... If we want to stop this before the next Pyrrhic victory, the answer is not to whine about how awful the other party is; it’s to lower the stakes. Far too many people on every side want to do an end run around the legislation process by getting unelected judges to declare their particular concerns beyond the reach of legislators. Why bother tediously lobbying senators and representatives, when you can simply win the White House, appoint a few judges, and get them to transform your most ardent desires into untouchable rights?Where to start? We waited a week to read a screed that ignores our system of checks and balances? Confuses the law-making role of Congress with the law-interpreting role of the Supreme Court? Ignores the integral role the Supreme Court plays in voting for a president? Accuses liberalism of being nothing but a selfish desire,of being nothing but I-want-ism? It's stupid all the way down.
But how can McMegan be stupid when she so handily destroyed a learned opposition?
I remember having an argument over a controversial issue a few years back, in which I offered the opinion that a goal was quite desirable, and yet, probably not really mandated by the Constitution. It doesn’t matter what the issue was; you may insert your own favorite here, from abortion rights to drug legalization. Because whatever the issue is, there are people making exactly the same sort of bad argument about the law.
The fellow arguing with me offered the opinion that this issue was really, really important. I agreed, and repeated that it was still probably not really mandated by the Constitution. He explained, more slowly and loudly, how important this issue was. I said yes, but that doesn’t mean that it’s in the Constitution. The world is filled with many splendid ideas which are not covered by the Constitution. The chap I was arguing with looked befuddled, and then proceeded to reiterate how important this issue was. He was, I must point out, a Harvard-educated lawyer.She's using the Constitution to prove that we don't need constitutional checks and balances.
And she wants us to believe that she, the mediocre student, unsuccessful financial consultant, Koch-supported fake journalist, put a Harvard-educated lawyer, accustomed to constant conflict, pressure and hard work, in his place.
It's just awesome. The naked vanity, the preening, the ignorance, the petulance. I love it. Megan McArdle is just the bestest pundit in the whole wide world.
After a little more yapping we are given this:
Running more and more issues through the appellate courts, rather than struggling through the legislative process, has two terrible effects. First, it federalizes more and more issues, in an era when values and ideologies tend to be sharply partisan and geographically divided. If you were a pro-lifer in Alabama, you probably wouldn't get on a bus to Albany to protest New Yorkers' more liberal abortion laws. But when federal courts decided that abortion law would be substantially the same everywhere in the country, proponents of abortion rights and opponents of abortion became locked in a battle over the court that sets the rules. (And also still squabble at state and local levels, of course.)Now, this is the point where you might start to feel a little dizzy. What is she actually saying here? You don't "run issues through the appellate courts," a group or individual appeals a losing court ruling to a higher court. The Supreme Court has jurisdiction over federal court cases and state court cases involving federal law. You don't "federalize" issues, at least not for the reasons McArdle thinks it is done.
While looking stuff up (a habit I highly recommend to McArdle) I found this from the Central California Appellate Program:
Why should I federalize my issues?
All potential federal issues must be properly preserved in the state court. A defendant must fairly present the federal law claim in each appropriate state court. (Baldwin v. Reese (2004) 541 U.S. 27; 124 S.Ct. 1347; 158 L.Ed.2d 64.) Thus, for your client to have any hope of taking issues into federal court, they must be fully "federalized" and exhausted in the state courts first. The failure to exhaust federal issues and procedural default continues to raise problems for federal defenders pursuing federal constitutional issues following the conclusion of state court proceedings. State appellate lawyers must be mindful of these considerations, lest the rights of their clients be unwittingly compromised.
How do I federalize an issue?
In essence, you must explicitly present your issue as a federal claim by referencing a federal constitutional provision and/or federal case law in your discussion. Putting the federal constitutional provision in the header-title alone is not enough to exhaust a federal claim. Likewise, citing only state cases that discuss or apply federal law is not enough. The specific basis for the federal claim must be presented in the text of the brief. For example, in Dye v. Hofbauer (2005) 546 U.S. 1, the Supreme Court found that the issue was properly federalized when the argument cited to both the federal constitution and federal cases to support the federal claim. (Id. at p. 4.) Putting the federal reference in the header-title is advisable as well.I guess McArdle doesn't know that abortion was decided based on a constitutional right to privacy.
The Court ruled 7–2 that a right to privacy under the Due Process Clause of the 14th Amendment extended to a woman's decision to have an abortion, but that this right must be balanced against the state's two legitimate interests in regulating abortions: protecting women's health and protecting the potentiality of human life. Arguing that these state interests became stronger over the course of a pregnancy, the Court resolved this balancing test by tying state regulation of abortion to the third trimester of pregnancy.At what point does McArdle become too embarrassing to employ? Don't get me wrong, I'm glad she's employed. She's too stupid to be dangerous, unlike some other pundits. But seriously. Are there no standards left?
The second problem is that by putting any issue beyond legislative debate, deeming it a decision for judges alone, you leave a large number of Americans who are passionate on certain issues feeling like they have no democratic recourse. It's a recipe for extreme reactions, like voting for Donald Trump or worse.Since Republicans have devolved into Trumpettes, we need to get rid of the Supreme Court, our Constitution, and our system of checks and balances.
Of course, when matters of such great importance are at stake, it’s very tempting to do an end run around politics, and avoid those unsatisfying compromises, by putting the question in the hands of unelected people who are, by design, removed from the passions of democracy and representative government. They can therefore rule much more sweepingly than legislators would.This is insane. It bears no resemblance to reality. It's tea party dogma from the wife of a tea party activist. It's chain-mail-level of discourse.
But this doesn’t fix the political problem. It only moves it to the question of how the justices are picked, a question that is about to catapult our political system into a new, and more dangerous, level of crisis. For if you leave people no way to work through the system, they are apt to start working against it instead.Elections. Maybe she's heard of them? Maybe she's heard that there's one coming up this year, as well as debates and caucuses and lots of other election-related events. It's been on the news.
McArdle demonstrated the same hysteria when Obamacare passed. How dare your elected representative represent you! He should be representing me instead! Everyone knows that the country is conservative and the law is conservative and the churches are conservative and the schools should be conservative and so should the pizza and cake!!!
Oh, orderlies? Over here! I think it's time for the straightjacket.
Thrilling Update! In McArdle's comments we see that she has thrown out her back but muscle relaxers are doing their work. I must amend my original question to stupid, crazy or high.