Steven Douglas Maloney

Archive for the ‘Campaigns and Elections’ Category

Another reason to oppose electing judges… over half of my paper ballot was circling votes for incumbent judges who ran unopposed.

Professor Brian Kalt is dissapointed with Senator Biden’s legal views:

First, when asked why he supported the decision in Roe, Biden said “Because it’s as close to a consensus that can exist in a society as heterogeneous as ours.” That’s a preposterous answer, for three reasons. First, anyone who can put the words “Roe” and “consensus” in the same sentence without a “no” in the middle has not been paying attention to the last thirty-five years of American history. If Roe represented a consensus, it would not have been such a landmark case, and it would not have caused one of the biggest rifts in American politics in the intervening years.

 Professor Kalt insists that the best consensus strategy is:

if tracking consensus is the standard for a good judicial opinion, then Palin’s answer was much better. There is no national consensus on abortion. There is a diversity in the U.S., and in individual states. Tracking consensus is a lot easier if states can each go their own way—think of lighting a house, and having either one switch for the whole house, or individual switches for each room—and easier still if it is done through the legislative process rather than the less flexible judicial process.

By that logic, why stop at states?  Why not say that it is the right for each citizen to choose since there is no consensus on the policy? If we accept that there is no deliberative outcome on abortion that generates consensus, why opt for consensus in smaller groups rather than individual preference aggregation?  Second, by ruling that Roe is an extension of Griswold, the court reached for the consensus on the grounds of the basic structure of society rather than for consensus on the particulars of the issue.  The court appealed to our shared consensus of the right to privacy and our morally autonomy on considering questions of the good rather than “solve abortion from the bench.”    

That relative inflexibility is the third point: the job of judges in constitutional cases (in my opinion, but apparently not Biden’s) is to apply the law as it is, not as it should be. Legislators are supposed to remake the law line with the election returns; judges are supposed to hold the constitutional line and they are given lifetime appointments to insulate them from political considerations.

And what if Biden’s position more resembles John Rawls’:

The positions of judges, umpires, and referees are designed to include conditions that encourage the exercise of judicial virtues, among them impartiality and judiciousness, so that their verdicts can be seen as approximating considered judgments, so far as the case allows.

Of course once we allow this to be the guiding principle of legal judgments, judges will have to give publicly justifiable decisions about fairness to justify decisions rather than being reduced to majoritarian toolboxes asked to endorse the majority’s pathetically suboptimal use of public reason. 

Finally, Professor Kalt indicate we should be worried about Biden’s judgment that he disagrees with the Supreme Court for striking down a bill that Biden authored.  How does Professor Kalt expect Senator Biden to react to that?  

The pattern Professor Kalt warns us about is that Biden is a man with deranged legal views who wants to mess with the basic structure of society.

Here’s another pattern, both examples mentioned in his piece are examples where Biden has raised concern about our basic structure of society’s ability to treat women as free and equal persons.  He has supported, and even undertaken measures to alter the basic structure of society to move it more in line with its aspirations.  In this version, he doesn’t sound so monstrous to me.  

 

You can’t have three candidates, the voting system we have and rational outcomes.   You either have to have a preferential  ballot, multi-round elections, a round-robin system, with multiple candidates, or the system we have now where you pick who you like best and TWO AND ONLY TWO CHOICES.  So, Mayor Bloomberg or any other third party candidate out there, I’m sure you mean well, but please, please, DO NOT RANDOMIZE WHO MY PRESIDENT IS ANYMORE THAN IT ALREADY IS.

The famous phrase from Monty Python, “I’m not dead yet!” is one that is itself alive and well in the Edwards campaign, as he currently leads in the polls in Iowa. If Edwards wins in Iowa and finishes respectable in New Hampshire, do his national poll numbers matter? If this holds up, it would be interesting to see how much of a winner’s boost he would receive.

An interesting story from The Washington Post today:

White House officials conducted 20 private briefings on Republican electoral prospects in the last midterm election for senior officials in at least 15 government agencies covered by federal restrictions on partisan political activity, a White House spokesman and other administration officials said yesterday.

The White House claims that these briefings were informational.  At first, this sort of made sense to me, I’ve seen informational briefings on the electoral landscapes for coming elections before, and they tend to be aimed at communicating objective information.  What could be so bad about that?  Because, while not strictly saying “vote Republican,” if someone comes into your office and projects that Republicans will lose at current pace,or might lose, and then they project that this might effect how much money the White House gives your agency, they have essentially told you to vote Republican.

In short, the problem is not even a problem of objectivity, although maintaining the integrity of such briefings would likely be challenging, the problem is that the White House is giving out taxpayer funded infomercials to its own employees with regards to major political races.  No matter how verifiable the presentation is, there’s something that still seems fundamentally unfair and inappropriate about doing so.

Hillary, I’m in too.  Here’s what I’m in for.  I’m in for some serious "I told you so’s."  It’s been since the California/Anaheim/Los Angeles of Anaheim Angels won the World Series that I’ve called something right.  So let me say it now: You’re going to win.  All the people who say that you can’t win it all, they’re wrong.  They’re very wrong.  Now its possible that you won’t win, but you are very, very capable of winning.   The naysayers think that it’s all about how you’re perceived now, but you know that this is not so.  Running for President requires many different talents that need to be judiciously used for a long, long period of time – and you possess these necessary skills and determination in abundance. 

I’m not excited about your candidacy.  I’m not eager to vote for you, and there’s a very good chance that I will not.  But now that you are in, ideal candidate or not, I do know this:  I expect to be living in DC January of 2009, and I uspect I’ll be trying to navigate my way around your inauguration parade.