The prominence of ObamaCare in the 2012 elections is good news on its face for conservatives, but it’s hard to know which way the issue will ultimately cut.  That depends, in part, on what the Supreme Court decides.

If the Supreme Court upholds ObamaCare in its entirety, it will be seen as a victory for Obama and Congressional Democrats, which would likely provide them with some electoral momentum.  On the other hand, such a decision by the Court would throw responsibility for reforming or repealing ObamaCare entirely on the shoulders of the new Congress and President, thus making it an even bigger political issue.  That might be bad news for Democrats given ObamaCare’s continual poor showing in the polls.

Conversely, if the High Court strikes down ObamaCare in its entirety, it would be a victory for Republicans, giving them the electoral momentum, but at the same time largely depriving them of one of their best election issues.

The third possibility is that the Supreme Court will strike down one or more of the challenged ObamaCare provisions – the individual insurance mandate or the expansion of Medicaid – but leave much of the statute in effect.  That might be the best case for Republicans.  They would be able to say “I told you so,” while the campaign’s focus would be riveted on how to repair the shattered statute, with Democrats on the defensive.

It looks like which outcome to root for in the Supreme Court depends on whether you’re most concerned about ObamaCare or the 2012 elections.

The truth is that the reported allegations, even if true, do not constitute sexual harassment under the law unless – as the Supreme Court has stated – they are “sufficiently severe or pervasive” to “create an abusive working environment,” among other requirements. Even the guidance of the decidedly liberal U.S. Equal Employment Opportunity Commission cautions that “sexual attraction may often play a role in the day-to-day social exchange between employees” and that

“[S]exual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.”

The “severe or pervasive” requirement is not a legal technicality. Trivializing the term “sexual harassment” undermines the seriousness with which cases of severe and pervasive harassment are taken. There is no suggestion in the Politico article that Cain’s alleged behavior was either severe or pervasive, so at least for now, the suggestion of sexual harassment is unsupported.

Politico places a lot of weight on the report that “there were financial settlements in two cases in which women leveled complaints [against Cain].” In fact, without knowing more about the details of the settlements, it’s impossible to draw any conclusions from them. Corporate America is very risk averse when it comes to negative publicity, and in-house settlements often occur even when the evidence of harassment falls far short of the threshold needed to be taken seriously by a court.

Cross-posted at the Committee for Justice blog.

[A] couple of basketball courts down the block from my cousin’s house in Chicago … have gained some local notoriety because people remember that, for many years, Obama brought friends and colleagues there to play basketball. Locals say that for much of the two decades he played there, the anti-Semitic term “Hymietown” was scrawled very visibly as graffiti across the old wall beside the courts. The courts and adjoining grassy area were called Hymietown Park by some of the neighbors, so the graffiti artist may be guilty mainly of insensitivity in repeating the informal name of the park.

As Obama’s reputation in Chicago grew, he persuaded local authorities to upgrade the basketball courts, which he continued to use. Eventually, he asked authorities to paint over the offensive graffiti. But some say that Obama was slow in doing so, and as recently as this spring, the word “Hymietown” was still faintly visible under the half-hearted paint job. To be fair, there is no other connection between Obama and the graffiti and, as far as I know, no one claims that Obama used the term “Hymietown.”

People … have suggested that Rick Perry is racially insensitive, not ready for prime time, or simply “pathetic” because of his tenuous connection to the “N*****head” rock. Can the same be said about Barack Obama because of his similar connection to the Hymietown graffiti?

In truth, Hymietown Park exists only in my imagination. But my Hymietown fable closely parallels the Perry story as told by the Washington Post and is intended to produce some cognitive dissonance for those who hold Perry to a standard very different than the one they apply to Democrats.

CURT LEVEY: Caroline accurately pointed out that there are 20 pending [nominees] who have gotten out of committee. But that’s only 20 out of 91 vacancies. And all but one of those 20 are just a matter of weeks or, at most, a couple of months, which is a very short time historically. I mean, there are many of Bush’s nominees who waited literally years after they got out of committee. There were some nominees who were waiting throughout most of the eight years. So the fact that there’s only one out of the 20 who’s even been waiting three months I think tells you that things are going fast.
——————–
CURT LEVEY: I don’t think [the judicial vacancy rate] has much to do with anything the Republicans are doing. It has to do with a very slow nomination pace by the Obama administration. Obama is not making confirmations a priority, nor is Sen. Reid, the majority leader. Also, there’s just been, let’s face it, a general breakdown in courtesy in the Senate. And so all issues get affected, including judges. And there were also two Supreme Court vacancies in Obama’s first two years, which, for about six months [bring other confirmations to a halt].
——————–
CAROLINE FREDRICKSON: Thirty-seven of those vacancies represent judicial emergencies. And that is a term that’s been defined by the Administrative Office of the Courts to represent an extremely high caseload.
…
CURT LEVEY: I do agree that judicial emergencies should be given priority. But, again, let’s remember that judicial emergency is not just defined by caseload. It’s also defined by how long the vacancy has existed. And, again, that vacancy may have existed for a long time because Obama was very slow to appoint a nominee.

To understand the incentive, it is necessary to clarify some confusion about the relationship between 1) the bill’s BBA provisions – providing for a debt limit increase of $1.5 trillion this winter if the BBA is approved by Congress; 2) the spending cuts of up to $1.5 trillion to be recommended by a special Joint Committee – resulting in a debt limit increase of up to $1.5 trillion if the cuts are approved by Congress; and 3) the $1.2 trillion in across-the board spending cuts triggered automatically if #2 fails – resulting in a debt limit increase of $1.2 trillion this winter.  Reliable sources on the Hill have confirmed that, while Congressional approval of a BBA is a substitute for the Joint Committee cuts in the sense of enabling the $1.5 trillion debt limit increase, that substitution would not eliminate the automatically triggered cuts.

Some BBA supporters would have preferred that passage of a balanced budget amendment eliminate the triggered cuts, in order to give Democrats the maximum incentive for coming around to support the amendment.  Nonetheless, the BCA was specifically designed to incentivize Congress to choose action – approved cuts or passage of the BBA.  For example, either option provides the extra $300 billion in debt limit hikes necessary to see the Administration through the election if the economy and thus revenues continue to falter.

While the vast majority of Congressional Republicans need no incentive to vote for a BBA, most Democrats currently oppose the amendment.   The hope for BBA supporters is that moderate Democrats can be turned around through a combination of public pressure – numerous surveys show that a large majority of American support a BBA – and a preference for wishful thinking – specifically the hope that the BBA won’t get the required approval of 38 states – over immediate, hard choices about what cuts to make.

The requirement that constitutional amendments be approved by two-thirds of each house is a steep obstacle, but it’s hardly an insurmountable one.  In 1995, a balanced budget amendment got broad bipartisan support in Congress, breezing to passage in the House by a 300-132 margin and failing in the Senate by just one vote.

Interestingly, a united GOP could, intentionally or not, increase the probability of Democrats opting for a BBA by cutting off the other option for Congressional action – that is, by blocking approval of the $1.5 trillion in cuts in the Joint Committee or in the House.  Whether the increased odds of BBA passage are worth the loss of the Joint Committee cuts depends on what sort of BBA gets out of Congress.  The BCA does not address the details of a balanced budget amendment.  But I will: a good balanced budget amendment is one that would cap federal spending at about 18% of GDP, require super-majorities in Congress for tax increases, and mandate a balanced budget fairly quickly, say five years after ratification.

The BCA gives supporters of a balanced budget amendment at least two months – a BBA vote is mandated sometime between this October and December – to translate broad public support for a BBA into the sort of political momentum that would make it difficult for moderate Democrats to vote against the amendment.  Regrettably, the BBA did not take center stage in this summer’s debt ceiling debate until shortly before the House voted on it as part of the Cut, Cap & Balance bill.  As a result, the momentum-building process for the BBA got a late start.  The time between now and October gives BBA supporters plenty of time to erase the disadvantages of a late start.

In sum, while the BBA provisions in the Budget Control Act fall far short of our legislative ideal – a requirement for Congressional approval of a BBA with both spending caps and a super-majority requirement for tax increases – they are better than what’s been described in most press reports and offer some modest hope to BBA supporters.

Finally, I note that while constitutional budget reform is likely the most reliable approach, some permanent quasi-structural reform has already been achieved this summer with the establishment of a new normal for debt ceiling increases.  Until now, the debt ceiling increases that enabled and fueled today’s out-of-control budget deficits were essentially automatic – devoid of debate and largely unopposed.  I suspect that will never be the case again, thus ensuring a different budget playing field in the years to come.

Cross-posted at the Committee for Justice blog.

In today’s 2-1 decision, two Clinton appointees came to the startling conclusion that MCRI violates the U.S. Constitution’s Equal Protection Clause because it “reordered the political process to place special burdens on racial minorities.” Their reasoning: “a Michigan citizen seeking that Michigan universities adopt race-based admissions policies must now begin by convincing the Michigan electorate to amend the Michigan Constitution.”

This reasoning is completely disingenuous because the purpose of all constitutional amendments is to reorder the political process in a way that can’t easily be reversed.

Even the very liberal Ninth Circuit rejected this reasoning in its 1997 decision upholding California’s Proposition 209, the preference ban on which MCRI is based.  Noting that the Fourteenth Amendment’s Constitution’s Equal Protection Clause barely permits racial preferences, the Ninth Circuit reminded us that “The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

In other words, the Constitution’s equal protection guarantee cannot possibly mean that states are prohibited from amending their Constitutions to ensure equal protection of all races.  The argument to the contrary was widely considered to be a legal stretch when first made by Proposition 209’s opponents, and it lost any plausibility once rejected by the liberal Ninth Circuit.  Its resurrection in the Michigan case was not taken seriously before today’s “gift” of judicial activism from the Sixth Circuit.

In 2006, the MCRI ballot initiative was approved by 58% of voters in the liberal-leaning Michigan despite the initiative’s opponents outspending the supporters by an enormous margin.  That shouldn’t be too surprising given that opinion polls over the last decade have repeatedly shown that Americans overwhelmingly oppose racial preferences.

Today’s decision is a classic example of legal elites trying to impose their values – in this case, a belief in achieving racial diversity at any cost – on the “less enlightened” public after those values are rejected at the ballot box.  This use of the courts to do an end-run around the democratic process is a hallmark of liberal judicial activism.

It is no wonder that the Sixth Circuit decided to release this decision on the Friday before a long holiday weekend.

The only good news is that the state of Michigan will surely appeal today’s decision to the U.S. Supreme Court and/or the full Sixth Circuit.  If the Supreme Court reviews this decision, it will almost surely reverse it.  In fact, I expect that some if not all of the Court’s liberal Justices would vote to reverse.

Cross-posted at the Committee for Justice blog.

“Unless there’s a surprise Supreme Court vacancy this year, this is the big fight of the year,” said Curt Levey, executive director of the conservative Committee for Justice. Levey and many other conservatives argue that Liu is an extraordinary circumstance. – David Ingram, Legal Times (5/17/11)

This excerpt summarizes the showdown that will occur tomorrow when Senate Democrats force a cloture vote on Ninth Circuit nominee Goodwin Liu, President Obama’s most radical judicial nominee and the man whom Obama would dearly like to make the first Asian-American Supreme Court justice.  Liu’s left-wing agenda and outrageously activist view of the law makes this showdown a classic test of the bipartisan “extraordinary circumstances” standard for when judicial nominees can be filibustered.  The standard originated in the 2005 Gang of 14 agreement.

Liu is a 40 year old Berkeley law professor whose vocal and unabashed championing of judicial activism has made him a star on the legal left.  Liu “envisions the judiciary … as a culturally situated interpreter of social meaning” and believes judges should create constitutional rights to “distributive justice,” including welfare rights to “education or housing or medical care.”

Liu has expressed left-wing views on virtually every hot-button issue likely to come before him on the bench, including the view that Americans are obligated to pay reparations for slavery, an obligation he would likely read into the Constitution.  Liu is too far to the left for even Rahm Emanuel, who advised the President against making this nomination.

If Senate Democrats succeed in getting the 60 votes necessary to force cloture, Liu will almost surely be confirmed to the Ninth Circuit, putting this darling of the Left just one step away from the Supreme Court.  If, instead, cloture fails, Liu’s nomination will effectively be dead.

If all 53 Democratic senators follow the party line and vote for cloture, they will need to add seven Republican votes to prevail.  The key to this vote are the 11 GOP senators who voted for cloture on Rhode Island district court nominee John McConnell earlier this month.  They include Sens. Alexander, Brown, Chambliss, Collins, Graham, Isakson, Kirk, McCain, Murkowski, Snowe, and Thune.

Several of these GOP senators justified their vote for cloture by arguing that the President’s district court nominees deserve more deference or that McConnell did not quite meet the “extraordinary circumstances” threshold.  The former argument is not available for appeals court nominee Liu.  The latter argument, if applied to Liu, would logically require a GOP senator to answer the question “If Obama’s most radical nominee is not extreme enough to meet the extraordinary circumstances threshold, when would it ever be met?”  If the answer is “never,” because the senator believes that judicial filibusters are never justified, that senator must then explain why Republicans are obliged to unilaterally disarm no matter how atrocious the nominee is.

Fortunately, Liu’s defeat is likely.  But the vote will be very close. Those concerned about this radical nominee should contact the key GOP senators immediately.

Cross-posted at the Committee for Justice blog.

A number of people have asked me whether today’s rejection of Virginia’s request for expedited Supreme Court review of its ObamaCare challenge tells us anything about how the Court will ultimately rule on the statute’s constitutionality.  The answer is no.

It is folly to draw any conclusions because it’s extremely unusual for the Supreme Court to grant certiorari – that is, review – of a case while it’s still working its way through the lower federal courts.  The last time the Court did that in an important case was 2002, when it agreed to hear Gratz v. Bollinger, a challenge to race-based admissions at the University of Michigan, which had been heard but not yet decided by the U.S. Court of Appeals for the Sixth Circuit.  It’s so rare that it took a new, not-yet-jaded lawyer (me) to even suggest  making the request for a Writ of Certiorari Before Judgment.  And the writ would likely have been denied if the companion case, Grutter  v. Bollinger, had not already been decided by the Sixth Circuit, making it ready for Supreme Court review. In the instant situation, none of the companion cases to the Virginia suit have been decided by circuit courts.

Nobody doubts that the Supreme Court will eventually hear one or more of the lawsuits challenging the constitutionality of ObamaCare.  We don’t know whether Justice Kennedy will provide the fifth vote necessary to strike down all or part of the law, but his vote isn’t necessary to grant certiorari.  Only four votes are required for review and the Justices know those votes are virtually guaranteed when the time is right.  So it’s only the matter of timing that Justice Kennedy and his colleagues had in mind when they denied Virginia’s request.

If today’s denial tells us anything about a Justice’s state of mind concerning the merits of the case – which I doubt – it’s the mind of Chief Justice John Roberts. Roberts is more likely than Kennedy to strike down ObamaCare but less likely than Justices Thomas, Scalia and Alito.  With only four Justices needed to grant certiorari, that makes Roberts the likely swing vote on any petitions to review the ObamaCare cases that are decided on a close vote.  That said, the Justices’ votes on such petitions are generally not disclosed, so it will be difficult to prove my prediction right or wrong.

The charge: Republicans are willing to shut down the government over the issue of Planned Parenthood funding.  Democrats and the media are making the charge and Republicans are denying it – arguing that, instead, the disagreement centers on the total amount of budget cuts.  But the GOP’s denial only feeds into the assumption that everyone seems to be buying into, namely that if Planned Parenthood funding is what stymies a budget deal, it is the GOP that will stand guilty of shutting down the government over the issue.

Excuse me for being logical in the midst of a shutdown “crisis,” but why is virtually everyone – even Republicans – buying into this assumption when it can just as easily be said that Democrats caused a shutdown by refusing to cut funding for their beloved Planned Parenthood?

Consider the logic. If the only thing preventing a deal between A and B is disagreement over including X in the deal, then failure to reach a deal can just as easily be ascribed to A’s refusal to include X as it can to B’s demand that X be included.  In fact, you can’t even logically say who is doing the demanding and who is doing the refusing.  For example, are the Democrats refusing to include a Planned Parenthood rider or are they demanding that Planned Parenthood be funded?

This logic transcends the questions of whether Planned Parenthood is or isn’t the real sticking point and whether it should or should not be funded.  Nor does the logic depend on whether “abortion” or “women’s health” better describes the underlying issue.  Whichever way you come out on those questions, the logic remains the same: there is no rational basis for saying that it is Republicans, rather than Democrats, who are forcing a shutdown over the Planned Parenthood issue.  And vice versa.

Nonetheless, if the Democrats continue to employ rhetoric rather than logic, Republicans’ best defense is to go on the offensive by turning the Democrats’ illogic against them.  Put the Planned Parenthood issue on the Democrats’ shoulders by pointing out that Democrats are so beholden to the radical Left and so obsessed with protecting the nation’s number one provider of abortions that they’d rather subject Americans to the hardships of a shutdown than see their beloved Planned Parenthood lose a little of its government handout.  It is at least as true as what the Democrats are claiming.

In Snyder v. Phelps, the High Court ruled 8-1 that the First Amendment protects the Westboro Baptist Church from being sued for picketing the funerals of U.S. troops with signs such as “Thank God for Dead Soldiers.” The Topeka church’s message is that God hates the United States, especially its military, for tolerating homosexuality. The Court’s decision was a courageous and principled one in light of the near universal abhorrence of the church’s method for proclaiming its message.

In contrast, the Paris prosecutor’s office announced yesterday that superstar fashion designer John Galliano will stand trial for public anti-Semitic rants that resulted in his firing by French fashion house Dior on Tuesday. Galliano faces up to six months in prison and $31,000 in fines if convicted of making public insults on the basis of religion or origin.

Both Galliano and the Westboro Baptist Church should be ashamed of themselves. But even as a Jew, I’m thankful that we live in a country where anti-Semitic tirades – and other highly offensive types of speech – are protected by the Constitution. The alternative is to give the government the power to determine what statements are too offensive to utter and that power is a far greater threat than the rants of private citizens can ever be.

The President’s refusal to defend DOMA, a federal statute enacted by overwhelming margins in the Senate (85 – 14) and House (342 – 67) and signed into law by President Clinton, flies in the face of Justice Department policy and principles of democratic government.  It has long been the Department’s policy to defend any challenged federal statute unless no plausible argument can be made in its defense.  By ignoring that policy, President Obama is engaging in a disturbing power grab that, if taken to its logical conclusion, would allow him to undermine any duly enacted federal law that he doesn’t personally agree with.

But that’s not the worst of this power grab.  In announcing the President’s decision, Attorney General Holder informed the nation that “the president has concluded that … sexual orientation should be subject to a more heightened standard of [constitutional] scrutiny.”  In layman’s terms, that means that President Obama has decided that the Fourteenth Amendment’s Equal Protection Clause prohibits distinctions based on sexual orientation in the same way that it prohibits racial discrimination.

Of course, the authors of the Fourteenth Amendment would be quite surprised to learn that they had made same-sex marriage a constitutional imperative.  However, even putting originalism and strict construction aside, it was heretofore accepted that only the judicial branch—particularly the Supreme Court—has the authority to determine the appropriate level of Fourteenth Amendment scrutiny and whether a particular piece of legislation meets that level of scrutiny.

Apparently, President Obama has now taken that authority upon himself.  And this from an Administration that was outraged that Congressmen were even discussing the proper interpretation of the Fourteenth Amendment provision dealing with birthright citizenship.

This is not the first time that President Obama has shown he is willing to do an end run around the other branches of government in pursuit of his political agenda.  His use of White House czars to circumvent the Senate confirmation process and of the EPA to circumvent legislative resistance to cap and trade should have forewarned us that he would attempt today’s end run around the judicial system.

Even if today’s end run succeeds, President Obama may come to regret it should he fail to win reelection.  In that case, it will be up to a Republican president to defend ObamaCare against current and future constitutional challenges.  Obama has just handed his successor a perfect excuse to effectively repeal or cripple ObamaCare by refusing to defend it in court.

Even in the short term, the President has strengthened the hand of ObamaCare opponents, particularly the many states that question its constitutionality and plan to resist its implementation.  After abandoning DOMA, Obama has no moral authority to argue that, because ObamaCare is the law of the land, all government officials must enforce it unless and until the Supreme Court decides it’s unconstitutional.

Finally, even the President’s critics will concede that his conclusion about the proper level of constitutional scrutiny for sexual orientation—whether right or wrong—must have been based on legal research and analysis rather than just a sudden political whim.  If so, Obama and Holder surely consulted the nation’s Solicitor General—the government’s top constitutional attorney—when conducting this important legal analysis.  As a result, the Administration will be called upon to disclose whether Elena Kagan was still Solicitor General when this consultation began.

If the answer is yes and Kagan was involved in determining the federal government’s official position on the proper scrutiny for sexual orientation, it opens up an ethical can of worms for her concerning Supreme Court cases in which that standard is at issue.  It’s a can of worms that Obama may come to regret.

Cross-posted at the Committee for Justice blog.

The biggest news in today’s ruling that the ObamaCare individual mandate is unconstitutional is the court’s decision to strike down the entire ObamaCare statute because the unconstitutional mandate cannot be severed – that is, separated – from the rest of the statute’s provisions.  Today’s decision signals, not only that the individual mandate is unlikely to survive its now-inevitable review by the Supreme Court, but also that if and when it meets its demise in the High Court, it is likely to take the entire ObamaCare statute with it.  This new reality has very important policy implications for both President Obama and Congressional Republicans.

There is only one thing President Obama can do to ensure the survival of federal health care reform and that is to prevent the legal challenges to the individual mandate from reaching the Supreme Court.  He can accomplish that only by negotiating with Republicans to repeal or substantially modify the ObamaCare statute, replacing it with a bipartisan health care reform package that does not include the individual insurance mandate.  The result would be to moot and thus derail the legal challenges now hurtling towards the High Court.

Sure, Obama could take his chances on pulling out a win in the Supreme Court.  But if things don’t go his way there, he will be left with little leverage to shape – or even pressure Republicans into passing – an alternative health care package, assuming he’s still in office.

The flip side of Obama’s dilemma is Republicans’ temptation to attempt a repeal of just the individual mandate, given that provision’s unpopularity and recognition that a full repeal of ObamaCare is virtually impossible at this time.  Congressional Republicans must be cautious here because a successful repeal of the individual mandate would moot and thus doom legal challenges to the entire statute, arguably playing into the President’s hands.

If the individual mandate were the primary reason for conservative opposition to ObamaCare, we would be happy to hand the President a partial victory in which the lawsuits were derailed and ObamaCare minus the mandate were saved.  But, as Ken Blackwell and Ken Klukowski have pointed out, “the ultimate goal in challenging the constitutionality of President Obama’s health care law is not the mandate.”  It’s the whole ObamaCare enchilada.

That’s because the individual mandate is just one of many reasons to oppose ObamaCare.  Among the threats posed by the rest of the statute are skyrocketing premiums, increased unemployment due to insurance mandates on employers, draconian cuts to Medicare, a myriad of racial preferences, and the growth of a new federal bureaucracy with life and death power.  A partial victory for Obama that leaves all those threats in place is a big loss for the American people.

Cross-posted at the Committee for Justice blog.

Why do liberals, who acclaim JFK and his famous line, nonetheless advocate for an ever increasing list of government-provided entitlements, ranging from ObamaCare and green energy subsidies to lifetime tenure for public school teachers and government preferences for minorities and women? Likewise, why have conservatives and libertarians failed to remind their fellow Americans that the modern, entitlement-driven welfare state is the antithesis of Kennedy’s call to “ask not what your country can do for you”? Fifty years after JFK’s inauguration, it’s time to take that call seriously.

The analogy between the slavery debate in the 19th century and the abortion debate in modern times is a solid one because both centered on 1) who to include in the definition of “human,” and 2) whether the ultimate moral decision should be legislated or left to individuals. Despite the similarities, well-meaning people are free to reject the abortion-slavery analogy given that there is no longer any disagreement that slavery was a moral outrage.

However, to refuse to see the similarities and, instead, view the analogy as ignorant is to contemptuously dismiss the half of America that considers abortion to be the taking of a human life and a moral outrage. You don’t have to share the moral judgment of pro-life Americans, but to dismiss their values as unworthy of serious consideration is the very definition of smugness.

Cross-posted at Politico.

Keith Olbermann, Sheriff Dupnik and the others trying to score political points by blaming political rhetoric are going down a very dangerous road both because it absolves violent killers of full responsibility for their actions and because it aims to silence the passions that are an important part of public debate.  Martin Luther King and his fellow civil rights activists used passionate and heated rhetoric to rouse the nation against white segregationists.  But, surely, that does not make Dr. King and his colleagues partly responsible for the violent crimes of the Black Panthers and James Earl Ray. 

Ultimately, the passionate rhetoric of conservatives like Glen Beck may be vindicated by history or condemned by it.  But that is for the American people to decide as the debate plays out in the coming years, not for Keith Olbermann and Sheriff Dupnik to decide by cutting off debate.

Cross-posted at Politico.

The letter emphasizes that many of the nominees that might be confirmed during the lame duck session “are still before the Senate precisely because of concerns about their radical and controversial views.”  A Senate that “has already been replaced by the American people has no business confirming such controversial nominees to federal office,” the letter adds.

On November 2, the American people rejected the liberal agenda that has been pushed by the Obama Administration and its most controversial pending nominees.  If Senate Democrats try to confirm these controversial nominees during the lame duck session, they will be showing contempt for American voters.

In the letter, we call attention to the 16 “most egregious” pending judicial and executive branch nominees.  The list includes two appeals court nominees (Goodwin Liu and Robert Chatigny), three district court nominees (John McConnell, Edward Chen and Louis Butler), as well as nominees to the Equal Employment Opportunity Commission (Chai Feldlbum and Jacqueline Berrien) and the National Labor Relations Board (Craig Becker).  Also on the list are John Podesta, nominated to the Corporation for National & Community Service; James Cole, the Deputy Attorney General nominee; and Donald Berwick, who was recess appointed to head the Centers for Medicare & Medicaid Services.

Cross-posted at the Committee for Justice blog, where the full text of the letter, including the list of signers and the list of the 16 most controversial nominees, is available.

My fear was that Democrats would do what Republicans did following their defeats in 2006 and 2008—that is, fess up to the error of their big-spending ways, thus paving the way for the forgiveness and course correction that made Tuesday’s comeback possible.  But Democrats’ initial reactions indicate that I overestimated their capacity for self-awareness.  Whew.

Still, there’s plenty of opportunity for self-sabotage in the GOP if victory turns self-awareness into arrogance.  That danger includes overinterpreting the election results to conclude that Democrats have been vanquished in any permanent sense of the word.  Like Erick , I’m happy that November 2 left the Democrats “wiped out except among coastal elites and majority-minority districts.”  I just hope that Republican leaders realize how temporary it might be.  As I said in my April 2009 post (“Dems Have Permanent Majority … at Least Until the Next Election”) regarding predictions of GOP irrelevance, “the only honest analysis is admitting that you haven’t got a clue about what’s going to happen in future elections.” 

Speaking of coastal elites, I’m gratified to see that my election morning post at the Committee for Justice blog turned out to be even truer than I had hoped.  I suggested that, as in the nationwide Congressional elections, voters would use a judicial retention election in Iowa and a Nevada vote on judicial selection commissions—backed by Sandra Day O’Connor—“to say no to elitism.”  I admittedly avoided a prediction of complete victory in Iowa and Nevada, but voters there were less hesitant.  They fired the three Iowa Supreme Court Justices on the ballot, all of whom discovered a constitutional right to same-sex marriage in the state constitution last year.  And Nevadans chose popular election of judges over selection by commissions that inevitably “get captured by trial lawyers, academics and antibusiness activists.”

O’Donnell struggled when asked which Supreme Court decisions she dislikes, but Coons didn’t do any better. When asked the question, Coons could only come up with the same case, Citizens United, that a questioner had asked him about a few minutes earlier (Wolf Blitzer failed to push the issue with Coons, unlike with O’Donnell).  Moreover, Coons’s answer consisted of nothing more than the usual Democratic talking point—corporations shouldn’t have free speech rights—that even my dog knows by heart by now.

While we learned nothing from Coons’s answer to that question, another of his remarks about the courts was more telling:

[M]aking sure that we’ve got on the record Miss O’Donnell’s views on things like prayer, abortion, evolution, is important. These aren’t just random statements on some late-night TV show. These are relevant to her service in the United States Senate, what sort of judges she would confirm.

What’s interesting here is the way Coons projects his liberal, litmus test-based approach to the judicial confirmation process on O’Donnell.  Liberal senators make no bones about demanding that judicial nominees share their views on abortion, public prayer, and a host of other social issues. But that’s not what conservatives like O’Donnell are looking for in judges.  Conservative senators focus on whether judicial nominees are willing to interpret the Constitution as umpires rather than as policymakers and philosopher kings, making a senator’s views on particular social issues irrelevant to the confirmation process.

Gloria Allred just went after Meg Whitman with a vengeance waiving a letter from the Social Security Administration sent to Meg back in 2003, putting Meg and her husband on notice there was a problem with their housekeeper’s Social Security number – a sign she was here illegally.

Allred is representing the housekeeper, Nicky Diaz Santillan, who was eventually fired by Whitman in 2009, immediately after Whitman says she found out Santillan was in the country illegally.

Whitman says her opponent, Jerry Brown, is behind the attacks.  I haven’t seen any proof yet but I wouldn’t be surprised.  After all, Allred has contributed to Jerry Brown’s campaigns and has a long history of involvement in Democratic causes (she was a Hillary Clinton delegate in 2008).

But forget Jerry Brown’s involvement for the moment.  As a lawyer, I’m most concerned about Allred’s legal ethics.  Perhaps Allred does great legal work for women – at least Democratic women – behind the scenes.  But every time I hear about her “representing” a woman, it seems the woman is little more than a prop for getting Allred on TV or enabling Allred to pursue some political cause.  Remember, Allred is the attorney who held a press conference the day before Governor Schwarzenegger was first elected, accusing him of fondling her female client.  After the election, Allred’s lawsuit against Schwarzenegger was dropped.

To be fair, Allred is hardly the first lawyer to push up against the ethical line by taking a case because of its publicity value rather than a careful consideration of the client’s interests.  But this time, Allred seems to have gone way over the line by ostensibly representing Santillan while actually throwing her under the bus.

How could it possibly be in Nicky Santillan’s best interest for Allred to announce on national TV that Santillan is in the country illegally?  At very least, the publicity makes it virtually impossible for Santillan to hold another job in the U.S. – after all, no employer can claim they didn’t know she was here illegally – and makes Santillan a sitting duck for any ICE agent in the mood to do their job.  No wonder Santillan was crying at yesterday’s press conference.

Perhaps you could argue that Allred is acting ethically if the damage she inflicts on Santillan is likely to be outweighed by the damages Santillan receives from a lawsuit against Whitman.  But don’t count on Santillan collecting anything more than, perhaps, a little back pay. Whitman may be guilty of knowingly employing an illegal immigrant.  But if so, she was doing Santillan a favor by not firing her or reporting her to immigration authorities in 2003.  So what are the damages?

On that score, Palin’s general election chances looks good. Rasmussen reports today that 59% of voters not affiliated with either party say their views are closer to Sarah Palin’s than to President Obama’s.  Overall, 52% of American voters feel ideologically closer to Palin, while only 40% feel closer to the President.

An additional finding from the poll should surprise no one.  Among the political class, 68% of voters have views more like Obama’s, while 63% of mainstream voters – those outside the political class – are closer to Palin.  Rasmussen classifies voters according to his Political Class Index, which is based on three survey questions.