A Litmus Test I Can Get Behind

Matt Welch | October 8, 2004

Like all good politicians, I firmly reject any "litmus tests" for Supreme Court nominations. But all things being equal, I agree with George Bush: We shouldn't appoint anyone who voted for the Dred Scott decision.

Comments

|10.8.04 @ 11:16PM|#

Yes truly a profound statement.

|10.8.04 @ 11:18PM|#

If I recall correctly, Dred Scott wasn't about property rights. According to the opinion, the reason Mr. Scott couldn't avail himself of the courts wasn't because he was someone's property, but because of his race.

|10.8.04 @ 11:26PM|#

If hanging pickpockets and scourging blasphemers was not considered cruel or unusual by the Framers, no Judge is going to tell me otherwise. A "living document"---hah!---it was obviously divinely inspired, like the King James Bible, and means exactly what the drafters and the good Christian prosperous white men who approved it thought it meant.

|10.8.04 @ 11:28PM|#

i guess for normal folks you're either bewildered (impressed?) by kerry dropping the potter stewart standard or a little shocked that bush is citing dredd scott as a litmus test... i mean i know bush isn't the brightest guy and he has advisors and such, but he seemed pretty at a loss (ignorant?) on that one... and i thought kerry made a good point, do we really want the bench stacked with more scalias and thomases? talk about interpretive activist judges...

|10.8.04 @ 11:36PM|#

oh, and by "dredd," of course i meant judge dredd :D

fyodor|10.8.04 @ 11:41PM|#

Whatever you think about the "under God" issue, it's disengenuous to the max to say a judge who strikes it down is necessarily or inherently putting "personal opinion" above the Constitution. Of all the BS from both sides, I think that one annoyed me the most. Kerry's not-quite-stated but repeated claim that he'd cut the deficit in half and pay for all the extra spending he's promising entirely by raising taxes on earners making above 200K is up there.

|10.8.04 @ 11:46PM|#

No litmus test?!?! How about a litmus test that requires that an appointee actually make their decisions based on the Constitution?

One reason I'd like Bush to lose: The libertarians would stop being such dumbasses. So many are acting like Democrats: people who only care about personal/social freedom and could give a fuck about economic freedom. Maybe when Kerry pulls the troops out of Iraq and raises our taxes, the libertarians will care about economic issues more (relative to foreign policy and personal/social liberty).

Republicans: People who want you to keep your money, but not let you choose who to have sex with.

Democrats: People who want to take all of your money, but let you fuck whomever you please.

I'd be curious to see a poll of libertarians that's broken down by marital status. I know that since I've been married, I've cared less about personal issues and more about economic ones. I wouldn't be surprised to see a major difference between married and single libertarians.

Tim Higgins|10.8.04 @ 11:48PM|#

Joe,

http://www.tourolaw.edu/patch/Scott/

It's a little fuzzy - seems to say that he couldn't avail himself of the courts because he was property, but was property because of his race. It seems that I(6) and I(10) speak to it most. That is as far as I read, though - there could be something further along that clarifies. Also, I am not a lawyer, and don't pretend to really understand the stuff they write. I(10) makes it sound like, if one were of African descent, but whose self and ancestors were not slaves, that this ruling would not apply to them.

|10.9.04 @ 12:00AM|#

well, it's a "roll-back" to take your point, but i agree neither is very convincing on cutting the deficit in half. for me tho, kerry seemed just a slightly bit more fiscally sane. cut taxes and increase homeland security (while expanding medicare entitlements) or "roll-back" taxes and increase homeland security (while adding an extra division or two). we're already running up against debt limits.

as the FT sez:

"These trends are more than undesirable. They are unsustainable. According to Dick Cheney, vice-president, Ronald Reagan proved that deficits do not matter. What the former president proved, instead, was that someone will be forced to fix the mess, sooner or later. But the mess is so big this time that waiting another four years could well prove a disastrous mistake.

"So what should the presidential candidates be discussing? They should state that US external deficits are, at present, needed to sustain global economic activity. They could add that the fiscal deficits have also been required to sustain US demand, at a time when the corporate sector was forced to retrench. But now, as recovery takes hold, these trends must be reversed.

"The more urgent and the more fundamental of the twin challenges is that on the external side. Active US leadership is needed to promote changes in exchange rates and macroeconomic policies around the globe. The dollar must fall further now if it is not to fall far more dramatically later on. As these adjustments begin, the US current account deficit will start to shrink, which will automatically stimulate the US economy. If interest rates are not to soar, thereby crowding out private sector investment, the government will then have to retrench.

"The mixture of low national savings with huge fiscal deficits, financed from abroad, has ruined many smaller economies in the past. The US is indeed far bigger. But remember: the bigger they are, the harder they fall."

|10.9.04 @ 12:14AM|#

I agree. Keep those pro-slavery judges out of the Supreme Court.

Bill writes:
Republicans: People who want you to keep your money, but not let you choose who to have sex with.

Often that holds, but this particular Republican running for president has increased government spending faster than the Democrat before him - and is promising to increase government spending just as much as his Democratic opponent. Bush does want you to keep your money for now, because there's a second term to be won, but *someone* is going to be taxed for his splurging.

|10.9.04 @ 12:16AM|#

Bill - My theory - probably wrong - is that libertarianism, states' rights, term limits, the desire for non-activist judges, etc.... are all manna for the minority. The Republicans rule the roost. As with all human endeavors are so certain of the correctness of their positions as to believe it's o.k. for the federal government to restrict freedoms, empower the executive, impose morality, and spend money. Power is a hell of a drug. I suspect that overtime the people who join the ranks of those who distrust government will come more from the Democrats and other minority parties.

|10.9.04 @ 12:26AM|#

joe,

It was as much about property as it was race. To quote C.J. Taney:

"...the right of property in a slave is distinctly and expreslsy affirmed in the Constitution. [See Art. 1, sec. 2; Art. 1, sec. 9; & Art. 4, sec. 2.] The right to traffic in it, like any ordinary article of merchandise or property, was guaranteed to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms is pledged to protect it in all future time, if the slave escapes from the owner. This is done in plain words - too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights."

Now Taney does go into some detail about attitudes towards blacks in the 18th century and the early republic, and bases much of his reasoning for rejecting jurisdiction on his review of the historical record. However, he is simply flat out wrong, and this was pointed out at the time of decision.

Take for example the following statement by Taney:

"The unhappy black race were seperated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property..."

This statement is so erroneous as to make it laughable. Even the weakest understanding of the historical record would tell you that Quakers, Methodists, and a significant body of secularists in the 18th century thought slavery to be abhorrent. Indeed, its early destruction as an institution in the New England states was predicated on this rejection. Furthermore, this statement becomes even more divorced from reality when one contemplates the fact that it was early 19th century racism that stripped free blacks of voting rights in the north.

|10.9.04 @ 12:33AM|#

I know that since I've been married, I've cared less about personal issues and more about economic ones.

That's because *your wife* determines who you have sex with ;-)
You're probably right, though, especially since kids are such a huge financial burden. I know *I* care more about personal issues, although since I've recently joined the middle class and seen how much the government is raping me in my paycheck... economic issues are becoming more meaningful to me over time.

|10.9.04 @ 12:52AM|#

BTW, note in the Dred Scott decision, Taney's implied references to the whole "Children of Ham" canard, and his willingness to flirt with the notion that blacks deserved the condition that they were in.

|10.9.04 @ 3:00AM|#

supreme,

Don't be fooled by Kerry. He's recently said that he'd increase Social Security taxes, which are the worst because you can't take deductions against them. Kerry's health plan alone will require a massive tax increase.

deron,

Good points, but I'm not so sure about the Democrats. Of all the Reps and Dems I know, the Dems practically love government compared to the Reps. The fact is that most people look to the government for "help". It's so sad really that people refuse to act like real adults and stand on their own two feet (and purchase insurance against unfortunate circumstances).

Patrick,

Too true. I've definitely traded in much of my freedom for a wife, but it was my choice at least, and I'm happy. I had plenty of women prior to marriage at 30, so I don't feel deprived.

The money issue is funny. In college, few people gave a damn about taxes because none of them paid much or any. Once you make some real money and the government takes a big bite, it tends to change your perspective.

J. Goard|10.9.04 @ 3:39AM|#

I feel obliged to point out that, while a person who greatly differs from me on economic positions is likely to share many of my values but differ in practical reasoning, a person who greatly differs from me on lots of personal issues is more likely a religious zealot who believes that my basic outlook on life is evil and dangerous. Please don't assume that I'm a closet Democrat for being more afraid of W right now.

|10.9.04 @ 4:25AM|#

supreme,

Which decisions by Justice Thomas have you disagreed with? Just curious, since you seem to dislike the guy. Thomas seems to be the most libertarian of the bunch (which I know is saying very little).

Mexile|10.9.04 @ 4:28AM|#

Well, it's comforting to know that Bush won't appoint a judge who will roll back our rights to the 1850s... the 1780s, maybe...

|10.9.04 @ 7:11AM|#

Bill writes:
Kerry's health plan alone will require a massive tax increase.

Again, this isn't a Kerry problem. Bush's and Kerry's election promises amount to about the same sum. The differences between the two are that a) Kerry is less likely to be able to pass his spending in the Congress and b) Kerry has made a half-assed effort to explain how he'll increase revenue while Bush is basing his plan on the premise that he will find a few trillion dollars under his mattress.

|10.9.04 @ 11:01AM|#

Bill,

Thomas' position on the constitutionality of state funded churches is simply vile and is as anti-libertarian as one can get.

|10.9.04 @ 12:25PM|#

They could have all of my money if they would leave me alone. Unfortunately, these bandits want my money AND my life.

I simply do not accept the logic that cutting taxes and running up the debt is a good thing. Everything has to be paid for. I will pay for this spending eventually, apparently with interest. As the Austrian economists point out, if the government simply pulls the money out of the air, you pay by having your own money inflated to the point of worthlessness.

Pay taxes now or have your salary wiped out by inflation? In the long run, the first is less disruptive of my life. The better option is to reduce spending, but it's been a long time since anyone seriously proposed anything like that. They'd rather "cut taxes," meaning: let the liabilities pile up until the economy collapses from all the dead weight.

|10.9.04 @ 2:52PM|#

James,

"Starve Leviathan" they call it. Economy collapses, and Gawwwwwly that'll make people take notice of that pesky gargantuan deficit!

As if massive unemployment, inflation, and market collapse is a desirable position from which to begin to address our debt.

It's like me sitting in front of a dumpster trying to figure out how I can regain the house, car, furnishings, and other personal belongings I lost because I couldn't pay my bills.

I'm in a really good position to do that looking for not-so-stale hamburgers behind McDonald's

Whew!

|10.9.04 @ 8:58PM|#

"Dredd Scott" is code for "I will appoint judges who will repeal Rowe v. Wade". It' common for anti-abortion legal theorists to cite Dredd Scott.

Just try Googling "Dredd Scot Abortion". It's an eye opener.

|10.10.04 @ 8:22PM|#

Dred Scott avoided the issue of slavery. It just said that when a person was a slave, he wasn't really a person. And so Bush was just saying that if a person was a slave, escaped to a non-slave state, got caught, and protested in the courts his extradition back to the pro-slave state, he SHOULD be allowed to have his case heard in a state court. Jeez, people. You guys read too much into these debate things.

On this issue, I'm with Bush: slaves should have the right to petition the courts to redress grievances. Why such a statement would confuse or cause discomfort is beyond me.