Dems to GOP nominee: Will the defendant please rise?

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© 2009

Every time a Democrat senator has talked during the Senate hearings on Supreme Court nominee Sonia Sotomayor this week, I felt lousy about my country. Not for the usual reasons when a Democrat talks, but because Democrats revel in telling us what a racist country this is.

Interestingly, the Democrats' examples of ethnic prejudice did not include Clarence Thomas, whose nomination hearings began with the Democrats saying, "You may now uncuff the defendant."

Their examples did not include Miguel Estrada, the brilliant Harvard-educated lawyer who was blocked from an appellate court judgeship by Senate Democrats expressly on the grounds that he is a Hispanic – as stated in Democratic staff memos that became public.

No, they had to go back to Roger Taney – confirmed in 1836 – who was allegedly attacked for being a Catholic (and who authored the Dred Scott decision), and Louis Brandeis – confirmed in 1916 – allegedly a victim of anti-Semitism.

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Indeed, Sen. Patrick Leahy lied about Estrada's nomination, blaming it on Republicans: "He was not given a hearing when the Republicans were in charge. He was given a hearing when the Democrats were in charge."

The Republicans were "in charge" for precisely 14 days between Estrada's nomination on May 9, 2001, and May 24, 2001, when Sen. Jim Jeffords switched parties, giving Democrats control of the Senate. The Democrats then refused to hold a hearing on Estrada's nomination for approximately 480 days, shortly before the 2002 election.

Even after Republicans won back a narrow majority in 2003, Estrada was blocked "by an extraordinary filibuster mounted by Senate Democrats" – as the New York Times put it.

Memos from the Democratic staff of the Judiciary Committee were later unearthed, revealing that they considered Estrada "especially dangerous" – as stated in a memo by a Sen. Dick Durbin staffer – because "he is Latino and the White House seems to be grooming him for a Supreme Court appointment."

Sandy Berger wasn't available to steal back the memos, so Durbin ordered Capitol Police to seize the documents from Senate computer servers and lock them in a police vault.

Led by Sens. Leahy and Chuck Schumer, Democrats ferociously opposed Estrada, who would have been the first Hispanic to sit on the influential U.S. Court of Appeals for the District of Columbia Circuit. They were so determined to keep him off the Supreme Court that Leahy and Schumer introduced legislation at one point to construct a fence around Estrada's house.

In frustration, Estrada finally withdrew his name on Sept. 5, 2003.

At the time, liberal historian David Garrow predicted that if the Democrats blocked Estrada, they would be "handing Bush a campaign issue to use in the Hispanic community."

Alas, today Democrats can't really place Estrada – James Carville confuses him with that other Hispanic, Alberto Gonzales. On MSNBC they laugh about his obscurity, asking if he was the cop on "CHiPs." They also can't recall the name "Anita Hill." Nor can anyone remember African-American Janice Rogers Brown or what the Democrats did to her.

Only the indignities suffered by Justices Taney and Brandeis still burn in liberal hearts!

So when Republicans treat Sotomayor with respect and Sen. Lindsey Graham says his "hope" is that "if we ever get a conservative president and they nominate someone who has an equal passion on the other side, that we will not forget this moment," I think it's a lovely speech.

It might even persuade me if I were born yesterday.

But Democrats treat judicial nominations like war – while Republicans keep being gracious, hoping Democrats will learn by example.

Sen. Teddy Kennedy accused Reagan nominee Robert Bork of trying to murder women, segregate blacks, institute a police state and censor speech – everything short of driving a woman into a lake! – within an hour of Reagan's announcing Bork's nomination.

Sotomayor on the Second Amendment - Evasive and Hostile

Guest post from Brian Darling Senator Orin Hatch (R-UT) and Senator Jon Kyl (R-AZ) engaged in detailed questioning of Sotomayor’s views on the Second Amendment. Judge Sotomayor seemed hostile and evasive to the concept that the Second Amendment protects and individual right of all Americans against an action by a state to seize firearms. A senior Senate staffer concluded that “she confirmed her view that gun ownership is not a fundamental right.” Sotomayor seemed evasive when questioned by Senator Hatch whether she relied on the 1886 case Presser v. Illinois to hold that the Second Amendment was not a fundamental right. Sotomayor said, "It may have. I haven't read it recently enough to remember exactly." Hatch made the case that Sotomayor in the 2nd Circuit Court of Appeals case, Maloney v. Cuomo applied the wrong standard of review. Senator Hatch said “I believe you’ve applied the wrong line of cases in Maloney, because you were applying cases that used the privileges and immunities clause and not cases that used the 14th Amendment due process clause.” Hatch made the case that Sotomayor’s line of reasoning would allow any decision by a state or local government to pass constitutional scrutiny if merely rationally based. Sotomayor responded that “well, all standards of the court are attempting to ensure that government action has a basis.” Not much of an answer and Sotomayor seemed evasive in explaining her reasoning for the Maloney case other than that she was following a precedent. Not much analysis. Senator Kyl asked Sotomayor whether she would recuse herself from any Supreme Court decision relating to the divergent Second Amendment decisions of the 9th and 7th Circuit Court of Appeals that direcly address the incorporation argument at issue in Maloney. Sotomayor refused to state that she would recuse herself from these similar cases. Kyl made the case that Sotomayor’s participation in the 9th or 7th Circuit Court of Appeals incorporation Second Amendment cases may lead to an appearance of impropriety. One could come to the conclusion that Sotomayor would be protecting her rational in Maloney if she refused to incorporate the 2nd Amendment on the states. The responses to Kyl’s line of questioning evidenced hostility to the clear reading of the words of the 2nd Amendment that “the right of the people to keep and bear Arms, shall not be infringed.” Brian Darling is Director of Senate Relations at the Heritage Foundation

The Economy Is Even Worse Than You Think

OPINION

The average length of unemployment is higher than it's been since government began tracking the data in 1948.

By MORTIMER ZUCKERMAN

The recent unemployment numbers have undermined confidence that we might be nearing the bottom of the recession. What we can see on the surface is disconcerting enough, but the inside numbers are just as bad.

The Bureau of Labor Statistics preliminary estimate for job losses for June is 467,000, which means 7.2 million people have lost their jobs since the start of the recession. The cumulative job losses over the last six months have been greater than for any other half year period since World War II, including the military demobilization after the war. The job losses are also now equal to the net job gains over the previous nine years, making this the only recession since the Great Depression to wipe out all job growth from the previous expansion.

Here are 10 reasons we are in even more trouble than the 9.5% unemployment rate indicates:

David Klein

- June's total assumed 185,000 people at work who probably were not. The government could not identify them; it made an assumption about trends. But many of the mythical jobs are in industries that have absolutely no job creation, e.g., finance. When the official numbers are adjusted over the next several months, June will look worse.

- More companies are asking employees to take unpaid leave. These people don't count on the unemployment roll.

- No fewer than 1.4 million people wanted or were available for work in the last 12 months but were not counted. Why? Because they hadn't searched for work in the four weeks preceding the survey.

- The number of workers taking part-time jobs due to the slack economy, a kind of stealth underemployment, has doubled in this recession to about nine million, or 5.8% of the work force. Add those whose hours have been cut to those who cannot find a full-time job and the total unemployed rises to 16.5%, putting the number of involuntarily idle in the range of 25 million.

- The average work week for rank-and-file employees in the private sector, roughly 80% of the work force, slipped to 33 hours. That's 48 minutes a week less than before the recession began, the lowest level since the government began tracking such data 45 years ago. Full-time workers are being downgraded to part time as businesses slash labor costs to remain above water, and factories are operating at only 65% of capacity. If Americans were still clocking those extra 48 minutes a week now, the same aggregate amount of work would get done with 3.3 million fewer employees, which means that if it were not for the shorter work week the jobless rate would be 11.7%, not 9.5% (which far exceeds the 8% rate projected by the Obama administration).

- The average length of official unemployment increased to 24.5 weeks, the longest since government began tracking this data in 1948. The number of long-term unemployed (i.e., for 27 weeks or more) has now jumped to 4.4 million, an all-time high.

- The average worker saw no wage gains in June, with average compensation running flat at $18.53 an hour.

- The goods producing sector is losing the most jobs -- 223,000 in the last report alone.

- The prospects for job creation are equally distressing. The likelihood is that when economic activity picks up, employers will first choose to increase hours for existing workers and bring part-time workers back to full time. Many unemployed workers looking for jobs once the recovery begins will discover that jobs as good as the ones they lost are almost impossible to find because many layoffs have been permanent. Instead of shrinking operations, companies have shut down whole business units or made sweeping structural changes in the way they conduct business. General Motors and Chrysler, closed hundreds of dealerships and reduced brands. Citigroup and Bank of America cut tens of thousands of positions and exited many parts of the world of finance.

Job losses may last well into 2010 to hit an unemployment peak close to 11%. That unemployment rate may be sustained for an extended period.

Can we find comfort in the fact that employment has long been considered a lagging indicator? It is conventionally seen as having limited predictive power since employment reflects decisions taken earlier in the business cycle. But today is different. Unemployment has doubled to 9.5% from 4.8% in only 16 months, a rate so fast it may influence future economic behavior and outlook.

How could this happen when Washington has thrown trillions of dollars into the pot, including the famous $787 billion in stimulus spending that was supposed to yield $1.50 in growth for every dollar spent? For a start, too much of the money went to transfer payments such as Medicaid, jobless benefits and the like that do nothing for jobs and growth. The spending that creates new jobs is new spending, particularly on infrastructure. It amounts to less than 10% of the stimulus package today.

About 40% of U.S. workers believe the recession will continue for another full year, and their pessimism is justified. As paychecks shrink and disappear, consumers are more hesitant to spend and won't lead the economy out of the doldrums quickly enough.

It may have made him unpopular in parts of the Obama administration, but Vice President Joe Biden was right when he said a week ago that the administration misread how bad the economy was and how effective the stimulus would be. It was supposed to be about jobs but it wasn't. The Recovery Act was a single piece of legislation but it included thousands of funding schemes for tens of thousands of projects, and those programs are stuck in the bureaucracy as the government releases the funds with typical inefficiency.

Another $150 billion, which was allocated to state coffers to continue programs like Medicaid, did not add new jobs; hundreds of billions were set aside for tax cuts and for new benefits for the poor and the unemployed, and they did not add new jobs. Now state budgets are drowning in red ink as jobless claims and Medicaid bills climb.

Next year state budgets will have depleted their initial rescue dollars. Absent another rescue plan, they will have no choice but to slash spending, raise taxes, or both. State and local governments, representing about 15% of the economy, are beginning the worst contraction in postwar history amid a deficit of $166 billion for fiscal 2010, according to the Center on Budget and Policy Priorities, and a gap of $350 billion in fiscal 2011.

Households overburdened with historic levels of debt will also be saving more. The savings rate has already jumped to almost 7% of after-tax income from 0% in 2007, and it is still going up. Every dollar of saving comes out of consumption. Since consumer spending is the economy's main driver, we are going to have a weak consumer sector and many businesses simply won't have the means or the need to hire employees. After the 1990-91 recessions, consumers went out and bought houses, cars and other expensive goods. This time, the combination of a weak job picture and a severe credit crunch means that people won't be able to get the financing for big expenditures, and those who can borrow will be reluctant to do so. The paycheck has returned as the primary source of spending.

This process is nowhere near complete and, until it is, the economy will barely grow if it does at all, and it may well oscillate between sluggish growth and modest decline for the next several years until the rebalancing of excessive debt has been completed. Until then, the economy will be deprived of adequate profits and cash flow, and businesses will not start to hire nor race to make capital expenditures when they have vast idle capacity.

No wonder poll after poll shows a steady erosion of confidence in the stimulus. So what kind of second-act stimulus should we look for? Something that might have a real multiplier effect, not a congressional wish list of pet programs. It is critical that the Obama administration not play politics with the issue. The time to get ready for a serious infrastructure program is now. It's a shame Washington didn't get it right the first time.

Mr. Zuckerman is chairman and editor in chief of U.S. News & World Report.

Richard Viguerie: All Issues at Sotomayor Confirmation Hearings Boil Down To One

(Manassas, Virginia) The following is a statement by Richard A. Viguerie, Chairman of ConservativeHQ.com, concerning the Senate Judiciary Committee confirmation hearings for President Obama's Supreme Court nominee, Judge Sonia Sotomayor:


"Some Republican senators are finally hinting at the one issue that could dominate and make uniquely historic the Sotomayor hearings. As longtime Chicago-way Obama advisor David Axelrod said in a May 26, 2009 interview, the President nominated Sotomayor because 'he wanted someone whose philosophy of judging was his,' which was to 'adapt' - meaning change - 'constitutional principles and law.'


"That is a shocking admission of Obama's views, which go beyond judicial activism and undermine our constitutional structure based in separation of limited, enumerated powers.


"Judge Sotomayor's rulings, whether dealing with the 1st Amendment, 2nd Amendment, private property rights, criminal law, use of foreign law, race, equal protection, and other areas of law, demonstrate that she is consistently 'empathetic' in favor of government power.


"In her speeches, Sotomayor has said policy is made by the courts, which affirms her view shared with Obama that judges may and should make law. That, however, usurps the powers of the people's elected representatives.


"All senators have a serious, constitutional obligation to the American people to explore in great detail such a dangerous and radical view of judicial power, especially for Obama's first Supreme Court nominee.


"President Obama is a statist. The real debate is no longer whether he is a socialist, but whether his ideology is authoritarian. The views of judicial power shared by Obama and Sotomayor are inconsistent with the Constitution itself, and that should disqualify this nominee for the highest and in some cases last forum to protect individual rights and prevent authoritarian government, which America's founders feared.


"These hearings are an opportunity for Republicans to define Obama, which they and John McCain's campaign failed to do in the 2008 election."

NOTE TO EDITORS: Richard A. Viguerie pioneered political direct mail and has been called "one of the creators of the modern conservative movement" (The Nation magazine) and one of the "conservatives of the century" (The Washington Times).

The Money Masters (DVD) How Banks Create the World's Money

By Bill Still and Pat Carmack

This comprehensive, 3-1/2 hour, fast-paced historical documentary throws back the veil of deceit hiding the origins and operations of the corrupt banking plutocracy that owns and rules America and is gradually and clandestinely imposing a worldwide tyranny on the rest of us.

In 1913, President Woodrow Wilson approved the Federal Reserve Act. A few years later, he reflected:

"I am a most unhappy man. I have unwittingly ruined my country. A great industrial nation is controlled by its system of credit. Our system of credit is concentrated. The growth of the nation, therefore, and all our activities are in the hands of a few men. We have come to be one of the worst ruled, one of the most completely controlled and dominated governments in the civilized world -- no longer a government by free opinion, no longer a government by conviction and the vote of the majority, but a government by the opinion and duress of a small group of dominant men."

A century before Thomas Jefferson reflected much the same sentiment:

"If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks....will deprive the people of all property until their children wakeup homeless on the continent their fathers conquered....The issuing power should be taken from the banks and restored to the people, to whom it properly belongs."

This riveting DVD documentary covers the history of monetary reform from Roman Times to the present. It is packed with brilliant quotations and is absolutely the best production on the Federal Reserve available. Presented in layman's terms that the average person can comprehend, this set even includes a 16 page booklet containing the Monetary Reform Act.

"Outstanding! The best video yet on the history of the Federal Reserve and the mysterious disappearance of America's gold reserves. Fast-paced and riveting."

--Robert Caroll, Humane World Community, Inc.

Get your "Money Masters" set today and find out the full story of the Fed and the true nature of the U.S. monetary system.

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Parties Set to Paint Opposing Pictures of Nominee

Democrats Will Describe Judge as a Meticulous Workhorse While Republicans Cite Controversial Decisions, Remarks

By JESS BRAVIN

WASHINGTON -- Two different images of Sonia Sotomayor will emerge from the Supreme Court nominee's confirmation hearings that begin Monday.

Democrats, focusing on her 17-year record as a federal judge, will portray the nominee as a meticulous judicial workhorse, impartially applying the law, even as her rise from the projects marks her as a quintessential American story.

"It's somewhat odd that three of the biggest constitutional cases she decided were the most truncated opinions that you can almost imagine," said Sen. Jeff Sessions of Alabama, the Senate Judiciary Committee's ranking Republican.

Democrats plan to shift the debate to Judge Sotomayor's experience. A host of mostly liberal interest groups and researchers have been issuing reports on Judge Sotomayor's courtroom record, which they say dispel suggestions she is a judicial radical.

Her supporters got a boost from a 55-page report from the nonpartisan Congressional Research Service, an arm of the Library of Congress. Sotomayor opinions "belie easy categorization along any ideological spectrum" and seem to reflect "careful application of particular facts at issue," along with a disinclination to overstep the court's "judicial role," researchers found.

The Brennan Center for Justice, a liberal advocacy program at New York University's law school, said its researchers analyzed 1,194 cases to see if Judge Sotomayor differed from her colleagues on the Second Circuit Court of Appeals, overturned a legislative or executive action or deferred to a lower court or agency decision. She voted with the majority in 98.2% of constitutional cases, the center said.

On the federal district court from 1992 to 1998, Judge Sotomayor was more likely than other judges to send criminal defendants to prison, according to a Syracuse University research center. It reviewed 7,750 criminal prosecutions in the Southern District of New York, and found "she was notably tougher in her sentencing of white-collar criminals than was typical in this district."

Sen. Charles Schumer (D., N.Y.) issued a report showing Judge Sotomayor ruled against 83% of immigrants seeking asylum -- about the same as the Second Circuit overall.

"There's no better way to predict how a judicial nominee will perform on the bench than by their previous judicial records," Mr. Schumer said.

Conservatives, for the most part, don't dispute the statistics, but aren't surprised Judge Sotomayor's decisions accord with other judges. They say most appellate-court opinions are controlled by precedent, while the Supreme Court can overrule prior cases.

Criticism of the nominee "is not based on how she ruled, it's based on what she said," said Curt Levey, president of the Committee for Justice.

A Senate Democratic aide dismissed the idea that Judge Sotomayor has been concealing radical objectives. "It's hard to believe she was lying in wait just so she could save them up until she was on the Supreme Court," the aide said.

Mr. Levey, however, said the notion is not so far-fetched. "She's known for more than 10 years that she's being considered for the Supreme Court, so to some extent she's been on her best behavior," he said.

Write to Jess Bravin at jess.bravin@wsj.com