Notes From Babel

Archive for May 2009

The Dems and Hispanic Judicial Appointments

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Worth reading over at Powerline:

If you don’t read anything else today, read Byron York’s searing account of what happened last time a brilliant Hispanic jurist was nominated to a high-profile appellate post:

Born in Honduras, [Miguel] Estrada came to the United States at 17, not knowing a word of English. He learned the language almost instantly, and within a few years was graduating with honors from Columbia University and heading off to Harvard Law School. He clerked for Supreme Court Justice Anthony Kennedy, was a prosecutor in New York, and worked at the Justice Department in Washington before entering private practice.

Estrada’s nomination for a federal judgeship set off alarm bells among Democrats. There is a group of left-leaning organizations — People for the American Way, NARAL, the Alliance for Justice, the Leadership Conference on Civil Rights, the NAACP, and others — that work closely with Senate Democrats to promote Democratic judicial nominations and kill Republican ones. They were particularly concerned about Estrada.
In November, 2001, representatives of those groups met with Democratic Senate staff. One of those staffers then wrote a memo to Democratic Sen. Richard Durbin, informing Durbin that the groups wanted to stall Bush nominees, particularly three they had identified as good targets. “They also identified Miguel Estrada as especially dangerous,” the staffer added, “because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible.”

It was precisely the fact that Estrada was Hispanic that made Democrats and their activist allies want to kill his nomination. They were determined to deny a Republican White House credit, political and otherwise, for putting a first-rate Hispanic nominee on the bench.

They succeeded, too. They filibustered Estrada for years and he never made it onto the bench. So, when you see Barack Obama–who voted to filibuster Sam Alito!–piously denouncing “the political posturing and ideological brinksmanship that has bogged down this process” in the past, remember Miguel Estrada. Somewhere on this earth, there is a worse hypocrite than Barack Obama. I just can’t think who he is offhand….


Written by Tim Kowal

May 31, 2009 at 7:23 pm

Posted in Politics

Should Judicial Appointments Be Used As a Mechanism to Quell Racial Tensions?

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Bill Handel this week extolled Obama for picking a Latina for a high position of power, explaining how it was a carefully calculated move to help mend relations between blacks and Hispanics. Two problems with this. First, aren’t distinctions based on race supposed to be bad? This is not the same argument against affirmative action as “reverse racism.” Affirmative action involves the idea of “setting things right,” of “leveling the playing field” to make up for years of abuse of legal and political rights and processes. That is, because whites enjoyed power and wealth off the backs of minority groups for a period of time, some degree of promotion of minority groups ought to be permitted. In this way, the argument goes, we might achieve a degree of parity that we might otherwise not achieve, and thus truly become color blind.

But the Sotomayor appointment is different. As Handel argues, there are petty grievances between two minority groups, and we have a chance to fix it by doling out positions of power to selected members of those groups. That is, the appointments are made not because one group has been disadvantaged, as is the case in the affirmative action model. They are made instead because, without the appointments, some irascible members of the groups will continue to feel slighted, and the clash between the two groups will continue. This is a different sort of racial realism. And I find it extremely disappointing. Even if such racially motivated appointments quell these conflicts (which seems highly dubious to begin with), do they deserve to be quelled? And what about the costs? Are we to sacrifice the integrity of our crucial governmental functions to placate injured egos, to balance the demands of thugs?

Decisions based on race are infuriating. There is no end to the complications that are created when we make decisions based on race in the hopes of ending the practice of making decisions based on race. The answer is much simpler than that: stop making decisions based on race.

Written by Tim Kowal

May 30, 2009 at 8:39 pm

The Case for Marriage As a Cultural Institution

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I found Sam Schulman’s article, The Worst Thing About Gay Marriage, very interesting. It seems to suggest that the modern concept of marriage is already a bit off its traditional rocker, and that gay marriage would go the rest of the distance towards making it utterly meaningless. That is, the historical aims of marriage included protecting women and children, promoting chastity, defining the moment of transition from life as a child to life as an adult, are less relevant today. But, as applied to gays, they have absolutely zero relevance. Instead, marriage for the gay movement is seen merely as the next stage of romantic progression. This is a dangerous truncation of marriage, which traditionally had much broader impact on culture and individual and social human development. Ultimately, Shulman believes, gays will bore of it, everyone else will forget what it means, and the entire institution will die. Hard to say if that’s exactly how it will happen, but it’s a compelling argument.

The entity known as “gay marriage” only aspires to replicate a very limited, very modern, and very culture-bound version of marriage. Gay advocates have chosen wisely in this. They are replicating what we might call the “romantic marriage,” a kind of marriage that is chosen, determined, and defined by the couple that enters into it. Romantic marriage is now dominant in the West and is becoming slightly more frequent in other parts of the world. But it is a luxury and even here has only existed (except among a few elites) for a couple of centuries—and in only a few countries. The fact is that marriage is part of a much larger institution, which defines the particular shape and character of marriage: the kinship system.

The role that marriage plays in kinship encompasses far more than arranging a happy home in which two hearts may beat as one—in fact marriage is actually pretty indifferent to that particular aim. Nor has marriage historically concerned itself with compelling the particular male and female who have created a child to live together and care for that child. It is not the “right to marry” that creates an enduring relationship between heterosexual lovers or a stable home for a child, but the more far-reaching kinship system that assigns every one of the vast array of marriage rules a set of duties and obligations to enforce. These duties and obligations impinge even on romantic marriage, and not always to its advantage. The obligations of kinship imposed on traditional marriage have nothing to do with the romantic ideals expressed in gay marriage.

Consider four of the most profound effects of marriage within the kinship system.
The first is the most important: It is that marriage is concerned above all with female sexuality. The very existence of kinship depends on the protection of females from rape, degradation, and concubinage. This is why marriage between men and women has been necessary in virtually every society ever known. . . .

. . . .

Second, kinship modifies marriage by imposing a set of rules that determines not only whom one may marry (someone from the right clan or family, of the right age, with proper abilities, wealth, or an adjoining vineyard), but, more important, whom one may not marry. Incest prohibition and other kinship rules that dictate one’s few permissible and many impermissible sweethearts are part of traditional marriage. Gay marriage is blissfully free of these constraints. There is no particular reason to ban sexual intercourse between brothers, a father and a son of consenting age, or mother and daughter. . . . [Incidentally, I have argued the same thing here, here, and here.]

Third, marriage changes the nature of sexual relations between a man and a woman. Sexual intercourse between a married couple is licit; sexual intercourse before marriage, or adulterous sex during marriage, is not. . . .

Now to live in such a system, in which sexual intercourse can be illicit, is a great nuisance. Many of us feel that licit sexuality loses, moreover, a bit of its oomph. Gay lovers live merrily free of this system. Can we imagine Frank’s family and friends warning him that “If Joe were serious, he would put a ring on your finger”? Do we ask Vera to stop stringing Sally along? Gay sexual practice is not sortable into these categories—licit-if-married but illicit-if-not (children adopted by a gay man or hygienically conceived by a lesbian mom can never be regarded as illegitimate). Neither does gay copulation become in any way more permissible, more noble after marriage. It is a scandal that homosexual intercourse should ever have been illegal, but having become legal, there remains no extra sanction—the kind which fathers with shotguns enforce upon heterosexual lovers. I am not aware of any gay marriage activist who suggests that gay men and women should create a new category of disapproval for their own sexual relationships, after so recently having been freed from the onerous and bigoted legal blight on homosexual acts. But without social disapproval of unmarried sex—what kind of madman would seek marriage?

Fourth, marriage defines the end of childhood, sets a boundary between generations within the same family and between families, and establishes the rules in any given society for crossing those boundaries. Marriage usually takes place at the beginning of adulthood; it changes the status of bride and groom from child in the birth family to adult in a new family. . . .

These four aspects of marriage are not rights, but obligations. They are marriage’s “a priori” because marriage is a part of the kinship system, and kinship depends on the protection, organization, and often the exploitation of female sexuality vis-à-vis males. [I will add that this is the reason we have witnesses at wedding ceremonies—they are not merely witnesses to a sweet, romantic event; they are witnesses to the new marital duties being created.] None of these facts apply at all to love between people of the same sex, however solemn and profound that love may be. In gay marriage there are no virgins (actual or honorary), no incest, no illicit or licit sex, no merging of families, no creation of a new lineage. There’s just my honey and me, and (in a rapidly increasing number of U.S. states) baby makes three.

What’s wrong with this? In one sense, nothing at all. . . . But without these obligations—why marry? Gay marriage is as good as no marriage at all.

Sooner rather than later, the substantial differences between marriage and gay marriage will cause gay marriage, as a meaningful and popular institution, to fail on its own terms. Since gay relationships exist perfectly well outside the kinship system, to assume the burdens of marriage—the legal formalities, the duty of fidelity (which is no easier for gays than it is for straights), the slavishly imitative wedding ritual—will come to seem a nuisance. People in gay marriages will discover that mimicking the cozy bits of romantic heterosexual marriage does not make relationships stronger; romantic partners more loving, faithful, or sexy; domestic life more serene or exciting. They will discover that it is not the wedding vow that maintains marriages, but the force of the kinship system. Kinship imposes duties, penalties, and retribution that champagne toasts, self-designed wedding rings, and thousands of dollars worth of flowers are powerless to effect.

. . . .

As kinship fails to be relevant to gays, it will become fashionable to discredit it for everyone. . . .

In other words, marriage used to be a part of enforcing cultural mores and perpetuating a way of life. Now, that enterprise is taboo. Interestingly, gay-marriage proponents are not content with merely toppling traditional mores, and instead want to force open the definitions to suggest that such traditions now include and embrace them. They don’t want to kill the chief, they want to wear his feathers and rule the same old village with their brave new rules. Schulman believes that it will never work. Either the natives will kill the new “chief” and preserve the old order, or they will all eventually agree that the headdress has no meaning, and collectively cast it away.

(Ironically, I was referred to Schulman’s article by Ed Brayton, who posted his own write-up of the piece, with his usual staggeringly high ratio of insults-to-analysis, under the title “The Dumbest Anti-Gay Marriage Argument Ever.”)

Written by Tim Kowal

May 30, 2009 at 5:03 pm

You May Need a Permit to Conduct Home Bible Studies

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Here’s another frightening story. What is it with San Diego?

SAN DIEGO — A local pastor and his wife claim they were interrogated by a San Diego County official, who then threatened them with escalating fines if they continued to hold Bible studies in their home, 10News reported.

Attorney Dean Broyles of The Western Center For Law & Policy was shocked with what happened to the pastor and his wife.

Broyles said, “The county asked, ‘Do you have a regular meeting in your home?’ She said, ‘Yes.’ ‘Do you say amen?’ ‘Yes.’ ‘Do you pray?’ ‘Yes.’ ‘Do you say praise the Lord?’ ‘Yes.'”

The county employee notified the couple that the small Bible study, with an average of 15 people attending, was in violation of County regulations, according to Broyles.

Broyles said a few days later the couple received a written warning that listed “unlawful use of land” and told them to “stop religious assembly or apply for a major use permit” — a process that could cost tens of thousands of dollars.

[Update: The county backs off.

Written by Tim Kowal

May 28, 2009 at 11:42 pm

Why Obama’s Economic Policies Failed Even Before They Saw the Light of Day

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Mark Steyn gets this one right on the money:

But forget the money, the deficit, the debt, the big numbers with the 12 zeroes on the end of them. So-called fiscal conservatives often miss the point. The problem isn’t the cost. These programs would still be wrong even if Bill Gates wrote a check to cover them each month. They’re wrong because they deform the relationship between the citizen and the state. Even if there were no financial consequences, the moral and even spiritual consequences would still be fatal. That’s the stage where Europe is.

Written by Tim Kowal

May 23, 2009 at 1:09 am

The Effects of Obama’s Cowboy Economics

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This is absolutely wild.

May 19, 2009
Letter from a Dodge dealer
letter to the editor
My name is George C. Joseph. I am the sole owner of Sunshine Dodge-Isuzu, a family owned and operated business in Melbourne, Florida. My family bought and paid for this automobile franchise 35 years ago in 1974. I am the second generation to manage this business.

We currently employ 50+ people and before the economic slowdown we employed over 70 local people. We are active in the community and the local chamber of commerce. We deal with several dozen local vendors on a day to day basis and many more during a month. All depend on our business for part of their livelihood. We are financially strong with great respect in the market place and community. We have strong local presence and stability.

I work every day the store is open, nine to ten hours a day. I know most of our customers and all our employees. Sunshine Dodge is my life.

On Thursday, May 14, 2009 I was notified that my Dodge franchise, that we purchased, will be taken away from my family on June 9, 2009 without compensation and given to another dealer at no cost to them. My new vehicle inventory consists of 125 vehicles with a financed balance of 3 million dollars. This inventory becomes impossible to sell with no factory incentives beyond June 9, 2009. Without the Dodge franchise we can no longer sell a new Dodge as “new,” nor will we be able to do any warranty service work. Additionally, my Dodge parts inventory, (approximately $300,000.) is virtually worthless without the ability to perform warranty service. There is no offer from Chrysler to buy back the vehicles or parts inventory.

Our facility was recently totally renovated at Chrysler’s insistence, incurring a multi-million dollar debt in the form of a mortgage at Sun Trust Bank.



This is beyond imagination! My business is being stolen from me through NO FAULT OF OUR OWN. We did NOTHING wrong.

This atrocity will most likely force my family into bankruptcy. This will also cause our 50+ employees to be unemployed. How will they provide for their families? This is a total economic disaster.


I beseech your help, and look forward to your reply. Thank you.


George C. Joseph
President & Owner
Sunshine Dodge-Isuzu

Written by Tim Kowal

May 22, 2009 at 7:40 pm

Empathy Means Going Under the Needle

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The NY Times on California Supreme Court Justice Carlos R. Moreno’s empathy:

His opinions are measured in tone but show an eye for telling detail. A 2005 case involved a dispute over child support after the breakup of a lesbian couple. In reversing a lower-court decision that denied child support, Justice Moreno described the complex interplay of laws defining parenthood and signs of intent to form a lifelong commitment, but cut through the technicalities with a mention that “Elisa obtained a tattoo that read ‘Emily, por vida,’ which in Spanish means ‘Emily, for life.’ ”

Perhaps in the future lawyers will need to start asking clients whether they would consider having their requested relief tattooed across their backs. “Workers’ Comp Por Vida.”

Written by Tim Kowal

May 22, 2009 at 5:38 am

Posted in Legal Theory, Rants