The Objectivist
New York Legislature: More Entertainment, Less Performance
Dunkirk-Fredonia Observer
June 22, 2009
The New York State Legislature is both more entertaining and worse than ever.
It is worth following the procedure in the recent coup because it is a window into how control of the New York Senate rests on a legal morass and a wild cast of characters. On June 8, 2009, as set out in the Wikipedia.com, New York Times, and the Albany Times Union, Republican Senator Thomas Libous made a motion to elect a new Senate leader. All thirty Republicans and two turncoat Democrats (Pedro Espada and Hiram Monserrate) voted for the motion. After the motion was passed, Democratic Senator, Jeffrey Klein, moved for adjournment. Officiating senator, Democrat Neil Breslin granted Klein’s motion and thus did not recognize the vote. Republicans quickly objected noting that a majority of senators didn’t vote to adjourn as required by the Senate’s rule. Nevertheless, Klein declared the meeting adjourned and all but four Democrats walked out.
The remaining senators then voted to replace the current majority leader and Senate President, Malcolm Smith, with two people. Former minority leader, Dean Skelos became majority leader and one of the Democratic turncoats, Espada, became Senate President. Because there is no lieutenant governor, Espada as Senate President would become Acting Governor if Governor David Paterson died, resigned, was removed from office, or left the state.
Hiram Monserrate later decided that he would rejoin the Democrats leaving the Senate divided 31-31. Usually in the event of a tie, the Lieutenant Governor of New York would break the tie but because the position is vacant, there is no one to fill this role. The position is vacant because the person elected to the office (David Paterson) became Governor when Eliot Spitzer left office as a result of a prostitution scandal.
The Republicans claimed that the transfer of power took place on the basis of two arguments. First, New York Senate’s rules (Robert’s Rules of Order) prevented the adjournment because a body cannot adjourn when there is a motion on the floor. Second, there was never a vote on adjournment. Malcolm Smith responded that the Republican attempt to gain control is illegal because he was elected to a two-year term and that term was not yet over.
The people involved in the case are wild and wooly. The former governor left after being found to have patronized a prostitute. Upon assuming office, Paterson promptly admitted to having an affair with a state employee. There was also some evidence that state funds were misused in connection to the affair. Apparently, having an affair with a state employee is not a removable offense, but having one with a hot prostitute is. Paterson later admitted that when he was younger he used cocaine and marijuana. No word on which he enjoyed more.
Senator Monserrate has been indicted for felony assault. In March 2009, he allegedly cut his girlfriend’s face with broken glass. If convicted, he’ll have to leave office. Senator Espada is accused of a wide number of campaign violations and other conflicts of interest. He owes $13,000 in fines for campaign-related violations for a 2008 race and $60,000 for a 2001 race in which he ran to be Bronx Borough President. He is also under investigation for siphoning money designed for a health clinic to his campaigns and for living outside of the Bronx despite claiming residency there. Former Senate Leader Malcolm Smith, 49, who is married, was recently slapped with a paternity suit by an unidentified woman. He promised that if the child is his, he will do the right thing. Clearly, these guys could hang with the Kennedy family.
Now this state government has long been stupid and destructive. In one study by the Tax Foundation in October 2008, New York had the second highest state and local taxes and the second worst business tax climate in the U.S. Sadly, for New Yorkers, a burst of effort by New Jersey has displaced New York’s traditional top ranking. Across the U.S. in 2008, people paid 9.7% of their income to state and local governments, but overachiever New York took 21% more (11.7%) of its residents’ income. Sadly, New Jersey beat us because it takes 11.8%. Along with Connecticut, these were the only states taking more than 11%. In dollars, the average New Yorker pays $7,206 in taxes to the states and localities. This is roughly $3,000 more than the average U.S. resident pays. As of January 1, 2009, New York was the leader in both gas taxes ($.413/gallon), cigarette taxes ($2.75/pack), and a number of its counties have some of the highest property taxes in the country.
Next consider the recent budget. In April 2009, New York passed a budget. Despite an estimated $17 billion deficit and the fact that it is hemorrhaging jobs (150,000 jobs lost between summer ’08 and April ’09), New York increased its spending by roughly $11 billion (approximately 9%). This ramped up total spending to $132 billion. In justifying this spending, state leaders noted that the federal government gave them an additional $6.2 billion as part of the federal stimulus, so there was really no reason to stop spending. This budget contained the usual pork, in this case $170 million. This included spending on such important groups as the Urban Yoga Foundation, Brooklyn Cricket League, Utica Curling Club, and the Harlem Honeys and Bears senior citizen swim club. The budget also contained $350 million in tax credits for the television and film industry, which were big contributors to Democrats.
New York is incredibly dependent on the rich and the securities industry (i.e., Wall Street). In the past, Wall Street generated 20% of the state’s tax revenues, which is more than Michigan takes from the auto industry and Texas takes from gas and oil. E. J. McMahon of the Manhattan Institute points out that in 2010, the top 1% of income earners are expected to pay 36% of the income taxes. In gratitude for the rich carrying so much weight, New York punished them by raising taxes on those earning up to $500,000 by 15% (6.85% to 7.85%) and on those making more than that by 31% (6.85% to 8.97%). Economists Arthur Laffer and Stephen Moore argue that when states soak the rich, the rich leave those states, report less income on their tax returns, and choose not to locate in them. For example, a study by McMahon indicated that when states jacked up taxes on the rich, they got the slowest increase in wealthy taxpayers.
Laffer and Moore also found that that from 1998 to 2007, large numbers of people, both rich and not rich, moved from the highest income-tax states (e.g., New Jersey, New York, and California) to no-income-tax states (e.g., Florida, Nevada, and Texas). They also found that the latter states created 89% more jobs and had 32% faster income-tax growth than the former.
One solution is to vote out all incumbent, both in the primaries and in the general election. This might be an agreement that to which Democrats and Republicans can agree. If there is a push is to vote out only those legislators who voted for the recent budget, and Gov. Paterson as well, too many Democrats might balk. Instead there can be an agreement that the current legislature while awfully entertaining, is too dysfunctional and destructive to remain in place.
25 June 2009
10 June 2009
Supreme Court: Sotomayor is the wrong type of activist
The Objectivist
Sonia Sotomayor: The Wrong Type of Activist
Dunkirk-Fredonia Observer
June 8, 2009
Sonia Sotomayor should be kept off the Supreme Court not because she is a judicial activist but because she is the wrong sort of activist. She is a judge in the Second Circuit (the federal appellate court that covers New York, Connecticut, and Vermont). She is the daughter of Puerto Rican parents and was born and raised in the South Bronx. Her father died when she was nine and was raised by her mother in public housing. She received a full scholarship to attend Princeton, where she graduated summa cum laude with a degree in history (1976), and received a scholarship to attend Yale Law School, where she edited the Yale Law Journal (1979). She served as both an assistant district attorney and a commercial litigator and in 1992 was confirmed as a federal judge before turning forty.
Conservatives, such as former Chief Justice William Rehnquist, often charge that liberal judges are judicial activists. Judicial activists are judges who decide cases in part on the basis of morality. In contrast, conservatives claim that a judge’s job is similar to that of an umpire. Umpires, they claim, should merely call balls and strikes. Judging pitches on the basis of empathy, morality, or anything else is unfair and not the umpire’s job. Similarly, conservatives argue, a judge should apply the rules of the game, in this case the law. Chief Justice Roberts explicitly made this claim during his confirmation hearings.
The conservatives’ picture here is that the different government officials have different roles. A legislator makes the law, a judge interprets it, and an executive administers it. This structure is important because federal judges are not elected and have lifetime tenure on the court. As a result, they are less subject to democratic correction than are the other two branches.
The conservatives argue that judges should not make law (that is, decide cases on the basis of their moral values) for three reasons. First, in so doing, they make the government less democratic because the rules are being set by unelected and unaccountable judges. Second, they act unfairly because people can’t know what the rules are. Instead of a hard-and-fast set of rules that people use to guide their decisions, the rules become whatever the judge says they are and this is unpredictable. Third, a judge who substitutes her values for the rules acts as a legislator and this is not her job.
This picture of the law is mistaken. The law is not a collection of hard-and-fast rules. Even if the law did consist solely of rules, and this is doubtful, there can be issues for which the rules don’t apply or conflict. For example, the Constitution does not have a rule as to whether a state may withdraw from the United States, as the country discovered in period leading up to the Civil War. Also, the Equal Protection Clause arguably conflicts with the requirement that each State, no matter how small, gets the same number of Senators. In addition, statutory language can be ambiguous (admitting several different interpretations) or vague (not having clear boundaries). For example, it is not clear that there is a clear boundary separating reasonable and unreasonable searches and seizures. Alternatively, there might be a clear boundary but no value-free way to locate it. To handle gaps, conflicts, ambiguity, or vagueness, judges have to use moral values. Hence all judges are judicial activists.
If judges emphasize the values relating to fair notice to citizens, then they make the law more rule-like. Judges who emphasize fair notice emphasize factors such as the plain meaning of the statutory language, how the different statutory provisions relate to one another, and, where it is clear, original intent. Such an approach makes statutory language work similar to how our conversational language works in our daily lives. In contrast, judges that emphasize their life experiences, emotions like sympathy and empathy, or poorly defined notions like social justice and equality, do the opposite. They make the law less rule-like.
Sotomayor and President Obama, when nominating her, emphasized her life experiences. In a speech at the Berkeley Law School, she focused on the need for judges to understand the values of needs of people from different groups and made it clear that being a Latina judge was an advantage in doing so. She said “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Elsewhere, she said “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” She also emphasizes the legislative aspect of judges, stating that “[a] court of appeals is where policy is made.”
Because values are a part of a judge’s toolbox, Sotomayor’s values are also relevant. She is a race warrior. Pat Buchanan points out that at Princeton, she agitated for more Hispanic professors. For example, she headed a group, Accion Puertorriquena, that filed a complaint with the federal government claiming that Princeton had not hired enough Hispanic professors. At Yale, Buchanan points out, she co-chaired a group that demanded the hiring of more Latino professors and administrators. She also filed a complaint against a law firm, when one of its members suggested that she was admitted to the law school on the basis of affirmative action. As a side note, while there is some evidence that Sotomayor is not an affirmative-action baby, the data suggests that the majority of black and Hispanic students at elite law schools would not have been admitted but for these programs and hence the employer’s concern was justified on statistical grounds.
From 1980 to 1992, she served on the board of directors for the Puerto Rican Legal Defense and Education Fund, a Puerto Rican special interest group. Others make her implicit ethnic claim in stark terms. New York Senator, and world-class demagogue, Charles Schumer asserted that “It’s long overdue that a Latino sit on the United States Supreme Court.” To see the problem, imagine that Jews and Asians successfully made similar demands in the context of the NFL and NBA and consider what would happen to the caliber of play and shared sense of purpose among teammates. Now imagine a similar result in the courtroom.
The role of a judge is to interpret the law, although doing so requires judges consider moral values. In some sense, then, all judges are judicial activists. However, by emphasizing some values (for example, life experiences and tribal loyalty) over others (for example, fair notice), a judge does her job less well. There is reason to believe Sonia Sotomayor will do her job less well.
Sonia Sotomayor: The Wrong Type of Activist
Dunkirk-Fredonia Observer
June 8, 2009
Sonia Sotomayor should be kept off the Supreme Court not because she is a judicial activist but because she is the wrong sort of activist. She is a judge in the Second Circuit (the federal appellate court that covers New York, Connecticut, and Vermont). She is the daughter of Puerto Rican parents and was born and raised in the South Bronx. Her father died when she was nine and was raised by her mother in public housing. She received a full scholarship to attend Princeton, where she graduated summa cum laude with a degree in history (1976), and received a scholarship to attend Yale Law School, where she edited the Yale Law Journal (1979). She served as both an assistant district attorney and a commercial litigator and in 1992 was confirmed as a federal judge before turning forty.
Conservatives, such as former Chief Justice William Rehnquist, often charge that liberal judges are judicial activists. Judicial activists are judges who decide cases in part on the basis of morality. In contrast, conservatives claim that a judge’s job is similar to that of an umpire. Umpires, they claim, should merely call balls and strikes. Judging pitches on the basis of empathy, morality, or anything else is unfair and not the umpire’s job. Similarly, conservatives argue, a judge should apply the rules of the game, in this case the law. Chief Justice Roberts explicitly made this claim during his confirmation hearings.
The conservatives’ picture here is that the different government officials have different roles. A legislator makes the law, a judge interprets it, and an executive administers it. This structure is important because federal judges are not elected and have lifetime tenure on the court. As a result, they are less subject to democratic correction than are the other two branches.
The conservatives argue that judges should not make law (that is, decide cases on the basis of their moral values) for three reasons. First, in so doing, they make the government less democratic because the rules are being set by unelected and unaccountable judges. Second, they act unfairly because people can’t know what the rules are. Instead of a hard-and-fast set of rules that people use to guide their decisions, the rules become whatever the judge says they are and this is unpredictable. Third, a judge who substitutes her values for the rules acts as a legislator and this is not her job.
This picture of the law is mistaken. The law is not a collection of hard-and-fast rules. Even if the law did consist solely of rules, and this is doubtful, there can be issues for which the rules don’t apply or conflict. For example, the Constitution does not have a rule as to whether a state may withdraw from the United States, as the country discovered in period leading up to the Civil War. Also, the Equal Protection Clause arguably conflicts with the requirement that each State, no matter how small, gets the same number of Senators. In addition, statutory language can be ambiguous (admitting several different interpretations) or vague (not having clear boundaries). For example, it is not clear that there is a clear boundary separating reasonable and unreasonable searches and seizures. Alternatively, there might be a clear boundary but no value-free way to locate it. To handle gaps, conflicts, ambiguity, or vagueness, judges have to use moral values. Hence all judges are judicial activists.
If judges emphasize the values relating to fair notice to citizens, then they make the law more rule-like. Judges who emphasize fair notice emphasize factors such as the plain meaning of the statutory language, how the different statutory provisions relate to one another, and, where it is clear, original intent. Such an approach makes statutory language work similar to how our conversational language works in our daily lives. In contrast, judges that emphasize their life experiences, emotions like sympathy and empathy, or poorly defined notions like social justice and equality, do the opposite. They make the law less rule-like.
Sotomayor and President Obama, when nominating her, emphasized her life experiences. In a speech at the Berkeley Law School, she focused on the need for judges to understand the values of needs of people from different groups and made it clear that being a Latina judge was an advantage in doing so. She said “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Elsewhere, she said “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” She also emphasizes the legislative aspect of judges, stating that “[a] court of appeals is where policy is made.”
Because values are a part of a judge’s toolbox, Sotomayor’s values are also relevant. She is a race warrior. Pat Buchanan points out that at Princeton, she agitated for more Hispanic professors. For example, she headed a group, Accion Puertorriquena, that filed a complaint with the federal government claiming that Princeton had not hired enough Hispanic professors. At Yale, Buchanan points out, she co-chaired a group that demanded the hiring of more Latino professors and administrators. She also filed a complaint against a law firm, when one of its members suggested that she was admitted to the law school on the basis of affirmative action. As a side note, while there is some evidence that Sotomayor is not an affirmative-action baby, the data suggests that the majority of black and Hispanic students at elite law schools would not have been admitted but for these programs and hence the employer’s concern was justified on statistical grounds.
From 1980 to 1992, she served on the board of directors for the Puerto Rican Legal Defense and Education Fund, a Puerto Rican special interest group. Others make her implicit ethnic claim in stark terms. New York Senator, and world-class demagogue, Charles Schumer asserted that “It’s long overdue that a Latino sit on the United States Supreme Court.” To see the problem, imagine that Jews and Asians successfully made similar demands in the context of the NFL and NBA and consider what would happen to the caliber of play and shared sense of purpose among teammates. Now imagine a similar result in the courtroom.
The role of a judge is to interpret the law, although doing so requires judges consider moral values. In some sense, then, all judges are judicial activists. However, by emphasizing some values (for example, life experiences and tribal loyalty) over others (for example, fair notice), a judge does her job less well. There is reason to believe Sonia Sotomayor will do her job less well.
Subscribe to:
Posts (Atom)
