enacted a mill levy freeze to increase tax revenue to the schools, to provide the general fund more money to spend, again without a vote of the people, a UID for a billion dollars over the next ten years.

** Boisterous assault on TABOR, with a power-hungry and derelict Democratic Majority in the House, Senate, Supreme Court and Governorship. The next TABOR-forbidden UID target, is the 1 992 Bird-Arveschoug six percent growth limit to the General Fund, conservatively interpreted and highly respected for 17 years, is now being plundered to allow for easier, less confined state spending.

** The current target is to throw Colorado’s nine electoral votes into a consensus pool of other states, making null and void the Founder’s concepts. The 222-years-old Electoral College was crafted to protect the small versus big states. Requiring a consortium of states to support one national candidate/party is a UID that shrinks the power of Colorado voters. Is there no limit?

William Shakespeare said in Julius Caesar, “The evil that men do lives after them; the good is oft interred with their bones.” That’s the tragic tale of today’s “useful idiots.” While in office they are conned into legislative actions that are long-term anathema to what their Founders and Freedom Documents, their children, grandchildren, even themselves; and unborn, unrepresented generations in the future would want. But once in, laws stay. Good job, “useful idiots.”

Conversely, realization is how legislators can get beyond being “useful idiots.” They first realize the Founders created a system of limited government and self-governing people, that government is to protect the people's rights and property, that its financial impact was not to overspend, overtax or over borrow, that its Founding document, the Constitution, was meant to control the government, not the people. When the people put in place an amendment to the Constitution, it is not up to the legislators to flail it to oblivion, but to respect and abide by it. Inconvenient, frustrating or difficult? Deal with it.

How can one avoid becoming or being an elected official or citizen “useful idiot?” Six steps:

1. Read, understand, know, preserve and protect America’s and Colorado’s Freedom Documents--Declaration of Independence, Constitutions and their incredibly important Bills of Rights. Lesson: Master the basics, the fundamentals of a successful society.

2. Build your knowledge and understanding of history’s fundamentals -- its ideas, philosophies, ideals, events and actors, heroes and villains. “Who knows only his own generation remains always a child,” is chiseled on a building at the University of Colorado, Boulder. Lesson: Grow up.

3: Read. Watch. Listen. Think. Understand. Lesson: Get and stay informed.

4. Quit being a civics dropout, constitutional illiterate or citizen slug. America’s Republic (not “Democracy”) is not a spectator sport. Lesson: Become aware, interested, informed, concerned, involved and active in what is going on.

5. Share your information, knowledge and concern. America’s educational system leaves too much out. On many talk shows I told listeners too many Americans are “dumbed down, numbed up, tuned out and turned off.” We need to turn them back on, to a country and future of Freedom and destiny. Lesson: Share true personal Freedom and political Liberty.

Sixth: Seeing a “useful idiot” committing a UID, pounce on it. Lesson: It’s up to you.

President George Washington said, “Government is not reason; it is not eloquence; it is force! Like fire, it is a dangerous servant and a fearful master.”

Louis D. Brandeis said, “The greatest dangers to liberty lurk in insidious encroachment by men (and women) of zeal, well-meaning but without understanding.”

George Santayana, “Those who cannot remember the past are condemned to repeat it.”

Nobel Laureate Economist Dr. Milton Friedman, “Our problem is not ignorance. It’s what we know that’s not so.”

Note: The term “useful idiot” is not meant in any way to disparage, deprecate, defame, denigrate or demean the word “idiot.”

How relevant are Tea Parties to GOP?

What next? The Tea Party movement is simply not going to be co-opted by the Republican Party. It's not a creation thereof, and it'ssimply not made for the kind of team politics required by any political party.

In order to benefit from the movement, the Republicans will have to earn their trust, and prove that they mean to live by what we say are our foundational principles - smaller government, lower taxes, more personal liberty. The Republicans can benefit from the movement, but they can neither control nor direct it.

In any event, the next elections are over 18 months away, the next nomination assemblies almost a year out. What can the movement accomplish in the meantime?

This is a movement tailor-made for the initiative process. To push initiatives that clarify for an intentionally myopic State Supreme Court that TABOR means what it says; that retain our control over an initiative process whose purpose is to rein in the legislature; that reassert our state's prerogatives as a sovereign entity, not merely an administrative district for the federal government.

This answer will make Republicans uncomfortable, since by definition, it doesn't involve getting them elected. But it does involve teaching these newly-created activists how to organize for action, getting them savvy about the political process, and creating results that will get them taken seriously by those who matter right now. It's a valuable tool in the maturation process of a movement that should be the party's natural allies in showing - again - that our ideas, when present free of personal political ambition,win.

It's one reason why the Democrats - even now - are plotting to make the initiative process, the one process in state government they don't control - subject to as much rule-bound litigation as possible. They are co-opting Republican goodwill in cleaning up potential fraud, spinning it as a mutual belief that the citizenry needs to be brought under control.

At the end of the day, Republicans have enough institutional staying-power to be there when the movement has matured. Libertarians are simply not going to get elected to anything, although libertarian-leaning Republicans can. The party may have to wait to reap the benefits of this movement, and certain team members may find themselves uncomfortable with certain agenda items they have to sign onto. News flash: not all Democrats are socialists, although that's the agenda of the party.

Too many Republican office-holders and office-seekers will be unhappy with this answer. But if the party tries and fails to control the movement, it will be seen as irrelevant and meddling. If it tries and succeeds, it will only strangle the baby in the cradle. Colorado has one of the most open and welcoming citizen initiative processes in the country, for the time being. Let's make the best use of it for our ideas, and if we deserve it, the elected offices and day-to-day governance will come our way.

Don't miss Tea Parties 4/15

Tax, spend, borrow and regulate are the four horsemen of American socialism under Obama and Ritter. Intrusive government now tramples our liberties with a brazenness that would amaze those old Boston patriots who dumped the tea in '73. Tea Party protests will happen in many cities on Tax Day, Wed. April 15. I'll be taking part and so should you. Here's the information you need. Denver Metro Area City: Denver When: April 15, 12:00pm - 1:30pm Where: West steps of the Capitol, 200 East Colfax

El Paso County City: Colorado Springs When: April 15, 12:00pm - 1:30pm Where: Acacia Park at 225 N Nevada

Routt County City: Steamboat Springs When: April 15, 12 noon Where: County Courthouse Lawn

Mesa County City: Grand Junction When: April 15, 12:00pm - 1:30pm Where: Soccer stadium at 12th Street and North Avenue, corner across from Mesa State College

Larimer County City: Fort Collins When: April 15, 12:00 pm - 2:00 pm Where: Fort Collins City Hall, 300 Laporte Avenue

City: Loveland When: April 15, 4:00pm - 7:00pm Where: 205 E Eisenhower Blvd, Loveland, CO 80537

Weld County City: Greeley When: April 18, 11am – 2pm Where: Bittersweet Park at 35th Ave. and 11th St.

Pueblo County City: Pueblo When: April 15, 4:00 pm Where: Pueblo County Courthouse, 215 W. 10th St.

Fremont County City: Cañon City When: April 11, 12:00 pm Where: Veterans Park

Contact names for these and other Colorado cities, along with Tea Party details for many other states and cities, are at this link. To sort by state, scroll to the bottom of that page. Site also lists numerous organizers and contacts for the three events mentioned above.

The Tea Party phenomenon of 2009 is one of the most powerful grassroots movements our country has seen in a long time. People are rising up to defend individual freedom, personal responsibility, limited government, and free markets.

Be part of it on April 15! I'll see you there.