Judge Edith H. Jones of the 5th Circuit Court of Appeals is facing serious allegations this week after controversial remarks the jurist made at Federalist Society in February. According to the conservative group, there is no transcript of recording of Jones’ speech, but affidavits from attendees point to deeply problematic language from anyone, least of all a sitting federal judge.
According to the [ethics] complaint, Judge Jones, 64, who was nominated to the bench by President Ronald Reagan, and who until recently was the chief judge of the Fifth Circuit and mentioned during Republican administrations as a possible Supreme Court nominee, said that “racial groups like African-Americans and Hispanics are predisposed to crime.”
One of the affidavits accompanying the complaint is from Marc Bookman, a veteran death penalty lawyer in Pennsylvania, who attended the lecture. He quoted Judge Jones as saying, “Sadly, some groups seem to commit more heinous crimes than others.” When asked to elaborate, Judge Jones “noted there was no arguing that ‘blacks’ and ‘Hispanics’ far outnumber ‘Anglos’ on death row and repeated that ‘sadly’ people from these racial groups do get involved in more violent crime,” the affidavit said.
A variety of civil rights organizations and legal ethicists this week filed a complaint of misconduct. An affidavit from James McCormack, the former chief disciplinary counsel for the Texas bar, added that he believes Jones “violated the ethical standards applicable to federal judges under the Code of Conduct for United States judges.”
Making matters slightly worse, this wasn’t the only offensive comment Jones made at the event.
Judge Jones is alleged to have said that the defenses often offered in capital cases, including mental retardation and systemic racism, were “red herrings.” She also said, according to the witnesses, that Mexicans would prefer to be on death row in the United States rather than in prison in Mexico.
It would appear that defendants have reason to question whether Jones is a fair and impartial arbiter of justice. Indeed, if I were a criminal defense attorney, and my client’s conviction rested in part on a ruling from Jones, I’d probably have new grounds for an appeal.
The matter will reportedly be reviewed by the 5th circuit’s chief judge. It’s a controversy worth watching.
Postscript: When Jones was on a very short list of jurists then-President George W. Bush was considering for the U.S. Supreme Court in 2005, the Washington Post published this brief profile, noting, “Known as a strong and outspoken conservative, she has written opinions that called into question the reasoning behind the Roe v. Wade abortion ruling, has been an advocate for speeding up death penalty executions, and is a vocal proponent of ‘moral values.’ She also wrote a 1997 opinion throwing out a federal ban on the possession of machine guns and has been an advocate for toughening bankruptcy laws.”
By: Steve Benen, The Maddow Blog, June 5, 2013
Something odd happened to Barack Obama’s approval rating last week: nothing. With a bunch of controversies swirling about the administration, one might think Americans would be thinking less of his performance. Yet the latest polls from Gallup and CNN both show his job approval essentially unchanged, at just at or above 50 percent.
So far anyway, these “scandals” are, like most scandals, an almost completely partisan phenomenon. Yes, there are some—Watergate, Iran-Contra—where the facts are so damning and undeniable that even the president’s own party can’t help but acknowledge them. But Benghazi and the IRS are not Watergate or Iran-Contra. Perhaps they’ll turn out to be, if we find out something completely shocking. Perhaps we’ll discover that Barack Obama is on tape personally ordering the Cincinnati IRS office to put the screws to Tea Party groups, just as Richard Nixon was on tape ordering his aides to get the IRS to audit his political opponents. But that hasn’t happened yet.
So conservatives are trying something new. If you were paying close attention the last couple of days, you saw them bringing up a new charge, one unrelated to the actual controversy: IRS income-tax audits. At first glance that may seem strange. After all, there hasn’t been any evidence that anyone was audited because of their political beliefs or activities. This controversy is about political groups being given undue scrutiny when they applied for 501(c)(4) status as “social welfare” organizations. The part of the agency that carries out those reviews doesn’t audit individuals’ tax returns. Yet here was Peggy Noonan, claiming “The IRS scandal has two parts. The first is the obviously deliberate and targeted abuse, harassment and attempted suppression of conservative groups. The second is the auditing of the taxes of political activists.” The “evidence” for Noonan’s explosive charge is that she read about a couple of conservatives who were among the 1.5 million Americans who were audited by the IRS last year (read Nate Silver for more on how unbelievably stupid Noonan’s allegation is). Here‘s an account of the weekend’s Virginia GOP convention, at which a whole slate of Tea Partiers was selected to run in November’s elections there: “By being here today, every one of you has just signed up for an audit by the I.R.S.,’ Governor Bobby Jindal of Louisiana, a potential 2016 presidential candidate, said in a keynote speech. ‘You are officially now on the White House enemies list.’”
We’ll be hearing more of these stories. Because after all, if 1.5 million Americans were audited last year, plenty of them were conservatives. And plenty of those will be happy to tell their stories to Fox News or Rush Limbaugh or Peggy Noonan. “I signed up for my local Tea Party, and not six months later the IRS came after me!” they’ll say. Some of these stories will be told in high-profile forums, and others in more obscure outlets; for instance, here’s a conservative writer telling her tale of oppression to the Catholic News Agency. During her audit, she says, “They only wanted to talk about who was paying me to do my writing.” Really? “Hendershott said that the questions were not explicitly political, but she interpreted them to mean the agency was ‘wanting to know if there were individuals or groups who wanted me to write to advance their cause.’” Maybe. Or maybe because she’s a writer and they were auditing her income taxes, they were asking her who paid her to write because that’s where she gets her income. Just tossing that out there.
It’s pretty obvious what’s going on here. On one hand, nobody likes the IRS, so people are ready to believe the worst about the agency’s activities. On the other hand, getting your 501(c)(4) application subjected to unusual scrutiny is not something most people can relate to. Even worse, the reporting that’s emerging about the IRS office in Cincinnati (see here) paints a picture not of some coordinated effort at political oppression, but of a bunch of overworked, ill-trained people who barely understood the standards they were supposed to apply to these applications and didn’t get the support they needed from Washington. They ended up acting inappropriately, but it wasn’t a criminal conspiracy, and it didn’t reach up to the heights of power.
For conservatives, that’s not a very satisfying story. But they know that everyone fears getting their tax returns audited. So why not just tell everyone that’s what happened?
By: Paul Waldman, Contributing Editor, The American Prospect, May 20, 2013
Everyone knows that Ronald Reagan famously said, “Government is not the solution to our problem; government is the problem.” But as Ramesh Ponnuru recently pointed out, there is a “less famous yet crucial beginning of that sentence”: “In our present crisis.”
Conservatives rightly hate nanny-state government and big-spending bureaucracy. But too often, the word “government” has become unfair shorthand for what is actually only bad or oppressive government.
Conservatives aren’t anarchists, after all. We don’t want Big Brother, but none of us should want to live in a Hobbesian state where every person is absolutely and entirely for himself, either. Instead, we believe in ordered liberty via limited government.
Certainly, the size and scope of government has increased over the years. But still, we shouldn’t conflate all government with bad government. We need a functioning state, and yes, there is such a thing as a government that is too weak.
This is a lesson that goes back to our founding. And it’s one conservatives should appreciate. Judging from their colonial garb and tri-cornered hats, Tea Party activists are fond of the Constitution and its Founders. So you might expect that they, of all people, would appreciate the importance of having a government that isn’t laughably weak.
As Baylor professor and Patrick Henry author Thomas Kidd tells me, “Most of the major Founders became convinced that Americans needed a stronger national government to coordinate trade policy and protect against domestic and foreign threats.”
Under the Articles of Confederation, the government was impotent. “Major decisions — declaring war and signing treaties — needed the approval of nine states,” writes Richard Brookhiser in his book James Madison. Congress couldn’t even tax, and “as a result, the United States was perpetually broke,” Brookhiser adds.
To be sure, some patriots, like Patrick Henry and Samuel Adams, opposed the Constitution precisely because they feared big government. But as Kidd points out, “the majority of the best-known Founders believed that the new republic needed a bigger, stronger government for the United States to survive and compete on the world stage.”
“If men were angels, no government would be necessary,” wrote Madison, who (in fairness) added, “If angels were to govern men, neither external nor internal controls on government would be necessary.”
So, a natural question: What should a limited government do?
For starters, preserve law and order, ensure the rule of law, enforce contracts, provide for our defense — and yes, control the border. (I’m also partial to clean water, but that’s just me.)
Max Weber said the government has a “monopoly on legitimate violence in society.” This is needed to enforce law and order. Otherwise, whoever has the biggest gun — or the most brothers — takes your property.
“Government is the most common form of hierarchy,” Robert Kaplan recently noted. “It is a government that monopolizes the use of violence in a given geographical space, thereby preventing anarchy. To quote Thomas Hobbes, the 17th-century English philosopher, only where it is possible to punish the wicked can right and wrong have any practical meaning, and that requires ‘some coercive power.’”
But government functions don’t just keep us safe, they also make us prosperous. Sure, overregulation can be a job killer. But consider the extreme alternative. If you believe that someone could steal your business if he wants to, then you are much less likely to start one. If you believe that someone can break a contract with you — or steal your invention — without fear of punishment, that might make it less likely that you will go into business or to invest in research and development.
In their 2012 book Why Nations Fail, economists Daron Acemoglu and James A. Robinson provide a largely free market argument for why some nations succeed. For example, Acemoglu and Robinson fault protectionist policies instituted to avoid the process of creative destruction as a primary reason some nations fail.
But interestingly, they also frequently cite a lack of a strong central government as a prime reason nations fail. For example, the authors lament Somalia’s “lack of any kind of political centralization, or state centralization, and its inability to enforce even the minimal amount of law and order to support economic activity, trade, or even basic security of its citizens.”
I can’t imagine that any conservatives who decry government would prefer this sort of extreme chaos to our current, albeit imperfect, government.
So maybe the answer is to be more specific about our concerns with government. Attempting to do just that, Nobel Prize-winning economist James M. Buchanan distinguished between the productive state, the protective state, and the redistributive state.
Essentially, the productive state would constitute infrastructure like roads and bridges, the protective state would encompass the police, criminal justice, etc., and the redistributive state is obviously the entitlement state.
While most conservatives concede that we need some social safety net, they are mostly worried about the out-of-control growth of the redistributive state. And yet, too seldom is that distinction made. Instead, the criticism is usually directed at “government.”
When it comes to government, a lot of conservatives are probably too obsessed with size. Grover Norquist famously wants to shrink government to such a small size that you can drown it in a bathtub.
But I’m not sure most Americans want that. And trying to force it via draconian cuts doesn’t work, especially if they don’t address the specific problem, such as the need for entitlement reform. ”You can’t make a fat man skinny by tightening his belt,” observed John Maynard Keynes.
Whether you’re a conservative who cares about preserving law and order, or a free marketer who appreciates the importance the rule of law plays in providing confidence and incentives to entrepreneurs, you’re a fan of government. Stop pretending otherwise.
By: Matt K. Lewis, The Week, May 9, 2013
“Fun And Games Until People Get Killed”: Constitutional Conservatism’s Non-Violent March To Threaten Violence
As readers have probably noticed, I’m on something of a campaign the last few days to train a spotlight on the revolutionary rhetoric and gun-brandishing of many Second Amendment activists and “constitutional conservatives,” which has leeched over into standard conservative and GOP messaging to an alarming degree. Like anyone shining a spotlight into previously dark shadows, I’m not always familiar with what I’m seeing. That’s definitely the case with Adam Kokesh, an Iraq War vet and omni-libertarian who is planning a non-violent march of armed citizens on Washington for Independence Day to show, best I can tell, that resistance to the demands of people like him that government radically retract its size and scope will eventually face real fire. Here’s Paul Szoldra’s write-up of Kokesh’s scheme at Business Insider:
Adam Kokesh, 31, is planning a July 4 rally of pro-gun activists openly carrying rifles from Virginia to Washington as an act of “civil disobedience.” The plan, according to his Facebook event page, is to march across Memorial Bridge with rifles loaded and slung across the back “to put the government on notice that we will not be intimidated [and] cower in submission to tyranny.”
The invite continues, stating, ” … This will be a non-violent event, unless the government chooses to make it violent.”
Kokesh writes that if 10,000 attendees RSVP by June 1st, “we have the critical mass necessary to pull this off.” He said he wants to have at least 1,000 actually marching in the event, and as of this writing, more than 1,400 have said they were going.
As the headline at Karoli’s post on this plan at Crooks & Liars rightly says: “Marching On DC With Loaded Rifles: What Could Possibly Go Wrong?”
But even if no violence ensues, this exercise is actually typical of an awful lot of the stockpiling-guns-to-resist-tyranny talk on the Right (and on rare occasions, the Left) these days. It’s actually the inverse of what Kokesh says: it’s an effort to intimidate political opponents with the threat, if not the immediate actuality, of violence. Otherwise, what’s the point of carrying guns to your nonviolent protest? The point, it seems clear, is to make extraconstitutional claims for the legitimacy of the “constitutional” protests against Big Government. We can peacefully debate, the potential “armed resistance” forces suggest, this or that aspect of gun regulation or Obamacare or drone policy or taxes or “welfare looters” via conventional politics. But in the end, our conviction that your “progressive policies” represent “tyranny” trumps all civil discourse, and that’s when the shooting may start.
And that, of course, is why this sort of talk is not limited to anarchists or even to the kind of “constitutional conservatives” who really do think the policies of Calvin Coolidge or Grover Cleveland or the doctrines of John C. Calhoun came down from heaven and were enshrined eternally by the Declaration of Independence. Consciously or unconsciously, regular conservative politicians see this sort of militancy as a crucial difference-maker (or in times of Democratic political success, an “equalizer”), and so they exploit it. It’s all fun and games until people start getting killed.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, May 6, 2013
Whoever thinks there’s no such thing as a free lunch has not been to the Heritage Foundation.
After Sen. Mike Lee’s speech to the conservative think tank Monday, his listeners didn’t rush to the front of the room, where the Utah Republican was greeting well-wishers, but to the back to get in line for sandwiches, cookies and soft drinks provided gratis to the hungry young conservatives who sat through the hour.
Such an inducement may have been necessary to fill the room for Lee, who is not exactly an electrifying speaker. His colleague Rand Paul (R-Ky.), a fellow first-term senator with tea party backing, packed a much larger auditorium at Heritage in February. But Lee is no bomb-thrower; he is amiable and cerebral and uses phrases such as “We can start ensuring policy sustainability” and “The true and proper end of political subsidiarity is social solidarity.” Even Lee’s former Senate colleague Jim DeMint (R-S.C.), who took over as Heritage’s president this month, apparently had more pressing business elsewhere.
This lack of appetite for Lee helps explain why the vision he outlined for conservatives, though worthy, is unlikely to receive serious GOP consideration. He essentially wants a return to “compassionate conservatism,” but there are a few big problems: George W. Bush tarnished the notion (by giving it lip service but little else), Paul’s libertarian wing is ascendant in the party, and Lee has little to propose other than vague notions of federalism.
Lee, a young man with a round face and thinning hair, diagnosed the conservatives’ condition fairly well. “The left has created this false narrative that liberals are for things and conservatives are against things,” he said. “A liberal proposes an idea, we explain why it won’t work and we think we’ve won the debate.”
Lee sounded much like Bush when he campaigned in 1999 against the “Leave us alone” conservatives. “Freedom doesn’t mean you’re on your own,” the senator said. “It means we’re all in this together.” He even echoed Bush’s “No child left behind” phrase as he argued for a “voluntary civil society that strengthens our communities, protects the vulnerable and minds the gaps to make sure no one gets left behind.”
Lee criticized Bush for misapplying the philosophy, referring to “one politician’s occasional conflation of ‘compassion’ and ‘bigger government.’ ” He also criticized past conservatives for overusing federal power and for being intolerant (“The price of allowing conservative states to be conservative is allowing liberal states to be liberal”). His criticism of Paul’s libertarian wing was particularly colorful: “This vision of America conservatives seek is not an Ayn Rand novel. It’s a Norman Rockwell painting, or a Frank Capra movie.”
But as a practical matter, Lee wasn’t offering anything much different from the Rand acolytes. He spoke of an end to “corporate welfare” — an admirable goal, but his targets were the same old villains such as Planned Parenthood and public broadcasting. He employed the usual straw-man characterization of liberals: “They attack free enterprise. . . . Elite progressives in Washington . . . believe in community organizers, self-anointed strangers, preferably ones with Ivy League degrees.” (This from a man who is the son of Ronald Reagan’s solicitor general, grew up in McLean and went on to clerk for Samuel Alito.)
Lee’s grand solution is one that conservatives have wanted for decades: the devolution of power to state and local governments. “We must make this fundamental principle of pluralistic diversity a pillar of our agenda,” he said, in a typically airy phrase.
But how? A questioner asked the senator how to “translate what you’re saying to benefit the 40 percent at the bottom” rather than “protecting the 1 percent.”
Lee’s answer provided nothing specific. “When you take government out of the equation,” he replied, “it doesn’t have to be a zero sum game between this top percentage and that bottom percentage.”
Another questioner asked whether the government should support the “social entrepreneurs” who Lee said are crucial to strengthening society. Again, he had no specifics. He said the government should “establish a neutral set of rules” for all. To do more, he said, would be “destructive.”
A third questioner asked bluntly: “Which policies . . . help promote these vibrant communities which we as conservatives want to foster?”
Lee replied: “The single most important policy would be federalism,” which means making “as many decisions at the most local level as possible.”
That’s a philosophy, not a policy. If Lee wants conservatives to rediscover compassion, he’ll have to provide something more substantial for them to chew on.
By: Dana Milbank, Opinion Writer, The Washington Post, April 22, 2013