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September 15, 2005 [LINK]

The Pledge is unconstitutional?

Preposterous but true. The ruling by a judge of the Ninth Circuit of the U.S. Court of Appeals that it is unconstitutional to recite the Pledge of Allegiance [because of the reference to God] applies only in "public schools," but it is clear the direction they are headed. [What's next -- tossing out the Declaration of Independence because it invokes God four times?] The case was prompted by atheist proselytizer Michael A. Newdow, whose case was dismissed a few years ago on the grounds that he did not have custody of his daughter at the time. Then he refiled the suit on behalf of unnamed parents. See Washington Post. Mr. Newdow leaves no doubt that he will not rest until the Pledge itself is expunged of God's name, and he will no doubt pursue his cause in other arenas. The Ninth Federal Circuit has a well-deserved reputation as a bastion of left-liberalism, but its problems don't end there. It has 28 active judgeships and its jurisdiction encompasses western states, accounting for nearly 20 percent of the total U.S. population, which creates all sorts of distortions. Cases arising in urbanized California are often far different from those arising in Alaska or Idaho. As a measure of expediency, the Ninth Circuit adopted rules such that all members need not be present for "en banc" reviews, which are ordinarily heard by the entire panel of judges. Thus, the court's rulings may not actually reflect the views of the majority of the court, and contradictory opinions issued by the same court are not uncommon. See

The only possible rationale for such a ruling would be if reciting Pledge were compulsory, but it is clearly not. Religious dissenters such as Jehovah's Witnesses are routinely exempted from reciting the pledge, and hardly anyone sees anything wrong with such an accommodation to minority sentiment. As I wrote on July 9, 2002, however, "without a widespread belief in a God, we Americans would have no basis upon which to claim the rights that make us a free people." (Note in the very next piece that I emphatically reject any attempt to impose a constitutional [ban on] flag desecration, which the Republicans in the House recently passed.) We most certainly are a "nation under God," whether you truly believe in God or merely regard Him as a product (for better or worse) of the human imagination. From a partisan point of view, this ruling was actually very timely, as it reminds sensible people in the middle of the political spectrum how important it is to get more conservative judges seated in the Federal court system!

The Roberts hearings

Speaking of the courts, I was really floored when I heard Sen. Joe Biden's sarcastic inquisition in the Judiciary Committee hearings on Wednesday. Rush Limbaugh highlighted Biden's blatant hypocrisy on the issue of whether nominees should be forced to state opinions on prospective cases during confirmation hearings. When Ruth Bader Ginsberg was being questioned in 1993, Sen. Biden stated unequivocally that it would be wrong to force the nominees to do so, and he was quite right to make that point. For the curious, a wide variety of legal opinions and other documents detailing Roberts' background are available from the University of Michigan Law Library. (via Connie) Roberts answered Sen. Kennedy's bumbling, ill-informed queries with deferential grace and alacrity, and is now a shoo-in for confirmation.

Given the unusual situation of two simultaneous Supreme Court vacancies, there is stronger than normal interest in the tenure of the current justices. I have created a table of the years each of the court members who were serving as of the beginning of this year on the new Supreme Court page.

UPDATE: The new table of Supreme Court justices now distinguishes between those who were nominated by presidents of one party and those who were confirmed by a Senate that was controlled by the other party. While I was at the APSA annual meeting in Washington earlier this month, I came across a new book, Active Liberty: Interpreting Our Democratic Constitution, (see written by Clinton-nominated Associate Justice Stephen Breyer, in which he expounds the liberal notion that the Constitution is not an iron-clad set of restrictions on government action, but is rather a "living" document that adapts to changing circumstances that could never have been envisioned by our Founding Fathers. I supposed it's quite fitting for an era in which the guiding social norm is "whatever." Any constitutional scholar should know that our constitution is notable for the [relative] absence of explicitly democratic procedures and norms. Democracy in America is something that evolved over many decades.

"Blame game"

When I wrote that "everyone seems to be blaming the other side for the Hurricane Katrina disaster" on September 12, I should have made it clear that President Bush has not engaged in any finger pointing whatsoever. He may have been slow to respond to the catastrophe at first, but he has acted in a consistently presidential manner, most notably when he assumed responsibility yesterday for the slow and inadequate response of the Federal government. That prompted Mayor Fagin to say he assumed responsibility for the failures of local government. Is this a great country or what?

Posted (or last updated or commented upon): 16 Sep 2005, 4: 14 PM

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