So When Did You Stop Beating Your Spouse, Judge Obama -- I Mean Sotomayor?

Steve Sailer wants the GOP to go after Judge Sonia Sotomayor by hammering her on her decision denying promotion to the white firefighter plaintiffs in Ricci and her longtime aggressive support for racial preferences for Hispanics and affirmative action generally.

Sotomayor can extricate herself on Ricci quite easily by stating that she was simply applying the precedents in force at the time as she was required to do, that the majority decision in the Supreme Court chose to alter legal doctrine as they alone have the right to do, and that she herself as a 2nd circuit judge would not have had the power to alter legal doctrine that way even if she wanted to. (GOP Senators and witnesses may say otherwise but the interchanges will degenerate into an inconclusive and dull debate on the state of existing precedent before Ricci). When asked if she agrees with the majority decision in Ricci she need only repeat the formula: she cannot prejudge questions that may come for her if she is so blessed by God as to be confirmed to the position of justice of the United States Supreme Court.

She'll need to talk her way out of the (repeated) wise Latina statements. She may take the line of least resistance which is to say that she believes that a bench that is more representative of the diversity of the population will provide better justice to everyone than a bench that is not. This is not of course what she said in the Wise Latina statements but may be her first option for defusing the situation. If pressed she may retreat to the position that she was referring to discrimination cases where it may be useful to have judges who have experienced discrimination or at least seen it up close and first hand. The GOP will have to keep after her and point out that most of the times she made the comment there was no connecrion at all with discrimination cases. I suspect that Sotomayor will be able to play rope-a-dope on this one for as long as she needs to.

But Sotomayor is going to be confirmed and it doesn't particularly matter that the GOP can turn the public against her position on affirmative action. She's never going to have to run for re-confirmation. And besides, even if she could be defeated and filibustered it's not in the Republican interest to do so. Her replacement nominee would likely be a more effective advocate for liberalism and thus more dangerous. For the GOP there is a more important purpose to the hearings:

Will they forego their best opportunity to point out that Obama not the post-racial uniter of David Axelrod’s imagination, but is merely Sotomayor with a more oleaginous prose style ?

The objectionable effects of Sotomayor's legal philosophy need to be pinned where they belong: right on the collar of Barack Obama. Don't ask her what she thinks of racial preferences. Ask her what she thinks of the Obama Administration's mandated racial preferences. Don't ask her whether she agrees with the reverse discrimination imposed by "disparate effect" doctrine; ask her whether she agrees with the reverse discrimination imposed by the Obama-administration-supported disparate effect doctrine. When discussing the Wise Latina comment, pause to generously acknowledge that the statement is a fair reflection of the Obama Administration's judicial philosophy.

I expect not so much a grilling next week as a light toasting.

Tim Hudak, the OHRC, and the Virtue of Courage

So the Ontario Human Rights Commission is tormenting the Ontario Progressive Conservative Party again. It was over 25 years ago that internal party dissatisfaction with the OHRC first bubbled to a boil. I was at the OPCCA Annual Meeting in my capacity as Past President, soon to be Past Past President, innocently minding my own business listening to a typical policy session. Suddenly democracy broke out, and there was a motion on the floor deploring the latest power grab of the Human Rights Establishment as manifested in a package of amendments being put forth by the Bill Davis government. The motion called for the abolition of the OHRC and it looked like it was going to pass. Tom Long, incoming president, grabbed me and asked me to get up and ask that the motion be withdrawn and that a committee be appointed to investigate the amendments and the Code and come forth with recommendations to be made to the government. It was a honour back then, to be someone who was able to stand off and get the hard men to back off a bit when the leadership wanted it done but not to do it itself. In the great tradition of Past President as sometime doer of dirty work and hatchetman.

That committee turned out to be, aside from me, quite a collection of talent, kind of like when in baseball you have one of these minor league teams that turns out 25 years later to have a passel of Hall of Famers. Tom, Tony Clement, Alister Campbell and Lynn Golding for starters.

The discontent with the OHRC became quite substantial. Tony Clement later asked me to debate Tom on the question of whether the OHRC should be abolished entirely at the OPCYA Annual Meeting, with me taking the pro-retention side. I gave a very flat performance, partly because I wasn't sure I was debating on the right side.

It turned out that nothing could deter the government from its course. How the OHRC survived the Harris years unscathed I do not know, but that it did was a major mistake. The contents of the Common Sense Revolution were the entire store of the party's intellectual capital under Harris, and it spent its time in government depleting it.

The current debate over OHRC in the leadership contest, like previous ones, seems to pit the virtues of courage and prudence against each other. Like the National Post editorial board
when it first discussed the issue (it has since endorsed Tim Hudak), I am of two minds about this. Political parties need to be elected in order to implement their social visions, and they should think very hard before adopting policies that threaten to blast away their support. The London Free Press poll being disseminated by Christine Elliott is a very effective weapon. On the other hand if political parties have no social vision there is no point electing them. And make no mistake, anyone who approves of the current human rights regime is not a conservative and Ontario would be better off defeating a party led by such a person.

The crucial facts are these: Ontario's human rights regime is not a neutral and fair mechanism to promote am objective conception of human rights and fairly adjudicate claims that these rights have been violated. It is an entrenched and potent adjunct of left-wing political ideology, striving to pull the province's politics and discourse steadily to the left, changing its legal norms constantly without the inconvenient necessity of gathering the public support to change the law in the direction it wants by amendment.

Just look at the stated policy of the Liberals' supposed attempt to bring the OHRC in line, the new Ontario Human Rights Tribunal. Its mission
commits it to "strive [to] remain responsive to an evolving understanding of human rights and discrimination". That is an open commitment to a constantly changing law without parliamentary sanction. To a world where behaviour that is legal today gets you dragged into court tomorrow, because the law has "evolved" and you never got the memo. It makes the OHRT a continuing constitutional convention, populated overwhelmingly by delegates from the Left human rights establishment. The great majority of its members have resumes showing they have been saturated and steeped in Left human rights ideology.

On the other hand...although as a Fort Erie boy myself I have a home team attachment to Tim Hudak, there's no doubt his human rights policy is half-baked. In particular he's 180 degrees off with the suggestion of a specialized court of "specially trained" judges. Specially trained by whom, in what? Any training that is likely to take place in the foreseeable future would be conducted by the same human rights establishment that is the cause of our present problems. What we need is a specially untrained tribunal, so that human rights matters are heard by people with expertise in the law generally just as contract cases are heard by courts not specially trained in the law of contract, tort cases are heard by courts not specially trained in the law of tort, and constitutional cases are heard by judges not specially trained in the law of the constitution. We need for human rights decisions to be made by professional adjudicators, not professional ideologues. Eliminating the OHRT would also put a crimp in the lifestyle of the human rights establishment, which has long had the ability to sustain and compensate itself by getting its members appointed as human rights adjudicators. The OHRT at the moment is a kind of human rights establishment Senate. And its new members are appointed from among people nominated by -- themselves. What a wonderful way of perpetuating an ideology.

A half-baked policy doesn't need to be discarded; it just needs to be put back into the oven.

Conservatives are going to need to develop an uninstitutionalized human rights intelligentsia. This will require Tories to do something they are normally averse to do -- first immerse themselves in the current human rights culture, so as to better know one's enemy. Conservatives are used to have their experience with HRCs come through being hauled before them to be asked to grovel and apologize for saying that adherents of Islam are Muslims, or some similarly outrageous statement of hatred. But in the United States conservatives like Abigail Thernstrom and Peter Kirsanow, members of the U. S. commission on civil rights, have become credentialed human rights experts. It's a dirty job but someone has to do it.

I won't predetermine the conclusions of this hypothetical project of mine that is going to reenvision human rights policy for the twenty-first century. But I'll throw out a few ideas. The Code needs to be rewritten from top to bottom, with all its language carefully designed to rein in wandering tribunals, be they administrative or judicial. Right from the Preamble, where our human rights law needs to be decoupled from the U. N. Declaration of Human Rights and its other fatuities and reattached to our own Anglo-Canadian traditional understandings of rights. When we're in power, human rights reform can't be something we undertake once a generation or so. Conservative governments need to monitor human rights decisions constantly, moving immediately to amend legislation as soon as an outrageous decision occurs. Ideally the amending legislation should be ready to be introduced the day after the period for appeal of an outrageous decision is over.

And a way out of our dilemma might be the creation of a statutory tort of discrimination, something that was on its way to evolving at common law before the proliferation of HRCs choked off its growth. A tort of discrimination would fit into the judicial system like any other tort. It would treat breaches of civil rights like other breaches of rights, to be remedied through ordinary actions in tort or contract, rather than making rights breaches objects of continual human-rights-establishment fuelled waves of hysteria. It would place the issue of compensation for such things as mental distress within a pre-existing legal framework.

Back to courage versus prudence -- despite Christine Elliott's boughten poll, I believe that human rights reform can be part of a winning progressive conservative platform. It won't be a major part of it, but it needn't be the rotten plank through which our leader falls to a gruesome electoral death. The problem with Christine Elliott's winnability argument is that professional moderates such as herself who share the attitudes and beliefs of the liberal establishment, with an occasional zany idea like a flat tax thrown in to rope in gullible conservatives, tend not to win elections despite their oh-so-carefully-preserved moderation. Think Stanfield and Clark and Grossman and Tory. It feels terrible to sell your soul when picking a candidate and be rewarded with another four years in opposition.

Tim Hudak is the best choice for Ontario P.C. leader.

Dodging a Bullet

Conservatives are staking out positions in their latest internecine battle: how hard to go after SCOTUS nominee Judge Sonia Sotomayor.

My take: in this match we take a dive.

What the smart liberals wanted was to find a leftist Scalia, an intellectual heavyweight and lucid writer who could not just vote the right way, but set out principles of substance in a way that impresses and persuades the uncertain and undecided. A figure the liberals haven’t had for over 50 years, since Louis Brandeis left the court. And oh yes, and someone nice and collegial, who, unlike Justice Scalia, does not frequently alienate centrist judges by pointing out how dumb their opinions are.

Sonia Sotomayor is not such a person. 2 women who might have been the person liberals were looking for, Kathleen Sullivan and Pamela Karlan, didn’t make the final cut. Either of 2 of the final 4, Elena Kagan or Judge Diane Wood, might possibly have been that person. Although in the case of Wood I find it unlikely that someone who declares from the bench that because the Christian Law Society by excluding practicing homosexuals, its members do not regard them as full human beings is a very collegial person who is likely to win over centrists. Unless she also has superb acting skills.

Jeff Rosen, searching for that liberal Scalia, wrote an article that quickly became (in)famous detailing Sotomayor's inadequacy for the role of liberal saviour: Sotomayor, although an able lawyer,

was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?")....

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

It’s not that Sotomayor is dumb or unqualified. She’s obviously not. It’s that she’s not Brandeis or Warren. At best, she’s an Alito, not a Roberts. She’s no more liberal than Obama’s next nominee would be, if she were defeated. And is the fact that she’s the first Hispanic nominated to the court relevant? Sure. Why did the Democrats let Scalia sail through 96-0? Well, the fact that he was the first Italian-American ever appointed to the court didn’t hurt. The Democrats gave Clarence Thomas a good roughing up, but in the end let him through.

Mind you the GOP ought to pit up a bit of a fight for a few rounds. It’s fine to bring to the public attention her statement that a Latina woman is likely to make better decisions than a white male, and the couple other Kinsleyian gaffes that she has committed. But she’s smart enough to talk herself out of trouble for those statements at the hearings. Although she’s been the front runner for the next SCOTUS opening since Obama was elected, the GOP doesn’t seem to have much on her. There’s no point in the GOP copying the Kennedys and Leahys in hysterical and irrational opposition. It didn’t help their public image any.

So let’s spar for a few rounds and then throw in the towel. It coulda been a lot worse.

Really Big Shew

There's something of a consensus that all the leading candidates to replace Justice Souter on the United States Supreme Court are essentially interchangeable, and the appointment will exchange a liberal for a liberal and not make a difference. What the smart liberals want, however, is to find someone who could become a real intellectual leader for liberalism on the court. Someone who could make arguments for judicial liberalism that hang together, someone whose opinions could make law students say "that's what a judge should be". Through a combination of bad luck and missed opportunities, liberal jurisprudence hasn't had such a person since the early 50s with Brandeis and the younger Frankfurter.

I think the left may have their candidate in Professor Kathleen Sullivan of the Stanford Constitutional Law Centre, former dean of Stanford Law School. Laurence Tribe described her as the most brilliant student he ever had. Sullivan has an uncanny ability to write about law with analytical rigour but in a way that can be easily understood — she thinks like a lawyer but writes like a human being. In public appearances she is soft-spoken, genial — and cute, which never hurts. Republicans trying to beat her up in the hearings will look bad — which is reverse sexism but why not take advantage?

Sullivan is the Bizarro Scalia, different in gender, judicial philosophy, and temperament. While Scalia's belligerence often turned off so-called moderates like O'Connor and Kennedy, Sullivan's charm might help reel in the types who don't know what they really believe.

The kicker is that Kathleen Sullivan is a lesbian. Should that stop Obama? I would say no. That might work, when the political gains and losses are computed, to the benefit of the Democrats. Some conservatives are sure to say some intemperate and inappropriate things about her sexual orientation. That will only assist Democrats in their attempt to portray the GOP as nothing more than a collection of bigots.

I don't know if Obama is willing to throw the long bomb or not. My sense is that Sullivan's biggest obstacle will be Obama's preference to go with people he knows from Harvard or Chicago. Tribe-Sullivan-Obama may not be close enuf.

She has one embarrassing negative: she failed the California bar exam the first time she took it when she moved out there. I imagine this will provide some good clean fun for Republicans but don't see it as a dealbreaker.

Further reason for Sullivan: Jeff Rosen has a story up in The New Republic suggesting that the woman on the top of most lists, Judge Sonya Sotomayor, just isn't smart enough.

Canada's Not Returning the Favour

In view of transnationalist law professor Harold Koh’s controversial nomination to the position of State Department legal adviser, and Justice Ginsburg’s recent comment that the Supreme Court of Canada commands more respect in foreign courts than does the Supreme Court of the United States because the SCC listens more to other countries’ high courts’ jurisprudence than does SCOTUS, it seems appropriate to ask — does Canada return the favour? Koh believes SCOTUS should construe the U. S. constitution “in light of” foreign law when that foreign law contains roughly parallel provisions. So would Canada return the favour when its constitution contains provisions roughly comparable to those of other countries — like, say, the United States?

We found out the answer to that in one of the most important early cases interpreting Canada’s new-as-of-1982 Canadian Charter of Rights of Freedoms in a case that has to be in consideration for the title of worst reasoned Charter decision of all time. In Reference Re Motor Vehicle Act [1985] 2 S.C.R 486. the Court had its first opportunity to resolve the most crucial question about the interpretation of Section 7 of the Charter, which reads as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

If you're an American, does that look familiar? The Fifth Amendment provides that no person shall "be deprived of life, liberty, or property, without due process of law". Now there is a vast jurisprudence and scholarly literature concerning the appropriate scope of the Fifth and Fourteenth Amendments, with a particularly notable debate about the appropriateness of "substantive due process", a doctrine which has animated such notable American decisions as Lochner and Roe v. Wade.
Now the language in the two jurisdictions is not identical, but the similarities suggest that the SCC might at least have referred to the American experience to help it understand the immense implications of the choice of interpretation they were about to make.
The Court didn't see it that way. The majority opinion, written by Lamer J. entirely rejected the idea of consulting American law, rejecting

the characterization of the issue in a narrow and restrictive fashion, i.e., whether the term "principles of fundamental justice" has a substantive or merely procedural content. In my view, the characterization of the issue in such fashion preempts an open-minded approach to determining the meaning of "principles of fundamental justice".
18. The substantive/procedural dichotomy narrows the issue almost to an all or nothing proposition. Moreover, it is largely bound up in the American experience with substantive and procedural due process. It imports into the Canadian context American concepts, terminology and jurisprudence, all of which are inextricably linked to problems concerning the nature and legitimacy of adjudication under the U.S. Constitution.

Got that? Substantive Due Process and Procedural Due Process are (Gasp!) "American concepts". Not only don't we care how the Yanks reason about things, but we're not even going to let our reasoning be tainted by use of these foreign concepts.
Needless to say, after rejecting this distinction the Court went on to affirm full substantive due process, without using the barbarian words. Oh, and this was by the way the case which also at one stroke killed the doctrine of originalism in Charter jurisprudence. More is known about the original intent of Section 7 than about any other part of the Charter. The words "due process" were specifically avoided to prevent the possibility of the importation of American substantive due process to Canada. The words "fundamental justice" were intended to mean no more than procedural "natural justice". Lamer J. ignored the indisputable evidence of this intent, considering it to be "of little weight".
So if the Americans follow the advice of Dean Koh and other transnationalists and start using Canadian experience to help interpret their Constitution, don't expect Canada to be returning the favour.

Hail Franz, King of Canada!

It's pretty clear that the monarchy will not survive here long after Queen Elizabeth leaves the throne. There must be a powerful republican, nationalist, egalitarian sentiment that would like to ditch the monarchy. Its size can't be estimated because there's a tacit agreement among everyone not to bring up the question while Good Queen Elizabeth is on the throne. Prince Charles however just won't do as monarch. The monarchy can't last as long as 25 years once Elizabeth leaves. It will be abolished the instant a Liberal Government in power determines that abolition would be to its electoral advantage.

If we could ditch Charles, the institution might have a fighting chance.

The recasting of our institutions to conform with notions of political correctness is one of the more annoying irritants of our time. But occasionally the process can have unanticipated consequences that are desirable to conservatives. We need to make the most of these moments.

UK Prime Minister Gordon Brown is thinking of ending the three-century long ban on Roman Catholics becoming monarch. Historic as it is, the ban grates against modern notions of religious freedom. And as the Telegraph notes,

One of the complexities of any change would the question of whether or not to make it retrospective - a step which would move the Princess Royal ahead of the Duke of York in the line of succession.

If we're righting a historic wrong though, why stop there? If disallowance of Roman Catholics is illegitimate then the ousting of King James II was illegitimate in the first place, and the legitimate heir of the throne is whoever's at the top of the Stuart Succession. The division of Tories over whether to support James, or support the new monarch in order to protect the Church and England's independence divided both the Tory party and the church, and the divisions therein were a major contributor to the bleak generations of exile the Tories suffered after 1715.

We'll grandmother Elizabeth and let her stay on because everyone likes her.

The heir presumptive to the throne of England and Canada is Franz, Duke of Bavaria. He seems to be an accomplished and honourable fellow and his family has a distinguished history:

The Wittelsbachs were opposed to the Nazi regime in Germany, and in 1939 Franz's father Albrecht took his family to Hungary. They lived in Budapest for four years before moving to Somlovar Castle in late 1943. In March 1944, Nazi Germany occupied Hungary. On October 6, the entire family including Franz, then aged 11, were arrested. They were sent to a series of Nazi concentration camps including Oranienburg and Dachau . At the end of April 1945 they were liberated by the United States Third Army.

We play this up to Roman Catholics, puffing the monarchy as a powerful symbol of the end of discrimination against them. The law of primogeniture is being tossed aside too, so we hail this as a giant step for women's equality. Is it just a coincidence that people want to abolish the monarchy just after women and Catholics have become equal, we will ask.
Buying support from women and Catholics the monarchy's survival might be extended by 50 years. And one of Toryism's most disastrous defeats will have been avenged.

AshleyMadison.com: See You In Tort

Maggie Gallagher over on NR Online started a bit of discussion a while back when she suggest reviving the tort of adultery (which had been "criminal conversation" in Canada). Funny, the very day before I read that I had been feeling nostalgic for those grand old torts that had been abolished over the years, the last of which were cut down by "law reform" in the 1960s. There was the tort of seduction, a cause of action for a father whose daughter had been seduced. There was breach of promise of marriage. There was alienation of affections. These old torts recognized that the damaging and sundering of covenanted personal relationships did real harm worthy of legal recognition and compensation. Although these old torts are now taken as hopelessly old-fashioned and repressed, recent times have seen the development of torts like intentional infliction of emotional distress, and this development is seen as constructive and progressive. The Family Law Reform Act of 1978 finished off the last of these "heartbalm" torts in Ontario.

Maggie's thoughts about reviving the historic tort came in response to a callout of social conservatives by NR Online's Deroy Murdock. Murdock alleged that social conservatives' interest in preserving marriage seemed to be strictly confined to fighting same-sex marriage. He noted that a Google search had shown no evidence of social conservatives denouncing AshleyMadison.com, a dating site designed, it advertises itself, to help married people cheat on their spouses. None of the outspoken claimants to the title of defenders of marriage were on record as denouncing this for-profit enterprise aimed at its subversion. As I skimmed through Murdock's article I found myself wondering where such an iniquitous website could be located. Way offshore in some country with no extradition treaty, perhaps. Or maybe they would dare to operate from as close as Tijuana.. Perhaps they would even be bold enough to quarter themselves in Las Vegas. But no:

"We made tens of millions of dollars" last year, company president Noel Biderman says from its Toronto base. We are very profitable and successful."

Whoa! The City of Churches has now become Ground Zero in the war against the family. Hopeless as it may be, it behooves conservatives to try to do something about this. If the ship of decency must go down, it should go down with all flags flying.

Practical considerations suggest that a revival of the simple tort of adultery is unlikely to be a winner in Ontario. A counter-attack against the advancing anti- family armies needs to find a weaker section of the front.

But a law supporting creation of a tort of intentional third party promotion and facilitation of adultery, perhaps limited to commercial enterprises, should be something doable. And it just so happens that the law of tort is a provincial matter, and the Ontario Progressive Conservative Party is entering into a leadership campaign.

Let's find out how many PC leadership aspirants will support the creation of a tort of commercial inducement of adultery. At a minimum, their responses will show us where they stand in the war against the family.