Where to begin? Sowell is an ideologue, a confused but nevertheless brilliant extreme conservative – who, like many other conservatives, denies science for ideological reasons.
The judge Sowell attacks, H. Lee Sarokin, argues against federal power – consistently, and the traditional “conservative” point of view is to “limit the power of the federal government.” Republicans have abrogated that ideological position when their party is in power, and no better example of that abrogation is available than Sarokin’s own deconstruction of Scalia’s “presumption of guilt” in the Boumedienne case:
Tuesday, July 1, 2008 JUSTICE SCALIA AND THE PRESUMPTION OF GUILT
In his dissent in the Boumedienne case Justice Scalia argues against the granting of habeas corpus relief on the grounds that 30 of those who have been voluntarily released from Guantanamo returned to the battlefield, and thus he claims, more Americans will almost certainly be killed if such relief is granted. Initially, there is substantial debate as to whether his factual predicate is accurate, but even assuming that it is, his logic is chilling.
The logic: If detainees receive a hearing, they will be released. Those that are released will return to the battlefield and kill more Americans. Therefore, detainees should not receive a hearing. There are many meritorious arguments against granting habeas relief to detainees in these unique circumstances, but the danger that they might be released after a hearing is not one of them. The argument certainly presupposes that the detainees are guilty, and that the hearings, rather than resulting in freeing the innocent, will be freeing the guilty. It assumes inexplicably that those against whom there is evidence of criminal conduct and/or terrorism, nonetheless will be released.
The reason that I find the logic so chilling is because it could be easily extended to anyone charged with a crime (although here the detainees were labeled, but not charged with anything). Justice Scalia seems to be arguing that since a hearing runs the risk of freeing someone who is guilty and likely to commit further crimes, or in this case, acts of terror, that the answer is not to grant them a hearing, but rather leave them confined indefinitely. So persons charged with murder should not receive a trial, because they might be acquitted and murder again. Furthermore, his argument completely ignores the possibility (and the evident likelihood) that many of the detainees are innocent, and at a minimum, should be granted the opportunity to establish it. His argument makes no sense unless one presumes that the detainees are guilty----and therein lies the chill. 1*
*1: http://x-judge.blogspot.com/ H. Lee Sarokin
More chilling than Sowell’s attack of Sarokin is his position: “The kind of criteria that Barack Obama promotes could have gotten three young men at Duke University sent to prison for a crime that neither they nor anybody else committed.”
This is a disgusting bit of rhetoric – notice, please, that Sowell provides no evidence of any position analogous to the one he pins on Sarokin, let alone a public position of the case. What we do know, however, is that Scalia, whom Sowell virtually worships, essentially lays the ground for finding the young men at Duke guilty in his opinion in the Boumedienne case – that is an indisputable fact. Sarokin takes a position which undermines governmental power in favor of the individual (traditionally labeled “conservative”) and Scalia takes the position of a traditional “federalist” and “originalist.”
Sowell’s agreeing with Scalia on “orignalism” is best understood in reading his claim:
“The Constitution of the United States will not mean much if judges carry out Obama's vision of the Constitution as "a living document"-- that is, something that judges should feel free to change by "interpretation" to favor particular individuals, groups or causes.”
What Sowell and Scalia both fail to understand is that 1) we cannot “know” the original intent of the framers of The Constitution, (to believe that one can “know” such a thing is called “the intentional fallacy,” 2) the framers disagreed with one another about the meaning of The Constitution, and they worded much of it vaguely such that the document could be ratified, 3) if The Constitution is not a living document, then black people are only 3/5s human, slavery should be legal, and women are the property of men – I could go on regarding this point at some length, but a reasonable person should be able to understand that Scalia, while brilliant, embraces a legal philosophy for ideological reasons which are clearly insufficient – and Sarokin makes a good case for why hat is so.
Finally, we have this delicious bit of nonsense from Sowell: “'Global warming' is just the latest in a long line of hysterical crusades to which we seem to be increasingly susceptible." In the speech he makes this argument in, Sowell goes on to praise and cite as his source for his belief the film The Great Global Warming Swindle. Since it’s production a vast array of real scientists of all political stripes have demolished any credibility the film had.
See: http://video.google.com/videoplay?docid=-1656640542976216573 And http://www.factcheck.org/misleading-ads/scientist_to_cei_you_used_my_research.html
Unfortunately, I could go on forever regarding what is at stake in this election judicially – indeed, our genuine Constitutional rights could be given Scalia’s and Thomas’s positions.
Do the smart thing and reject the scare tactics of people like Sowell, especially when judges of their own ideological bent do exactly what he cautions against.
Incidentally, on March 8 of this year Sarokin attacks the Duke prosecutors in an argument entitled "End Prosecutor Press Conferences."
Sarokin says: "The Duke case should have taught all prosecutors the potential unfairness and dangers of such conduct. Present your evidence and summations in court, not in the media."
Therefore, he is attacking the very position that Sowell wrong-headedly claims Sarokin has -- Sowell would be amusing were he not so blatantly false and misleading. Kind of reminds me of Limbaugh but with a brain.
Wish I had time to further undermine this shill for right-wing judicial activism.
3 comments:
Where to begin? Sowell is an ideologue, a confused but nevertheless brilliant extreme conservative – who, like many other conservatives, denies science for ideological reasons.
The judge Sowell attacks, H. Lee Sarokin, argues against federal power – consistently, and the traditional “conservative” point of view is to “limit the power of the federal government.” Republicans have abrogated that ideological position when their party is in power, and no better example of that abrogation is available than Sarokin’s own deconstruction of Scalia’s “presumption of guilt” in the Boumedienne case:
Tuesday, July 1, 2008
JUSTICE SCALIA AND THE PRESUMPTION OF GUILT
In his dissent in the Boumedienne case Justice Scalia argues against the granting of habeas corpus relief on the grounds that 30 of those who have been voluntarily released from Guantanamo returned to the battlefield, and thus he claims, more Americans will almost certainly be killed if such relief is granted. Initially, there is substantial debate as to whether his factual predicate is accurate, but even assuming that it is, his logic is chilling.
The logic: If detainees receive a hearing, they will be released. Those that are released will return to the battlefield and kill more Americans. Therefore, detainees should not receive a hearing. There are many meritorious arguments against granting habeas relief to detainees in these unique circumstances, but the danger that they might be released after a hearing is not one of them. The argument certainly presupposes that the detainees are guilty, and that the hearings, rather than resulting in freeing the innocent, will be freeing the guilty. It assumes inexplicably that those against whom there is evidence of criminal conduct and/or terrorism, nonetheless will be released.
The reason that I find the logic so chilling is because it could be easily extended to anyone charged with a crime (although here the detainees were labeled, but not charged with anything). Justice Scalia seems to be arguing that since a hearing runs the risk of freeing someone who is guilty and likely to commit further crimes, or in this case, acts of terror, that the answer is not to grant them a hearing, but rather leave them confined indefinitely. So persons charged with murder should not receive a trial, because they might be acquitted and murder again. Furthermore, his argument completely ignores the possibility (and the evident likelihood) that many of the detainees are innocent, and at a minimum, should be granted the opportunity to establish it. His argument makes no sense unless one presumes that the detainees are guilty----and therein lies the chill. 1*
*1: http://x-judge.blogspot.com/ H. Lee Sarokin
More chilling than Sowell’s attack of Sarokin is his position: “The kind of criteria that Barack Obama promotes could have gotten three young men at Duke University sent to prison for a crime that neither they nor anybody else committed.”
This is a disgusting bit of rhetoric – notice, please, that Sowell provides no evidence of any position analogous to the one he pins on Sarokin, let alone a public position of the case. What we do know, however, is that Scalia, whom Sowell virtually worships, essentially lays the ground for finding the young men at Duke guilty in his opinion in the Boumedienne case – that is an indisputable fact. Sarokin takes a position which undermines governmental power in favor of the individual (traditionally labeled “conservative”) and Scalia takes the position of a traditional “federalist” and “originalist.”
Sowell’s agreeing with Scalia on “orignalism” is best understood in reading his claim:
“The Constitution of the United States will not mean much if judges carry out Obama's vision of the Constitution as "a living document"-- that is, something that judges should feel free to change by "interpretation" to favor particular individuals, groups or causes.”
What Sowell and Scalia both fail to understand is that 1) we cannot “know” the original intent of the framers of The Constitution, (to believe that one can “know” such a thing is called “the intentional fallacy,” 2) the framers disagreed with one another about the meaning of The Constitution, and they worded much of it vaguely such that the document could be ratified, 3) if The Constitution is not a living document, then black people are only 3/5s human, slavery should be legal, and women are the property of men – I could go on regarding this point at some length, but a reasonable person should be able to understand that Scalia, while brilliant, embraces a legal philosophy for ideological reasons which are clearly insufficient – and Sarokin makes a good case for why hat is so.
Finally, we have this delicious bit of nonsense from Sowell: “'Global warming' is just the latest in a long line of hysterical crusades to which we seem to be increasingly susceptible." In the speech he makes this argument in, Sowell goes on to praise and cite as his source for his belief the film The Great Global Warming Swindle. Since it’s production a vast array of real scientists of all political stripes have demolished any credibility the film had.
See: http://video.google.com/videoplay?docid=-1656640542976216573
And http://www.factcheck.org/misleading-ads/scientist_to_cei_you_used_my_research.html
Unfortunately, I could go on forever regarding what is at stake in this election judicially – indeed, our genuine Constitutional rights could be given Scalia’s and Thomas’s positions.
Do the smart thing and reject the scare tactics of people like Sowell, especially when judges of their own ideological bent do exactly what he cautions against.
Hugs,
Nick
Incidentally, on March 8 of this year Sarokin attacks the Duke prosecutors in an argument entitled "End Prosecutor Press Conferences."
Sarokin says: "The Duke case should have taught all prosecutors the potential unfairness and dangers of such conduct. Present your evidence and summations in court, not in the media."
Therefore, he is attacking the very position that Sowell wrong-headedly claims Sarokin has -- Sowell would be amusing were he not so blatantly false and misleading. Kind of reminds me of Limbaugh but with a brain.
Wish I had time to further undermine this shill for right-wing judicial activism.
Hugs, Nick
Sarokin responds to Sowell:
http://x-judge.blogspot.com/
Hugs,
Nick
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