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Posted at 11:45 AM ET, 12/14/2010

A failure of liberal jurisprudence

By Jennifer Rubin

The shock and rationalization (It won't stand! Oh, this can't be the law!) with which legal scholars and law professors (believe me, the two aren't synonymous) greeted the district court ruling striking down the individual health insurance mandate should come as no surprise. This is par for the course -- similar to reactions to Second Amendment jurisprudence or cases such as the 8-0 Supreme Court decision upholding the Solomon Amendment (which conditioned federal aid to colleges and universities on their affording access to military recruiters).

With regard to the Second Amendment, liberals for decades considered it daft to argue that gun ownership was intended as a personal right. (Laurence Tribe was a lonely exception.) When the D.C. Circuit in the Heller case held that the Constitution did afford a personal right to bear arms, the law faculties at elite law schools scoffed. Oh, but then the Supreme Court upheld the position of conservatives, and recently extended that ruling to the states.

In the Solomon Amendment case, dozens of law professors and deans (now-Justice Elena Kagan included) assured us, and the Supreme Court, that the law was a First Amendment violation. Not a single justice agreed.

No legal scholar or activist gets it right all the time, but the batting average of liberals, especially those at the top law schools, is exceeding low these days. And to boot, their arrogant dismissal of their opponents' arguments seems inversely related to their predictive powers.

So when a liberal law professor such as Tim Jost tells us that the Virginia district court got it "wrong," liberal activists may take comfort. But what liberal professors think is utterly meaningless for the simple reason that their view of the law and Constitution ceased being in sync with Supreme Court jurisprudence some time ago.

Liberals might argue that the Supreme Court is "wrong" and the professors are "right." Yes, but the Court's decisions count and the professors' don't. It is not only misleading for these "experts" to parade about as gurus on the law, but it is an indication that something is quite amiss at supposedly elite law schools. To be blunt, what they are teaching their students is wrong.

The libertarian legal scholar Randy Barnett, who championed the challenges to ObamaCare, had the right to crow yesterday:

The days of calling the constitutional challenges to the Affordable Care Act "frivolous" and "political" are now officially over. Judge Hudson's ruling that the individual insurance mandate is unconstitutional is a milestone in the legal process of deciding whether Congress has the power to command every person in the United States to enter into an economic relationship with a private company. . .

True, today's decision is just a single ruling by one judge. But had it gone the other way, cries that such challenges were frivolous and political would again have been heard from pundits, professors, and politicians. So today's ruling is big, both legally and atmospherically.

Perhaps when law professors opine on the latest ruling, they should disclose their batting average. Then we can assess who is a credible "expert" and who is not.

By Jennifer Rubin  | December 14, 2010; 11:45 AM ET
Categories:  law  
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That would make the conservatives' batting average .333 at the circuit level.


Posted by: FairlingtonBlade | December 14, 2010 12:29 PM | Report abuse

Apparently the ruling only cost Cuccinelli $9,000 to buy the judge. That's pretty cheap these days.

A federal judge who ruled Monday that a key provision of the nation's sweeping health-care overhaul is unconstitutional said recently that he had no plans to divest from a Republican campaign consulting firm. In a recent interview, U.S. District Court Judge Henry E. Hudson said that he invested in the company before joining the bench in 2002 and that he has no day-to-day involvement with the company.

Liberal groups have for months called attention to Hudson's interest in the firm, which has done work for the Republican National Committee and other conservative groups. Some have called for him to recuse himself from the case over it. Virginia Attorney General Ken Cuccinelli II (R), who brought the case on behalf of the commonwealth, also paid the firm $9,000 for work this year and last. That criticism has been renewed since his opinion was released Monday.

Posted by: 54465446 | December 14, 2010 3:18 PM | Report abuse

The last two paragraphs should be in quotation marks. From today's Post.

Posted by: 54465446 | December 14, 2010 3:20 PM | Report abuse

What liberals must prove is that the financial relationship somehow colored the judge's judgement.

Instead we see the typical trick: raise an "allegation", repeat it frequently, destroy a reputation and claim the moral high ground because the ends somehow justify the means.

Here we have the numbers guy repeating something he read. Nothing offered by numbers guy PROVES that the relationship he mentions has anything to do with the judge's decision. NOTHING. The numbers guy just repeats it because that's how the big lie process works.

How sad for the American left that it has lost its moral compass.

What does it profit them to gain the world and lose their souls? Perhaps that explains the incidence of atheism on the left.

Posted by: skipsailing28 | December 14, 2010 4:07 PM | Report abuse


Actually as Jennifer who is an attorney can tell you it's usually the APPEARANCE of influence that will cause a judge to recuse themselves. Your simply not familiar with this area. Otherwise, no judge in the world is going to publicly say "yes, it influences my decision".

It's completely improper for a judge to draw a direct financial benefit from the petitioner, in this case Cuccinelli. Though you won't admit it, you can only imagine the screams if Holder had a financial relationship with a judge deciding an abortion case.

Posted by: 54465446 | December 14, 2010 4:56 PM | Report abuse

Can we all agree that Elena Kagan should recuse herself from this case when it reaches the Supreme Court? Any bets on whether she will or not? If she follows her ideological bent I suspect she will rationalize hearing this case. For Utopians, the end justifies the means. And what recourse do we have if she does?

Posted by: DocC1 | December 14, 2010 5:18 PM | Report abuse

Oh, I see. All that matters for you to repeat an "allegation" is an "appearance".

That's a nice low threshold for evidence.

so what we have hear is an allegation of impropriety, made by the same publication that used "macaca" to destroy a senate career.

you repeat this allegation because in your world it appears to be improper. Thus contributing, you hope, to the destruction of another public service career.

And the common thread: having the nerve to do or say anything in opposition to the advancement of the liberal agenda.

And I'll thank you to stop putting words in my mouth. In case you haven't noticed I'm rarely at a loss for them. I don't need yours, I have plenty of my own.

So what have we here? A low threshold of "evidence" that you rely on to propagate an unfounded allegation sourced in a publication famous for its yellow color, coupled with an insult founded solely on baseless speculation.

Wow, that's what I call productivity. In just a few words you did amazing damage to the tatters that is your reputation for fairness.

good going.

Posted by: skipsailing28 | December 14, 2010 5:46 PM | Report abuse


What is an allegation? He is part owner of the company. Cuccinelli paid the company to do work for his campaign. They're not allegations, but facts.

Now if this were a publicly traded company and he was just a run of the mill shareholder, that would be a different story. This is a much closer relationship.

Again judges should never wait for actual impropriety, because then it's a crime. In this case the appearance is obvious.

However because of your position in this case, I'm sure you would NOT agree with poster DocC1 that Kagan should recuse hereelf when this gets to the Supreme.

Thanks for the reply.

Posted by: 54465446 | December 14, 2010 6:02 PM | Report abuse

It matters not what I think Ms Kagan will do. She will do whatever in her judgement best advances the liberal agenda. That's what liberals are. That's what they do.

You are alleging, baselessly I might add, the money which changed hands influenced the decision that the judge made. That is an allegation. Get it? Hate to be so simplistic, but hey I've seen lots of liberals fake themselves out on these here message boards by gum.

I still don't see proof. You just repeated the facts you have and thereby, I assume, expect everyone to believe the allegation you raise.

As I recall there is an impeachment process for judges. A clinton appointee was just subject to it. Maybe that judge will get lucky and move on to a career in politics ala Alcee Hastings.

Perhaps you should insist on that process being brought to bear on the Judge Hudson instead of playing your role in the WaPo big lie process.

Posted by: skipsailing28 | December 14, 2010 6:18 PM | Report abuse

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