Rightank

Federal Appeals Court Judge Samuel Alito was nominated to the Supreme Court today as Justice O’Connor’s successor by President Bush. My hearty congratulations, Judge Alito.

From what I have read about Judge Alito, he is a conservative who recognizes he is not above the law and who will interpret the law with an orginalist perspective. Congratulations President Bush on nominating a verifiable conservative judge who is skilled in constitutional law.

Alito’s confirmation will allow the general public to understand (if they pay attention) why it is important to have originalist judges and why the radicialism of some who wear black robes is so harmful for our democratic republic.

More on the nomination later (I plan to read many of Alito’s opinions and comment). For now, congratulations. I am pleased to support Alito’s nomination to the SCOTUS.

I believe I finally found a theme that I’m willing to stay with. Obviously, they’ll be some customization as time moves along (I need to fill up the sidebars).

Anyway, please bear with me as I go along. Thanks.

Yesterday, at The World Without Zionism conference, Iranian President-thug Mahmoud Ahmadinejad denounced Israel while praising the Palestinians who oppose an Israeli state:

There is no doubt that the new wave in Palestine will soon wipe off this disgraceful blot from the face of the Islamic world. Anybody who recognizes Israel will burn in the fire of the Islamic nation’s fury, [while] any [Islamic leader] who recognizes the Zionist regime means he is acknowledging the surrender and defeat of the Islamic world.

A disgraceful blot? The “Islamic” world?

Apart from the hyperbolic, fireball rhetoric, President-thug Ahmadinejad directly challenges all nations who support the Israeli state, which includes (of course) the United States. Ahmadinejad’s boast of fire-balling any nation sounds like a nuclear challenge but I’m sure the IAEA has everything under control.

Meanwhile, the Union of Islamic Students Associations and the Iran House of Cartoons are hosting an art competition with the theme “A World Without Zionism.” If you thought that just bashing Jews wasn’t enough fun, there are other topics to choose from:

The competition will also focus on the themes “A World without America,” “A Mirage Named Zionism,” “The Wishes of a Palestinian Student,” and “The Intifada,” noted the paper.

Oops, they left out “A World Without Christianity.” They must have reached the maximum on their hate-meter for the day.

Harriet Miers withdraws.

Hopefully, President Bush and his advisers have learned their lesson: Appoint a true, verifiable conservative.

Justice Antonin Scalia recently reviewed Steven D. Smith’s book Law’s Quandary. Scalia’s review is a fascinating read. My favorite part (besides his “LEAVE HERE OR DIE” hypothetical):

[I]n a democracy, it is not the function of law to establish any more social policy than what is fairly expressed by legislation, enacted through prescribed democratic procedures. It troubles Smith, but does not at all trouble me—in fact, it pleases me—that giving the words of the Constitution their normal meaning would “expel from the domain of legal issues . . . most of the constitutional disputes that capture our attention,” such as “Can a macho military educational institution dedicated to what is euphemistically called the ‘adversative’ method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one’s life?” If we should read English as English, Smith bemoans, “these questions would seemingly all have received the same answer: ‘No law on that one.’”

I wish all nine Supremes possessed the same judicial disposition and understanding of our representative democracy as does Justice Scalia. I wonder how Harriet Miers would respond to Scalia’s observation of truth?

Hat Tip: Southern Appeal

Professor Dale Carpenter’s piece on today’s NRO is a carefully massaged bit that attempts to streamline areas of agreement with conservatives about traditional marriage and ultimately, gay marriage.

First, Carpenter assumes that one can be a true conservative and support gay marriage. If you’re socially liberal (i.e., favor gay marriage) then you are not a true conservative. David Brooks, Andrew Sullivan, Jonathan Rauch, and George Will are not true conservatives–they are moderates at best. A true conservative is conservative in his social views (marriage, abortion, gay rights) and his fiscal philosophy (free markets, little goverment regulation, etc.). Carpenter doesn’t espouse a conservative case for gay marriage. Rather, he supports a moderate one.

Carpenter lists ten premises that he believes both proponents and opponents of same-sex marriage can agree on. Sorry to disappoint, Professor Carpenter.

His first premise:

(1) Marriage benefits society, and so anything that harms marriage harms all of us, whether married or not.

Not all marriages benefit society. For example, a marriage between one man and one woman who are closely related (brother/sister, 1st cousins) do not benefit society as do a conjugal union whose consanguinity is more distant, if at all related. Why? Because the offspring of the former are more likely be degenerative and bear children (though precious) with disabilities and other birth defects. (Carpenter acknowledges that “[m]arriage should remain reserved for two adult persons not closely related by blood”–a tension with his first premise he apparently does not recognize). Marriage–meaning the traditional union of one man and one woman–benefits society because they bear children and provide the optimal childrearing environment for those children. Same-sex marriage would not nor does it provide that societal benefit.

What benefit does same-sex marriage provide? Carpenter advises that the benefit of same-sex marriage would be (1) encouraging long-term commitment of gays and (2) “settling” gay men (whatever that means). So what? Where is the benefit? What would that long-term commitment produce for society? A reduction in the amount of HIV cases per year?

Moreover, does mere “encouragement” or “settling” of a minute (though politically active) population within society warrant a radical defintional change of marriage?

SSM advocates cannot rely on the traditional or results-oriented marriage benefit if they want to change its definition. Rather, they must assert (as Carpenter does) that marriage is about individual satisfaction (i.e., lasting commitment) and that if individualistic then denying gays the opportunity to marry is unconstitutional discrimination because as individuals they choose to sate their lust in a same-sex relationship.

The benefits society receives from traditional marriage are benefits that a same-sex coupling cannot provide (procreation and optimal child-rearing environment) to society at-large. Any disagreement between “conservatives” is not going to change the societal benefits of sustainability that traditional marriage provides. That’s already settled.

Taking my stand: I oppose the Miers nomination.

I’ve decided to drop my past theme and try something else. I’m excited about the new theme. Please bear with me as I customize it. Thanks.

Professor Eugene Volokh has been kind enough to permit Maggie Gallagher, President of the Institute for Marriage and Public Policy, to guest-blog about the dangers of same-sex marriage (”SSM”). It is a rare event that an opponent of same-sex marriage is taken seriously, especially among academics and intellectuals.

Maggie has posted some great stuff about why same-sex marriage would destroy and irreparably harm traditional marriage.

First bite:

The now-common view (thanks largely to the SSM debate itself) is that marriage as a legal status matters because it opens the door to a host of benefits that incentivize marriage. (Thus, folks argue, the incentives for opposite-sex couples will still be the same, how can gay marriage matter? As Evan Wolfson likes to say, they aren’t running out of marriage licenses.).

I don’t think its true the law incentivizes marriage through benefits (although I have to confess I wouldn’t mind if it were), so I also don’t think this accurately describes how the law of marriage currently matters. Most people don’t get anything that feels like a check from the government when you marry. Many, probably the majority of people, take a financial hit when they marry. (Through the tax code and the welfare system, see Eugene Steurele’s study in the latest issue of The Future of Children).

If you think about it from a law and econ perspective, it’s amazing anyone does marry. Marriage means voluntarily subjecting yourself to state regulation, paying more taxes (or forgoing the EITC), and assuming legal and financial responsibility for another person. In return for what exactly? The right to order an autopsy?

There are some big financial benefits to marriage (that are legal incidents of marriage I mean), but I don’t think they are very powerful as incentives for marriage, for the simple reason that most people marry relatively young, and most of the big benefits occur after one of you is dead (a social security benefit, the right to pass your estate untaxed). Ok., there is health insurance for some people (although others upon marriage lose access to government health insurance. This latter loss may be particularly significant to young pregnant women, possibly people with HIV, too.).

So I believe, as someone whose thought pretty hard about law, public policy and marriage, that the most important remaining way the legal institution of marriage supports the social institution of marriage is in fact definitional.

Marriage’s unique status at law helps draw clear public boundaries that distinguish between those who are married and who is not, allowing the more important actors who support the social institution to do their work.

Redrawing the definitional boundaries of marriage, is thus fiddling with the law’s core remaining support for marriage (and we’ve withdrawn quite a few legal supports in recent years).

Isn’t that what the radicals who advocate SSM want to achieve–definitional chaos? By severing marriage’s definition from the exclusivity of the male/female coupling, marriage loses its ties with procreativity. Moreover, same-sex couples would not be entitled to any government-derived benefits of marriage because the intended cohort of the benefit (a heterosexual union) has been expanded beyond the type of “marriage” those laws were tailored to help.

Second bite (addressing the argument that infertility of heterosexual couplings weakens the procreative argument supporting traditional marriage):

A subtler argument sometimes made is this: well, we have some nonprocreating couples in the mix. Why would adding SS couples change anything? Two points: SS couples are being added to the mix precisely in order to assure that society views them as “no different” than other couples. This intrinsically means (if the effort is successful) downgrading if not eliminating the social significance of generativity (procreation and family structure). The second truth is that both older couples and childless couples are part of the natural life-cycle of marriage. Their presence in the mix doesn’t signal anything in particular at all.

Isn’t societal assurance just want the homosexuals want? They want society to acquiesce to their chosen gay or lesbian lifestyle. That is really what the same-sex marriage movement is about. It’s not about strengthening marriage or society. It is about legimatizing through the law a lifestyle practiced by a scant minority of Americans yet disapproved of by a super-majority. Moreover, Gallagher’s point decleats SSM advocates’ argument that an absence of fertility proves that marriage is not tied to procreation and illustrates the substantial concern a definition change would bring–elimination of link between society and marriage.

SSM advocates aren’t interested in longevity (i.e., the impact of SSM on society 50 years down the road) and their push to change marriage’s definition proves it.

In today’s OpinonJournal.com, Robert Bork has a must-read, cogent, and devastating piece on the Miers nomination. Read it . . . and then read it again. Here’s my favorite part:

Some moderate (i.e., lukewarm) conservatives admonish the rest of us to hold our fire until Ms. Miers’s performance at her hearing tells us more about her outlook on law, but any significant revelations are highly unlikely. She cannot be expected to endorse originalism; that would alienate the bloc of senators who think constitutional philosophy is about arriving at pleasing political results. What, then, can she say? Probably that she cannot discuss any issue likely to come before the court. Given the adventurousness of this court, that’s just about every issue imaginable. What we can expect in all probability is platitudes about not “legislating from the bench.” The Senate is asked, then, to confirm a nominee with no visible judicial philosophy who lacks the basic skills of persuasive argument and clear writing.

I agree that the nomination hearings will yield next to nothing on Miers judicial philosophy and will leave Republicans and Democrats equally confused. Bork implies that true conservatives are not supporting the nomination. How true are you?