I was in Los Cabos, Mexico last week and experienced first-hand the hysteria that is Swine Flu. First, an observation. There was nobody in Los Cabos. The place was empty when we got there. As we left, the planes arriving from cities in Mexico, were packed. People were streaming out of the big cities.
Second, an editorial about the "pandemic" . . . A grand total (as of this morning's NYT) of 19 confirmed deaths - worldwide - from this flu so far. To put that figure into perspective, about 100 people die every day in the U.S. from various strains of flu - 36,000 Americans each and every year. The President wisely told us to . . . wash our hands, and cough into a hankie. The Vice President counseled us not to use the subway or fly commerically during this "pandemic" (?!?!?). Media outlets have been breathlessly reporting from Mexico City, masks over their faces.
Has the world gone mad, or is it just me? I am sure that Pelosi and Waxman will agree that this is all the fault of the pharmaceutical companies, and other "big business".
NEXT: SUPREME COURT NOMINATIONS
President Obama has been given the constitutional opportunity to nominate a Supreme Court Justice. On its face, this is a good thing (about time), and the people that are being talked about (including a couple of U of C Law profs I took classes from) are all highly qualified jurists who would do a great job. BUT FOR THE FACT that Obama is talking about the need for a Supreme Court nominee who "understands" the needs of working families and can "empathize" with the average working man, I would feel great about this impending nomination.
I just do not understand what this has to do with being a jurist. As a jurist, you are not a legislator. You are not tasked with empathizing with one side or another. Your task is to determine what is the correct outcome UNDER THE RULE OF LAW, not under the rule of some social litmust test that our President would like to push.
Is this any better than what Bush did?
As a lawyer, and a concerned citizen, I object to the idea that people nominated to be Supreme Court justices need to adhere to a particular social agenda. They have the critical function of providing balance to the other two branches of our Government, not singing in the chorus for them.
The more I see, the more I don't like - and I know I am not alone. I am firmly in the center of the political spectrum and there are a lot of indpendents like me who are feeling increasingly uncomfortable. Wonder what the next 100 days is going to look like.
Woldy
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The "pandemic" media craze is to be expected (especially given what will hopefully be the ultimate outcome as the flu runs its course). That said, several friends of mine, who are infectious disease Docs, believe there could be cause for concern given the manner it which the cases popped up in wildly different regions of the world. It should be watched and analyzed closely.
ReplyDeleteOn the S.Ct. selection, the NY Times had an interesting piece about the President's pragmatic view of the court which should give all but strict constructionists comfort. My Con Law profession claimed that the Chief Justice Marshall, the first to hold that position, overreached in Marbury v. Madison; claiming that under the strict intentions of the Constitution, the court's only power was to determine whether a law was constitutional by adjudicating whether the law was passed according to the Constitution's directive for how bills became laws. Not an uncommon thought at the time. We take it for granted today that the court has the power to determine whether a law's effect is in accordance with the Constitution. Given that, it's rather unrealistic to believe that the court needs to determine outcomes "under the rule of law" or adhere strictly to the black and white words of the law since that is so rarely possible; there is always ambiguity and room for interpretation. The preamble states the global purpose of the Constitution, and it can't be ignored, promoting the general welfare and establishing justice. This somehow is to get done by three branches of government interacting through imperfect humans.
We should want our justice to have empathy, we should want them to think and feel justice, we should want them to care about the impact of their decisions. To want otherwise is to believe in an objective interpretation that was likely never intended by our founding fathers who were forward-thinking, enlightened, pragmatic (imperfect) men. Scalia, Thomas and Alito are just as much judicial activist with a social agenda as Brennan, Marshall or Warren; they merely frame their argument differently.
The question I would ask anyone before they conclude whether a selection for the court is appropriate, is was Brown rightly decided? If you say yes, then by definition you cannot hide behind any notion of strict construction, founder's intent, or anti-judicial activism. If you say no, then, respectfully I am happy you are not in the Oval Office or in the Senate. It's often more art than science and there is a time for the court to lead (rarely but it exists). This self-governing experiment is not a game or theory, it's about people's lives. On balance and restricted by the ugliness of our politics and imperfections, pragmatism should be the governing (dare I say) ideology. So be comfortable, we have a most pragmatic president leading us today with an uncommon wisdom and abiding belief in his Constitutional obligations.
You make a strong case, and you frame the issues appropriately. I am in no position to debate founder's intent and actually I do agree with the underlying thought in your argument that there is far too much time spent debating what a group of white men were thinking 200 years ago. Too much water has flowed under the bridge of time. That must be taken into consideration. Many things that we take for granted today were obviously not contemplated by the founders. This is a long and complicated discussion, again, that I do not feel qualified to seriously undertake.
ReplyDeleteHowever, my concerns about the President's comments this week really were centered on the issue of politicization of the bench. President Bush used his judicial appointments as a tactic to advance a certain social agenda. I did not like his approach then because it is my firm belief that the best possible jurists should be chosen for the Supremes, be they white, black, women, men, left, right or libertarian. Unfortunately, the process we have does not work this way.
But, President Obama promised things would be different and that he would break from the political rancor of the past . . . and it was my assumption that this break included the area of judicial appointments. Expecially given his professional background as a law professor at U of C, not exactly a bastion of liberal legal thought.
His comments this week indicate otherwise and they leave me nervously awaiting this appointment.
By the way, I do agree that President Obama seems to have good instincts. But I see him increasingly falling victim to the Washington culture and to certain parts of the Democratic Party. It would be a shame if he lost his way and his just became another Democratic presidency.
Woldy
OK -- Sunday night seems as good a time as any to dive into this one. A couple of comments...
ReplyDelete1) The Flu pandemic seems to me to have been a product of a slow news cycle, not math or medicine. A few people got a flu that was different -- which happens from time to time -- and the media cycle jumped on it. Personally, I would have suggested the opposit eof what happened...putting masks on the sick people makes a lot more sense than putting them on the healthy.
As far as the Supremes, I agree with James. A little compassion to mix with the intrepretation of the law ends up with Justice. Absolute intrepretations (and zero tolerance) rarely result in Justice. I am not a lawyer, and do not want to see legislation from the bench, but I would like to see compassion.
Personally, I suspect that Woldy's claim of being a centrist is over stated, and his comparison of the President's comments about an appointee are similarly over stated. (Thankfully) Ex President Bush like applying a litmus test of political (and religious) orientation. Our current President seems to prefer intelligence and compassion. I choose the later as well.