100 years after she foundered, we're still talking about the Titanic. The end of the Edwardian Autumn, and the overture to the cyclone of change called the Twentieth Century.
Seen only again decades later.
God rest their souls, and the world that was lost--a less fair and free world, yet one with an optimism and confidence we have lost.
Saturday, April 14, 2012
Friday, April 13, 2012
Suppressio Veri, Suggestio Falsi...
According to that great savant and philosopher General Sir Harry Flashman, "remember that silence frequently passes for shrewdness, and that while suppressio veri is a damned good servant, suggestio falsi is a perilous master.”
Alas, the United States Conference of Catholic Bishops (the "USCCB") has not heeded General Flashman's wisdom. Instead, it has issued a "Call to Action" in which it contends that religious liberty, the "first freedom," is under threat "at home and abroad." Specifically, the statement claims, citing Supreme Court precedent and invoking the Framers of the Constitution, that the Obama Administration (and, to a lesser extent, several states) are violating the First Amendment rights of Catholics and other religious entities regarding moral issues, especially regarding the requirement in regulations promulgated under the Affordable Care Act that insurance provided by employers or educational institutions provide contraception coverage.
While the bishops address several other issues, they recur again and again through the statement to the contraception regulation, raising it as their chosen paradigm no fewer than four times; the other domestic issues are mentioned briefly once each. Those issues include three other claims to exemption from generally applicable laws (state laws against "harboring" illegal immigrants--a claim which I can certainly sympathize with the bishops position, but nonetheless a generally applicable law not targeting religion--and Catholic service providers desiring exemptions from terms and conditions of contracts inconsistent with the Church's practices), and three murkier legal issues, the ability of local congregations to use school facilities as houses of worship outside of school hours (the subject of this decision and ongoing litigation), a 2009 Connecticut bill which was tabled after its patent unconstitutionality was clear, and the fact that "the University of California Hastings College of Law has denied student organization status to only one group, the Christian Legal Society, because it required its leaders to be Christian and to abstain from sexual activity outside of marriage."
The bishops explicitly ground their claim as a violation of the Constitution: "What we ask is nothing more than that our God-given right to religious liberty be respected. We ask nothing less than that the Constitution and laws of the United States, which recognize that right, be respected.”
And herein lies the problem.
The bishops claim not only that religiously-affiliated entities are entitled to accommodations, they claim that the law cannot require any religious person to violate the tenets of his or her faith:
Scalia then went on to cite a barrage of instances in which religious objections to child labor laws (the mother wanted her children to distribute religious literature, one hastens to add), Sunday closing laws, forcible conscription, and Social Security and related benefit programs were found to be constitutionally applied to religious believers whose faiths did not permit their compliance with those laws. The Court purposefully limited a few cases in which conscience exemptions had been recognized to cases presenting a "hybrid situation" involving "not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents. . . to direct the education of their children." (Citations omitted) In closing, it reiterated that "Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now." The Court then went on to deny that the Constitution required that a "compelling state interest" be required to sustain any generally applicable statute which would substantially impact or burden religious exercise.
With that in mind, let's look at some of the paradigm cases. As linked above, the denial of church usage of school facilities has been upheld as constitutional by the Second Circuit Court of Appeals, and the litigation is ongoing, as the District Judge is far more sympathetic to the plaintiffs than the Second Circuit has been to date. The bishops acknowledged that the federal district court found their provision of services to trafficking victims involved unconstitutional limitations on services to accommodate the USCCB's moral beliefs; some argument as to why that decision is in error is necessary to establish that the converse is necessarily so. More significantly, the Supreme Court has found that Hastings College of the Law's antidsicrimination policy which resulted in denial of Registered Student Organization status to the Christian group did not violate the Free Exercise Clause. These facts are pretty relevant to the discussion, and the bishops omit them, while claiming the entities involved have violated the First Amendment. Even more significantly, in the case of the contraception requirement for insurance, the fact that Catholic Charities has been rebuffed by Supreme Court of California and the New York Court of Appeals (the Supreme Courtdenied review of the New York decision). Again, when you're claiming these instances as clear violations of the Constitution, omissions repeated failures to convince the courts of that claim are pretty damning to one's credibility.
But most important, the bishops do not, at any point, address Smith or any of the decisions relied upon by it. Instead, they cite Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, which held that the right of a church to select its own ministers bars an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. The ministerial exemption, as it has been known since the Nineteenth Century , is not, the Court found, inconsistent with Smith, because it is limited to pastoral employees, to ensure that the authority to select and control who will minister to the faithful is the church’s alone. The bishops do not analyze the scope of the ministerial exception reaffirmed in this case; they merely quote Chief Justice Roberts's paean to religious freedom.
So, what we have here is a claim that the Administration is violating the First Amendment that is unsupported by the jurisprudence of the First Amendment, whether in the Nineteenth, Twentieth, or Twenety-first Centuries. The spurious citation of Hosanna-Tabor and the repeated claims that the bishops are defending constitutional, non-partisan freedoms that are imperiled, take this approach beyond suppressio veri--omission of facts damaging to the argument they wish to make--and bring it to the level of suggestio falsi.
(Oh, and using the feast day of Thomas More to kickoff "a Fortnight for Freedom"? Assumes facts not in evidence, frankly.)
Alas, the United States Conference of Catholic Bishops (the "USCCB") has not heeded General Flashman's wisdom. Instead, it has issued a "Call to Action" in which it contends that religious liberty, the "first freedom," is under threat "at home and abroad." Specifically, the statement claims, citing Supreme Court precedent and invoking the Framers of the Constitution, that the Obama Administration (and, to a lesser extent, several states) are violating the First Amendment rights of Catholics and other religious entities regarding moral issues, especially regarding the requirement in regulations promulgated under the Affordable Care Act that insurance provided by employers or educational institutions provide contraception coverage.
While the bishops address several other issues, they recur again and again through the statement to the contraception regulation, raising it as their chosen paradigm no fewer than four times; the other domestic issues are mentioned briefly once each. Those issues include three other claims to exemption from generally applicable laws (state laws against "harboring" illegal immigrants--a claim which I can certainly sympathize with the bishops position, but nonetheless a generally applicable law not targeting religion--and Catholic service providers desiring exemptions from terms and conditions of contracts inconsistent with the Church's practices), and three murkier legal issues, the ability of local congregations to use school facilities as houses of worship outside of school hours (the subject of this decision and ongoing litigation), a 2009 Connecticut bill which was tabled after its patent unconstitutionality was clear, and the fact that "the University of California Hastings College of Law has denied student organization status to only one group, the Christian Legal Society, because it required its leaders to be Christian and to abstain from sexual activity outside of marriage."
The bishops explicitly ground their claim as a violation of the Constitution: "What we ask is nothing more than that our God-given right to religious liberty be respected. We ask nothing less than that the Constitution and laws of the United States, which recognize that right, be respected.”
And herein lies the problem.
The bishops claim not only that religiously-affiliated entities are entitled to accommodations, they claim that the law cannot require any religious person to violate the tenets of his or her faith:
It is essential to understand the distinction between conscientious objection and an unjust law. Conscientious objection permits some relief to those who object to a just law for reasons of conscience—conscription being the most well-known example. An unjust law is "no law at all." It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal.Now, I'll just let that well-known anti-Catholic Antonin Scalia address this claim:
The Christian church does not ask for special treatment, simply the rights of religious freedom for all citizens.
We have never held that an individual's religious beliefs [p879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. . . "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."Justice Scalia went on to quote Reynolds v. United States (1879), which posed and answered the question, "Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
Scalia then went on to cite a barrage of instances in which religious objections to child labor laws (the mother wanted her children to distribute religious literature, one hastens to add), Sunday closing laws, forcible conscription, and Social Security and related benefit programs were found to be constitutionally applied to religious believers whose faiths did not permit their compliance with those laws. The Court purposefully limited a few cases in which conscience exemptions had been recognized to cases presenting a "hybrid situation" involving "not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents. . . to direct the education of their children." (Citations omitted) In closing, it reiterated that "Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now." The Court then went on to deny that the Constitution required that a "compelling state interest" be required to sustain any generally applicable statute which would substantially impact or burden religious exercise.
With that in mind, let's look at some of the paradigm cases. As linked above, the denial of church usage of school facilities has been upheld as constitutional by the Second Circuit Court of Appeals, and the litigation is ongoing, as the District Judge is far more sympathetic to the plaintiffs than the Second Circuit has been to date. The bishops acknowledged that the federal district court found their provision of services to trafficking victims involved unconstitutional limitations on services to accommodate the USCCB's moral beliefs; some argument as to why that decision is in error is necessary to establish that the converse is necessarily so. More significantly, the Supreme Court has found that Hastings College of the Law's antidsicrimination policy which resulted in denial of Registered Student Organization status to the Christian group did not violate the Free Exercise Clause. These facts are pretty relevant to the discussion, and the bishops omit them, while claiming the entities involved have violated the First Amendment. Even more significantly, in the case of the contraception requirement for insurance, the fact that Catholic Charities has been rebuffed by Supreme Court of California and the New York Court of Appeals (the Supreme Courtdenied review of the New York decision). Again, when you're claiming these instances as clear violations of the Constitution, omissions repeated failures to convince the courts of that claim are pretty damning to one's credibility.
But most important, the bishops do not, at any point, address Smith or any of the decisions relied upon by it. Instead, they cite Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, which held that the right of a church to select its own ministers bars an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. The ministerial exemption, as it has been known since the Nineteenth Century , is not, the Court found, inconsistent with Smith, because it is limited to pastoral employees, to ensure that the authority to select and control who will minister to the faithful is the church’s alone. The bishops do not analyze the scope of the ministerial exception reaffirmed in this case; they merely quote Chief Justice Roberts's paean to religious freedom.
So, what we have here is a claim that the Administration is violating the First Amendment that is unsupported by the jurisprudence of the First Amendment, whether in the Nineteenth, Twentieth, or Twenety-first Centuries. The spurious citation of Hosanna-Tabor and the repeated claims that the bishops are defending constitutional, non-partisan freedoms that are imperiled, take this approach beyond suppressio veri--omission of facts damaging to the argument they wish to make--and bring it to the level of suggestio falsi.
(Oh, and using the feast day of Thomas More to kickoff "a Fortnight for Freedom"? Assumes facts not in evidence, frankly.)
Tuesday, April 10, 2012
A Century Ago...
...RMS Titanic began her maiden, and final voyage.
The story has fascinated me from my childhood, when I read Walter Lord's A Night to Remember. Antiquated now as a work of scholarship, Lord's book managed to convey the mythic aspect of the disaster. I remember poring over the book, and the blueprints of the vessel my father got for me.
The real end of the Edwardian Age, the forerunner for World War I, its sinking has been called.
When the legend and the history conflict, Hollywood advises, print the legend.
And so Hollywood has:
But even a century on, the lost deserve remembrance in truth, not legend.
The story has fascinated me from my childhood, when I read Walter Lord's A Night to Remember. Antiquated now as a work of scholarship, Lord's book managed to convey the mythic aspect of the disaster. I remember poring over the book, and the blueprints of the vessel my father got for me.
The real end of the Edwardian Age, the forerunner for World War I, its sinking has been called.
When the legend and the history conflict, Hollywood advises, print the legend.
And so Hollywood has:
But even a century on, the lost deserve remembrance in truth, not legend.
Friday, April 6, 2012
Anglocat in the Pulpit
Every year at St. Bart's we mark Good Friday with "the Three Hours: Seven Last Words of Christ, which consists of "Meditations from the pulpit, Readings, Music and Silence, in seven 25 minute sections," and is graced by the magnificent music of the St. Bartholomew's Choir, led by Bill Trafka. The service is one of the most beautiful, but most difficult, of the year--I always find myself powerfully affected by it.
This year, to my surprise, I was invited to provide one of the seven meditations, in the form of a sermon. Our priest-in-charge Buddy Stallings (who performed La Caterina's and my wedding) allowed me every freedom to go where I chose with the text, which was "I thirst," (Jn. 19-28-29). (Buddy's own mediation was a powerful reflection on the text, "Father, into your hands I commend my spirit," on how these last words can be at the core of a daily lived faith which can invest life with meaning; I'm very far from doing it justice--go and see for yourself.)
St. Barts will have the text of all of the meditations, and audio of the service on its website, and I highly recommend it--the other six mediations from St. Bart' clergy and laity really deserve attention, and the music at St. Barts is justly famous. Here is the audio of the seven meditations. But, because this is my first foray into the genre, here is the text of my meditation:
***
“I Thirst”
(John 19:28-29)
“I thirst.”
So says Jesus from the Cross in St. John’s Gospel. It’s a rare moment of vulnerability for Jesus in this Gospel, which stresses Jesus’s union with the Father, his unflappable serenity throughout his ministry, even throughout the Passion narrative. But here, as when he weeps at Lazarus’s tomb, Jesus’s humanity is on display. Literally laid bare for all the world to see.
“I thirst.”
Such a simple, basic need in ordinary times—like when in the same Gospel, Jesus asks the Samaritan Woman for a drink from Jacob’s well. But this isn’t any ordinary time. Of the Seven Last Words of Jesus, this is the only one that refers to the physical pain that Jesus has endured for hours. [1] The end isn’t nigh; it has arrived. Thirst in those last moments takes on an outsize power—I remember being at the bedside of my grandfather in his last illness, the last time I saw him, asking for relief with a simple need that wrung my heart. A dignified man, much loved, but with dignity thrust to the side.
Now, at the end of things, Jesus is dying, there is nothing left to do, and at last that iron self-control breaks. He asks for relief from his executioners. Surprisingly, they give it; “a diluted, vinegary wine drunk by soldiers and laborers,” called posca, offered by some of the soldiers guarding the dying criminals in a moment of kindness. [2] And, almost equally surprisingly, Jesus accepts it, just before the very end.
At first, it might seem that this last thirst, this moment of human need, has nothing to say to us. A fleeting moment of weakness of the flesh on Jesus’s part; a momentary, essentially trivial act of mercy on the part of some unknown soldier or soldiers. But maybe not. These were no doubt hard men living a hard life, in which cruelty was routine; yet something in Jesus touched them; can an act of mercy ever truly be wasted?
And Jesus has now answered his own question, “Am I not to drink of the cup the Father has given me?” [3] He does it, in faith, even though in his case the cup is one of suffering and death. This man who spoke of the blessing of “thirsting for righteousness,” now, in his last moments, “thirsts to drink that cup to the last drop, for only when he has tasted the bitter wine of death will his Father’s will be fulfilled.”[4] He has been faithful to the end.
And us? What is the righteousness we should thirst for? Isn’t Jesus walking, as we all are called to walk, the same threefold path as described by Micah—that we should do justice, love mercy, and walk humbly with our God? We all have opportunities throughout life to show compassion, to strive for justice. But those opportunities can be isolated glimmers of light in the dark, like the gift of wine the soldiers gave Jesus, or they can form a pattern in life, around which we form our very selves. They can be haphazard, or integral to our efforts to and live the authentic life, the abundant life, to which God is calling us.
Micah’s third test of righteousness—walking with God—that’s where abundant living has shown itself in my own path. When I have actually focused on discerning the life that God calls each of us to, the unique path each of is called to travel, I have been most myself, alive, and vital. It’s an ongoing task, with many hardships, puzzles and joys along the way. There have been false starts, mistakes, and misjudgments, and I’m not alone there. Loss and even tragedy will still meet us all. But they, an dour own failings, take on a new significance in the context of a whole life, one in which our walk with God can be the focus around which all our acts of mercy, our efforts on behalf of justice are gathered. They look as different then as Good Friday does from the perspective of Easter—as we continue our journey out of darkness and into light.
God is here, and Christ is now.
I thirst, Jesus said. May we all.
Notes:
[1] William Temple, Studies in St. John’s Gospel, First and Second Series (1945) at 368.
[2] Raymond E. Brown, The Gospel According to John XIII-XX1 (1970) at 909 (Anch. Bib. Vol. 29A); William Temple, Studies, op. cit.
[3] Jn. 18: 11.
[4] Brown, The Gospel According to John, at 930.
Edited to add link to the audio at St. Bart's website.
This year, to my surprise, I was invited to provide one of the seven meditations, in the form of a sermon. Our priest-in-charge Buddy Stallings (who performed La Caterina's and my wedding) allowed me every freedom to go where I chose with the text, which was "I thirst," (Jn. 19-28-29). (Buddy's own mediation was a powerful reflection on the text, "Father, into your hands I commend my spirit," on how these last words can be at the core of a daily lived faith which can invest life with meaning; I'm very far from doing it justice--go and see for yourself.)
St. Barts will have the text of all of the meditations, and audio of the service on its website, and I highly recommend it--the other six mediations from St. Bart' clergy and laity really deserve attention, and the music at St. Barts is justly famous. Here is the audio of the seven meditations. But, because this is my first foray into the genre, here is the text of my meditation:
***
“I Thirst”
(John 19:28-29)
“I thirst.”
So says Jesus from the Cross in St. John’s Gospel. It’s a rare moment of vulnerability for Jesus in this Gospel, which stresses Jesus’s union with the Father, his unflappable serenity throughout his ministry, even throughout the Passion narrative. But here, as when he weeps at Lazarus’s tomb, Jesus’s humanity is on display. Literally laid bare for all the world to see.
“I thirst.”
Such a simple, basic need in ordinary times—like when in the same Gospel, Jesus asks the Samaritan Woman for a drink from Jacob’s well. But this isn’t any ordinary time. Of the Seven Last Words of Jesus, this is the only one that refers to the physical pain that Jesus has endured for hours. [1] The end isn’t nigh; it has arrived. Thirst in those last moments takes on an outsize power—I remember being at the bedside of my grandfather in his last illness, the last time I saw him, asking for relief with a simple need that wrung my heart. A dignified man, much loved, but with dignity thrust to the side.
Now, at the end of things, Jesus is dying, there is nothing left to do, and at last that iron self-control breaks. He asks for relief from his executioners. Surprisingly, they give it; “a diluted, vinegary wine drunk by soldiers and laborers,” called posca, offered by some of the soldiers guarding the dying criminals in a moment of kindness. [2] And, almost equally surprisingly, Jesus accepts it, just before the very end.
At first, it might seem that this last thirst, this moment of human need, has nothing to say to us. A fleeting moment of weakness of the flesh on Jesus’s part; a momentary, essentially trivial act of mercy on the part of some unknown soldier or soldiers. But maybe not. These were no doubt hard men living a hard life, in which cruelty was routine; yet something in Jesus touched them; can an act of mercy ever truly be wasted?
And Jesus has now answered his own question, “Am I not to drink of the cup the Father has given me?” [3] He does it, in faith, even though in his case the cup is one of suffering and death. This man who spoke of the blessing of “thirsting for righteousness,” now, in his last moments, “thirsts to drink that cup to the last drop, for only when he has tasted the bitter wine of death will his Father’s will be fulfilled.”[4] He has been faithful to the end.
And us? What is the righteousness we should thirst for? Isn’t Jesus walking, as we all are called to walk, the same threefold path as described by Micah—that we should do justice, love mercy, and walk humbly with our God? We all have opportunities throughout life to show compassion, to strive for justice. But those opportunities can be isolated glimmers of light in the dark, like the gift of wine the soldiers gave Jesus, or they can form a pattern in life, around which we form our very selves. They can be haphazard, or integral to our efforts to and live the authentic life, the abundant life, to which God is calling us.
Micah’s third test of righteousness—walking with God—that’s where abundant living has shown itself in my own path. When I have actually focused on discerning the life that God calls each of us to, the unique path each of is called to travel, I have been most myself, alive, and vital. It’s an ongoing task, with many hardships, puzzles and joys along the way. There have been false starts, mistakes, and misjudgments, and I’m not alone there. Loss and even tragedy will still meet us all. But they, an dour own failings, take on a new significance in the context of a whole life, one in which our walk with God can be the focus around which all our acts of mercy, our efforts on behalf of justice are gathered. They look as different then as Good Friday does from the perspective of Easter—as we continue our journey out of darkness and into light.
God is here, and Christ is now.
I thirst, Jesus said. May we all.
Notes:
[1] William Temple, Studies in St. John’s Gospel, First and Second Series (1945) at 368.
[2] Raymond E. Brown, The Gospel According to John XIII-XX1 (1970) at 909 (Anch. Bib. Vol. 29A); William Temple, Studies, op. cit.
[3] Jn. 18: 11.
[4] Brown, The Gospel According to John, at 930.
Edited to add link to the audio at St. Bart's website.
Thursday, April 5, 2012
A Prelude to Good Friday
Since John Donne's feast day was celebrated just before Palm Sunday this year, I read a few selections to lead me into Holy Week.
Tomorrow, I wil be at St. Bartholomew's Church, participating in the Liturgy of the Hours. Before going into that solemn space, here is a taste of John Donne's Holy Sonnets as arranged by Benjamin Britten, and performed at the Duke Divinity School.
I'll post after the Liturgy of the Hours a short mediation on Good Friday. After that, radio silence until Easter.
Tomorrow, I wil be at St. Bartholomew's Church, participating in the Liturgy of the Hours. Before going into that solemn space, here is a taste of John Donne's Holy Sonnets as arranged by Benjamin Britten, and performed at the Duke Divinity School.
Performance: The Holy Sonnets of John Donne by Benjamin Britten from Duke Divinity School on Vimeo.
I'll post after the Liturgy of the Hours a short mediation on Good Friday. After that, radio silence until Easter.
Wednesday, April 4, 2012
A Holy Week Musing
This post by Andrew Sullivan addresses a point I have been thinking about a lot, lately: Jesus had to know that nobody could live up to his ethical standards--nobody. Yet he came that we should have life, and have it abundantly. How to reconcile the two? Perhaps because the point of the impossibly high ethical standards is to strip away our belief that we are empowered to judge others, and have the right to condemn. I think of it as an enforcement mechanism of sayings such as "judge not, that ye be not judged," and even Jesus himself refusing to be called "good," saying "no one is good, except God alone." (Mk. 10:18-19).
And combined with that humility--or self knowledge--is always the urging toward forgiveness of all who we believe (rightly or wrongly) have sinned against us, as we are in deep need of forgiveness ourselves. In other words, Jesus is trying to get us to see ourselves as the deeply flawed people we are not to make us wallow in guilt, but to get us to give our brothers and sisters a break. We aren't to hate ourselves, but we have no right to hate others, either.
And, of course, we have to work on living a better life. Progress, not perfection.
And combined with that humility--or self knowledge--is always the urging toward forgiveness of all who we believe (rightly or wrongly) have sinned against us, as we are in deep need of forgiveness ourselves. In other words, Jesus is trying to get us to see ourselves as the deeply flawed people we are not to make us wallow in guilt, but to get us to give our brothers and sisters a break. We aren't to hate ourselves, but we have no right to hate others, either.
And, of course, we have to work on living a better life. Progress, not perfection.
Tuesday, April 3, 2012
Fox's Friends on the Court
Today, a panel of the Fifth Circuit Court of Appeals gave a punishment assignment to Department of Justice attorney Dana Lydia Kaersvang:
First, the President did not suggest that he would defy the Supreme Court, let alone the Fifth Circuit. The President was asked "[a]fter last week’s arguments at the Supreme Court, many experts believe that there could be a majority, a five-member majority, to strike down the individual mandate. And if that were to happen, if it were to be ruled unconstitutional, how would you still guarantee health care to the uninsured and those Americans who've become insured as a result of the law?" He replied:
More to the point, even if President Obama was denouncing judicial review by the Supreme Court, what does that have to do with the Fifth Circuit's review of the district court opinion? It's what appellate lawyers call de hors the record, that is, outside of the record as a matter of fact and as a matter of law. The time to worry about a party's defiance of a judicial edict is when they, y'know, disobey it. This is especially true where, as here, the speech at issue didn't involve the case before the Fifth Circuit, but one before the Supreme Court. If any irregularity could be found in the President's statement, it is for the Supreme Court to address; they're pretty good at protecting their jurisdiction.
Third, the DOJ lawyer unequivocally answered the question with an unequivocal statement that "Marbury v. Madison is the law", and then went on to try to argue her case. Judge Smith then demanded the three page essay:
Simple; to humiliate the President, and to create a document that the President's political adversaries can use to cherry-pick for "cave in" quotes. It's fodder for Fox News, no less, and done from the bench to disempower a sitting President, our first African-American one. And it is unprecedented; Ronald Reagan used the State of the Union address to denounce Roe v. Wade and Court rulings on school prayer; nobody suggested that he was defying the Court's authority to issue the orders, and haled him in front of a court to submit a punishment essay.
And this panel? all appointed by Republicans. Acting, here, as Republicans, not as judges.
The rule of law took a serious blow today. Our federal courts are less credible than they were yesterday.
The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.Sorry about the long quote, but this is a brazen abuse of judicial authority. Let me explain why.
The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.
The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.
Smith then became "very stern," the source said, suggesting it wasn't clear whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.
Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."
First, the President did not suggest that he would defy the Supreme Court, let alone the Fifth Circuit. The President was asked "[a]fter last week’s arguments at the Supreme Court, many experts believe that there could be a majority, a five-member majority, to strike down the individual mandate. And if that were to happen, if it were to be ruled unconstitutional, how would you still guarantee health care to the uninsured and those Americans who've become insured as a result of the law?" He replied:
With respect to health care, I’m actually -- continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.In other words, the President firmly asserted his belief that the statute was constitutional, an that the Supreme Court would not engage in the very judicial activism conservatives have long condemned. There is nothing in this statement to suggest that the President would defy a Supreme Court decision, or that the Court lacked power to strike down unconstitutional statutes; he just contended that as to the ACA, that power would not be used, because the statute was constitutional, and he trusted the conservative members of the Supreme Court to live up to their own ethos. So, the Fifth Circuit panel's acting as if Obama was denouncing judicial review is simply false.
I think it’s important -- because I watched some of the commentary last week -- to remind people that this is not an abstract argument. People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.
The law that's already in place has already given 2.5 million young people health care that wouldn’t otherwise have it. There are tens of thousands of adults with preexisting conditions who have health care right now because of this law. Parents don't have to worry about their children not being able to get health care because they can't be prevented from getting health care as a consequence of a preexisting condition. That's part of this law.
Millions of seniors are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.
So that’s just the part that's already been implemented. That doesn’t even speak to the 30 million people who stand to gain coverage once it’s fully implemented in 2014.
And I think it’s important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.
More to the point, even if President Obama was denouncing judicial review by the Supreme Court, what does that have to do with the Fifth Circuit's review of the district court opinion? It's what appellate lawyers call de hors the record, that is, outside of the record as a matter of fact and as a matter of law. The time to worry about a party's defiance of a judicial edict is when they, y'know, disobey it. This is especially true where, as here, the speech at issue didn't involve the case before the Fifth Circuit, but one before the Supreme Court. If any irregularity could be found in the President's statement, it is for the Supreme Court to address; they're pretty good at protecting their jurisdiction.
Third, the DOJ lawyer unequivocally answered the question with an unequivocal statement that "Marbury v. Madison is the law", and then went on to try to argue her case. Judge Smith then demanded the three page essay:
a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.OK, so why is the advocate's formal representation in court insufficient? Why does it need to be "at least three pages, single spaced, no less?"
Simple; to humiliate the President, and to create a document that the President's political adversaries can use to cherry-pick for "cave in" quotes. It's fodder for Fox News, no less, and done from the bench to disempower a sitting President, our first African-American one. And it is unprecedented; Ronald Reagan used the State of the Union address to denounce Roe v. Wade and Court rulings on school prayer; nobody suggested that he was defying the Court's authority to issue the orders, and haled him in front of a court to submit a punishment essay.
And this panel? all appointed by Republicans. Acting, here, as Republicans, not as judges.
The rule of law took a serious blow today. Our federal courts are less credible than they were yesterday.
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