JUDICIAL ARROGANCE!!!!

Tuesday, October 7, 2008 should be remembered as a day when federal judicial arrogance descended to a new low.

Apparently, before being appointed to the federal bench by President Clinton, United States District Judge Ricardo M. Urbina (District of Columbia) learned somewhere along his career path—student at Georgetown University and its Law School, practitioner at the DC Public Defender’s Office, teacher at Howard University School of Law, judge at the DC Superior Court—that Articles I (legislative) and II (executive) of the United States Constitution must succumb to the arrogance of unelected, life-tenured Article III federal judges.

That’s because on October 7^th, Judge Urbina decided that the government’s power to hold seventeen Guantanamo detainees had “ceased,” that they were to be transferred to the District of Columbia within four days, that once there they were to be freed, that they were to be relocated in the greater DC area, and that the government better not use immigration laws to harass the illegally-here aliens.

Residents of the District of Columbia were not happy. The Wall Street Journal opined about The Terrorists Next Door. The White House was “deeply concerned by, and strongly disagree[d] with” Urbina’s ruling. Conservatives were outraged, especially at Urbina’s threat to the government that “I do not expect these Uighurs will be molested [!] by any member of the United States government,” arrogantly adding that “I’m a federal judge, and I’ve issued an order.”

Urbina believed he had the power to issue that order because of the Supreme Court’s recent 5-4 decision in the Boumediene v. Bush case, which held that alien unlawful enemy combatants have a constitutional right to use habeas corpus in American federal courts to challenge their detention.

In dissenting from, and lamenting, the majority opinion in Boumediene Chief Justice Roberts asked rhetorically, “So who has won?” His answer anticipated, in part, what Urbina did last week. Roberts wrote:

Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the [United States Court of Appeals for the District of Columbia Circuit] . . . . Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests . . . has been unceremoniously brushed aside. Not the Great Writ [of habeas corpus], whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges. (My emphasis.)

Roberts’s prophesy about the likes of District Judge Ricardo M. Urbina raised yet another question: If the detainees didn’t win, if Congress didn’t win, if the principle of habeas corpus didn’t win, if the rule of law didn’t win, if the American people didn’t win—and, one can add, if the Commander-in-Chief didn’t win—who did?

Earlier in his dissent Chief Justice Roberts suggested the answer, writing that the Boumediene decision is “not really about the detainees at all, but about control of federal policy regarding enemy combatants,” and that “[a]ll that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.”

Or, as Chief Justice Roberts put it: “unelected, politically unaccountable judges.” The Judge Urbinas of the federal bench!

Those of us who for years have had a bellyful of such judges and the damage they have done to our social, cultural, economic, political and military institutions today rightly fear that legions of Urbinas are waiting in the wings for appointment to federal courts following an election victory by Senate Democrats and Barack Obama.

Obama adheres to the doctrine of a “Living Constitution.” Those who subscribe to Living Constitution ideology believe that the founding principles of this Nation are passé, that the Declaration of Independence’s ringing endorsement of individual rights and limited government is outdated, that the Constitution’s creation of a representative republic is from a long past moment in history, and that the Bill of Rights is not a restraint on government but rather a source of newly invented “rights.”

If the federal judiciary, let alone the Supreme Court, falls into Obama’s hands (especially with a compliant Senate, let alone a filibuster-proof one), our Nation will surely be crippled, perhaps fatally, in its domestic battle against socialism and our foreign war against Islamofascism.

This is not a charge that I make lightly, but rather one rooted in the words of candidate Obama himself.

On July 17, 2007, Obama made a speech in Washington, D.C. to the country’s leading abortion-meister, “Planned Parenthood.” In the words of NBC reporter Carrie Dean Obama not only “leveled harsh words at conservative Supreme Court justices,” but “he offered his own intention to appoint justices with ‘empathy’.”

“Empathy,” according to Webster’s New World Dictionary of the American Language, is “the projection of one’s own personality into the personality of another in order to understand him better; ability to share in another’s emotions or feelings.”

Thus, we have been unmistakably warned that president-hopeful Barack Obama will appoint Supreme Court justices who will not honestly interpret the Constitution, Bill of Rights, and Fourteenth Amendment—let alone on the basis of what they say and meant to those who wrote them—but who, instead, will project their own personalities into others to understand them better; justices who can share in those others’ emotions or feelings.

And who might Obama’s empathy-receivers be?

Obama himself told us in that same 2007 Planned Parenthood speech: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.” (My emphasis.)

It couldn’t be clearer what this candidate for the presidency of the United States admittedly has in store for the federal judiciary and thus for our Nation.

So much for the classical liberal philosophy that was at the founding’s core and in its fundamental documents. From now on, constitutional interpretation Obama-style is to be through the eyes of whom he sees as society’s alleged victims.

Obama’s confession drops the notion of a Living Constitutionalism into yet a lower rung of hell. His confession reveals that while in the past the Living Constitution’s acolytes sought to achieve the amorphous goals of “social justice, brotherhood, and human dignity,” a President Obama will feed the beast with what’s left of individual rights and limited government, all in the name of “empathy”—a code word for something much darker: sacrifice of true constitutionalism to the needs of society’s perceived victims.

This perversion of America’s essence—individual rights and limited government—is collectivism/statism squared. While our Nation has so far been able to survive Living Constitutionalism—though with the recent Guantanamo decisions, especially Boumediene v. Bush, who knows?—we may not be able to survive Obama-appointed federal judges in the mode of Richardo M. Urbina.

WHY DON'T THEY KEEP HIM OUT?

Iran’s President Mahmoud Ahmadinejad -- the Izod Ayatollah -- has come back to New York to address the UN General Assembly. If the United Nations today bore even the remotest resemblance to the international peacekeeping body it was founded to be, the line to denounce him would snake around the block, and Ahmadinejad would be arrested as soon as he set foot in New York. In fact, the International Christian Embassy in Jerusalem has called for just that: it is preparing a petition for the UN Secretary-General, calling for the Iranian Thug-in-Chief’s arrest and indictment on charges of inciting genocide against Israel.

But the visiting Iranian president can’t be arrested: he’s “legitimized” by Iran’s UN membership, and the UN Treaty prevents his detention.

And, of course, in the run-up to Ahmadinejad’s visit, the hard Left is planning to honor him. The perpetually-outraged women of Code Pink are planning a protest -- against George W. Bush, of course. The UN General Assembly’s new president, leftist priest and old Sandinista Miguel d’Escoto, will clink glasses with Ahmadinejad at a dinner in his honor hosted by five American liberal Christian organizations, the Mennonite Central Committee, the Quaker United Nations Office, the World Council of Churches, Religions for Peace and the American Friends Service Committee.

Hillary Clinton and a coalition of Jewish groups demonstrated the tenacity of partisan politics even in the face of the prospect of nuclear genocide from Iran: first Clinton declined to attend a rally protesting Ahmadinejad’s UN appearance when she found out Sarah Palin would be there, and then the Jewish groups hosting the rally disinvited Palin.

Our national unity in the face of the threat from Iran must have the mullahs quaking.

In light of his many belligerent statements, frequently demonstrating genocidal intent, it is appalling that the UN would once again allow Ahmadinejad a platform, and shameful that d’Escoto and the rest would welcome him rather than denouncing him. Ahmadinejad has boasted that “the annihilation of the Zionist regime will come.” During Israel’s incursion against Hizballah in Lebanon in 2006, he declared, “The Islamic umma [community] will not allow its historic enemy [Israel] to live in its heartland.” Israel’s end is near, he said: “There is no doubt that the new wave [of attacks] in Palestine will soon wipe off this disgraceful blot [Israel] from the face of the Islamic world.” He has declared that “the Zionist regime is counterfeit and illegitimate and cannot survive.”

His genocidal statements have gone beyond Israel. At the “World Without Zionism” conference held in Tehran in October 2005, as the crowd chanted “death to Israel, death to America, death to England,” the Iranian President again recalled Khomeini’s words: “Once, his eminency Imam [Ruhollah] Khomeini stated that the illegal regime of the Pahlavis must go, and it happened. Then he said the Soviet empire would disappear, and it happened. He also said that this evil man Saddam [Hussein] must be punished, and we see that he is under trial in his country. His eminency also said that the occupation regime of Qods [Jerusalem, or Israel] must be wiped off from the map of the world, and with the help of the Almighty, we shall soon experience a world without America and Zionism, notwithstanding those who doubt.”

Ahmadinejad has threatened Iran’s foes with nuclear action: “Today, the Iranian people is the owner of nuclear technology. Those who want to talk with our people should know what people they are talking to. If some believe they can keep talking to the Iranian people in the language of threats and aggressiveness, they should know that they are making a bitter mistake. If they have not realized this by now, they soon will, but then it will be too late. Then they will realize that they are facing a vigilant, proud people.”

Last July, he crowed that “the big powers are going down. They have come to the end of their power, and the world is on the verge of entering a new, promising era.”

The “new, promising era” that Ahmadinejad envisions features a dominant Iran and a beaten, subservient America, as he himself explained in August 2006: “If you want to have good relations with the Iranian people in the future, you should acknowledge the right and the might of the Iranian people, and you should bow and surrender to the might of the Iranian people. If you do not accept this, the Iranian people will force you to bow and surrender.”

It doesn’t look as if force will be needed. The UN General Assembly is lining up now to do just that.

NO OIL FOR BLOOD!!!!

Yesterday morning, I had the honor of testifying before the House Budget Committee on the situation in Iraq. The discussion was polite and civilized, and was a reminder that even now it is possible for people who disagree about what to do in Iraq to argue without raised voices and disagreeable language (apart from the Code Pink women, yelling for those who think that shouting opponents down is preferable to arguing with them). Congressman Brian Baird once again demonstrated that it is possible even for those who bitterly opposed the war to recognize the importance of doing the right thing now--as well as the possibility of crossing the Republican-Democrat sectarian divide on this issue. One question came up repeatedly in the hearing that deserves more of an answer than it got, however: Why, after all the assistance we've given to Iraq over the past five years, was the first major Iraqi oil deal signed with China and not with an American or even a western company? The answer is, in part, because three Democratic senators intervened in Iraqi domestic politics earlier this year to prevent Iraq from signing short-term agreements with Exxon Mobil, Shell, Total, Chevron, and BP.

The Iraqi government was poised to sign no-bid contracts with those firms this summer to help make immediate and needed improvements in Iraq's oil infrastructure. The result would have been significant foreign investment in Iraq, an expansion of Iraqi government revenues, and an increase in the global supply of oil. One would have thought that leading Democratic senators who claim to be interested in finding other sources of funding to replace American dollars in Iraq, in helping Iraq spend its own money on its own people, and in lowering the price of gasoline for American citizens, would have been all for it. Instead, Senators Chuck Schumer, John Kerry, and Claire McCaskill wrote a letter to Secretary of State Rice asking her "to persuade the GOI [Government of Iraq] to refrain from signing contracts with multinational oil companies until a hydrocarbon law is in effect in Iraq." The Bush administration wisely refused to do so, but the resulting media hooraw in Iraq led to the cancellation of the contracts, and helps to explain why Iraq is doing oil deals instead with China.

Senators Schumer, McCaskill, and Kerry claimed to be acting from the purest of motives: "It is our fear that this action by the Iraqi government could further deepen political tensions in Iraq and put our service members in even great danger." For that reason, presumably, Schumer went so far as to ask the senior vice president of Exxon "if his company would agree to wait until the GOI produced a fair, equitable, and transparent hydrocarbon revenue sharing law before it signed any long-term agreement with the GOI." Exxon naturally refused, but Schumer managed to get the deal killed anyway. But the ostensible premise of the senators' objections was false--Iraq may not have a hydrocarbons law, but the central government has been sharing oil revenues equitably and there is no reason at all to imagine that signing the deals would have generated increased violence (and this was certainly not the view of American civilian and military officials on the ground in Iraq at the time). It is certain that killing the deals has delayed the maturation of Iraq's oil industry without producing the desired hydrocarbons legislation.

Nor is it entirely clear what the senators' motivations were. Their release (available along with their letter to Secretary Rice at the New York Observer quoted Senator McCaskill as follows: "'It's bad enough that we have no-bid contracts being awarded for work in Iraq. It's bad enough that the big oil companies continue to receive government handouts while they post record breaking profits. But now the most profitable companies in the universe--America's biggest oil companies--stand to reap the rewards of this no-bid contract on top of it all,' McCaskill said. 'It doesn't take a rocket scientist to connect these dots--big oil is running Washington and now they're running Baghdad. There is no reason under the sun not to halt these agreements until we get revenue sharing in place,' McCaskill said." So was this about what's best for Iraq and American interests there or about nailing "big oil" in an election year?

Either way, like Barack Obama's asking the Iraqi foreign minister to hold off on a strategic framework agreement until after the American election, it was nothing but harmful to American interests and our prospects in Iraq.