Anyway, JIJAWM has some fun observations on the War on Christmas™ today, featuring a fellow by the name of Mat Staver. Staver is a Florida attorney who gave up working for a living, litigating workers' comp cases, in favor of accepting tax-exempt tithes from the superstitious and the gullible, originally under the auspices of the late, unlamented Jerry Falwell.
Staver also turned up representing some fifth-tier plaintiffs in the Bush v. Gore circus that took place in that State's courts in 2000. Despite the very limited questions he was allowed to address, and the fact that the judge dozed through most his presentation, Staver constructively claimed sole responsibility for installing Bush to the presidency on his radio show, which airs weekdays at 3 p.m. on Milwaukee's own 107.7 FM.
From the archives, here's an example of the type of unseemly shenanigans Mat Staver engages in.
In January, 2002, beneath the heading Supreme Court Justice Promotes Judicial Activism, Staver posted the following commentary on his website:
Supreme Court Justice Stephen Breyer promoted his concept of judicial activism in a speech given at the New York University School of Law. In his speech, Justice Breyer stated that “Literalist judges who emphasize language, history, tradition and precedent cannot justify their practices by claiming that is what the framers wanted.” This is an incredible statement by a Supreme Court Judge.Incredible? Not really. What was incredible, however, is how Staver completely removed this phrase from its proper context.
In fact, there is no period at the end of the phrase Staver quote-mined, but rather a comma, and the sentence goes on to say: "for the Framers did not say specifically what factors judges should emphasize when seeking to interpret the Constitution's open language." This is not an incredible statement at all. It's a fact, and a fact that has informed the debate surrounding the so-called doctrine of original intent for many, many decades.
Staver also failed to mention that appended to this particular sentence of Justice Breyer's was a footnoted reference to Original Meanings: Politics and Ideas in the Making of the Constitution, by Jack Rakove, a Pulitzer Prize-winning law professor at Stanford University.
As a lawyer, Staver should know that when he's citing a footnoted remark, he's to include the footnote in his citation. But, what can you expect from a guy who replaces a comma with a period.
Staver then proceeded to pose the following presumably rhetorical question:
If a judge interpreting the Constitution or a statute does not consider language, history, tradition or precedent, then what does a judge consider?Why didn't Staver let Justice Breyer answer that question? Breyer did, in the same speech from which Staver misleadingly mined his quote:
Judges can, and should, decide most cases, including constitutional cases, through the use of language, history, tradition, and precedent. Judges will often agree as to how these factors determine a provision's basic purpose and the result in a particular case. And where they differ, their differences are often differences of modest degree. Only a handful of constitutional issues — though an important handful — are as open in respect to language, history, and basic purpose as those that I have described. And even in respect to those issues, judges must find answers within the limits set by the Constitution's language. Moreover, history, tradition, and precedent remain helpful, even if not determinative.Staver went on to observe, with a logic derived seemingly from his apparently deliberate misquoting:
The only thing left is the judge's own personal opinion, which is cut free from the Constitution or the statutory language.What was Staver suggesting here? That Justice Breyer decides constitutional questions based entirely on his own personal opinion, utterly disregarding constitutional "language, history, tradition, and precedent"? Even Mat Staver has to know that this is preposterous. In fact, the substance of Justice Breyer's complete speech maintains the exact opposite of what Staver was attempting to make him say.
Interestingly, Staver's context garbling was mirrored by several of his ideological allies, the most noteworthy (and comical) being Janet Folger, who wrote, “In other words, Justice Breyer doesn't really hold the Constitution in high regard."
Can she really have been serious? I think she was — which speaks volumes for her credibility, and even more for her familiarity with constitutional law. And Folger's comment was based on exactly the same misapplied fragment of Justice Breyer's sentence that Staver excised and posted on his website. Coincidence? Not.
Janet Folger, by the by, also has a radio program that's aired by 107.7. The lying for Jesus that takes place on that show is simply astounding. I recommend it to anyone with a certain sense of humor.