The ruthless efficiency with which the left-wing blogosphere tied Palin to the shooting, and the success of their efforts in equating Palin with mass murder, is a lesson we should not forget....
Having created a false narrative of Palin's responsibility for the shooting, the mainstream media tried to deprive Palin of the ability to defend herself against the charges. And unfortunately, some who supposedly are on our side have jumped on that bandwagon.
And all the while, Barack Obama stood back for days and let his supporters in the media rip Palin apart, much as he left it to his supporters to go after the Clintons during the primary, only then to proclaim that we don't really know why Jared Loughner did what he did. And the media narrative was how wonderful Obama was, how he helped heal the nation.
Any Republican or conservative or Tea Party supporter who dumps on Palin in any way over the Tucson shooting or her defense of herself should just stop talking now.
It does not matter whether you support Palin for President, whether you think she is electable, or even whether you like her. This is not about Palin, it is about the mainstream media's desire to have Barack Obama re-elected at any cost and to take down any Republican candidate who stands in the way.
Rush Limbaugh gave an excellent dramatic reading of this post yesterday, and Jacobson has the video. Here's the transcript, with this commentary from Rush:
If Republicans are gonna sit by and watch Palin savaged, they'd better be prepared to sit by and watch the next one get savaged and the next one. Because that's what's coming. If the Republicans cannot defend themselves over this kind of scurrilous, baseless, libelous charge, they got no business running.
They'll not be able to elect anybody. If we shut up and be silent on this -- if we've got Republicans like Frum who will agree with the left-wing blogosphere and the mainstream media that Palin should shut up, that she should stop defending herself and it's a horrible travesty of just what Palin did; if we're gonna have Republicans sit around and give Obama credit for sitting by for four days while his allies try to take her out, then give a speech and get credit for the wonderful things he said about it -- then we got more idiots in our party than we would want to know....
This call for "civility"? They don't want us to be civil. They want us to be cowed. They want all of us to become Frumized.
Go to the links and read the whole thing to see why David Frum is tagged as the exemplar of a useful idiot. Wouldn't you like to see Jacobson and Frum is a dialogue on Bloggingheads? Frum has been on many times. Based on segment headings, he's never talked about Sarah Palin, though. Kind of odd, considering how hard it is not to talk about Sarah Palin. I'm going to recommend a Jacobson/Frum pairing. I think that would be quite delicious.
That's the song playing in my head after reading about University of Chicago lawprof Todd Henderson, who's desolated that people don't sympathize with how hard it is to get by in Chicago on $250,000 a year. The pushback he got was totally predictable, and, indeed, it was only the anticipation of criticism that made it an interesting thing to say in the first place. How much courage does it take — especially for a highly privileged and experienced speaker — to state an opinion and stand by it when it's criticized? I really don't see why William A. Jacobson and Glenn Reynolds are babying this man.
It's hard to imagine how it would feel to be singled out for such intense hostility for so long, especially if, at the same time, you were bathed in love from supporters, making huge piles of cash, and exercising immense power. It doesn't make sense to talk about whether he sounds paranoid. We're not seeing the hate mail and threats he receives. We don't know the security precautions he needs to take. Who knows what it would be like to be a sane man in that position? But he should also see that he has been able to build his media empire and speak freely, attacking government officials over the public airwaves for 15 hours a week, year after year. They haven't stopped him.
In the course of her nomination for Solicitor General, Kagan filled out questionnaires on a variety of issues. While she bobbed and weaved on many issues, with standard invocations of the need to follow precedent and enforce presumptively valid statutes, on the issue of same-sex marriage Kagan was unequivocal.
In response to a question from Sen. John Cornyn (at page 28 of her Senate Judiciary Questionnaire), Kagan stated flat out that there was no constitutional right for same sex couples to marry (emphasis mine):
1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.
a. Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to same-sex marriage?
Answer: There is no federal constitutional right to same-sex marriage.
b. Have you ever expressed your opinion whether the federal Constitution should be read to confer a right to same-sex marriage? If so, please provide details.
Answer: I do not recall ever expressing an opinion on this question.
This doesn't mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right.
When Bill Clinton famously said "It depends on what the meaning of the word 'is' is," he had a point. He made a legalistic distinction between his statement and lying. That first sentence sounded so absurd that we barely listen to the next part, which was:
"If ... 'is' means is and never has been, that is not--that is one thing. If it means there is none, that was a completely true statement....Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true."
So back to that Kagan questionnaire. The question was phrased in the present tense. At the time Kagan answered the question, the Supreme Court had not yet said there was such a right, so she could say there is no right, in a narrow sense.
Now, you might think that if a person is ever going to find a right in the Constitution, it must be that the right is already there. But that is a view of the Constitution that fits with a strong commitment to sticking to the original meaning of the text, and I don't think Kagan is on record or will ever be the sort of judge who says that constitutional rights are only what they were at the time the text was written. If the meaning of rights can grow or evolve or change over time, then one could say "There is no federal constitutional right to same-sex marriage" one day and, later, say that there is.
The path to finding a constitutional right to same-sex marriage is a very easy one at this point in the development of the case law. It is mainly a prudential, political attitude that will keep the Court from finding it now. Knowing the strength of popular opinion and fearing political retaliation against the judiciary, the Court might nevertheless say that there is no right to same-sex marriage. Indeed, there's some reason to think that Justice Kagan will refrain from seeing the right that is so easily visible up there on the path the case law has already opened up. As Justice Scalia wrote, dissenting in Lawrence v. Texas:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct....
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action... Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct... and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
So maybe Elena Kagan will "pretend" — to use Justice Scalia's word — that she has the freedom to draw the kind of line that — as Justice Scalia insists — only legislatures should be drawing. If she does, it will be out of a sensitivity to politics — an awareness of the vulnerability of courts and a preference for the resolution of difficult social issues through the processes of democracy. But the case law is there, the path is open, and on that path, as Justice Scalia complained, the right to same-sex marriage is quite apparent.
