Good news for David Ogden, bad news for American families. 

The BLT: The Blog of Legal Times : DAG Nominee Ogden Wins Committee Vote, 14-5

“Sen. Arlen Specter (R-Pa.), the committee’s ranking Republican, said the committee had received 11,000 phone calls, letters, and other contacts opposing Ogden. But, citing an opinion piece <http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1202428401266>  in Legal Times, he said he was swayed by the principle that a client’s views cannot be attributed to a lawyer.”

Wrong.  First of all, Mr. Ogden has been nominated to a position whose duties are distinct, in some respects, from that of a federal judge.  The DOJ DOES have some policy role, and certainly some discrectionary power, particularly when it comes to specific cases.  Furthermore, the record of David Ogden suggests that he is likely to use this discretionary power broadly to seek policies, say by choosing not to prosecute a purveyor of child porn, that will endanger American families.

Ed Whelan made mince meat of these arguments on multiple occasions.  Here on our memo:

“One reader objects that the Fidelis memo largely faults Ogden for positions that he has taken in private practice representing clients, and I suspect that many other readers would make the same objection.  I do think that we need to be respectful of the range of arguments that an attorney must properly make on behalf of a client.  But the prior question here is how it is that Ogden has such a stable of hard-Left clients.”  

“My experience and impression are that a lawyer in private practice has broad freedom to represent, or not to represent, particular “ideological” clients.  I don’t buy into the prevailing ethos among lawyers that the practice of law is a moral-free zone.  So I think it’s fair to hold Ogden accountable for the hard-Left ideological cast of many of the clients and causes he has chosen to represent—and all the more so insofar as the representation has been unpaid or discounted.”

Also, here and here

[Editors Note: Matthew Bowman is a pro-life attorney and guest blogger for Fidelis]

Obama-supporter Doug Kmiec wrote another article last week in a major news outlet that confuses Catholic teaching and tries to water down the Church’s pro-life position.

Kmiec’s claim in Time Magazine is that when the Vatican delivered remarks to pro-abortion Congresswoman Nancy Pelosi, the Church made a “sharp break with the past” in stating that not only are legislators required to be pro-life, but judges are too.  Kmiec then adds his name to the long list of pundits calling for the Vatican to clarify some remark or another.  Kmiec could use some clarity himself.

Kmiec’s first illogical leap is that the recent Vatican statement is a radical innovation, just because it says that ”jurists” as well as everybody else must follow the natural moral law on abortion.  But the Church has always spoken of this duty applying to all public officials, and has explicitly included jurists/judges on countless occasions.

In 1973 and again in 1975, Pope Paul VI gave speeches to a group of American judges visting Rome, and he specifically told them they were obliged to defend the unborn.  In 2000, Pope John Paul II “renewed” his call from his 1995 letter “The Gospel of Life” that “jurists and lawmakers” along with everybody else must protect the sanctity of human life including the unborn.  The Congregation for the Doctrine of the Faith addressed its 1987 document “The Gift of Life” to “jurists and politicians” along with others, as did the Pontifical Academy for Life in 2000.  The examples are endless:  the Church always speaks of “legislators and jurists” having obligations under the natural moral law to protect the right to life.

Kmiec would have known this if he had conducted the tiniest bit of research on the Vatican’s website.  But after asserting how vast is this Vatican break from the past, Kmiec inexplicably goes on to cite and quote exactly zero Vatican documents that supposedly establish some inconsistent teaching.  His odd alternative is to cite the assuredly unmagisterial American Supreme Court Justice Antonin Scalia, whom he quotes several times.  Does Kmiec, or the Time Magazine editor, think that these quotes support Kmiec’s assertion?  Would a student law review editor at Kmiec’s school accept his assertion of past, inconsistent Vatican statements, when supported by nothing but quotes from Justice Scalia?

Yet Kmiec’s research is even more faulty than this obvious flaw.  The American Papist points out that Kmiec failed to observe that the word that the Vatican used for “jurist” refers to law practicioners in general and not specifically to judges.  This allows the Vatican’s statement to be broad enough to encompass plenty of nuance as to how the natural law ought to apply in different juridical contexts.  Add to this the Vatican’s history of referring to “politicians and jurists” as having crucial responsibility for protecting the natural moral right to life, and it is clear that the recent statement to Pelosi is not even remotely too broad or unprecedented as Kmiec assumes.

Kmiec then errs in explaining the merits of his point.  American judges cannot have a pro-life commitment to the natural moral law, he claims, or else the Vatican would “empty the U.S. Supreme Court of all five of its Catholic jurists,” who would all have to resign.  But then Kmiec disproves his own point by bringing up Roe v. Wade.

Kmiec seems to think that Roe is an unsolvable quandry, pitting the obligations of positive law against those of the moral law. What is a Catholic Supreme Court Justice to do in the face of a law that restricts abortion?  Strike it down and thus violate the moral law, or uphold it in violation of Roe and . . . hmmm . . . why is that bad exactly?  We’re not sure, but it must be bad becasue that is how Kmiec frames his argument.

It is plain what a Catholic Supreme Court justice, and someone who adheres to the American Constitution, should do.  Restrictions on abortion do not violate the Constitution, and ruling that way is perfectly consistent with the moral law, as well as with constitutional precedent (which allows old decisions to be overturned).  Where is the quandry?  It doesn’t exist.  Kmiec’s example trying to show this dilemma falls completely flat, so he then moves on to another Scalia quote.

It makes sense that Kmiec wants to downplay the moral duty to overturn Roe.  Kmiec spent the last year campaigning for Obama by repeatedly downplaying the pressing need to overturn Roe.  He knew that electing Obama would cause much more devestation to the unborn than merely maintaining Roe, like increased federal funding of abortion, to name only one item.  But Kmiec had a Catholic audience to convince, so he falsely claimed that overturning Roe was the only negative effect that a vote for Obama would have on the unborn, and further insisted that the pro-life argument for McCain/Palin was nothing but a bid to overturn Roe.  With these premises in place, no benefit remained against voting for Obama, and therefore Kmiec had the nerve to describe Obama as the pro-life choice, despite Obama being the most extreme abortion advocate to ever run for President.

This explains why Kmiec would want to resist any suggestion from the Vatican that there is a moral duty for jurists to uphold the right to life.  Otherwise, Kmiec’s own views are shown (once again) to have been flawed.  But the Vatican has always said that the natural moral law containing the right to life applies to jurists as well as to everyone else.

Kmiec could not make headlines if he wrote that the Vatican just said something it has been saying for half a century.  Instead he created a nonexistent need for the Vatican to retract a statement that is false only from the perspective of advancing Kmiec’s own abortion-friendly political agenda.  Kmiec continues to veer off into more and more incoherent statements as he attempts to justify his own indefensible positions during the 2008 election.

Wendy Long today in the Washington Times on David Ogden:

This past Thursday in U.S. Senate hearings, the man who has in private legal practice been one of the porn industry’s main advocates sounded like he was trying to edge out Phyllis Schlafly in his desire to protect children from smut and exploitation. Meanwhile, the porn industry calls his nomination “refreshing.”

But facts are stubborn things. Ogden fought to remove porn filters from the Internet in public libraries. He argued that the law requiring producers of sexually explicit material to keep records about the identity and ages of their performers was unconstitutional. He submitted a Supreme Court brief on behalf of the ACLU arguing that a man had been improperly convicted under the federal child pornography statute because the man’s videotapes, “Little Girl Bottoms (Underside)” and “Little Blondes,” which the U.S. Court of Appeals for the Third Circuit had found “clearly were designed to pander to pedophiles,” aren’t really pornography under the Constitution. Then-President Bill Clinton disagreed with Ogden, as did the U.S. Senate, 100-0.

 ”While Mr. Obama has staked moderate positions on many issues, appointing sub-cabinet officials with more radical views amounts to a kind of back-door activism, out of view of the voters. Shortened timelines for confirmation leaves the Senate with little time to consider the thousands of pages of documents that were submitted for consideration prior to these hearings.”

Senate Judiciary Committee to Hear Today From Obama’s Justice Department Sub-Cabinet Nominees Elena Kagan and Thomas Perrelli – WSJ.com

The Judicial Confirmation Network is running this ad today in Roll Call:

National Journal sets the table:

At a time when the Court is precariously balanced–with four conservatives, four liberals (including the two oldest justices), and the ideologically eclectic Anthony Kennedy–these contrasting approaches have provided opposing activists with nightmare visions to rally the Democratic and Republican bases during the presidential race.

The liberal nightmare (and conservative dream) is McCain replacing one or more aging liberals with conservatives who proceed to overrule or hollow out Roe v. Wade and other liberal precedents; throw gay rights into reverse; discard the constitutional right to privacy; outlaw all racial preferences and school integration programs; narrow the reach of civil-rights protections for women, minorities, and disabled people; bless virtually unrestricted government funding of religious schools and sponsorship of crosses and other religious symbols on public property; stop shrinking and start expanding the death penalty; mow down gun control laws; roll back the four decisions since 2004 that have checked Bush administration efforts to expand presidential power in the name of fighting terrorism; and make it ever harder for consumers and workers to sue businesses.

The conservative nightmare (and liberal dream) is an Obama Court requiring taxpayers to fund essentially unlimited abortion rights throughout pregnancy; ordering all 50 states to bless gay marriage; expanding and perpetuating the use of racial preferences far beyond the 25-year phaseout suggested by the justices five years ago; prohibiting tuition vouchers for religious schools; stripping “under God” from the Pledge of Allegiance; banning the death penalty; striking down the new federal wiretap law; expanding judicial oversight of military detentions, CIA interrogations, and perhaps other operations worldwide; opening the floodgates to big-dollar lawsuits against business; eroding property rights; and perhaps creating new constitutional rights to physician-assisted suicide, human cloning, and massive government welfare and medical care programs.

McCain or Obama. Take your pick.

NRO is on the case:

Nominated in July 2007, Conrad is a model candidate who has twice been confirmed by the Senate to other positions. A longtime federal prosecutor in North Carolina, Conrad served as U.S. Attorney from 2001 to 2004. He became a federal district judge in North Carolina in 2005 and is now chief judge of his court.

By the very standards that Senate Democrats have expounded, Conrad ought to have been readily confirmed. He has the strong support of both North Carolina senators — Elizabeth Dole and Richard Burr — and the ABA unanimously gave him its highest “well qualified” rating. The Judicial Conference of the United States has declared the vacancy to which he has been nominated a “judicial emergency.” …

Despite all this, nearly a year after his nomination, Conrad has still not received a hearing from the Senate Judiciary Committee.

Democrats use the Supreme Court as a permanent Constitutional Convention, so why are we surprised that they use obstruction to change the Third Branch?

One county takes drastic action in wake of the California Supreme Court’s decision on gay marriage.

The Associated Press uses the Gitmo decision as a context for discussion of the potential impact the next president will have on shaping the Supreme Court:

Of the five justices who created a majority in the case of the Guantanamo detainees, Justice John Paul Stevens is 88, Ruth Bader Ginsburg is 75, and David Souter and Stephen Breyer are each 69. Kennedy is 71.

The generally younger dissenters were Chief Justice John Roberts, 53, and Justices Samuel Alito, 55, Clarence Thomas, 59 and Antonin Scalia, 72.

(My issue is judicial restraint, from abortion to marriage to everything. I can’t say that I’m up to speed on this Gitmo decision and its implications, so I’m not commenting on that now.)

But I’m happy to say this again and again: I’m glad it was George Bush who made two selections to the Supreme Court in 2005 and not John Kerry.

The next president will likely have two more picks. Who do you want to make that decision? McCain or Obama?

It’s all courtesy of George Soros. From the AP:

“The American Civil Liberties Union announced by far the largest fundraising campaign in its 88-year history Monday, eying a dramatic expansion of its work on social justice issues in relatively conservative states such as Texas and Florida.

Major donors include billionaire financier George Soros, who gave $12 million through his Open Society Institute.

“The purpose is to build a civil liberties infrastructure in the middle of the country – where battleground states are often under-resourced and our efforts are most needed,” Romero said.

The ACLU is the organization most responsible for judicial tyranny (overturning laws or crushing religious displays via lawsuit) and the pernicious strand of secular humanism with hostile anti-religious sentiments than the ACLU.

Secular humanists need not hate religion or people of faith, of course. But the ACLU and their friends at American United for the Separation of Church and State always vilify religious expression in public life.

Hat tip: alliancealert.org

“Slick sophistry,” “impatience bordering on contempt for government,” and “deeply disingenuous” are only a few of the words Stuart Taylor Jr. uses to describe the CA Supreme Court decision in his article – “Gay Marriage by Judicial Decree.”

The article is particularly interesting because Taylor is a social liberal, and favors gay marriage and taxpayer funded abortion. He cautions that the approach taken by the CA Supreme Court may be only the beginning if Sen. Obama is elected president, particularly if Obama were to follow through on using “empathy” as his primary criteria for selecting judges.

“…justices who fit Obama’s description might well invent federal constitutional rights not only to gay marriage but also to Medicaid abortions, physician-assisted suicide, human cloning, and perhaps free medical care, food, and housing for poor people; strike down the death penalty (as Stevens recently advocated) and laws making English the official language; ban publicly funded vouchers for poor kids to attend parochial schools; bless ever-more-aggressive use of racial and gender preferences; and more”

As a policy matter, this prospect worries me less than it does my conservative friends. I support legislative adoption not only of gay marriage but also of Medicaid abortions and some other policies on the liberal wish list. And I would not much miss the death penalty, “under God,” or “In God We Trust.”

But I am concerned about the gradual, relentless strangulation of Abraham Lincoln’s vision of ours as “government of the people, by the people, for the people,” by judges who see constitutions not as binding law but as invitations for judicial rule.”

Taylor’s analysis proves that the push for judicial restraint over the past 10 years is not simply a well devised strategy to impose the policy preferences of the right, as some have suggested. Instead, Taylor makes clear that judicial restraint is the only sure way to preserve any integrity in the lawmaking process – particularly on such hotly contested issues such as abortion and marriage.

We the People be damned, the Overlords in Virginia have decided to amend the Constitution vaporize a Virginia partial-birth abortion ban which would prevent abortionists from killing children while being born.

Reports are unclear if the Judges simply removed the law from the books or if they punctured the law in the back of the neck in order to crush its skull.