The Lichfield Group

This column appeared in the January 31, 2005 edition of Roll Call. (subscription required)

Senator Harry Reid (D. Nev.) should apologize for his ill-informed denigration of Associate Justice Clarence Thomas, a potential successor to Chief Justice William H. Rehnquist. His counterfactual and polemical indictments stain the Founding Father’s vision of the Senate as a cool and statesmanlike body as elaborated in Federalist 63.

Unwritten customs are as pivotal as textual declarations to making the Constitution flourish. As Saint Paul sermonized, the letter killeth, but the spirit givith life.

John Kenneth Galbraith’s fretting over an affluent society was misconceived.

The greatest danger to the United States is an effete society. Indulgence, excess, hedonism, aimlessness, and whining are pervasive. Ambition, responsibility, perseverance, and moderation are disparaged or renounced. But a great nation cannot endure with a culture that celebrates decadence and softness over loftiness and toughness. A national creed that acclaims the hero over the anti-hero must be inculcated to escape the fate of Rome.

Hawaii Attorney General Mark Bennett is dead wrong in his support of the Akaka Bill. The proposed legislation celebrates race-based divisiveness over America’s highest aspirations for unity and equality. The bill is blatantly unconstitutional.

E Pluribus Unum is the nation’s birth certificate.

Mandatory sentencing slashes crime. The multiple decisions of the United States Supreme Court in United States v. Booker (January 12, 2005) obtusely upended mandatory Federal Sentencing Guidelines in the name of honoring both the Sixth Amendment right to jury trial and congressional intent in enacting the Sentencing Reform Act of 1984 (SRA). Congress should race to restore federal mandatory sentences, but with juries finding facts that would determine the severity of punishment.

Career criminals commit the bulk of offenses. Their incarceration forecloses new crimes. Mandatory sentencing also captures non-career criminals. That misfortune is inescapable because criminology is an infant science. Too little is known of the personalities or circumstances that earmark recidivists to risk mandatory sentencing exceptions. But the overbreadth is worth the price of protecting the innocent.

This article appeared in the February 2005 issue of Washington Lawyer Magazine.

President George W. Bush should pack the United States Supreme Court with philosophical clones of Justices Antonin Scalia and Clarence Thomas and defeated nominee Judge Robert H. Bork as seemingly inescapable vacancies arise in his second term. Senate Republicans should vote the Senate filibuster rule as applied to thwart a floor vote for judicial nominees unconstitutional and unenforceable. Both measures are necessary to vindicate the Constitution according to its original meaning and to overcome an airbrush artist approach to interpretation embraced by a majority of sitting Justices. Neither gambit would impair either judicial independence, the separation of powers, or appointment traditions. Furthermore, President Bush would betray his popular mandate of last November if he neglects to nominate strong philosophical conservatives to the Supreme Court, such as Chief Judge Jay Harvey Wilkinson of the United States Court of Appeals for the Fourth Circuit or Judge Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit.

This article appeared in the January 11, 2005 issue of the Washington Times.

Slated to lead the Senate Democrats in the 109th Congress, Senator Harry Reid (D. Nevada) epitomizes the Democrat Party descent from debate to deceit in criticizing conservative Justices of the Supreme Court and distorting Supreme Court rulings. That vertical plunge in intellectual honesty thwarts constructive exchanges over the Constitution and Supreme Court appointments. Senator Reid and his colleagues should either do their judicial homework or remain silent. Nothing is as dangerous as ignorance or propaganda in action.

James Taranto (OpinionJournal, January 3, 2005) has highlighted Senator Reid’s continued assault on Justice Clarence Thomas’ credentials in Reid’s December 26, 2004 interview on CNN’s “Inside Politics.” He owlishly pointed to the Hillside Dairy case as exemplary of Thomas’ unfitness. According to Senator Reid, Justice Antonin Scalia had penned a “well reasoned” dissent in Hillside Dairy dazzling with the earmarks of a Harvard graduate, as contrasted with Thomas’ “poorly written” counterpart smacking of an “eighth-grade” composition. Moreover, the Senator sermonized, Thomas’ dissent had sinned by questioning the Supreme Court’s employment of the Commerce Clause to invalidate state laws that burdened interstate commerce, whereas Scalia had respected constitutional precedents.