"Treasury Secretary Timothy Geithner in early 2009 found himself dealing with the worst economic crisis since the Great Depression without his team of deputies in place. The attempted bombing of an American airliner on Christmas Day 2009 occurred when the Transportation Security Administration was without an administrator."
Correct me if I am wrong but wasn't that in great part because BO (Geithner) did not nominate anyone?
NOT DENYING THE LARGER ISSUE, but
a) the Dems strated it with their outrageious borking of Reagan's Judge Bork nomination (contrast the Reps subsequent treatment of Ruth Bader Ginsberg; b) BO has nominated some seriously radical people.
I don't think that a "he started it" is all that helpful. That may be the case, and I do feel that Bork deserved a seat on the Bench, but there is more than that. (Here's an opening) As the size of the government increases, which it has consistently across adminisitrations regardless of party, that then increases the number of political appointments that the president, with the Senate, is responsible for filling.
And, whether you like it or not, the Senate has been responsible for preventing people from taking a place on the Supreme Court under necessary circumstances, as well (Fortas and the early Nixon defeats come to mind as examples). I recognize that the Senate should not abdicate its advice and consent role, but I do think that a reform of the process could help the president, regardless of party.
Small tangent: I think that reform should focus primarilt on the executive branch positions. I think the president should have more latitude as on appointments for those who will work for him than for those in a co-equal branch of government with lifetime appointments.
WASHINGTON (AP) — The Senate, in its inaugural session, rejected George Washington's nominee to be a naval officer in Savannah because the two Georgia senators wanted their guy in the job. The way of naming and confirming the nation's top officials hasn't become much smarter in the years since.
It's become a lot more of a problem.
President George W. Bush had only about half his political appointees on the job at the time of the attacks on Sept. 11, 2001. Treasury Secretary Timothy Geithner in early 2009 found himself dealing with the worst economic crisis since the Great Depression without his team of deputies in place. The attempted bombing of an American airliner on Christmas Day 2009 occurred when the Transportation Security Administration was without an administrator.
Senate Majority Leader Harry Reid and Republican leader Mitch McConnell, in a rare moment of agreement, opened the new Congress this month by endorsing a bipartisan effort to find ways to improve an unwieldy, unproductive system.
It's a challenge because there are so many ways to bog down a nomination.
Reid noted that the slow-moving Senate is now responsible for confirming 1,215 executive branch nominees and the number keeps rising. Brookings Institution senior fellows E.J. Dionne Jr. and William Galston wrote in a study that the number of core policy positions the president must fill has risen from 295 when Ronald Reagan took office to 422 for Barack Obama.
Then there's the onerous screening process, even for lower-level appointees. It's meant that an administration can take months to send a nomination to the Senate for confirmation. Finally, there's the increasingly partisan Senate, where a single lawmaker has the power to bottle up a nomination for months or kill it, sometimes for reasons unrelated to the person in line for the job.
Like their Georgia counterparts of old, Louisiana's two senators stood in the way of nominations last fall to protest the freeze on offshore drilling after the Gulf of Mexico oil spill. The White House said there would be a one-week delay in making public the president's budget proposal this year, partly because Sen. Mary Landrieu, D-La., had blocked a vote on Obama's choice to be budget director, Jack Lew, for more than a month.
"Among the democracies, the United States has created — without intending to — what is almost certainly the most ungainly process of filling a government with qualified people," Dionne and Galston wrote.
A Commission on Public Service headed by former Federal Reserve chairman Paul Volcker recommended in 2003 turning one-third of all Senate-confirmed political positions into career jobs. The Partnership for Public Service, a nonprofit group that promotes service in the federal government, wants the Senate to commit to voting on the president's top 50 national and economic security officials immediately after inauguration and having the top 500-plus appointees in place by the summer recess.
Those studies dealt primarily with executive office nominees and not the equally vexing issue of judges. There are more than 90 judicial vacancies in U.S. district and appellate courts today. Chief Justice John Roberts complained in a year-end report that "each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes."
Reid, D-Nev., and McConnell, R-Ky., suggested that the chairman and the top Republican on the Senate Rules Committee — Sens. Chuck Schumer, D-N.Y., and Lamar Alexander, R-Tenn. — lead a working group to study ways to streamline the confirmation process. But progress probably depends on Democratic-led efforts to change Senate rules to make it harder for single senators to hold up legislation and nominees and to reduce the number of filibusters.
At the end of the last session of Congress, 43 nominees, including judges, awaited a vote by the full Senate. That compared with seven at the end of Bush's first two years in office, Reid's office said. Seven have been on the waiting list since 2009.
One result is that many competent people are dissuaded from accepting positions in government, said Max Stier, president of Partnership for Public Service.
"It's the rare individual who is both qualified and willing to run the obstacle course that is required," he said. Stier said there are examples of people, even those without background problems, who had paid hundreds of thousands of dollars in legal fees to get through the screening process.
Presidents sometimes turn to recess appointments — putting people in the jobs temporarily when the Senate is not in session. Obama warned Republicans last February that he would resort to this strategy because of holds on nominations he said were "motivated by a desire to leverage projects for a senator's state or simply to frustrate progress. It is precisely these kinds of tactics that enrage the American people."
Among his recess appointees: Donald Berwick, a Harvard professor now heading the agency that runs Medicare and Medicaid; James Cole, the No. 2 official at the Justice Department; Craig Becker, as a member of the National Labor Relations Board.
Obama also avoided a drawn-out fight with Senate Republicans on Elizabeth Warren, his choice to head the new Bureau of Consumer Financial Protection, by naming her to oversee creation of the fledgling agency. That post doesn't require confirmation.
This is from SI, and Phil Taylor is discussing the most recent voting from the Baseball Hall of Fame. I like this entire article, but the qutoes below are what stood out to me the most, and why I posted here:
Q | Doesn't that mean that some players with excellent stats will be kept out?
A | It does, and there's nothing wrong with that. The Gatekeeper believes the Hall of Fame has too many members as it is. In fact, don't get the Gatekeeper started, because he'll talk your ear off about how it's all part of the misguided tendency in sports to relax the standards of excellence. We don't just lock onto outdated milestones, like 500 home runs, we consider anyone who gets in the neighborhood, causing the bar to fall increasingly lower. The problem isn't limited to the Hall. Some people want to double the number of teams in the NCAA men's basketball tournament—or even worse, let everyone in. Loosening the definition of excellence is why we have expanded playoffs and expanded All-Star rosters. Does everything have to be devalued, diluted? The Gatekeeper wants a Hall that's harder to get into than his old high school jersey.
Q | Isn't it unfair to keep deserving players out when they don't meet subjective criteria?
A | Define deserving. The Gatekeeper believes that no one deserves enshrinement in Cooperstown. Induction is a privilege, and it's perfectly reasonable to put emotion into the analysis. Noted baseball thinker Bob Costas has said that the Hall should be limited to the immortals. The Gatekeeper couldn't agree more. How do we get such a Hall? By asking questions that can't be answered with a calculator. Did the player take your breath away? Is he someone to tell your grandchildren about? The Gatekeeper evaluates an artist by how a painting makes him feel, not by the number of brushstrokes per canvas.
What I will write here likely will lead to backlash and consternation from at least some of you.
Williams sets up the article in a sort of straw man. Asking the the question of whether the the father of the Constitution was constitutionally ignorant is silly. And you and I both know it, and so does he. However, as I often say, Madison was not the only person attending the convention, not the only person writing the Constitution, not the only person voting on the document in convention, and most certainly not the only person voting to ratify the document. While I want to give Madison his due, it is important to note that even Madison is not solely, or even mostly (despite Williams' set up) responsible for the Constitution. By the way, Constitution signer Rufus King was in the Senate at the time of Madison's veto. I can't quickly find if he voted to support the bill, but pretending that he did, he would not be constitutionally ignorant.
Also, it is worth noting that the president, by design, is intended to check congressional power, and no where is this seen more than in the veto. (Quick note: I like this. I think the veto is incredibly important and worthwhile.) Just because Madison SAID he vetoed for a particular reason does not mean that this is the real reason. Perhaps the House had managed to upset him, and he vetoed for a personal or politcal reason.
Another important innovation, by President Andrew Jackson, is the veto for strictly political reasons. He, unlike his predecessors, did not feel the need to even try to justify some of his vetoes with a nod to the Constitution. While I realize that Jackson postdates Madison, that cannot be said for the other two presidents that Williams uses to support his argument. Pierce and Cleveland certainly may have felt that a veto was required by constitutional standards, or they could just have used constitutional language to support their politics. I am not sure why either Pierce or Cleveland would be considered any more constitutionally literate than any other particular president. Moreover, it is worth noting that Cleveland hardly met a bill he didn't want to veto, and that over half of Pierce's were overridden: http://www.infoplease.com/ipa/A0801767.html.
Finally, the Constitution has changed. Not always in a formal way, and I realize that that it the only way that many of you see it as legitimate. However, states, in many instances, have asked the national government to step in many different instances, many of which involve "charity." Moreover, whether Madison likes it or not, we have an interstate highway system, and railroads, and planes. A far higher percentage of the commerce of today is interstate. If I drink a Coke, based out of Georgia at a McDonald's, based out of Illinois, out of a cup made in , on my way to Maine, it is interstate commerce. If I order a Dog Brothers DVD and it is shipped to my home, it is interstate.
Things are different now, politically, environmentally, etc.
DougMacG: While I appreciate the First Amendment a great deal, I like the idea of the revocation of the tax exempt status. I have no love for Fred Phelps, but I am looking forward to the USSC's opinion on the anti-protest legislation.
(One small quibble: remember that the lack of protection by the First Amendment is FALSELY yelling fire in a crowded theater. If I am watching a movie, and there is a fire, I for damn sure want to know!)
I have spent my lunch hour discussing this situation with two anti-gunners. It did take them 2 minutes after I walked into the lunch room for the discussion to begin. The backlash is quick.
A statistics of pardons, from Presidents Truman to Obama. Pay special attention to Clinton's last day pardons of Marc Rich, Roger Clinton, and Susan McDougal, accessed from a link on the page. http://www.justice.gov/pardon/recipients.htm
Well, as Speaker she campaigned for several D's in 2008, let them lambast her in 2010, controlled debate on the floor of the House, has major impact over committee assignments, and big time sway over the contributions of the DCCC.
I was at a birhtday party a few weeks ago, and there was discussion of football and football fans. One of the mothers there said to a early teen girl who had mentioned that she liked football, after the mother had said that she doesn't allow her 10ish year old son to watch, something to the effect of: "That's fine for you. I don't have to worry about you growing up and beating your wife."
BD, There was humor intended that did not come through. My timing was lousy because of reading along without having the time to post. I'm sorry for making things worse. I was sincere in saying I appreciated the original post. - Doug
Rereading your post, there is humor and it does come through. My sincere apologies, DMG.
I am stunned at how much my post has generated, for a few reasons. 1, I genuinely found the original aricle posted by GM to be interesting. I then posted another article with a different list of underreported stories. I acknowledged the interest I had in GM's post, and thought there might be other stories of interest. Instead, the interest was that I used TIME MAGAZINE. Holy ape sh!+, Batman.
2, Guro Crafty has asked for a cease and desist. Something about a dead horse... keep kicking it, I'll let you, but I will no longer be brought into the session.
3, DougMacG, while I appreciate your interest (and I mean that sincerely), I'm not sure how my posting a single article from TIME MAGAZINE is like taking acid. As I have said earlier, I post stories because I find them to be interesting. I found the Scalia interview to be interesting, but not because of a browbeating.
4, I attempt to convey a general appreciation for the materials presented /shared in this forum, even when I do not agree with them, but that is not the norm, it would seem. If I don't agree with them, I will certainly acknowledge that, but it doesn't mean that I don't appreciate the fact that the person found the story worth sharing. Let me repeat, I don't always post stories I agree with. I post those I find interesting. If the articles, etc. that I post don't interest you, don't read them. But to have 3 day discussion about TIME MAGAZINE, and not the story is pointless. See 2 above, and the rule about remaining "friends at the end of the day."
BD, I agree that with your mindset you can get useful starting points from JournoLists, indeed very JKD of you to do so but FWIW for myself I think there are other sources more that give more value for my time. For example see CCP's post of the interview with Khosla on January 1 with regard to energy and environmental predictions on the Stock Market thread of our "S,C, &H" forum.
Anyway, I suspect we are near to confusing a horse with a cat-- the cat may have 9 lives, but this horse is probably dead by now from the beating we have given him Last word yours
I think part of the issue is that we come at this from different starting points. Unlike most people, I don't look at news just to be informed. I look at news that can be digested, is informative, has a different tack, and lots of other reasons and purposes. While I certainly read for myself, and increasingly for this forum, I also use the materials professionally. While you (plural) may not find Time, NYT, or other publications to be worth your while, in the end they are not less trustworthy, biased, useful, important, etc. than most other sources.
Media are designed to make money, and increasingly news has become "softer" no matter the medium. My favorite recent example was a (seemingly serious) discussion about the way that President Obama walked his dog. To blame Time for having biases is silly. They attempt to reach their audience. Fox News does the same thing.
This is why I suggest that any news source can provide an intro to a story. NO news outlet can, will, or should provide a comprehensive look at any story. They just can't. There are contradictory book length treatments of much of the world's problems.
I have written a 2-3 page article and used 30 sources. Not all of them were "expert", "right", "mainstream", or some other adjective. However, all of them provided a small lens into the story I was telling.
Simply dismissing a story because Time, or similar, tells it is too simple. A professor of mine once asked the question of a bureaucrat who was creating an advisory board. In general, the board should be comprised of experts who are more right than wrong. If, however, there was one person who was only right 10% of the time, but was right when everyone else was wrong, wouldn't you want him on the board?
It seems to me that we, at least as martial artists, do this same thing (a head nod to the JKD in me). If I go to a BJJ seminar with some hotshot, trim, young,black belt and he teaches me only one thing in 2 days that I feel like I make mine, I don't dismiss his expertise. I am glad I went to the seminar.
After all that, I feel really bad for the horse. Sorry, Mr. Ed.
Yes, any media entity could potentially introduce a story not being covered by other media entities. Given the corruption demonstrated by Time and other MSM entities involved in JournoList, do you trust them?
GM, I don't trust much about any news source, mainstream or otherwise. That is why I suggested that if one source can introduce me to a story, it can provide the impetus to do expanded research on my own. My trust of Time is not higher or lower than New York Times, Fox News, The Economist, Commentary.
20 predictions for the next 25 years From the web to wildlife, the economy to nanotechnology, politics to sport, the Observer's team of experts prophesy how the world will change – for good or bad – in the next quarter of a century
1 Geopolitics: 'Rivals will take greater risks against the US'
No balance of power lasts forever. Just a century ago, London was the centre of the world. Britain bestrode the world like a colossus and only those with strong nerves (or weak judgment) dared challenge the Pax Britannica.
That, of course, is all history, but the Pax Americana that has taken shape since 1989 is just as vulnerable to historical change. In the 1910s, the rising power and wealth of Germany and America splintered the Pax Britannica; in the 2010s, east Asia will do the same to the Pax Americana.
The 21st century will see technological change on an astonishing scale. It may even transform what it means to be human. But in the short term – the next 20 years – the world will still be dominated by the doings of nation-states and the central issue will be the rise of the east.
By 2030, the world will be more complicated, divided between a broad American sphere of influence in Europe, the Middle East and south Asia, and a Chinese sphere in east Asia and Africa. Even within its own sphere, the US will face new challenges from former peripheries. The large, educated populations of Poland, Turkey, Brazil and their neighbours will come into their own and Russia will continue its revival.
Nevertheless, America will probably remain the world's major power. The critics who wrote off the US during the depression of the 1930s and the stagflation of the 1970s lived to see it bounce back to defeat the Nazis in the 1940s and the Soviets in the 1980s. America's financial problems will surely deepen through the 2010s, but the 2020s could bring another Roosevelt or Reagan.
I got your email, and will read it in the AM. I take your point, but I still see merit in the Time piece. It is silly, I think, to assume that a single news outlet will provide the whole story. Bias will persist whether political, geographical, gender etc. What the stories can do is bring them to our attention and then allow us to research the background stories. A little research never hurt anyone!
FIRE is, in my opinion, a very good organization. In my adult life, I have dealt with public and private colleges and universities in several states and in varying capacities. I can tell you first hand that many are becoming more controlling of speech than they were even 10-12 years ago (and even then there were control issues). I can also tell you from first hand experience that several have begun to relinquish some of that control. There has been some backlash from faculty and students that have led to this. Organization such as FIRE are also an intrical part of this movement, again in my opinion.
There are some good media reactions to speech control on campuses as well. Two of my favorite:
1. PCU, a very funny, low budget film from the mid-1990's starring Jeremy Piven, Jon Favreau, and David Spade. See below for a trailer that fails to fully illustrate or even hint at the depth at the attack on PC.
2. "Free Speech for me but not for Thee" by Nat Hentoff (who has written several books on the subject of free speech). This book includes several examples of censorship on campuses.
When I saw it was Time magazine I pretty much stopped right there. My disrespect for this publication is such that I cannot be bothered to say why. Its like when someone asked Louie Armstrong what jazz was, he is said to have answered "If you have to ask, I can't tell you."
I will say that I seethe quite a bit that the same folks here in the US who did their very best to sabotage and undercut our efforts there complain that it did not go well. This is not to say that there was not a loyal opposition; it is only to say that there was a very disloyal one too and that the damage it did was incalculable.
That's too bad. Several of the stories were ones that I found interesting. Jihadists in Somalia and unrest among the Irani powers that be, for instance.
I thought the crux of the article was the lack of philosophy in the class room. In particular, the lack of teaching critical thinking, according to the author, has led to a perilous situation in the American educational system.
GM (and others), I post articles that I think are interesting, thought provoking, worthwhile reading, or worthy of discussion. I don't necessarily agree with any, or all, of the author's contentions, ideas, or viewpoints. Not everything is a personal attack, an attack, personal, or worth getting bent of shape about.
"Some trumpet as solutions the usual neoliberal bromides — charter schools and for-profit private schools at all education levels. But, according to numerous studies, these schools rarely live up to the hype."
The reasons why public education is suddenly an issue despite years of neglect by politicians and the media are straightforward. In this depressed economy credentials seem to have lost their advantage. Many parents and politicians claim schools have failed to deliver what students need. There is a widespread perception that illiteracy is rising, meaning, for one, that fewer people can read complex texts. And the results of No Child Left Behind with its draconian high-stakes standardized testing have been disappointing, to say the least.
Mainstream educators and commentators warn that the United States, once a leader among advanced capitalist societies in graduation rates, has fallen to 12th place and is still tumbling. Many are concerned that education has become a national security issue. Others point out that the engines of the global economy are math and science and this country is turning out fewer trained physicists, chemists, biologists, mathematicians and computer scientists.
Some trumpet as solutions the usual neoliberal bromides — charter schools and for-profit private schools at all education levels. But, according to numerous studies, these schools rarely live up to the hype. Others have rejected the long American experiment with progressive education, in which students are the subjects of schooling, not just its object. In the 1980s, school authorities decided that kids needed more discipline, more time in school and more homework. The latest brilliant policy concept is to reward or punish teachers for their students’ performance.
Teachers unions have soundly rejected this particular “solution,” calling it a blatant attack on teacher professionalism and living standards. In a time of severe cuts in school funding, however, many locals of both major national teacher unions have meekly accepted layoffs, increased class sizes and performance criteria. Above all, neither the unions nor educational authorities have offered serious alternatives to the conservative-led drive toward neoliberal privatization. And the left seems content to roll out the usual proposals: more money for schools, wider access for poor and working-class students of color to higher education and an end to privatization.
While these reforms are necessary, they are hardly sufficient. The right wants to keep kids’ noses to the grindstone by testing them into submission, hand off schools to the for-profit sector and throw unworthy, disruptive kids out of school or at least relegate them to “special education,” the only thriving sector in K–12.
Most liberals lack a similarly direct and powerful program. They may praise the centrality of critical thinking, a legacy of the progressive era, but they mainly offer band-aids. That’s because liberals have accepted the dominant framework that education, or more accurately, schooling should serve the economy by training students to take their respective places in the world of work.
Not true. What radicals should offer handwringing liberals is what radicals do best: go to the root of things. Education should be a preparation for life, especially helping kids become active in determining the conditions that most affect them.
The ACLU looks to science fiction to prepare for future threats to civil liberties
A few months ago I watched Moon, a 2009 indie science-fiction film, with a friend who works on public relations for the American Civil Liberties Union. The movie centers on Sam Bell, a solitary laborer who spends his days extracting helium from moon rocks and drawing comfort from correspondence with his pregnant wife on Earth. That is, until he discovers he's actually one of a series of short-lived and expendable human clones bred for the dangerous, repetitive work of moon mining. After Bell outsmarts the automated systems and escapes on a vessel bound for Earth, a tangle of audio broadcasts lets us know that the mining company's stock is crashing due to charges of crimes against humanity.
As the credits rolled, my friend said to me, "I'd like to think that when that guy got to Earth, the ACLU would have taken his case."
The idea of the ACLU battling a private corporation over whether clones are human beings or pieces of property may seem far-fetched. But almost a decade ago, the organization started thinking about how to do it.
In a hospital room on the Greek island of Crete with views of a sapphire sea lapping at ancient fortress walls, a Bulgarian woman plans to deliver a baby whose biological mother is an anonymous European egg donor, whose father is Italian, and whose birth is being orchestrated from Los Angeles.
She won't be keeping the child. The parents-to-be—an infertile Italian woman and her husband (who provided the sperm)—will take custody of the baby this summer, on the day of birth.
The birth mother is Katia Antonova, a surrogate. She emigrated to Greece from Bulgaria and is a waitress with a husband and three children of her own. She will use the money from her surrogacy to send at least one of her own children to university.
Italian court increases sentences for 23 CIA agents
ROME (AFP) – An Italian court upped the sentences for 23 CIA agents convicted in absentia of abducting an Egyptian imam in one of the biggest cases against the US "extraordinary rendition" programme.
The 23 CIA agents, originally sentenced in November 2009 to five to eight years in prison, had their sentences increased to seven to nine years on appeal in what one of the defence lawyers described as a "shocking blow" for the US.
"Instead of this crucial question being decided by one conservative judge in Virginia, it will likely be decided by one bizarre, unpredictable judge in Washington, Anthony Kennedy." From DougMacG, in a different thread
There has been a recent fascination with Justice Kennedy, no doubt spurred by Justice SDO retiring in 2006. Her retirement left Kennedy as the "swing" justice. As a result of this, there has been a fair amount of research done by political scientists, journalists, and law professor types. Most of them conclude that Kennedy is not as unpredicatable as is popularly understood.
Vol. 19 No. 5 (May, 2009) pp.347-350 THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY, by Helen J. Knowles. Lanham, Maryland: Rowman & Littlefield, 2009. 312pp. Hardback. $44.95/£30.00/€44.50. ISBN: 9780742562578.
Reviewed by Tobias T. Gibson, Department of Political Science, Monmouth College. Tgibson [at] monm.edu.
With the recent announcement that Justice David Souter is retiring from the United States Supreme Court, there has been a great amount of wordage from journalists and judicial scholars about the type of justice that President Barack Obama will nominate to fill Souter’s seat. There is much discussion about the strength of decisions that the new justice will pen, especially given Souter’s reserved judicial demeanor. However, many court watchers believe that junior justices, like children in days past, are to be seen but not heard. Helen J. Knowles, in her excellent book, offers some insight into how a junior justice can have profound impact on the Supreme Court. Knowles suggests that Kennedy, as a junior justice, made significant jurisprudential arguments when still a junior justice on the Court, and continues to do so today.
Knowles chronicles Justice Anthony Kennedy’s career and jurisprudential views, especially as they relate to three important areas of civil liberties: privacy, race and speech.
Knowles uses the Introduction of the book to suggest that Kennedy’s reputation of writing opinions which are “doctrinally weak” does not do justice to the Justice. Instead, the purpose of this book is “to try to identify some of the most prominent and important philosophical and legal threads that are woven into the cloth from which Justice Kennedy’s jurisprudence is cut” (p.2). Knowles starts from the assertion that Kennedy is a “moderate libertarian.” This assertion stems from Kennedy’s avoidance of radical legal positions, coupled with his belief in diverse views and protection of human dignity.
Importantly, Knowles approaches this study from a perspective related to neo-institutionalism and the strategic model of judicial decision making. Knowles views this as a key element in the book, because like the adherents of these models, she is “interested in asking why justices vote the way they do and how they are constrained and/or influenced by the broad political, historical, and cultural contexts within which they work” (pp.9-10).
In Chapter 1, Knowles begins to attack her overall hypothesis by defining libertarianism, with the assistance of such luminaries and Robert Nozick, Jeremy Bentham, John Locke and John Stuart Mill (whose ON LIBERTY is purposefully part of the title of the current book). Following the definition, the challenge is to see Kennedy’s application of libertarianism. Knowles uses interviews and speeches to convince the reader that Kennedy is a moderate libertarian who believes in tenets of libertarianism, such as toleration and personal responsibility. More importantly, in direct contrast to [*348] Justice Antonin Scalia and failed Supreme Court nominee Judge Robert Bork, Knowles notes that during his confirmation, Kennedy testified to the Senate about his broad understanding of rights that are not specifically enumerated in the Constitution.
The second chapter begins the heart of the book and focuses on Justice Kennedy’s views on the freedom of speech, which, for Kennedy, is particularly sacred because he sees speech as the “beginning of thought.” Knowles introduces this chapter with a quote from Justice Kennedy in INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE (1992): “The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech” (p.53). This is an important belief for Kennedy and can be seen throughout his defense of speech. Knowles predictably, and correctly, also utilizes Kennedy’s famous concurring opinion in TEXAS v. JOHNSON (1989). The most interesting portion of this chapter, however, is the discussion about Kennedy’s views about the use of “strict scrutiny,” which was first made public in SIMON & SCHUSTER v. CRIME VICTIMS BD. (1991). Kennedy makes the argument, again in a concurrence, that the strict scrutiny test, applied in the opinion of the court, is unnecessary. Kennedy feels this way because he believes that the strict scrutiny test “has no real or legitimate place when the Court considers the straightforward question whether the state may enact a burdensome restriction of speech based on content only” (p.69). Knowles acknowledges that Kennedy’s position toward the freedom of speech is not absolute, but carefully notes also that even when his view is “tempered by the realities of the different cases he has confronted” (p.87), he remains true to his root belief that government should not try to control the thoughts or expression of its citizens.
In the third chapter, Knowles then turns to individual dignity, rather than “membership” in a group, based on race, sexuality or other particular characteristics. Knowles again does a convincing job of illustrating Kennedy’s dedication to libertarian ideals in this chapter. She effectively draws upon ROMER v. EVANS (1996) and LAWRENCE v. TEXAS (2003) to make the point that in this area of law, Kennedy views too much governmental intrusion to be at odds with individual freedom. At issue in ROMER was a Colorado state constitutional amendment that prevented discrimination on the basis of sexual orientation. Kennedy wrote that the amendment was “so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects” (p.110). Similarly, in LAWRENCE, Kennedy takes the Court’s decision in BOWERS v. HARDWICK to task by writing “Bowers was not correct when it was decided, and it is not correct today” (p.116). His reasoning for this is that “Liberty protects the person from unwarranted government intrusions into a dwelling or other private place. . . . And, there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial boundaries” (p.121). [*349]
In the following chapter, Knowles extends the discussion of Kennedy’s aversion to group based characterization of the individual. Here, the focus turns to race. The case at the heart of the discussion in this chapter is METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION (1990), in which preferential treatment for minority owned communications companies was given in issuing federal communications licenses. Kennedy dissented from the majority opinion which upheld these preferences in support of diversity. Kennedy voiced his preference for strict scrutiny here, which was at odds with the less exacting test employed by Brennan. Kennedy, in writing what one commentator described as an “apocalyptic” dissent, compares the majority opinion to the infamous PLESSY and KOREMATSU decisions. He elaborates on this by stating “[p]erhaps the Court can succeed in its assumed role of case-by-case arbiter of when it is desirable and benign for the Government to disfavor some citizens and favor others based on the color of their skin. Perhaps the tolerance and decency to which our people aspire will let the disfavored rise above hostility and the favored to escape condescension” (p.137). Knowles presents an impressive discussion of several cases here to make the point that Kennedy’s real concern is that, by focusing on group characteristics, the individual’s freedom is jeopardized because the individual cannot have all of the characteristics of the group.
The fifth chapter focuses on abortion cases, with a particular nod to PLANNED PARENTHOOD v. CASEY (1992) in which Kennedy coauthored the opinion of the Court with Justices O’Connor and Souter. Because Kennedy’s view is that there is no clear boundary of where individual liberties lie with regard to abortion, Knowles makes the argument that Kennedy’s understanding of abortion rights is based on the “relationships between (1) libertarianism and abortion and (2) libertarianism and personal responsibility” (p.163). Knowles supports this, observing that, while Kennedy and the other authors note the importance of the woman’s liberty to have an abortion, the decision is not “isolated in privacy.” This observation allows Knowles to come full circle from the first chapter, where she defines and describes Kennedy’s limited libertarian view.
The conclusion serves to reiterate the points made in the prior chapters. Knowles also uses this opportunity to note the political importance of understanding Kennedy’s views. For example, in the first term since John Roberts and Samuel Alito took their seats on the bench, Knowles reports that Kennedy was the sole justice to be in the majority in all 5-4 decisions. Perhaps the best indication of Knowles’ view of Kennedy on the current Court is the title of the concluding chapter: “It all Depends on Justice Kennedy.”
In THE TIE GOES TO FREEDOM, Knowles utilizes several sources. The primary sources come from Justice Kennedy’s opinions written during his tenure on the High Bench. Additionally, Knowles uses material from Kennedy’s speeches and written articles, and interviews he has given. Another strength of this work is Knowles’ ability to buttress her arguments between and among chapters. Although the chapters [*350] facially are unique, there are clear connections through the book. Additionally, Knowles does a wonderful job of displaying that Kennedy is not inconsistent with his jurisprudence or that he falls victim to the “Greenhouse Effect” by trying to please the reporters on the Supreme Court beat.
This book serves an important purpose. While Knowles focuses on Justice Kennedy, because of his position on the Supreme Court as the median justice, THE TIE GOES TO FREEDOM is also suggestive of the policies we are likely to see coming from the Court for years to come. Knowles’ work packs a punch and could be considered required reading for any number of undergraduate and graduate courses, including the typical constitutional law and jurisprudence classes, but also those related to the institution of the Supreme Court. This book is one of the more interesting and well written books that I have read in recent years.
BOWERS v. HARDWICK, 478 U.S. 186 (1986).
INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE, 505 US 672 (1992).
KOREMATSU v. US, 323 U.S. 214 (1944).
LAWRENCE AND GARNER v. TEXAS, 539 U.S. 558 (2003).
METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 497 U.S. 547 (1990).
PLESSY v. FERGUSON, 163 U.S. 537 (1896).
PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).
ROMER v. EVANS, 517 U.S. 620 (1996).
SIMON & SCHUSTER v. CRIME VICTIMS BOARD, 502 U.S. 105 (1991).