ONTD Political

Looks like that "let's lower expectations" plan is working for Palin...

4:33 pm - 10/02/2008
Brian Kalt: Couric Interview Illustrates Palin-Biden Divide, and Biden Comes Out Worse
Posted: October 02, 2008, 9:01 AM by Brian Kalt

Palin's painfully awkward interviews with CBS anchor Katie Couric have damaged Palin's standing with voters, though they have also lowered the expectations for her debate performance tonight.


Yesterday's Couric segment was no different. Palin explained her opposition to Roe v. Wade (the 1973 Supreme Court decision that precluded states from banning abortion) on federalism grounds; that abortion is a matter that is best left at the state level. Then Couric asked her what other Supreme Court decisions she disagreed with. Palin is not a lawyer (Republicans tend to put non-lawyers on their tickets: going back to 1984, seven of their nine candidates were not lawyers; only Dole and Quayle were). Palin should have said that she is not a close student of the Supreme Court, and perhaps named someone she trusts who is. She should not have fumbled through an attempt at a substantive answer. But she did.


Still, as a constitutional-law professor, I was much more interested—and disappointed—in the answers that Joe Biden gave. Biden is a lawyer (the Democrats tend to put lawyers on their tickets: going back to 1984, ten of their eleven candidates were lawyers; only Al Gore was not, though he did attend law school for a year and a half before dropping out).


Biden is not only a lawyer, he has been a fixture on the Senate Judiciary Committee for decades. While he gave a more fluent and substantive answer than Palin, though, that answer made me feel worse about giving Joe Biden a promotion to vice president.

First, when asked why he supported the decision in Roe, Biden said "Because it's as close to a consensus that can exist in a society as heterogeneous as ours." That's a preposterous answer, for three reasons. First, anyone who can put the words "Roe" and "consensus" in the same sentence without a "no" in the middle has not been paying attention to the last thirty-five years of American history. If Roe represented a consensus, it would not have been such a landmark case, and it would not have caused one of the biggest rifts in American politics in the intervening years.


Second, if tracking consensus is the standard for a good judicial opinion, then Palin's answer was much better. There is no national consensus on abortion. There is a diversity in the U.S., and in individual states. Tracking consensus is a lot easier if states can each go their own way—think of lighting a house, and having either one switch for the whole house, or individual switches for each room—and easier still if it is done through the legislative process rather than the less flexible judicial process.


That relative inflexibility is the third point: the job of judges in constitutional cases (in my opinion, but apparently not Biden's) is to apply the law as it is, not as it should be. Legislators are supposed to remake the law line with the election returns; judges are supposed to hold the constitutional line and they are given lifetime appointments to insulate them from political considerations.


Biden continued by lauding Roe's complicated trimester formulation, either unaware or uninterested in the fact that it has long since been replaced by different approaches in subsequent cases.


Asked if there were any cases that he disagreed with, Biden referred (not by name) to U.S. v. Morrison, a case in which the Supreme Court overturned part of a statute Biden wrote, the Violence Against Women Act. In Morrison, the Court did not speak up in favor of violence against women. The issue there too was federalism. The statute had been passed under Congress's authority to regulate interstate commerce. The Court said that if Congress could, under the guise of regulating commerce, give a woman a civil cause of action for being the victim of gender-related violence, then it could regulate everything under its commerce power. Gender-related violence, aggregated across the nation, has an economic impact, but it is not itself a commercial activity as such. Everything has an economic impact when aggregated across the nation. But for the Commerce Clause to have meaning, the Court said, it had to mean something other than that Congress can regulate anything under the sun. Federalism, enshrined in the Constitution, is an important American legal value.


Biden characterized the Court's opinion as saying, "Well, there is an impact on commerce, but this is federalizing a private crime and we're not going to allow it." Leaving aside Biden's puzzling shift from discussing civil remedies to criminal ones, and ignoring the nonsense phrase "private crime" that Palin would have been pilloried for using, this shows again that Biden's instrumental approach to the law is (to me) worrisome. His perspective is that the most important thing he can do is to pass laws that advance worthy social goals. If the courts pursue a different tack, and judge the laws according to the constraints that the Constitution requires, then they are wrong. To be sure, Biden is aware of those constraints, and simply has a much looser view of them than the majority in Morrison did. But Biden's view of the Constitution leaves Congress with little limitation on its power other than the demands of cobbling together a political majority. More disturbingly, that appears to be his only limitation on the Supreme Court too.


I would have been much happier if Palin had given better answers to Couric. But her lack of knowledge of constitutional law would assumedly lead her to rely on others for advice on such matters. She doesn't know, but surely she realizes it. Biden, by contrast, has the smooth confidence of someone who has been immersed in these issues for decades. But he's wrong. To me, that's actually scarier.


— Brian Kalt is a law professor at Michigan State University.



Source: Editorial from The National Post (Canadian newspaper)

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