House of Eratosthenes

Hate it when that happens, don’t you? So hard to concentrate. Can’t ignore one and tend to the other; one has to be prioritized ahead of the other, and then, best-case-scenario, the problem of lesser importance will have to just sit & cook, which can’t be good.

Both of the clarion calls have to do with public officials abusing their stations. Ed Darrell says it stinks to high heaven that Clarence Thomas and Antonin Scalia are eating dinner with people. Sarah Palin says something is wrong when you can become a millionaire faster inside Washington than anyplace outside of it. Okay, so…these two things are not connected in any way, other than they’re going off at roughly the same time. One’s got to do with the judicial branch, the other seems more concerned with the legislative. Darrell and Palin certainly do not lean in the same direction ideologically. The more progressive of the two would certainly assert a vast superiority on his part in terms of intellectual horsepower, of a magnitude almost incomprehensible, and his cohorts would certainly rush in to add their support to such an assertion. Quickly.

Desperately.

The only thing they have in common, really, is the message “We have to do something about this right now.”

If we can only attend to one while the other festers, it is good that there are many differences because we can use these to prioritize sensibly. The first test to apply, although by no means the definitive one, would be resonance. I imagine myself standing before a crowd that represents the entire electorate, holding my hand over one and then the other, measuring the audience’s reaction to each. Admittedly, this is not good for much other than grins, since I’m no fan of public opinion on these things and I’m certainly not a fan of the results that mob rule has brought us. But it does bring a grin, because Darrell would lose big here. And there is certainly a lesson to be picked up from it: Since when has majority public opinion, particularly the majority that is measured by audibles, ever been kind to or biased toward Sarah Palin? Loud people despise her. The correlation between a randomly-selected person’s loudness and the intensity of spite and scorn felt by that person toward her, is so perfect, that we never did get a believable answer about how she’d do running in an election against the current President, since it was all based on a bunch of irrational yelling about “won’t she please go away!” and then she did. And now, we know these people are irrational because they’re still angry with her, over something, even though she did exactly what they wanted.

But seriously: Audience applauds for Ed Darrell’s complaint that two justices are having dinner. Audience applauds for Sarah Palin’s complaint that civil “servants” are becoming overnight millionaires without doing too much service. The loud people who hate Sarah Palin so much, hand her a victory anyway; it isn’t even something we need to ponder, let alone subject to an actual test.

So the next difference is the structure of the argument. Darrell is complaining about persons and parties holding an interest in a case before the Supreme Court, exerting undue influence over the judicial officer who will have a say in the outcome. Palin is essentially complaining about “an endemic problem” of what amounts essentially to bribery; legislators selling their votes. We have codes of conduct, rules of Congress, etc. that are supposed to stop such things from happening. But Palin is taking the case to us because Congress is making the rules that apply to Congress, and it’s writing them in such a way that they don’t apply to what really needs fixing. Darrell is mobilizing the masses because the rules against Scalia and Thomas eating dinner…well…they just don’t apply.

Let’s examine that a little more closely. From the Oliphant article:

The two justices have been attending Federalist Society events for years. And it’s nothing that runs afoul of ethics rules. In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges.

If they were, they arguably fell under code’s Canon 4C, which states, “A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.“

“If they were” implies Oliphant had the previous sentence worded as something like “The Canons are not applicable to [or enforceable against] Supreme Court justices, as they are to lower federal judges. If they were…” Then re-worded one sentence without re-wording the other. Now, I’m a coffee-o’clock blogger. I have no room here to scold Oliphant or his editor over this, I do much worse than that pretty much constantly. But it is a red flag for something that deserves more inspection than it got, certainly more inspection than the readership is being encouraged to give it. Another red flag is present in this unanswered question about why the Canon applies to lower courts and not to the Supreme Court. Why drop that grenade and then just walk away?

As is typically the case when the motive for writing the treatise is to agitate the masses, and asking the question gets the agitated but answering it might remove the agitation — it turns out there isn’t much of an answer to find, because none is necessary. The U.S. Constitution, Article III, says the following:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. [emphasis mine]

An impartial reading of that would have to infer that Congress has a substantial authority over these “inferior Courts,” which is not necessarily applicable to the “supreme Court.”

In Federalist 51, James Madison writes about the independence of the “departments.” You might have heard this number before a few times from people quoting Federalist Papers, since this is the one that expresses the concerns about independence and co-equality:

It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the Executive magistrate, or the Judges, not independent of the Legislature in this particular, their independence in every other would be merely nominal. [emphasis mine]

Much more on that subject, and you really should read the whole thing. Now, much has been debated about this co-equal business. But it’s clear that independence of these divisions of government is a driving concern. Congress cannot tell the Supreme Court to jump, and expect the Supreme Court to yell back, How high?

And yet, Congress can tell lower courts what to do. They must be able to do that, if the Constitution specifically charges them to make the calls about bringing these lower courts into existence, or rubbing them out again.

In Federalist 78, Alexander Hamilton addresses the issue of picking judges out and telling them their time is up. These comments seem to apply to all levels of federal judicial office:

The want of a provision for removing the Judges on account of inability, has been a subject of complaint. But all considerate men will be sensible, that such a provision would either not be practised upon, or would be more liable to abuse, than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities, than advance the interests of justice, or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification. [emphasis mine]

So the two points to come out of this are: The power to remove judges by name, is a very dangerous power because of the difficulty involved in constitutionally investing that without also investing the power to indirectly determine how cases would be decided. Doubtless, the framers felt they were already treading on treacherous ground just empowering Congress to establish and dissolve the courts. And, more important than that: Congress has power over the lower courts that it doesn’t have over the Supreme Court.

Which answers the question Oliphant and Darrell inspired the agitated masses to ask, but they don’t want answered. Congress did not exempt the Supreme Court from the codes. Congress passed the codes to apply to the lower courts, and only to them, because that is the limit of their authority. Go back and read Article III again, the way that sentence is phrased. The Supreme Court is empowered and insulated in ways the inferior courts are not. It is unavoidable.

Sarah Palin, meanwhile, is drawing applause even from people who come out and say they don’t want to give it to her. Her remarks are cogent, logical and reasonable. They draw from the knowledge she has gained from actually experiencing what she calls “graft,” and being elected to the Governor’s office to effectively deal with it.

I’ve learned from local, state and national political experience that the only solution to entrenched corruption is sudden and relentless reform. Sudden because our permanent political class is adept at changing the subject to divert the public’s attention—and we can no longer afford to be indifferent to this system of graft when our country is going bankrupt. Reform must be relentless because fighting corruption is like a game of whack-a-mole. You knock it down in one area only to see it pop up in another.

What are the solutions? We need reform that provides real transparency. Congress should be subject to the Freedom of Information Act like everyone else. We need more detailed financial disclosure reports, and members should submit reports much more often than once a year. All stock transactions above $5,000 should be disclosed within five days.

We need equality under the law. From now on, laws that apply to the private sector must apply to Congress, including whistleblower, conflict-of-interest and insider-trading laws. Trading on nonpublic government information should be illegal both for those who pass on the information and those who trade on it.

She could be criticized here for jumping the gun; she currently holds no office, and thus no position of authority of any kind. A critic might ask, why five grand? Why not ten, or three? And isn’t she pretty much just running around being a solution in search of a problem, anyway, just polishing up her corruption-fighter cred, while the country has so many other problems?

But the critics can’t say things like that. Palin is merely attending to the responsibilities she has, as the person pointing out a problem, to present possible answers so that it doesn’t amount to just a bunch of mindless bitching. As for being a solution in search of a problem, well, when there really is a problem that criticism can’t apply. And who among us can say there is no problem here, or that the public is not rightfully concerned about it?

Another key difference is something I’ve slowly learned to expect from Ed Darrell. If you follow all his links and read the whole thing behind each link, you find out he must not have wanted you to do that because, with all his references properly chased down and arguments properly evaluated at face-value, and compared with the evidence he brings, the whole thing crumbles. In this case, to really nail things shut he makes a reference to Caesar’s wife. Behind his link, we find:

Caesar’s wife must be above suspicion.

Prov. The associates of public figures must not even be suspected of wrongdoing. (The ancient Roman Julius Caesar is supposed to have said this when asked why he divorced his wife, Pompeia. Because she was suspected of some wrongdoing, he could not associate with her anymore.) Jill: I don’t think the mayor is trustworthy; his brother was charged with embezzlement. Jane: But the charges were never proved. Jill: That doesn’t matter. Caesar’s wife must be above suspicion. When the newspapers reported the rumor that the lieutenant governor had failed to pay his taxes, the governor forced him to resign, saying, “Caesar’s wife must be above suspicion.”

Mmmmm, hmmmm. The appearance of impropriety.

But Ed chose not to excerpt the final paragraph of Oliphant’s story, about Justice Kagan:

Moreover, conservatives argue that it’s Justice Elena Kagan who has an ethical issue, not Scalia and Thomas. Kagan served as solicitor general in the Obama administration when the first legal challenges to the law were brought at the trial court level. Her critics have pushed for Kagan to recuse herself from hearing the case, saying that she was too invested in defending the law then to be impartial now. Kagan has given no indication she will do so.

I’m generally not too enthused about the “Back off, because your guys are doin’ it too” defense. But a defense exists to deflect an offense, and when the offense is the Caesar’s Wife play — essentially, that the mere appearance of something fishy should rise to the level of something substantial, because of the high office and authority a justice holds, when in a more mundane circumstance it certainly would not — the mote-in-thy-own-eye defense not only works, but it’s completely devastating. Here sit these nine justices, just out of reach of the tendrils of Congress because the Founding Fathers hashed out over & over again how these departments are supposed to be related to each other, and that’s how it ended up. The Darrell and Oliphant argument essentially boils down to: Scrap that part of the design, because we’re upset about it, and we think we can get other people upset about it. They wouldn’t pretend to have thought this through, or to be representing anybody else who’s thought it through, to the extent that Hamilton, Madison, et al did.

Same old liberal democrat nonsense. The peasants are revolting, so just give it to ’em.

Palin, on the other hand, is stirring up the peasants to lift pitchforks and torches over something this carefully-designed machinery is doing that it was never designed to do.

Darrell is complaining about persons and parties holding an interest in a case before the Supreme Court, exerting undue influence over the judicial officer who will have a say in the outcome.

Four words: Elena Kagan. Sonia Sotomayor.

Just as the two words “Barack Obama” are the refutation of any and all liberal arguments about “experience,” these four words mean liberals are not allowed to use the phrases “conflict of interest” or “appearance of impropriety” when it comes to the Supreme Court.

Unless, of course, they recuse themselves in the upcoming ObamaCare case. Which they won’t. Because they’re leftists, and trampling the constitution is what leftists do.
- Severian | 11/18/2011 @ 08:51

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Two Warning Sirens at the Same TimeFriday, November 18th, 2011

Two Warning Sirens at the Same Time
Friday, November 18th, 2011