In defense of lying, McIlheran lies

Buried in Milwaukee Journal-Sentinel columnist and "right-wing guy" Patrick McIlheran's otherwise pedestrian response to this weekend's Jackson County shenanigans resides the following boner:

As Barack Obama has been pointing out lately, it is mere days until his supporters profoundly change America by electing him president, an office in which he can appoint justices with empathy for the dispossessed rather than any punctiliousness about legalities.

This is, of course, a bald lie. Obviously Obama never said he values empathy over meticulous attention to the law. If anything, he said he values empathy in addition to judicial scrupulousness.

As befits his usual customs, this is not the result of McIlheran's own profound cogitation. No, he picked it up during one of his "daily staggers" through the National Review:

As the brilliant Thomas Sowell pointed out the other day, such empathy triumphing over legalities is exactly the death of the rule of law.

At least it wasn't Jonah Goldberg or one of the other resident NRO jackanapes. Nevertheless, Sowell's scaremongering gobbledegook equals any of those in sheer overwrought fatuousness. "A court case should not depend on who you are and who the judge is," he sniffs.

Well, no, it shouldn't. But it often does, even now, and Barack Obama hasn't appointed a single judge yet. So maybe he can rectify that.

Among a number of statements Obama has made on the subject was this, during (notably) the Democratic primaries last year:

We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.

Conservative commentators have been whining, howling, burning grotesque strawmen in effigy, and most recently inveighing against the imminent wholesale destruction of the Republic ever since, as if it's the only criteria Obama intends on applying.

(Even if it was, there's nothing constitutionally unsound about it, as "good Behavior" is the sole prerequisite for federal judges.)

The "brilliant" Thomas Sowell even claims Obama's subterfuge is part of his secret agenda to "kill off the Constitution," rendering even Steven G. Calabresi's hysterical meanderings positively benign.

In support of these phantasmagorical premonitions, Sowell cites a contentious U.S. Supreme Court decision called Kelo v. City of New London. In that case, a Connecticut municipality confiscated an old woman's shack to make way for a construction development. It did so under the Constitution's Takings Clause, which forbids the taking of private property for public use without just compensation.

This is an unwittingly foolish citation for at least three reasons (and the mere fact that Patrick McIlheran believes Thomas Sowell is "brilliant" on this particular question leads to a reasonable suspicion there must be many, many more).

First of all, the Court has never substituted "public purpose" for "public use," as Sowell misunderstands. (After all, he's an economist and not a lawyer, so what do you expect. Lawyers, for their part, readily admit that they can't count.)

Rather, the question of whether the taking of private property serves a public purpose is a test to determine whether the taking is for public use.

The Court applies these sorts of tests all the time. While one may reasonably argue over whether the test will yield a satisfying result, or whether applying such a test is a suitable means of comparing legislation to the Constitution at all are separate questions. But Sowell is just flat wrong that the Court rewrote the Constitution.

Nor is the public purpose test a wholesale invention of Kelo. It dates to the latter half of the 19th century, that Gilded Age when the Supreme Court was often little more than a rubber stamp for Patrick McIlheran's dearly beloved industrialists.

In fact only one Justice rejects the public purpose test outright: the literalist outlier Clarence Thomas. Nobody joins his dissent, not then-Chief William Rehnquist, and not even conservative avatar/Saint Antonin Scalia.

Second, in a very important sense, Kelo is something of a triumph of local discretion over all nine of the black-robed elitists ensconced at imperial federal headquarters in Washington, D.C.:

Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us ... to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. * * *

Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project.

Under more convenient circumstances, these are the sentiments of modest deference much adored and oft-articulated by self-styled judicial conservatives. Kelo, alas, presents a matter of grave inconvenience to the usual conservative federalist tub-thumping.

Finally, many of the conservative objections to the result in Kelo had to do with the biographical details of the person at the heart of the case, Suzanne Kelo. And much of that objection focused on — you guessed it — sympathy for her personal travails and tribulations.

As a matter of fact, just a few months ago none other than Patrick McIlheran his own self decried the Kelo decision for treating people like "insects." Empathy for the (literally) dispossessed, indeed.

What changed since then? Obama, and the Need to Fear Him.

Kelo aside, unfortunately that is where the law leads sometimes, especially in the hands of cramped obsessives like Justice Clarence Thomas and apparently even McIlheran would prefer a federal judiciary that views people as people, and not just "insects."

And that is all Barack Obama is saying. As for the examples of minority groups to whom he refers, it is for their protection specifically that the Bill of Rights was drafted and ratified.

Sowell and pals, on the other hand, are simply buying up and reselling a Bill of Goods: the blatant pandering to ignorance and fear that has been the central theme of the Palin-McCain presidential campaign.

Ultimately, Fear is what John McCain has to offer. Reject it.