David Boaz

Chuck Donovan of the Heritage Foundation denounces Judge Vaughn Walker for “extreme judicial activism” and “judicial tyranny” in striking down California’s Proposition 8, which barred gay people from marrying. And of course he doesn’t fail to note that Judge Walker sits in . . . San Francisco. Robert Knight of Coral Ridge Ministries ups the ante: Judge Walker has “contempt for the rule of law” and is part of “the criminalization of not only Christianity but of the foundational values of civilization itself.” National Review allows the head of the National Organization for Marriage to mutter about the judge’s “personal bias.” Blog commenters rail against the “left-wing liberal judge.”

In fact, Judge Walker was first appointed to the federal bench by President Ronald Reagan in 1987, at the recommendation of Attorney General Edwin Meese III (now the Ronald Reagan Distinguished Fellow in Public Policy and Chairman of the Center for Legal and Judicial Studies at the Heritage Foundation). Democratic opposition led by Sen. Alan Cranston (D-CA) prevented the nomination from coming to a vote during Reagan’s term. Walker was renominated by President George H. W. Bush in February 1989. Again the Democratic Senate refused to act on the nomination. Finally Bush renominated Walker in August, and the Senate confirmed him in December.

What was the hold-up? Two issues, basically. Like many accomplished men of the time, he was a member of an all-male club, the Olympic Club. Many so-called liberals said that should disqualify him for the federal bench. People for the American Way, for instance, said in a letter to Judiciary Committee chair Joe Biden, “The time has come to send a clear signal that there is no place on the federal bench for an individual who has, for years maintained membership in a discriminatory club and taken no meaningful steps to change the club’s practices.”

The second issue was that as a lawyer in private practice he had represented the U.S. Olympic Committee in a suit that prevented a Bay Area group from calling its athletic competition the Gay Olympics.

Because of those issues, coalitions including such groups as the NAACP, the National Organization for Women, the Human Rights Campaign, the Lambda Legal Defense Fund, and the National Gay and Lesbian Task Force worked to block the nomination.

In other words, this “liberal San Francisco judge” was recommended by Ed Meese, appointed by Ronald Reagan, and opposed by Alan Cranston, Nancy Pelosi, Edward Kennedy, and the leading gay activist groups. It’s a good thing for advocates of marriage equality that those forces were only able to block Walker twice.

Josh Green of the Atlantic notes a pattern: the federal judge in Boston who struck down a significant portion of the Defense of Marriage Act, ruling that it denied gay and lesbian couples the federal benefits afforded to straight couples, was appointed to the bench by President Richard Nixon. And the chief judge of the Iowa Supreme Court who wrote the unanimous decision striking down that state’s marriage ban was appointed by Republican governor Terry Branstad, who was just renominated for governor by Iowa Republican voters. Of course, Nixon and Branstad don’t have the conservative cred of Reagan and Meese.

As Roger Pilon mentioned, yesterday’s Politico question was “Is Health Care Repeal Gaining Steam?” A timely question in light of Monday’s court decision allowing a lawsuit against the health care mandate to proceed.

And perhaps an even more timely question today, now that 71 percent of Missouri voters have voted for a proposition to exempt the state from the mandate.

Polls show continuing opposition to the Obama-Reid-Pelosi health care overhaul. It’s constitutionally dubious. And now, in the only popular vote on the bill, it received a full 29 percent of the vote. Just maybe this wasn’t a good idea.

Drawing on a New Yorker article by George Packer, Politico Arena today asks:

Is the Senate broken?
Should the upper chamber operate more like the House, where majority rules?

My response:

Some people believe that the Senate is “broken” when it doesn’t pass new government programs promptly and without extended debate. But we have two houses of Congress for a reason. The Founders expected the House to be subject to momentary passions, and they intended the Senate to be more cautious, prudent, and resistant to “rushing to judgment.” As George Washington supposedly said, “we pour legislation into the senatorial saucer to cool it.” When the Senate deliberates at length, when it resists the pressure of the White House, the House, and even public opinion, it isn’t “broken”; it is fulfilling its intended function.

Of course, it should be noted that when senators in the past two years have had doubts about the health care overhaul and energy taxes, they weren’t resisting public opinion; they were actually reflecting public opinion, while the House acted as a partisan body in defiance of polls.

Of course there are double standards in talking about filibusters and the like, as I pointed out back in 2005:

Both Democrats and Republicans have flip-flopped on the use of the filibuster because the once solidly Democratic Senate now looks to be firmly Republican.

Republicans who once extolled the virtues of divided power and the Senate’s role in slowing down the rush to judgment now demand an end to delays in approving President Bush’s judicial nominees. President Bush says the Democrats’ “obstructionist tactics are unprecedented, unfair, and unfaithful to the Senate’s constitutional responsibility to vote on judicial nominees.”

Democrats who now wax eloquent about a “rubber stamp of dictatorship” replacing “the rights to dissent, to unlimited debate and to freedom of speech” in the Senate not too long ago sought to eliminate the filibuster altogether.

Now Democrats are back in the majority, and both parties have tended to shift their view of the filibuster yet again. In the long run, though, establishmentarians like the New Yorker’s George Packer think that the purpose of government is to pass new laws, regulations, and programs; and they complain when the Senate or any other institution stands in the way of such putative progress. Those of us who prefer liberty, limited government, and federalism appreciate the constitutional and traditional mechanisms that slow down the rush to legislation.

Andrew Higgins of the Washington Post reviews a new book on the continuing power of the Communist Party in sort-of-capitalist China:

McGregor points out that ‘Lenin, who designed the prototype used to run communist countries around the world, would recognize the [Chinese] model immediately.’ Case in point: the Central Organization Department, the party’s vast and opaque human resources agency. It has no public phone number, and there is no sign on the huge building it occupies near Tiananmen Square. Guardian of the party’s personnel files, the department handles key personnel decisions not only in the government bureaucracy but also in business, media, the judiciary and even academia. Its deliberations are all secret. If such a body existed in the United States, McGregor writes, it ‘would oversee the appointment of the entire US cabinet, state governors and their deputies, the mayors of major cities, the heads of all federal regulatory agencies, the chief executives of GE, Exxon-Mobil, Wal-Mart and about fifty of the remaining largest US companies, the justices of the Supreme Court, the editors of the New York Times, the Wall Street Journal and the Washington Post, the bosses of the TV networks and cable stations, the presidents of Yale and Harvard and other big universities, and the heads of think-tanks like the Brookings Institution and the Heritage Foundation.’

But not the Cato Institute, you betcha!

Cato senior fellow Randy Barnett is the subject of the Wall Street Journal‘s nearly-full-page Weekend Interview. Randy talks about interpreting the Constitution with “a presumption of liberty,” the subtitle of his book Restoring the Lost Constitution; about the Supreme Court’s expansion of government power from Wickard v. Filburn to Gonzales v. Raich; and especially about the constitutionality of the new health care bill and its individual mandate. Randy wrote an amicus brief with Cato in support of the Virginia attorney general’s challenge to the health care mandate.

“What is the individual mandate?” Mr. Barnett says. “I’ll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn’t there a rule of law preventing that? Because it’s never been done before. What’s bothering people about the mandate? This fact. It’s intuitive to them. People don’t even know how to explain it, but there’s something different about this, because it’s a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That’s all we commandeer the people to do. This is a new kind of commandeering, and it’s offensive to a lot of people.”

For the full legal argument, read the brief.

The New York Times reports:

President Obama signed into law on Wednesday a sweeping expansion of federal financial regulation….

A number of the details have been left for regulators to work out, inevitably setting off complicated tangles down the road that could last for years…complex legislation, with its dense pages on derivatives practices….

“If you’ve ever applied for a credit card, a student loan, or a mortgage, you know the feeling of signing your name to pages of barely understandable fine print,” Mr. Obama said.

The Safe and Secure Internet Gambling Initiative is running this ad on the web:

Good point, as Cato has noted several times. But let’s see . . . alcohol, internet gambling — can you think of any other area where prohibition hasn’t worked?

Give up? Click here or here.

Last week Washington Post columnist and former George W. Bush speechwriter Michael Gerson took one of his periodic potshots at libertarianism. Tom Palmer and I responded in the Post’s letters column. Since the published letter was shortened for space, here’s a more complete version:

Michael Gerson, who wrote the words that created the George W. Bush administration and thus led to the sweeping Democratic victories in 2006 and 2008, once again warns Republicans to stick to big-government conservatism and avoid the siren song of small-government libertarianism.

This time he describes libertarianism as “a scandal” because it “involves not only a retreat from Obamaism but a retreat from the most basic social commitments to the weak, the elderly and the disadvantaged, along with a withdrawal from American global commitments.” That is, he charges libertarians with a “retreat” from a welfare-state philosophy that is at odds with the American tradition and with basic principles of limited government. Moreover, he charges us with wanting to change a set of policies that have not served the weak, the elderly and the disadvantaged well, because they have encouraged and promoted weakness and long-term dependence. Libertarians warn that to continue down the current road leads to the Greek crisis, in which the utter cruelty of making promises that can’t be kept is revealed.  The state will soon have to retreat from the unsustainable commitments and promises that politicians and pundits are blithely making now. 

Gerson also charges libertarianism with “rigorous ideological coldness.” He considers reason, arithmetic, and a realistic assessment of what those “commitments” really mean to be “cold.”  That tells more about him than about libertarianism. 

As for the “global commitments” that Gerson writes such beautiful words about, the real scandal here is that our soldiers have been put in harm’s way all over the world, fighting other people’s battles and deploying deadly force that inevitably kills the innocent, the “collateral damage” that advocates of “global commitments” so conveniently forget. And more broadly, we are all at risk when U.S. foreign policy involves America in foreign quarrels and encourages hatred and terrorism in response to our foreign interventionism.

Gerson’s warfare-welfare state philosophy has given America two wars, serious threats from terrorism, and a $106 trillion unfunded liability. It might be kinder and gentler to try the Founders’ vision, the libertarian vision, of a limited state that provides a framework in which we can all enjoy life, liberty, and the pursuit of happiness.

As we noted in the original draft, Gerson was the intellectual architect of Bush’s “compassionate conservatism,” which came to be better known as “big-government conservatism” — from Bush’s 1999 Indianapolis speech that Ed Crane criticized in the New York Times as “Clintonesque” (worse, he meant Hillary) to his unReaganesque inaugural address to his speeches advancing such triumphs as No Child Left Behind, the Medicare prescription drug program, subsidies to religious groups, the Iraq War, the Bush doctrine, and massive increases in foreign aid. Thus he can also be seen as an architect of the Democratic victories in 2006 and 2008, in which the ideas and policies that he helped to shape were rejected. Now he warns Republicans that they shouldn’t fall for small-government ideas just because their big-government agenda led to a Democratic White House and Congress.

Here’s a response to a previous Gerson attack on libertarianism.

The print edition of the Washington Post and the online Real Estate home page feature this headline:

Debunking rumors of a housing sales tax

The article begins:

Rumors are flying that the health-care legislation Congress passed this year will impose a sales tax on all real estate sales.

So I’m thinking, OK, more crazy Glenn Beck tea-party stories about mythical Obama tax hikes, and the Post is going to debunk them. Then I keep reading:

But the rumors are based only partly on fact. Although there is a new tax, it will not apply to everyone, and existing tax breaks for home sales will remain in place.

The Health Care and Education Reconciliation Act of 2010, which President Obama signed into law March 30, is comprehensive and complex. Section 1402, “Unearned Income Medicare Contribution,” imposes a 3.8 percent tax on profits from the sale of real estate — residential or investment.

But the levy is aimed at high-income taxpayers, leaving most people untouched. And it will not take effect until Jan. 1, 2013.

Let’s look at the facts of this new law.

First, it is not a sales tax, nor does it impose any transfer or recordation tax. It is called a Medicare tax because the money received will be allocated to the Medicare Trust Fund, which is part of the Social Security system.

Next, if your adjusted gross income is less than $200,000, you are home free….

How is the tax calculated? Through a complex formula that could be called “the accountants’ protection act.” As a taxpayer, you (or your financial adviser) must determine which is less: the gain you have made on the sale of your house, or the amount by which your income exceeds the appropriate threshold.

So let’s recap here. Post contributor Benny Kass promises to “debunk” the “rumors” that “the health-care legislation Congress passed this year will impose a sales tax on all real estate sales.” And he concludes, “In the meantime, don’t believe the rumors.” But in fact the health-care law did include a new tax on real estate profits. It’s not exactly a sales tax, and it won’t apply to most people. But the only real inaccuracy in the “rumors” that he said “are flying” was the word “all.” It’s only a 3.8 percent tax on some real estate sales, no doubt only a minority of sales, though perhaps affecting more readers of the Washington Post Real Estate section than people in less-affluent regions where housing prices didn’t soar and then remain high. Frankly, I’ve seen more effective debunkings.

This “rumored” real estate tax is also discussed on page 20 of Michael Tanner’s new study “Bad Medicine: A Guide to the Real Costs and Consequences of the New Health Care Law.” But if you’re really going to try to understand the new health-care legislation, you may want to clip the Kass article to keep with your copy of the Tanner paper, as no one study can guide you through every detail of a 2000-page law. Journalists and HR experts will be kept busy for years tracking down every sub-reference and interaction in the bill.

The estimable Francisco Marroquin University in Guatemala has just posted 15 hours of interviews with F. A. Hayek, conducted in 1978, four years after he won the Nobel Prize for Economics.

You know the interviewee is important when the interviewers include James M. Buchanan, Robert Bork, Armen Alchian, Axel Leijonhufvud, and Leo Rosten. Along with the streaming video, there’s a complete transcript posted. What an amazing resource! We are indebted to Armen Alchian, Bob Chitester, the Earhart Foundation, the Pacific Academy of Advanced Studies, and now Francisco Marroquin for making these interviews available.

A few years later Cato Policy Report published two exclusive interviews with Hayek, in print form. Find them here and here.