Month Archives: October 2014

Analyzing Tony Kennedy: My only Power Lunch

by Robert Morrison

October 8, 2014

Tony Kennedy had just been confirmed to a life appointment on the U.S. Supreme Court in late 1987 when I got an invitation to lunch from a lawyer in a well-respected Washington firm. John Connolly was a man I had never met. Mr. Connolly, I was informed, was Pat Buchanan’s brother-in-law. The message my assistant gave me was that this estimable gentleman just wanted to thank me for my efforts on behalf of Judge Robert Bork.

Earlier that year, we had been through a brutal confirmation battle. The good and decent Bob Bork, an eminent constitutional scholar, had been savagely attacked in the mass media.

Liberal activists had left no stone unturned or uncast in their hunt for anything to stop Judge Bork from being confirmed as President Reagan’s third Supreme Court nominee. They had failed to derail Chief Justice Rehnquist, though they slimed him. They never laid a glove on the beloved Justice Antonin Scalia. Everyone loves “Nino,” it seems.

But they were primed for Bob Bork. No sooner had President Reagan announced his choice on July 1, 1987 then Ted Kennedy burst onto the Senate floor with a scurrilous and scandalous attack. Thus was born “Borking.”His video rental records were ransacked by liberal activists — those famous advocates of privacy rights. Civil liberties proponents looked the other way as a Democratic senator demanded Judge Bork describe his religious beliefs while he was under oath.

I had prayed for Judge Bork. He was one of America’s most distinguished (Yale) professors of law and a most highly regarded judge on the U.S. Circuit Court of Appeals for the D.C. Circuit. Because he had criticized the Supreme Court’s ruling in the infamous Roe v. Wade case of 1973, Kennedy charged the judge with being anti-woman.

This was the first appearance of the “war on women” theme that liberals have been pushing. Ted Kennedy was a famous respecter of women, as all those whom he had pawed and preyed upon surely knew. In those years when he was posing as a champion of women, Kennedy and one of his Senate boys had even pursued women under the tables at one of Washington’s more fashionable eateries. I think it was a place called Mon Oncle, or some such.

Judge Bork had had to endure Ted Kennedy’s calculated rudeness as the Massachusetts lawmaker refused to call him anything but “Mr. Bork.” Bullying and berating, Ted grilled the judge about his ruling in an interstate trucking case.

I was in the Senate hearing room as Ted Kennedy, of all people in America, bored in on the fine points of interstate highway driving. Jimmy Carter’s campaigners had made sure in 1980 that all Americans knew that it was Kennedy who had abandoned a young woman to die of asphyxiation after he drove his car off a bridge at Chappaquiddick back in 1969.

I had hoped the Judge would stand up at the witness table and ask his Grand Inquisitor if it could be true: “Are you really questioning my judgment in a traffic safety case, Mr. Kennedy?” But the Judge was ever the gentleman and, like Aslan the Lion, he let himself be led to slaughter by these scampering tormentors.

The reward for my work was to be this “Power Lunch” with an honest Washington lawyer. I seem to recall it was the Occidental, at the Willard Hotel. I do not remember what I ordered for what was to be my only Power Lunch in thirty years, but I remember what Mr. Connolly taught me then.

Since deceased, this practiced Washington power attorney expanded on the choice of Supreme Court justices and what we as pro-life conservatives should seek in a nominee.

He had the highest praise for the recently-cast down Judge Bork. But he had this warning:

Bob Bork is so intelligent and so honest that he might have found a better constitutional basis for abortion. Remember, he told the Senate Judiciary Committee — under oath — that he had no opinion on abortion as such, he had merely done what many liberal constitutional scholars had done: He critiqued the Supreme Court’s reasoning in this case.

I knew John Connolly was right about those liberals who had criticized the opinion that Harry Blackmun had managed to cobble together with smelly gluepot and used string, rather like Mr. Dick’s Kite in Dickens’ David Copperfield.

Blackmun’s opinion was dismissed by a number of serious students of the Constitution, starting with Yale Law School’s John Hart Ely.

Ely was a famous constitutional law professor (and personally pro-abortion). Ely had said [Roe is] “bad constitutional law, or rather … it is not constitutional law and gives almost no sense of an obligation to try to be.”

Then, there was this liberal’s analysis of Blackmun’s opinion in Roe that showed why even the liberal clerks at the Supreme Court were calling the ruling “Harry’s abortion.”

Archibald Cox’s liberal credentials could hardly have been better. He was virtually a legal advisor to the Kennedys. He had earned martyrdom among liberals when, as Independent Prosecutor in the Watergate Affair, he had been fired by then-Solicitor General Robert H. Bork. But even this distinguished Harvard Law professor dismantled Blackmun’s shoddy legal reasoning and even worse history:

Blackmun’s opinion, Cox wrote;

“fails even to consider what I would suppose to be the most important compelling interest of the State in prohibiting abortion: the interest in maintaining that respect for the paramount sanctity of human life which has always been at the center of Western civilization, not merely by guarding life itself, however defined, but by safeguarding the penumbra, whether at the beginning, through some overwhelming disability of mind or body, or at death.”

Cox further argued, as National Review publisher Jack Fowler tells us: “The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations, whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child-birth and abortion or new advances in providing for the separate existence of a fetus… . Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution.”

All of this was part of my post-confirmation luncheon and tutorial with John Connolly.

But then he went on to reassure me that it might all be for the best. “Bob Bork is a racehorse. We don’t need a justice on the Supreme Court who is a thoroughbred. We need a mule. We need someone like Tony Kennedy who will patiently pace along for twenty, thirty years. Just a mule who will pull the barge along the canal day in and day out. The U.S. Supreme Court is a dangerous place for someone like Bob Bork who views it as ‘an intellectual feast.’  Better an unimaginative plodder like Tony Kennedy. Better a mule than a racehorse.”

I learned a great deal in my Power Lunch with that good man, John Connolly. I wish he were still here. I would have pointed out to him the record of nearly thirty years of our “mule” on the Supreme Court.

The problem is this: When the mules get to the U.S. Supreme Court, they start thinking they are all racehorses. 

In the name of religious rights for prisoners

by Travis Weber

October 7, 2014

Today oral argument will be heard by the Supreme Court in Holt v. Hobbs, a case in which a Muslim prisoner is seeking to grow a ½ inch beard in compliance with his religious faith. The prison policy at issue actually permits ½ inch beards, but only for medical reasons. For this marginalization of his religion, Mr. Holt has sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA), and is asking the Court to apply strict scrutiny (the same high standard of protection for religious rights required by RFRA and affirmed by the Supreme Court in Hobby Lobby) and protect his religious rights in the face of a discriminatory prison policy.

Many see the importance of protecting religious rights for prisoners, including those who have personally benefitted and come to faith through access to religious programs in prison. My law school colleague Jesse Wiese, now advocating for prisoners at the Justice Fellowship, is one of these; he has written about his experiences in support of Mr. Holt’s religious claim in this case. A win for Mr. Holt under RLUIPA in this case will protect all prisoners, regardless of faith. Along with protecting a Muslim prisoner who wants to grow a beard to a reasonable length (in keeping with the prison’s need to maintain order and discipline), the application of strict scrutiny here will strengthen the law’s protections for Jewish prisoners seeking dress or grooming accommodations, or those seeking access to Bible studies in prison. As it is said, a win for religious freedom for one is a win for religious freedom for all.

Moreover, a win for Mr. Holt here will strengthen protections for religious exercise in public spaces in the United States, something that groups like the Freedom From Religion Foundation just can’t stand. Religion always has occupied a unique role in the public life of our country. We can expect the Supreme Court to again affirm that principle with a ruling for Mr. Holt in this case.

An Inescapable and Irrepressible Conflict

by Rob Schwarzwalder

October 6, 2014

The Supreme Court today has “turned away appeals from five states looking to prohibit gay marriage, effectively legalizing same-sex marriage in those states and likely others — but also leaving the issue unresolved nationally.” So now same-sex “marriage” is legal in 30 states plus D.C.

My boss Tony Perkins issued a thoughtful statement about the ruling earlier today. In part, he said, “As more states are forced to redefine marriage, contrary to nature and directly in conflict with the will of millions, more Americans will see and experience attacks on their religious freedom.” Sadly, he’s dead right.

There are a number of dimensions to this issue, one of which was articulated by Dr. Al Mohler of Southern Baptist Seminary in an article on September 24: Homosexuality is “now inescapable for every congregation, every denomination, every seminary, and every Christian organization. The question will be asked and some answer will be given. When the question is asked, any answer that is not completely consistent with the church’s historical understanding of sexual morality and the full affirmation of biblical authority will mean a full embrace of same-sex behaviors and same-sex relationships. There is no third way, and there never was.”

Two observations: First, Dr. Mohler is right with respect to the inevitability of division within the believing church over this issue. Christians will choose to be faithful to Scriptural teaching or they won’t. There is not, as he notes, nor will there ever be, any middle ground between obedience and submission to the revealed will of God and rebellion against it.

Second, I’m haunted by the memory of William Seward’s comment, immediately before the Civil War, that strife between North and South over slavery constituted “an irrepressible conflict.”

Millions of Americans simmer with resentment at the coerced redefinition of marriage the courts are imposing on them, despite referenda in dozens of states where they have affirmed the traditional definition of marriage quite explicitly. The Dred Scott decision did not decide the issue of human bondage. The Roe v. Wade decision has not decided the issue of abortion on demand. And the continued federal court confusion over same-sex unions only postpones a day of legal reckoning that could create a measure of civic sundering unwitnessed in our nation for decades.

Even if the Supreme Court has valid reasons for postponing their decision on this issue, postponement is not resolution. I fear that whatever decision the Supremes finally reach will not resolve it, either.

Supremes Dodge Most Important Issue Before Them — Marriage

by Peter Sprigg

October 6, 2014

The Supreme Court has declined to take up any of the pending same-sex “marriage” cases before them.

There is bad news and good news in this decision. The bad news is that these states have been denied the opportunity to defend their legitimate power to define marriage before the Supreme Court. The good news is that the Supreme Court does not seem to be as eager as many people assumed to issue a “Roe v. Wade“-type decision redefining marriage.

This decision reflects cowardice on the part of the Supreme Court. People on both sides of the marriage debate agree that the constitutional issues that have been raised should be addressed by the highest court in the land. The Court is right to fear a backlash if they impose a redefinition of marriage on all fifty states; but they are wrong to just let the lower courts do their dirty work for them.

The decision is baffling on several levels. It is hard to understand why the Court heard the case (Hollingsworth v. Perry) challenging California’s Proposition 8 in 2013 (then declined to rule on the merits because of standing issues), but is refusing much clearer cases now. Some say they are waiting for “circuit split” on the issue, but one already exists — the Eighth Circuit upheld Nebraska’s marriage amendment in 2006 (Citizens for Equal Protection v. Bruning). Furthermore, the Supreme Court’s own “dismissal for want of a substantial federal question” of a same-sex “marriage” case out of Minnesota in 1972 (Baker v. Nelson) remains binding precedent until the Supreme Court itself explicitly overrules it.

Everyone needs to be reminded that the question of whether redefining marriage is good public policy is separate from the question of whether the Constitution of the United States mandates such a redefinition. Even those who favor redefining marriage should understand that such a radical social change is more likely to be accepted if it is adopted through the democratic process, rather than imposed from on high by a court.

One thing is clear — anyone who claims to know what the Supreme Court is thinking is wrong.

Robert Gates’ Boy Scouts

by Rob Schwarzwalder

October 1, 2014

In scouting, there’s a secular emphasis on values and virtue that is not found anyplace else. We don’t teach civic values in schools anymore, so where else are kids going to learn it?”

So said former Defense Secretary Robert Gates, now head of the Boy Scouts of America, in an interview last month. Gates, who spearheaded the military’s renunciation of its historic policy banning homosexuality, said earlier this year that he “would have supported having gay Scoutmasters, but at the same time, I fully accept the decision that was democratically arrived at by 1,500 volunteers from across the entire country.”

I’ve written extensively on the Scouts’ decision to allow what the BSA itself has called “open and avowed” homosexuals into the ranks of Scouting (for example, my op-ed in U.S. News and World Report), and will not revisit the many issues involving this issue. Instead, I’m intrigued by Mr. Gates’ comment wedding secularism and “values and virtue.”

According to the Cambridge University Press Dictionary, secularism is “the belief that religion should not be involved with the ordinary social and political activities of a country.” Fair enough. But how does this square with the mission of Scouting?

Here is an excerpt from Scouting’s membership resolution, passed last year at the BSA’s annual convention in Dallas, Texas:

The Scout Oath begins with duty to God and the Scout Law ends with a Scout’s obligation to be reverent, and that will always remain a core value of the Boy Scouts of America, and the values set forth in the Scout Oath and Law are fundamental to the BSA and central to teaching young people to make better choices over their lifetimes …

Let’s see, Mr. Gates: An organization that promotes secular (i.e., non-theistic) values speaks of “duty to God” as “fundamental” and a “core value.” These are contradictory assertions, and cannot be integrated with any intellectual honesty.

Here is a brief summary of the world of Scouting, according to Robert Gates:

  • A Scout is to be “reverent,” but reverence for God is a secular value. I think …
  • Virtues and values are not grounded in revealed truth or natural law but in preferences and social adaptations.
  • We need an organization like Scouts to teach values and virtues, but we can’t talk about where these values and virtues come from, since to do so would mean taking a position on final and unchanging truth, which would be decidedly un-secular.
  • Kids aren’t taught values in their families, but we can’t define family since to do so would require a position on same-sex unions, which Scouting cannot take since to do so would be divisive and upsetting and, hey, what’s a Scout if not “cheerful,” right?
  • Boy’s Life magazine will continue to have Bible stories in every issue, even though the Bible teaches non-secular values like truth and honor and sexual abstinence outside of traditional, one man-one woman, monogamous marriage, which is something Scouting neither condemns nor condones.

Robert Gates is a patriot who’s done a lot of good for our country. He is also caught between the internal knowledge of what’s right (“the works of the Law written on his heart,” Romans 2:15) and acquiescence to post-modern thinking and secularism’s arrogant condescension toward religion.

Sad way to end your career, Mr. Secretary. Sad.

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