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The Morning Plum

* As we head into a second noisy day of fighting over the Elena Kagan nomination, what you need to know is that nobody thinks she isn't going to get confirmed with relative ease.

* Indeed, Orrin Hatch is already leaning towards yes: "My initial reaction is she probably can make a good justice."

* Dumb and dumber? An ally of the RNC tries yet again to push back on the Kagan-Thurgood Marshall flap by arguing that the GOP was responsible for abolishing slavery and helping pass the Civil Rights Act.

Okay, so it follows that Republicans should know better than anyone else that the original Constitution was defective, right?

* Here's an opponent the White House welcomes: The head of Citizens United, the group behind the notorious SCOTUS decision overturning a ban on corporate money in politics, has now condemned the Kagan nomination.

* David Axelrod previews the pushback against GOP criticism of Elena Kagan's banning of military recruiters from campus over DADT:

"The irony of this discussion is her objection to the Don't Ask, Don't Tell law was she wanted everyone who wanted to serve their country -- every young person who wants to serve the country to have that opportunity."

* Good read: Spencer Ackerman adds to the liberal case against Kagan, noting that she's unlikely to stand in the way of Obama's "expansive national security agenda."

* The counterargument: Does a consensus builder have a better shot at moving the court leftward than a progressive warrior would?

* Panic button? With Joe Sestak edging ahead in some polls, Arlen Specter is set to roll out the biggest gun of all. What a story it would be if even a last-minute presidential intervention failed to save Specter.

* Colbert King suggests that maybe it's time for Michael Steele to take up membership with the Ku Klux Klan.

* Mark Murray skewers the Kagan-Harriet Miers comparisons.

* Sleeper issue of the day: Kagan's recommendation that President Clinton sign a compromise ban on late-term abortions could further inflame the left.

* Jed Lewison rightly urges Dems to move forward on energy reform -- and, crucially, to make it an issue in the midterms.

* Are we witnessing the twilight of Congress's old-school liberals?

* And here's the random fun fact of the day: Twenty-eight percent of Republicans say the Gulf spill makes them more likely to support off-shore drilling.

What else is happening?

By Greg Sargent  |  May 11, 2010; 8:25 AM ET
Categories:  2010 elections , Climate change , Foreign policy and national security , Morning Plum , Senate Republicans , Supreme Court  
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Next: Obama's next bailout: Arlen Specter?

Comments

"Dumb and dumber? An ally of the RNC tries yet again to push back on the Kagan-Thurgood Marshall flap by arguing that the GOP was responsible for abolishing slavery and helping pass the Civil Rights Act."

That was before the Democrats and Republicans traded parties. The present-day Democrats are the Civil War Era Republicans. The present GOP is comprised of Jacksonian Democrats being manipulated to serve as slaves for Big Money .

Posted by: wbgonne | May 11, 2010 8:34 AM | Report abuse

What else?

I posted this link yesterday on the Gulf Oil spill thread but I'll re-post here because it is the best -- and most alarming -- account of what New Orleans and the Gulf Coast, especially Louisiana, are about to confront. It is truly frightening to those of us who love New Orleans:

http://www.google.com/hostednews/ap/article/ALeqM5isZlg_4theIpPI69R4U7bcQ1JgZwD9FJR7OO0

Posted by: wbgonne | May 11, 2010 8:36 AM | Report abuse

" Arlen Specter is set to roll out the biggest gun of all. What a story it would be if even a last-minute Presidential intervention failed to save Specter."

If Obama really wanted to help Specter he wouldn't have nominated Kagan yesterday. forcing Specter to do backflips are remind Democrats that he is really a Republican. Obama could easily have waited until after the PA vote. I think this White House support-all-Dem-incumbents policy is honored more in name than deed.

Posted by: wbgonne | May 11, 2010 8:41 AM | Report abuse

" Arlen Specter is set to roll out the biggest gun of all. What a story it would be if even a last-minute Presidential intervention failed to save Specter."

If Obama really wanted to help Specter he wouldn't have nominated Kagan yesterday, forcing Specter to do backflips and remind all Democrats that he is really a Republican. Obama could easily have waited until after the PA vote. I think this White House support-all-Dem-incumbents policy is honored more in name than deed. Obama should stay out of PA.

Posted by: wbgonne | May 11, 2010 8:42 AM | Report abuse

A couple things.

First the Democrats should get off their lazy arses and make this RNC push against Thurgood Marshall a big deal. There are soooo many ways to get at it that I can't even come up with which one is the best. But it helps that Marshall has been a prominent historical figure admired by people on both sides for the most part over the course of history. It should be the kind of attack Republicans would launch if anybody ever attacked Saint Ronny

As for Elena Kagan the one thing about the criticism of her that is driving me crazy is that at this point it seems to be some legions on the left that are doing the most to distort her record. Take for instance the late term abortion ban. The context of course is the she along with others in Clinton's cabinet recommended the ban WITH an exception for the mother's health at a time when Republicans were pushing for much stricter restrictions and were close to getting them by a veto proof majority. It was an effort at compromise so as to not get the worst of two outcomes. But you would think the way its being framed that she was on some kind of crusade against late term abortions. I would note that for back then during the Clinton years providing an exception for the mother's health was probably a pretty liberal position AND its the same exception that President Obama has historically supported prior to his Presidential campaign.

And just about all of the "liberal" in this case far left criticisms of her seem to follow the same tract. People are basing what she might do as a Supreme Court justice based on what she has done when she was working for a President. That is maybe the dumbest analysis or willfully misleading analysis ever. Of course she has argued the government's side when she worked for the government. What else was she supposed to do?

Rachel Maddow was most dissappointing last night launching what could only be described as a transparent hit job on her and at this point it only made me MORE likely to support her nomination. Its one thing to want someone else. Its totally another to try to trash the person who does get nominated because you didn't get your way.

Also you might want to link this MediaMatters piece about Curt Levy with information from TPM about why no media outlets should be quoting him on Kagan.

http://tinyurl.com/2vpccbj

The jist? He admitted he would lie about any Obama nomination last year on a conference call before he nominated Justice Sotomayor

Posted by: sgwhiteinfla | May 11, 2010 8:47 AM | Report abuse

"Spencer Ackerman adds to the liberal case against Kagan, noting that she's unlikely to stand in the way of Obama's "expansive national security agenda.""

Here's something to remember. We ARE under attack and the threat of attack from Islamic terrorists. In such circumstances, a strong National Executive is essential. Bush gave Executive Power a bad name but that was because: 1) Congress -- including the Democrats -- rolled over; 2) Bush acted without regard to legal processes and in avoidance of judicial review. From what I've seen, the Obama White House intends to act with Congress and submit to the Court's statement of what is legal. That seems fine to me. It allows the pertinent questions to be addressed in the manner designated by the Constitution. If Congress thinks the President is going too far, it should object. If Congress AND the President together go too far, SCOTUS can rein them in.

Posted by: wbgonne | May 11, 2010 8:49 AM | Report abuse

"Jed Lewison rightly urges Dems to move forward on energy reform -- and, crucially, to make it an issue in the midterms."

The Democrats should remember Tammany Hall's George Plunkitt: I seen my opportunities and I took em. (Unfortunately, Plunkitt was referring mainly to graft but it's still an apt phrase.) The country -- minus the Whack Job 28% -- is ready to move forward on a number of fronts, including energy/climate change; the Dems should at least follow even if they don't intend to lead.

Posted by: wbgonne | May 11, 2010 8:54 AM | Report abuse

Twenty-eight percent of Republicans say the Gulf spill makes them more likely to support off-shore drilling.

More republican anti-science anti-fact reasoning. The off shore drilling issue is getting to be like creationism vs evolution. republicans are willing to not see what is right in front of them.

Posted by: srw3 | May 11, 2010 9:24 AM | Report abuse

I really enjoyed the Colbert King piece and the quote from Thurgood Marshall.

Marshall eloquently put into words what I believe about our Constitution and our Founding Fathers.

I think it demeans our Founding Fathers or anybody else for that matter to treat them or their achievements as perfect and infallible. The Founding Fathers did not come down from the Mount and hand us tablets of stone with a Constitution carefully carved into that stone. One of their real acts of genius was the recognition, especially by Jefferson, that the Constitution needed to be a LIVING document and that indeed they were pretty certain they had screwed some things up and also could not account for the law of unintended consequences.

I find it infuriating when intellectual pygmies like Sarah Palin start spouting about the Constitution as if they were scholars or had the slightest ability for critical thinking. And Palin's latest gem on Bill O'Reilly over the National Prayer Day allowing as how we are a CHRISTIAN NATION and the laws should be governed by the bible and the ten commandments. Can you say American Taliban?

There is soooo much evidence that the founding fathers DID NOT intend for us to be a Christian Nation...including John Adams explicit statement of that fact in the Treaty of Tripoli in 1797...

"Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion,"

What part of this does Sister Sarah and Mike Huckabee not get...do they suppose they know more about our founding than John Adams...or in Sister Sarah's case is she just too freaking stupid to understand the phrase...IN ANY SENSE!!!!

http://en.wikipedia.org/wiki/Treaty_of_Tripoli

Posted by: rukidding7 | May 11, 2010 9:25 AM | Report abuse

What else:

Yet another fine AP piece, this time about how the Obama Administration intends to address the Bush GOP corruption in the Minerals Management Service:

http://www.google.com/hostednews/ap/article/ALeqM5jYP7GoO9ldJALdGGRcHuadmF3y1gD9FKIM1O0

It really is incredible what a plate of sh*t Bush left for Obama to clean up.

P.S., The AP seems to have its mojo back.

Posted by: wbgonne | May 11, 2010 9:40 AM | Report abuse

Okay, what I'm about to say here isn't going to make me very popular around here, but I think I have generally enough Progressive cred around these parts to survive the reaction it will trigger.

I support increased offshore drilling.


Yes, I said it. And before tearing me apart, hear me out. Yes, I'm a geologist, so I *arguably* have personal interest in this, or I would if I wanted to ever work in petroleum exploration- which I don't, as I've seen it destroy some of the brightest, most enthusiastic geologists of my generation and drive them out of the profession. So, I have none.

That said, we unfortunately cannot bring about a major paradigm shift in our energy sources without it. Yes, the best (and by all means, profoundly necessary) solutions are in wind and solar, along with improved efficiencies in hydro and nuclear. These are needed to reduce our use of coal, which the Massey disaster demonstrates is dangerous in a multitude of ways. However, these approaches serve primarily to change how we make electricity, and do fairly little for transportation. Until we can improve our plug-in hybrids and electric cars to the point where they go much greater distances on a single charge, and importantly, can charge quickly, we will still burn gasoline. As long as we are still burning oil and its byproducts, I have long felt that we need to find a way to reduce how beholden we are to those who hate us- the Saudis, Iraqis, and Venezuelas of the world. Yes, we can import from allies like Canada, Brazil, and Norway- and from non-hostile, but generally undesirable sources like Nigeria. But do we really want to need to? I don't think so. Domestic production is needed to fill the gap until we can truly move beyond petroleum (see what i did there?).

That said, by no means do I support unlimited, unregulated drilling as the Republicans do. We need to use this disaster to introduce new, strict regulation of the industry- make the off-shore blowout prevention regulations of Norway and Brazil seem antiquated and insufficient if possible. To firmly establish areas that will never be permitted for drilling- areas of greatest environmental risk, or where a spill will have the most devastating effect on other industries, like fishing and tourism (thus areas like Bristol Bay and off of the most important tourism beaches would be permanently off limits).

There, I said it. Tear me apart if you like. I feel I can trust most of you to keep from calling me an apostate though.

Posted by: holyhandgrenaid | May 11, 2010 9:50 AM | Report abuse

holyhandgrenaid:

I acknowledge your points but think you have reached the wrong conclusions. To me, the more we focus on off-shore drilling for oil the less we focus on the real solution, which is to move away from fossil fuels. Plus with the world market commoditizing oil, whether the oil originates in the Gulf of Mexico or the Gulf of Qatar is largely irrelevant. Most of all, I think it premature at best to urge additional drilling before we see what damage the Gulf Coast suffers and EXACTLY what went wrong. That will take time. Meanwhile, we should forge full-speed ahead with alternative energy sources and conservation, which are the real solutions.

Posted by: wbgonne | May 11, 2010 10:03 AM | Report abuse

By and large I agree with you wbgonne, but I still see domestic oil as a necessary evil, if only as a stop-gap measure, ideally with stipulations that a certain percentage of the revenue from it being devoted towards funding alternative energy- both expansion of existing technology and in research to make alternative energy sources truly practical in the transportation industries.


Maybe I lack the creativity to see an alternative (I like to think I don't), but I'm not sure I see another way.

Posted by: holyhandgrenaid | May 11, 2010 10:09 AM | Report abuse

ru - that is a great quote from Marshall. Thanks kindly. There seems to be a propensity from a certain personality type to scamper away from ambiguity and complexity and to wall it off with something really solid - a slogan, an axiom, an authority, a fixed idea, a "law and order" rigidity, etc. They aren't my favorite sort of people.

As regards the Kagan/Miers comparisons coming from the right...that's just baffling in it's disingenuousness. As noted, their qualifications are vastly different and more to the point, it was the right itself which took her down. And not the Christian right (who wanted her) but the NRO/Federalist Society crowd who claimed she was didn't have the intellectual oomph to be a dependable and effective force for rightward movement in the court. Bork was against her. Bay Buchanan (who just dissed Kagan as "dumb" was against her.

Again, there's no attempt to be honest here at all. It's merely do whatever looks necessary to damage the President and in this case that is through a suggestion that it was actually Dems who were mean to a prior female nominee.

These really are disgusting people.

Posted by: bernielatham | May 11, 2010 10:09 AM | Report abuse

"An ally of the RNC tries yet again to push back on the Kagan-Thurgood Marshall flap by arguing that the GOP was responsible for abolishing slavery and helping pass the Civil Rights Act."

Ah, yes. The Republican Party's commitment to Civil Rights and equality for all Americans explains why in the 50's and 60's committed segregationists like Strom Thurmond and Jesse Helms switched from the Democratic to Republican parties.

And, uh, absent four decades of Republican coddling of racists, it's impossible to explain why Republican Senate Majority leader Trent Lott said in 2002 (!!!) that we should have elected Strom Thurmond president in 1948.

It really speaks to how monstrous the Republican party has become that they are pretending to be the righteous successors to the liberals they've spent 40 years drumming out of the party.

You can oppose liberalism all you want. But I'm sorry, you can't be the party opposed to liberalism and take credit for Civil Rights, Medicare, Medicaid, any of that stuff. Because, you know, conservatives oppose that!

Posted by: theorajones1 | May 11, 2010 10:11 AM | Report abuse

holy, appreciate the points and the impetus behind them (pragmatism). We can disagree about this issue, but it's not going to be easy to find a solution and steer this very large country in that direction in anything like a hurry. That's why, no matter what we do, we're going to have to be SMART about it. We CAN'T just do it without regard to consequences and so with a serious, strong regulatory regimen we could make it work. Until the government gets multinationals to align profits with something like the greater good, we are just going to keep making the same mistakes.

Posted by: BGinCHI | May 11, 2010 10:18 AM | Report abuse

Re Kagan/Miers...I think perhaps some of the women here might get a sense that the attacks coming from the right which attempt to link these two nominees together have a deeply sexist undercurrent... if it is a woman, then vitality of intellect and character are immediately suspect.

(unless it is Sarah Palin who has oodles of both, of course)

Posted by: bernielatham | May 11, 2010 10:18 AM | Report abuse

"We need ... firmly establish areas that will never be permitted for drilling- areas of greatest environmental risk, or where a spill will have the most devastating effect on other industries, like fishing and tourism (thus areas like Bristol Bay and off of the most important tourism beaches would be permanently off limits)."

Wouldn't this disqualify the entire Gulf of Mexico?

Posted by: wbgonne | May 11, 2010 10:19 AM | Report abuse

Harriet Meiers was the Bush nominee: stupid and unqualified. That said, frankly, I wish she had been seated over Alito who is a partisan ideologue and will, I predict, emerge as the worst Justice on the Court.

Posted by: wbgonne | May 11, 2010 10:22 AM | Report abuse

" Arlen Specter is set to roll out the biggest gun of all. What a story it would be if even a last-minute Presidential intervention failed to save Specter."

@Greg:

We'll have to wait for the ad, but after following the link you provided, it sounds more like an ad that's simply going to include footage of the President from last Sept., and not some new injection into the race. Unless it's NEW footage or Pres. Obama campaigning for Specter, this reeks of desperation from the Specter camp.

Also, it should be noted that there was discussion of Pres. Obama going to PA this coming weekend (last weekend before the election) to campaign for Specter. However, that appears to have not worked out...

Sestak should be bombarding the airwaves with 3 things: Specter's cynical party switch, Specter's previous vote on Kagan, and Specter's attempted GOP swiftboat of Sestak's military service.

And his GOTV efforts will have to be spectacular, since the Dem machine is working for Specter, and PA is a machine state.

Posted by: TheBBQChickenMadness | May 11, 2010 10:23 AM | Report abuse

Good day, All. O&O.

Posted by: wbgonne | May 11, 2010 10:24 AM | Report abuse

I'm going to have to side with holy on this one, although wbgonne has many good points. I will also say, and this is probably going to raise some eyebrows, I think we need to take a long, serious look at using nuclear power, also. I'm a scientist--although NOT an engineer by any means--and nuclear power has huge potentials that we as a nation have been reticent to follow thorugh on. I think it has less to do with Three Mile Island than it does with Hiroshima/Nagasaki, but we need to get over our emotional responses to what can go wrong and figure out how to make the possibilities of things going wrong with nuclear (and off-shore drilling) as close to vanishingly small as possible. Wind/solar/geothermal/other renewables are going to be the long, long-term answers, but we need to have a bridge to get there.

Posted by: Michigoose | May 11, 2010 10:25 AM | Report abuse

Someone (Greg?) needs to call out this new, consistently stupid and transparent GOP meme which I'll call "Is X Obama's Y?" (where Y equals a Bush failure).

Let's deconstruct. The first thing to note is that in all examples (Katrina, Harriet Miers), massive Bush failures are admitted to. But then by the twisted logic here, a comparison is made that offers no grounds for comparison. It's simple guilt by association. And it ties Obama's name directly to a failure: "Obama's Katrina," "Obama's Harriet Miers."

I'm surprised that during the election the GOP didn't look at Obama's Harvard Law transcript and say "Is an A in Con Law Obama's C at Yale?"

Posted by: BGinCHI | May 11, 2010 10:25 AM | Report abuse

One more post on Kagan...

My guess is that the right will again follow the pattern we are seeing:
1) initial statements suggesting thoughtfulness and moderation and willingness to listen
2) growing doubts about the what, on closer study, they have discovered in the bill/person
3) solid phalanx of loud opposition forms up because, being principled, no other option remains open given that Obama and the Dems have gone so far left and won't listen or compromise
4) bill/nomination passes
5) negative talking points continue though fall behind the new thing that will get treatment 1) through 5)

Posted by: bernielatham | May 11, 2010 10:28 AM | Report abuse

Perhaps, wbgonne, perhaps. Again, I'm just calling it as I see it. And believe me, as BG clearly caught from my first post, I don't necessarily want expanded offshore drilling, I've simply accepted it as an inevitability for the reasons I've outlined above, and thus hope we can get as much from our agenda out of any compromise as possible, while at the same time ensuring the environmental and economic safety of or coastal waterways.

Posted by: holyhandgrenaid | May 11, 2010 10:28 AM | Report abuse

Watching the RNC get tangled up in their boggled talking point flood of the networks is pretty funny. Instead of them driving the narrative by using talking points that may shed a negative light on Kagan, people are discussing just how dumb the RNC is.

I think the Democratic party is out of the gate ahead on this one and should let up one bit.

On a side note, Greg should take Dana Milbanks place on PostPolitics.com.

I honestly don't know how that guy managed to get an opinion page on the inside page of WaPo print tbh. Snark is amusing but I don't find his snark funny or entertaining at all. It's overboard.

Who knows, maybe its just me.

Posted by: mikefromArlington | May 11, 2010 10:43 AM | Report abuse

should=shouldn't

Posted by: mikefromArlington | May 11, 2010 10:47 AM | Report abuse

All, here's video of Specter's new ad starring Obama:

http://voices.washingtonpost.com/plum-line/2010/05/obamas_next_bailout_arlen_spec.html

Posted by: Greg Sargent | May 11, 2010 10:48 AM | Report abuse

This is NOT good for Kendrick Meek:

http://www.balloon-juice.com/2010/05/11/crist-resurrected-from-the-dead/

Posted by: BGinCHI | May 11, 2010 10:50 AM | Report abuse

BG You are correct in your assumption that balloon juice poll and graph is bad news for Kendrick Meek. As much as I like and respect Ethan I've already warned him that we here in Florida..even the progressives who support Meek...have an overriding "anybody but Marco" position. Marco is a horrible thief who used his position as Florida Speaker of the House to enrich himself and his special interest cronies.

If that poll was November 1st...you'd see an even greater surge for Crist, because if Kendrick truly does not have a REALLY GOOD shot at winning..folks like me and my wife will vote for Crist. Imagine our state full of bumper stickers..
"Anybody but Marco"

Posted by: rukidding7 | May 11, 2010 11:03 AM | Report abuse

ruk, that seems to be the prevailing sentiment, and I can hardly blame you folks. Still, a lot of campaigning to go.

Governor's race is getting interesting down there too.

Posted by: BGinCHI | May 11, 2010 11:06 AM | Report abuse

"I think it demeans our Founding Fathers or anybody else for that matter to treat them or their achievements as perfect and infallible. The Founding Fathers did not come down from the Mount and hand us tablets of stone with a Constitution carefully carved into that stone. One of their real acts of genius was the recognition, especially by Jefferson, that the Constitution needed to be a LIVING document and that indeed they were pretty certain they had screwed some things up and also could not account for the law of unintended consequences."

You desperately need to learn to argue other than based on straw men, and without ridiculous hyperbole.

The Constitution has an amendment process, and it creates a system under which the various branches have some flexibility within defined boundaries.

From this it does not follow that the SC has authority to exceed its boundaries, depart from the written charter we have, or invent new rights of which no one previously had heard let alone found in the document.

Carefully read the Federalist sometime and see what it says about the SC. Then come back with your next rant about intellectual pygmies who lack your constitutional learning.

Posted by: quarterback1 | May 11, 2010 12:05 PM | Report abuse

"Carefully read the Federalist sometime and see what it says about the SC. Then come back with your next rant about intellectual pygmies who lack your constitutional learning."

Why? Does James Madison's opinion matter more than Thomas Jefferson or George Washington? What about the fact that Madison CHANGED HIS OPINION on critical constitutional questions? Does Madison matter more than Alexander Hamilton or John Jay, who always wrote under the name Publius in federalist papers? And why do the Federalist papers -- a series of quasi-anonymous newspaper op-eds during the New York ratifying convention -- tell us how to interpret and apply the Constitution 250 years later? Makes no sense. Each generation must interpret and apply the Constitution as best it can. That is the burden of living in a Const democracy. Sorry but we can't simply defer to our divine masters, whoever who think they may be.

Posted by: wbgonne | May 11, 2010 12:20 PM | Report abuse

wb,

You are descending into self parody. Reallly.

Let's address a couple of your questions.

Does Madison's opinion matter more than Jefferson's? Probably, if you want to know what the drafters of the Constitution thought it meant. I'm sure someone of your vast learning knows why. But if you don't care what any of them thought, then it doesn't matter, does it?

So, who cares what Madison, Jay, and Hamilton thought? Oh, you're right, let's just blot out everything before today and wing it. We can just make up new meanings for bills of attainder and ex post facto laws. Our judges can decide that capital punisment is unconstitutional even though it is expressly provided for in the Constitution. We can have courts that order taxes to be raised and children to be bussed, because our more enlightened judges know how to rule us now. To hell with the past.

You'll have to tell ruk, though, that no one cares what the Treaty of Tripoli says or what John Adams thought, either.

Posted by: quarterback1 | May 11, 2010 12:37 PM | Report abuse

Q.B. WTF are you talking about. I never concluded..." From this it does not follow that the SC has authority to exceed its boundaries, depart from the written charter we have, or invent new rights of which no one previously had heard let alone found in the document."

My point is that morons like you and Palin who treat the Constitution as some "holy" document do not realize the many imperfections contained in the original document.

My reference to Palin as an intellectual pygmy was in reference to her the U.S. is a Christian nation and should have laws that come from the bible and the ten commandments. This is empirically and historically FALSE as I pointed out with a linked document.

Posted by: rukidding7 | May 11, 2010 12:43 PM | Report abuse

"Does Madison's opinion matter more than Jefferson's? Probably, if you want to know what the drafters of the Constitution thought it meant. I'm sure someone of your vast learning knows why. But if you don't care what any of them thought, then it doesn't matter, does it?"

Why do the drafters matter more than the ratifiers? The Const was just a piece of paper until it was enacted in the state ratifying conventions.

"So, who cares what Madison, Jay, and Hamilton thought?"

It matters what they thought but even to the extent that is knowable it isn't dispositive. We are still left to apply the Const to our own times.

"Oh, you're right, let's just blot out everything before today and wing it. We can just make up new meanings for bills of attainder and ex post facto laws."

No. We should certainly consider what the Drafters wrote and why; we should consider what the Ratifying conventions believed. Then we should put that all together with our common sense and SENSE OF EMPATHY as those concepts have evolved in modern times.

"judges can decide that capital punisment is unconstitutional even though it is expressly provided for in the Constitution."

Where does the Const authorize capital punishment?

More to the point: Our conception of what constitutes cruel and unusual punishment has changed significantly since the 1700s. We don't use stocks or tar and feather anymore either.

"We can have courts that order taxes to be raised and children to be bussed, because our more enlightened judges know how to rule us now. To hell with the past."

Now you're just whining.

Posted by: wbgonne | May 11, 2010 12:50 PM | Report abuse

Nobody who has actually read any history would make the moronic assertion that today’s GOP can take credit for abolishing slavery. In terms of their alignment along the conservative/liberal continuum, today’s parties are essentially the inverse of what they were in the mid 19th Century. The charge of “abolitionist” was THE harshest epithet that conservatives hurled at liberals. Lincoln was regularly accused of being an abolitionist. The conservative position was PRO SLAVERY. The Republican Party of 1860 was a bleeding heart liberal party, not conservative, and not even middle of the road. Anybody with even a passing knowledge of history realizes that the alignment of the two major parties has not been not been static.

The GOP has consciously courted the racist vote for more than 40 years. Going back at least 60 years to McCarthy, the GOP has been actively purging itself of moderate and reasonable voices. Today’s GOP is the byproduct of that decades long march to the right. It has been distilled to remove all vestiges of reason and moderation. We are left with a thick syrupy goo of racists, xenophobes, and simpletons and the dishonest politicians of the GOP that seek to keep their idiot base in a perpetual state of panic.

Marshall could have been speaking of today’s GOP when he said:
“Certain people have a way of saying things that shake us at the core. Even when the words do not seem harsh or offensive, the impact is shattering. What we could be experiencing is the intent behind the words. When we intend to do good, we do. When we intend to do harm, it happens. What each of us must come to realize is that our intent always comes through. We cannot sugarcoat the feelings in our heart of hearts. The emotion is the energy that motivates. We cannot ignore what we really want to create. We should be honest and do it the way we feel it. What we owe to ourselves and everyone around is to examine the reasons of our true intent.”


The true intent of today’s GOP is clear. It is to lie, incite fear, and to divide our nation. They often no constructive ideas, only the shrill bleated idiocy designed to inflame the right wing mob.

Posted by: Gasman1 | May 11, 2010 1:15 PM | Report abuse

often = offer

Posted by: Gasman1 | May 11, 2010 1:20 PM | Report abuse

"WTF are you talking about. I never concluded . . .."


I know, you argue only in terms of straw men and hyperble. Nonetheless, the position your are advocating is the standard liberal one that liberal Justices should reach the results they want and bend the text accordingly. That's what you mean when you attack the Constitution as "holy writ" and such nonsense.

"This is empirically and historically FALSE as I pointed out with a linked document."

Fascinating how you quote a clause of a very old treaty as supposed empirical and historical proof, whatever that is supposed to mean, of astract proposition that this is "not a Christian nation," at the same time you decry the view that the Constitution itself is any sort of "holy writ."

I'll just let your own internal contradictions stand against each other.

As for the "Christian nation" question itself, you are hopelessly simplistic. Check out the Northwest Ordinance sometime, for example, "moron."

Posted by: quarterback1 | May 11, 2010 2:38 PM | Report abuse

"Now you're just whining."

No, liberal federal judges actually have done those lawless things under your "living constitution" theory.

As for capital punishment in the Constitution, see the 5th and `4th Amendments.

I don't find the rest of your post worth response. You seem to just adopt vague rhetoric to avoid hard questions.

Posted by: quarterback1 | May 11, 2010 2:44 PM | Report abuse

That should have said 14th.

Posted by: quarterback1 | May 11, 2010 2:45 PM | Report abuse

5th;

"No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

14th:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I see. So your argument is that since the 5th and 14th Amendments acknowledge the existence of capital punishment at the time they were enacted, that means the 8th Amendment cannot forbid capital punishment 225 years later. Cute, but the logic escapes me. To begin, the Fourteenth Amendment came 100 years after the Const and the Bill of Rights were enacted so that says nothing about the what the Const intended regarding capital punishment. Further, only a modern Right Winger could take the 14 Am's guarantees of due process and equal protection and make them an argument in favor of capital punishment. And why does the fact that the 5th Am references capital punishment mean that the 8th Am can't prohibit it later in time? Ultimately, when you think about it, this is precisely why the Const MUST be interpreted with reference to the current times.

Posted by: wbgonne | May 11, 2010 3:08 PM | Report abuse

No, my argument is that, given that the 5th and 14th Amendments set conditions on the imposition of capital punishment, they plainly presuppose that it is not cruel and unusual punishment barred by the 8th.

Which is undeniable. But you apparently believe that judges can just rewrite those three amendments to say capital punishment is not allowed. Because they think it shouldn't be, or society thinks (they assert) it shouldn't be.

Posted by: quarterback1 | May 11, 2010 3:20 PM | Report abuse

"given that the 5th and 14th Amendments set conditions on the imposition of capital punishment, they plainly presuppose that it is not cruel and unusual punishment barred by the 8th"

Wrong. The 5th and 14th Amendments grant rights and civil liberties to Americans, rights against the Government. The amendments prescribe the conditions under which government can deprive people of their rights. They do not authorize or validate capital punishment. The fact that they reference it is merely an acknowledgment that capital punishment existed. It is GOP bizarro world to argue that the Due Process Clauses make capital punishment a Const requirement or that they "presuppose that it is not cruel and unusual punishment." I have never heard such a ridiculous argument presented in any court. Sheesh. Where is the support for your radical interpretation, other than in your fevered imagination?

Posted by: wbgonne | May 11, 2010 3:33 PM | Report abuse

"The amendments prescribe the conditions under which government can deprive people of their rights."

Which is exactly what I said, except that they don't actually refer to "rights." They do refer to "life, liberty, or property."

"They do not authorize or validate capital punishment."

Which isn't what I argued, although in general terms, they clearly do, at a constitutional level.

"The fact that they reference it is merely an acknowledgment that capital punishment existed."

And may constitutionally be imposed under the conditions provided.

"It is GOP bizarro world to argue that the Due Process Clauses make capital punishment a Const requirement"

Not even a coherent thought, let alone anything I suggested.

So, let's put together your incoherent thoughts: You are suggesting that the 5th and 14th Amendments contain three separate references to the conditions under which a cruel and unusual punishment banned by the 8th may be imposed.

You live in a bizarro world glass house.

Posted by: quarterback1 | May 11, 2010 4:06 PM | Report abuse

wb,

Finally, take a look at the dissenting opinions in Furman v. Georgia.

If I live in bizzaro world, so did Burger, Blackmun, Powell, and Rhenquist.

Posted by: quarterback1 | May 11, 2010 5:20 PM | Report abuse

This is what the Furman dissent says about the fact that the Due Process Clauses mention capital punishment: "it hardly needs more to establish that the death penalty was not "cruel" in the constitutional sense at that time." I agree with that statement. However, from there you leap to the conclusion that, therefore, capital punishment cannot be cruel or unusual NOW. You are simply assuming that because capital punishment wasn't cruel or unusual THEN it can't possibly be so today. In that, you are simply declaring your opinion correct.

Further, in this particular case your presumption is plainly incorrect. Whether you approve or not, capital punishment is becoming more rare every year in the U.S. By definition, at some point capital punishment will become "unusual." But it wasn't at the time of the Const. If capital punishment can become "unusual" under the 8th Am why can't it become "cruel"?

Enjoyed the chat. Have a nice night.

Posted by: wbgonne | May 11, 2010 5:59 PM | Report abuse

There are four dissents, all mutually joined. They say more than that about the impact of the 5th and 14th. Blackmun's footnotes are also interesting. He took an absolutist/originalist point of view: What was clearly not viewed by the founders as cruel and unusual could not be so found 200 years later by judges.

Enjoyed it too. Next time.

Posted by: quarterback1 | May 11, 2010 6:18 PM | Report abuse

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