Nomination Nation

News, views, and gossip about judicial appointments. Please send your tips to Pozinski [at] gmail [dot] com or Senator [dot] Spectator [at] gmail [dot] com.

Saturday, June 11, 2005

NR's Bench Memos: Not Serious

The National Review's descent from a serious and intellectually-honest (albeit partisan) magazine into a silly partisan hack rag was perhaps best exposed by Ramesh Ponnuru's hit piece on Professor Tribe, and then his childish name-calling of Tom Goldstein for daring to question his analysis (name calling which was criticized by many serious conservatives). So perhaps it is no surprise that National Review's entry into commentary on judicial nominations with its Bench Memos blog is beyond dishonest.

For example, take a look at this post by Edward Whelan on Justice Ruth Bader Ginsburg:


First, no conceivable nominee will have the record of extremism that nominee [Ruth Bader] Ginsburg had, but will instead surely display a much more sound understanding of the role of judging in a constitutional republic. Second, Ginsburg was altering the previous balance of the Court by replacing Justice Byron White, an opponent of much of the Court’s liberal activism (including Roe).
Record of Extremism!! Recall that Justice Ginsburg was recommended to President Clinton by none other than Orin Hatch, then ranking-minority member of the Senate Judiciary Committee. I challenge the National Review to find a serious legal scholar (eg not R. Ponnuru) who would characterize Justice Ginsburg's jurisprudence on the DC Circuit (or now on the Supreme Court) as "extreme." Compared to true judicial liberals like the late Justices Brennan and Marshall, or Ninth Circuit Judge Reinhardt, Ginsburg is conservative. She has not hesitated to join summary reversals of vacaturs of death sentences by the Ninth Circuit (this sort of procedural speak may be above the author of the post I criticize), and she has routinely affirmed death sentences.

Even on woman's issues, Justice Ginsburg has not been so far to the left in her tenure on the Supreme Court. In US v. Virginia, Justice Ginsburg reaffirmed that intermediate-scrutiny for gender-based classifications was the proper level of analysis under the Equal Protection Clause of the 14th Amendment (I know, I know, this is probably all over Edward Whelan's head). This despite the Clinton Administration's urging that the Court adopt strict scrutiny (which was the standard urged by liberals in the 70's and 80's, and endorsed by Justices Brennan and Marshall).

The colorable point that Mr. Whelan has is that Ginsburg's nomination altered the balance of the Court in a greater way than will the Chief Justice's replacement. This is true to a degree. But only to a degree. Justice White (appointed by JFK) was indeed judicially conservative on many issues -- most notably in his opposition to Roe v. Wade, he and Rehnquist were the only dissenters from the Court's opinion in Roe. But in other areas, Justice White's jurisprudence was similar to Justice Ginsburg's -- he did not believe that affirmative action programs should be reviewed for strict scrutiny, he was a supporter of civil rights laws, etc.

In short, in their new role as mouthpiece for the Republican party and by trying to drum up support amongst the Republican base against "activist" judges (coincidentally with Jewish names which surely will play well with his audience), the National Review must simply depart from any modicum of intellectual honesty. It's sad as those of us who truly understand jurisprudence have to read this cr--.

60 Comments:

Anonymous Anonymous said...

You might want to do a google search on Ed Whelan before you suggest you don't know what he's talking about. You're being silly.

You might also ask whether one who has advocated federal funding of abortions (not to mention the abolition of Mother's Day) could reasonably be characterized as "extreme" at the time of nomination. Federal funding is opposed by 80%-odd Americans. How do we define extreme, ex ante?

June 15, 2005 at 9:59 AM  
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It's also a bit silly to accuse Nat'l Review of anti-Semitism, given that WFB and the magazine were at the forefront of purging anti-Semites from the conservative movement in the 1950's and 1960's.

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In the storm of life we struggle through myriads of stimuli of pressure, stress, and muti-problems that seek for a solution and answer. We are so suppressed by the routine of this every life style that most of us seem helpless. However, if we look closely to ancient techniques we shall discover the magnificent way to understand and realize the ones around us and mostly ourselves. If only we could stop for a moment and allow this to happen…


Let me bow to Indian Maharishi Patanjali with folded hands who helped in removing the impurities of the mind through his writings on Yoga, impurities of speech through his writings on grammar, and impurities of body through his writings on Ayurveda.

The American justice Dept. have recently approved the power of yoga and meditation vide a recent judgement in the American court.” Man Who Slapped Wife Sentenced to Yoga, It's Anger Management, Says Judge." First there was house arrest. Now there's yoga. A judge ordered a man convicted of slapping his wife to take a yoga class as part of his one-year probation. "It's part of anger management," County Criminal Court at Law Judge Larry Standley said of the ancient Hindu philosophy of exercise and well-being. "For people who are into it, it really calms them down. " Standley, a former prosecutor, said the case of James Lee Cross was unique. Cross, a 53-year-old car salesman from Tomball, explained that his wife was struggling with a substance abuse problem and that he struck her on New Year's Eve during an argument about her drinking. "He was trying to get a hold of her because she has a problem," Standley said after the court hearing. "I thought this would help him realize that he only has control over himself." The sentence came as a surprise to Cross, who was told to enroll in a class and report back to Standley on his progress. "I'm not very familiar with it," Cross said of yoga. "From what I understand, it may help in a couple ways, not only as far as mentally settling, but maybe a little weight loss." Darla Magee, an instructor at Yoga Body Houston in River Oaks, said she would recommend that Cross take a basic yoga class emphasizing breathing and including a variety of postures -- forward bends, back bends and twists. "Yoga can help us to get rid of many emotional issues we might have," she said. "It's a spiritual cleanse." Prosecutor Lincoln Goodwin agreed to a sentence of probation without jail time because Cross had no significant criminal history http://www.chron.com/cs/CDA/ssistory.mpl/metropolitan/2365341.
Yoga which is one of the greatest Indian contribution to the world has got vast potential in all fields. In Tihar jail India Yoga is experimented among the inmates and found successful. Their criminal mentality is changed. This study aimed at investigating the effect of Vipassana Meditation (VM) on Quality of Life (QOL), Subjective Well-Being (SWB), and Criminal Propensity (CP) among inmates of Tihar Jail, Delhi. To this effect the following hypotheses were formulated. 1. There will be a significant positive effect of VM on the QOL of inmates of Tihar jail. 2. VM will have a positive and significant effect on SWB of inmates. 3. Criminal propensity (CP) of inmates will decrease significantly after attending the VM course. 4. There will be significant difference in SWB and CP of experimental (Vipassana) group and control (non-Vipassana) group. 5. Male and female inmates will differ significantly in SWB and CP, as a result of VM. In the famous "Time" magazine the importance meditation and yoga, an ancient Indian system, is high-lighted that the ancient mind- and spirit-enhancing art is becoming increasingly popular and gaining medical legitimacy. It is a multi billion dollar business in US. In many Universities it is accepted as subject and included in the Syllabus. In the latest famous book "Inspire! What Great Leaders Do" written by Mr.Lance Secretan recently published by John Wiley and sons, the benefit of meditation is elaborately described for good corporate governance. By practicing transcendental meditation, or TM, many people have got relief from back pain, neck pain, depression. The mind calms and quiets, . What thoughts you have during meditation become clearer, more focused. Anger, anxiety and worries give way to a peace. In the world exorbitant medical expenses one can definitely make use of meditation. Maharshi Mahesh Yogi and Sri Ravi Sankar are popularizing this. The Iyengar Yoga institute in US is famous.
In Bhagavad-Gita Gita Lord Krishna has inspired Arjuna to rise from his depression by preaching Gita in the battlefield and to rise from the depression to do his duties. In Holy Gita we can see, being hidden by the cosmic overview of any institution beset with myriad problems, not the least of which is its lack of moral probity, there is a groundswell of educated people seeking answers to deeply personal but universally asked questions. Chie Executives taking lessons from yoga, meditation and learning how to deal with human resources equations in an enlightened manner. Individuals from every walk of life can get ideas of how to be better human beings, more balanced and less stressed out.
Medical studies continue to show regular meditation working magic in reducing blood pressure and stress-related illnesses, including heart disease. Brain images show that regular meditation helps calm the most active sensory-assaulted parts of the brain. The ancient Hindu sage Patanjali who had mastered the secrets of the human mind has written a book "Yogasutra".In this book we can see how super powers can be achieved by meditation. It has both cosmic relevance and cosmic resonance. In spite of its universal appeal, for most people total control of mind remains an elusive goal and daunting task. From time immemorial, there have been many attempts throughout the world to unlock the mysteries of the mind and to achieve total control over it through a variety of techniques. One of the most powerful of these techniques is meditation.
Many spiritual leaders, sages, saints, and holy people such asSri. Buddha, Sri Ramakrishna, Madam Sarada Devi, and Swami Vivekananda have practiced this. One of the ways to control physiological reactions to psychological stimuli is meditation, Yoga, Zen Buddhism etc. The scientists take Transcendental Meditation (TM) as the uniform technique, and base their observations on the study of the subjects engaged in this form of meditation. In summing up the results the scientists have come to conclusion that the effect of meditation is a "wakeful, hypo-metabolic state". They have found that: 1) Yogis could slow both heart rate and rate of respiration, 2) Yogis could slow the rate of metabolism as confirmed by decreased oxygen consumption and carbon-die-oxide output. 3) Electro-Encephala-Gram (EEG - recording of brain activity) in Yogis showed changes of calmness in the form of "alpha rhythm" during both eyes closed and eyes open recordings. 4) Their skin resistance to electric stimulation was increased (indicating increased tolerance to external stimuli). Our usual 'defense-alarm' reaction to emotional and physical stress is in the form of "fright, flight, and fight" mediated through over-secretion of certain neuron-transmitters and neuron-modulators, namely adrenaline and dopamine by way of stimulation of sympathetic nervous system. Under the influence of these chemicals and hormones, we reflexively become panicky or aggressive, our blood pressure rises. Thus stress and anxiety is the end result if we allow our natural age-old sympathetic reactions to act and to come to surface. We try to run away, become fearful, or fight the situation. But today these 'defense-alarm' reactions have no place in our lives. Rather, they should be replaced by more calm and serene reactions of equanimity and fearlessness. The need is to just 'face the brute, and it will go away'. Such desirable reactions of non-aggression and peaceful attitude are generated by Y ga and meditation. EEG Studies on Yogis and The Zen Meditations: Yogis practicing Raja-Yoga claim that during the state of Samadhi they are oblivious to the internal and external stimuli, and they enjoy a calm ecstasy during that state. A study was undertaken to record the electrical activity of their brain during this state by means of a regular and useful test known as electroencephalography EEG. Physiological and experimental studies have demonstrated that the basis of conscious state of brain, among other things, is due to activation of "reticular system" in the brain-stem in response to internal and external stimuli. These stimuli bring about various changes during sleeping and wakeful states of the organism and these can be studied by EEG. The study was carried out on four subjects during the state of concentration and meditation. Effects of external stimuli, like a loud gong, strong light, thermal simulation, and vibrations were studied. The results were compiled and analyzed. It was observed that two Yogis could keep their hands immersed in extremely cold water for about 50 minutes (raised pain threshold). During the state of meditation, all of them showed persistent "alpha activity" in their EEG with increased amplitude wave pattern, both during 'eyes closed' and 'eyes open' recording. It was observed that these alpha activities could not be blocked by various sensory stimuli during meditation. It was also observed that those, who had well-marked "alpha activity" in their resting EEG showed greater aptitude and zeal for maintaining the practice of Yoga. Similar observations and results were obtained when EEGs were recorded in persons adept in Zen Meditative technique. Can we say that only those persons who exhibit such recording of "alpha wave rhythm" in their EEG are fit for Yoga? and be designated as right candidates for meditation and Yoga practices? (Such experiments are indeed very few and the number of yogis examined is also very small. Therefore, scientifically and statistically these observations have only a tentative importance. Further research is definitely called for, albeit it will have its own limitations.) It is said that in the unknown period of Lord Jesus Christ , He was under meditation.
Ref. Yoga magazines
Newsweek.com
New York times
Time magazine

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