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Part Two

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21^st Century
D a m a g e   C o n t r o l
 Understanding what the Constitution means and how to apply the meaning

Two different school districts as far away from each other as Kentucky and Seattle, Washington, were using race to determine the number of students the local school board decided would be the right number in certain schools to create the type of diversity by racial percentages the school board mysteriously concluded would create educational benefits for all students.
In order to reach those arbitrary percentages each school district respectively had to admit and refuse entry to students based on race.
When the parents of students who were refused entry into certain schools because of their race filed a lawsuit, the case eventually reached the Supreme Court.

In 1954 the Supreme Court ruled in the now famous landmark case Brown v. Board of Education (referred to simply as Brown) that race could not be used as a factor in who went to what school, thereby ending the practice of student racial segregation.

If you have read any media, or if you have been interested enough to read the actual opinions (which we encourage because its worth the time) you will find that the liberal minds of the current Supreme Court (referred to as The Dissent) considered some forms of race determination to be "benign" while subsequently defining the use of race determination as "precedent."

One of the school districts determined a kind of nebulous percentage formula for each school in the district, based on race that would provide a so-called diverse atmosphere in which the education of the students would then be enhanced. This program coincided with a racial demographic imbalance in the school district which turned out to be another rationale for race based determinations, yet, these race determinations were not based on discrimination, they were based on demographic balancing, known as racial balancing, and nebulous conclusions regarding educational enhancement.

Demographics of course change, and even if the demographic change creates what one might perceive as a mere socio-political injustice, that does not mean one should violate the meaning and the intent of a United States Constitutional law. By doing that, one confuses and therefore diminishes the extraordinary role the Constitution plays in providing the backbone and foundation of our governance.

Another argument from The Dissent in this case said that the "strict scrutiny" with which the majority analyzed the case, was inappropriate, or did not apply, but Justice Thomas pointed out, Brown required strict scrutiny in any case involving race-based decisionmaking.

The majority decision by the high court in the Seattle &  Kentucky integration cases reverberated across the political landscape. (Referred to here as simply Seattle & Kentucky)
One of the most pathetically distracting and irrational advocates for political intrusion and control of the Supreme Court nominating process by the legislative branch, liberal New York Senator Charles Schumer, said in a speech to the American Constitution Society (ACS) not long after the Seattle & Kentucky decision:
"I want to address three questions that arise from the experience of the Roberts and Alito confirmations...
One: Were we duped?
Two: What lessons should we draw from the process that led to the confirmation of Roberts and Alito?
Three: How should we apply those lessons to the next nomination to the High Court?"

That is nothing more than a shell game of obstruction.  Another attempt by a liberal legislator to make people incorrectly believe that there is something wrong with the Constitution's prescription for nominating and confirming justices to the high court.  If liberal judges had been nominated and confirmed, rather than conservatives, then a senator like Chuck Schumer would have had nothing to say.

Our  comments on those three questions:

One: How could Senator Schumer and his sympathetic liberals consider themselves "duped" when the Senator voted against the confirmation of both Roberts and Alito?

Two: When the Senator then asks what "lessons should they draw from the nomination process" and how should they "apply those lessons" to the next Supreme Court nomination, he is really just procrastinating out loud as to what new form of obstruction the liberals might create to block another conservative nominee.

During the high profile confirmation hearing of both Chief Justice John Roberts and Justice Samuel Alito, the Senate Republicans could not, or would not, implement the rule change that would remove the filibuster from the confirmation process, and so a "compromise" was negotiated that set a standard which stated only under "extreme circumstances" would the minority exercise the filibuster.
Now, with the Democrats in power, Senator Schumer wants to pretend like Chief Justice Roberts and Justice Alito have fooled the Democrats, as if they were not aware of the conservative foundation that would inform the decisions of these brilliant judges.
Senator Schumer needed an excuse to change the "extreme circumstances" standard that would be the only thing to justify a filibuster, to a standard that says; "Given the track record of this President and the experience of obfuscation at the hearings...we should not confirm a Supreme Court nominee except in extraordinary circumstances." 

Senator Schumer also said: "I will do everything in my power to prevent one more ideological ally from joining Roberts and Alito on the court."
When Senators like Arlen Specter (mentioned below) and Charles Schumer threaten to take what is called congressional action, simply because they disagree with a perfectly argued opinion by the majority of the high court, then it is time to beware and pay close attention.
It is a free country of course, and they cannot be stopped from mischaracterizing a nominee while acting under pressure from the special interest groups out on the lunatic fringe. 

But I remind you that no matter how much, or how loud, or how much media coverage their complaining receives, in the end, all they should really be allowed to do is express that disagreement, not in changing the nomination process prescribed by the Constitution, but in simply voting "no" when the confirmation comes up for a Senate vote.

It appears that one could study constitutional law for 200 years and I believe one would find, miraculously, it remains as it should remain, that simple.

Three: The real lesson everyone learned from the confirmations of both John Roberts and Samuel Alito is that when you take the filibuster away from the process, the nomination, or the Senate rejection of the nominee, works like the Constitution intended it to work.
 

More Bad Ideas Regarding Ways to Make the Supreme Court Subservient to the Legislative Branch

Around the time of Senator Schumer's speech, the American Constitution Society also released a series of papers from a symposium titled: "Keeping Faith with the Constitution in Changing Times."
One of the symposium participants, a law professor named Robin West, in a paper titled "Constitutional Fidelity and Democratic Legitimacy" says she thinks the legislative branch should take a more active role in constitutional interpretation.

There are many reasons, with some of them being provided here, why Ms. West is dead wrong.  It's a terrible idea to begin with. 

The disastrous consequence of her thinking would be two-and-a-half branches of government with the high court ineffectively dependent on, or subservient to the legislative branch.  And God help us if that happened.

Congress, via its extreme liberal Democratic party leadership is currently proving to be so unpopular, inept and nonproductive, even if it was an idea one could think about taking seriously, it is impossible to imagine that such a congress, which has virtually bargained itself away to the special interests groups, could be trusted to reasonably handle such a task.

And speaking of "constitutional fidelity,"  as though that might be questionable via the conservatives on the high court, ironically, nowhere will you find a better example of  "constitutional fidelity" as well as an example of "Keeping Faith with the Constitution in changing Times" than with the recent majority opinions in Seattle & Kentucky.

Reading even just a few of the excerpts from the majority opinions of Chief Justice John Roberts and Justice Clarence Thomas in the parallel column on this page will provide you with clear examples of constitutional fidelity.  In fact, that was the primary issue in those cases, that is, a return to constitutional fidelity and fidelity to the original precedent.

Also during the aftermath of the Seattle &  Kentucky decisions, Republican Senator Arlen Specter, former Chairman of the Senate Judiciary Committee, joined the reactionary sideshow.

Senator Specter's call for an "inquiry" into the original confirmation testimony of Chief Justice John Roberts and Justice Samuel Alito as it relates to these recent integration cases and several other majority decisions by the high court during its last session is pointless, and even ridiculous.

According to media reports, Senator Specter's inspiration for this absurd inquiry came, he said, from a conversation during a "meeting" with Justice Breyer where the justice  apparently communicated to Senator Specter that the liberals on the high court were victims of an injustice that the Senator apparently agreed to help rectify via the legislative branch.

Yet, in reality, the liberals on the court were the victims of their own bad reasoning up against brilliant, conservative judicial analysis.  Bad reasoning trying to appear otherwise through manipulative emotion seems to be a chronic syndrome of modern liberal thinking.

Senator Specter said he would use his "power" as ranking member of the Judiciary Committee to "study the decisions of the Roberts' Court" to see if the Chief Justice and Justice Alito had broken their promises to respect precedent.

Just so there is no confusion about the issue regarding this so called "inquiry:" Chief Justice John Roberts said in his testimony during the confirmation hearings that he would not make promises regarding Supreme Court cases as if he were trying to become an elected official.  In other words, Chief Justice Roberts never made any specific "promises" that could be broken.

And regarding Senator Specter's questioning whether or not the majority opinions abused precedent; Justice Samuel Alito said in his testimony that precedent would be something he would respect, and if a precedent were questioned, then it would require, and he would apply, close judicial review.

First and primarily, there was no abuse of anything in the majority opinions, and least of all, precedent. In Seattle & Kentucky,  for example, the liberal's created the confusion of a precedent on a sliding scale so to speak, in the racial balancing episodes, which is where the abuse occurred in the first place.

Senator Specter was regretfully using a political communication tactic, perfected in the age of television, wherein it is presumed the recipient, we the public, as usual, will not have nor take the time to look behind the screen of words to find that nothing is there.  And of course, regretfully,  a great percentage of the news consuming public is not going to take the time to read the text of the original opinions.

Not long after the media coverage of Justice Breyer's emotional reaction and his conversation with Senator Specter, and perhaps because it appeared that Justice Breyer might be viewed as complicit outside the court in providing the legislative branch with public ammunition to be used against the conservative justices on the court, and therefore further poisoning a nomination process liberals in the legislature have already poisoned enough…Justice Breyer publicly made a more circumspect statement regarding the majority opinion, which virtually canceled out, while isolating the motives of Senators Specter and Schumer.

Justice Breyer said at an American Bar Association meeting: "I was in the minority a lot and I wasn't happy…When I look at it objectively, I think how I wish I'd won, but I also think, not a bad system…I'm not going to be in the majority all the time.  How I wish I were, but that's the system. That's called the rule of law."
The majority opinion, via the Chief Justice, made it clear with thorough reasoning for all to read, that the so-called precedent the liberals had tried to establish, did not contain sufficient parameters that would allow the judicial perspective to view it as a standard and workable reflection of the original intent of Brown.

As I have pointed out already, the "precedent" set by Brown (strict scrutiny of any race-based decisionmaking) is yet one angle which  gave the conservatives on the court their primary reasoning tool needed to expose a problematic and arbitrary deviation from the original intent.  No wonder the liberals on the court tried to argue that strict scrutiny was inappropriate.

Keep in mind that Chief Justice Roberts was not intimidated by Senator Specter's public concern regarding what the Senator misperceived as lack of respect for precedent following the Seattle & Kentucky decision.
Chief Justice Roberts correctly responded in the press that "upholding precedent" in Seattle & Kentucky was precisely what he did.

And regardless of Justice Breyer's emotional reaction to the majority opinion in Seattle & Kentucky, established go-to legal minds did not consider the majority decision an example of overturned precedent anyway.

So any logical mind would then ask where in the world was the justification for Senator Specter's concern, and his call for another pointless, time-wasting "congressional" inquiry?

Granted, it was revealed in the news that there were three incidents where indeed the Roberts' Court overturned precedents.
The three "precedents" overturned were two obscure cases from the 1960s that permitted excuses for missing court filing deadlines, and a fundamental antitrust decision from 1911 that prohibited manufacturers from imposing minimum retail prices.

If anyone can reason that these three obscure examples of overturned precedents justify the term "abuse" and therefore require "congressional action" via an "inquiry" that would indirectly support the liberal's call for changes to the nominating process wherein the judiciary would essentially become subservient to the legislative branch: Then we respectfully suggest it is time to reinvent your reasoning skills.

As stated above: Senator Specter said he wanted to "determine" whether or not Chief Justice Roberts and Justice Alito's opinions "conflict with promises they made to senators to win confirmation."

Again: Promises? Where does it say in the Constitution that Supreme Court nominees are required to make "promises" to the Senate Judiciary Committee?

Stare decisis  is a legal doctrine that, as a stabilizing measure, encourages the courts to leave past decisions which are considered precedents, undisturbed.

In judicial terminology Justice Breyer accused the majority of "flouting stare decisis."  But when a precedent is not stable, as Chief Justice Roberts and Justice Thomas so clearly pointed out in Seattle & Kentucky, it should not by any judicial standard, qualify to be protected from close analytical scrutiny, which, in this case, revealed the so-called precedents to be contradictions of the original intent, and therefore, constitutionally unstable.

It is our view that the majority decision, on close inspection, is an excellent example of how the conservative perspective represents in real-time judicial analysis, an independent judiciary defending a Constitution that lives.

Senator Specter is playing into the mainstream media-stained hands of the liberal legislators, like Senator Schumer, who are controlled by the extreme left-wing special interest groups, who continue to think of deceiving ways to control the Judicial Branch via the Senate confirmation hearings while, as it has for the past 200 years, and as Justice Thomas said regarding race-based decisionmaking; the Constitution clearly forbids it.

Liberal senators and activists can disagree and complain about this progressive decision via the media from now until doomsday if they so desire because that is a Constitutional right. 
But to use this especially brilliant judicial analysis by the majority, that we perceive to be 21st Century Damage Control at its best, as the case that provided a clique of liberal senators another flimsy rationale to call for reformatting the Supreme Court confirmation hearings so they can get more liberal "promises" from the nominees, is yet, like the filibuster, another transparent power grab for control of the high court.

Example:

If you would like to comment on these issues, we welcome reader response, that we will post on the Blogs page,  and we  encourage you to email us at: communications@lightbookproductions.com

"The dissent accuses me of "feeling confident that, to end invidious discrimination, one must end all government use of race-conscious criteria" and chastises me for not deferring to democratically elected majorities. Regardless of what Justice Breyer's goals might be, this Court does not sit to "create a society that includes all Americans" or to solve the problems of "troubled inner-city schooling." We are not social engineers. The United States Constitution dictates that local governments cannot make decisions on the basis of race. Consequently, regardless of the perceived negative effects of racial balancing, I will not defer to legislative majorities where the Constitution forbids it."

Excerpts from the Opinion of
Chief Justice John Roberts
Without attempting in these cases to set forth all the interests a school district might assert, it suffices to note that our prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. the first is the compelling interest of remedying the effects of past intentional discrimination. Yet the Seattle public schools have not shown that they were ever segregated by law, and were not subject to court-ordered desegregation decrees. the Jefferson County public schools were previously segregated by law and were subject to a desegregation decree entered in 1975. In 2000, the District Court that entered that decree dissolved it, finding that Jefferson County had "eliminated the vestiges associated with the former policy of segregation and its pernicious effects," and thus had achieved a "unitary" status.
The second government interest we have recognized as compelling for purposes of strict scrutiny is the interest in diversity in higher education upheld in Grutter. The specific interest found compelling in Grutter was student body diversity "in the context of higher education." The diversity interest was not focused on race alone but encompassed "all factors that may contribute to student body diversity."
The Court (in Grutter) quoted the articulation of diversity from Justice Powell's opinion in Regents of the University of California v. Bakke (1978), noting that "it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, that can justify the use of race."
The entire gist of the analysis in Grutter was that the admissions program at issue there focuses on each applicant as an individual, and not simply as a member of a particular racial group....The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance, which the Court explained would be "patently unconstitutional."
"The validity of our concern that racial balancing has "no logical stopping point," is demonstrated here by the degree to which the districts tie their racial guidelines to their demographics. As the district's demographics change, so too will their definition of racial diversity. When the actual racial breakdown is considered, enrolling students without regard to their race yields a substantially diverse student body under any definition of diversity."

In reference to Justice Breyer's intentions,
Justice Thomas also wrote:
"Indeed, the racial theories endorsed by the Seattle School Board should cause dissenters to question whether local school boards should be entrusted with the power to make decisions on the basis of race.
The Seattle school district's Website formerly contained the following definition of "cultural racism."
"Those aspects of society that overtly and covertly attribute value and normality to white people and whiteness, and devalue, stereotype, and label people of color as "other," different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard...."
After a Seattle Post Intelligencer report
...the site was removed, the district offered the comforting clarification that the site was not intended "to hold onto unsuccessful concepts such as melting pot or colorblind mentality.
More recently, the school district sent a delegation of high school students to a "White Privilege Conference." One conference participant described "white privilege" as "an invisible package of unearned assets which I can count on cashing in each day, but about which I was meant to remain oblivious. White privilege is like an invisible weightless knapsack of special provisions, maps, passports, codebooks, visas, clothes, tools, and blank checks."

One can clearly see why Justice Thomas would not be willing to "abdicate" his Constitutional responsibilities, in these cases, to inconclusive social science theories and the migraine mentalities of some local elected officials. LBP.