Russell and Duenes

Commerce Clause and Enron

with 5 comments

Following the Kagan Supreme Court confirmation hearings, a few things strike me.

1) These hearings are, and for a good while have been, a total joke. We should just end the charade, do away with them, and simply put the nominee up and let the senators vote. The whole process is so cynical that it makes me want to vomit, especially considering how much influence our Supreme Court justices have on American life. Kagan was the one who said the proceedings were vapid, but here she is, giving the same intellectually bankrupt bromides as the rest. Oh well.

2) Speaking of influence, Elena Kagan should be voted down simply for her deceptive attempt to influence the grisly pro partial-birth abortion policy during the Clinton years. She had words added to testimony given by the American College of Obstetricians and Gynecologists, and she is clearly fudging the truth now about her actions in wrongly adding such words to the ACOG’s statement – words that have now been cited by our Supreme Court as though the ACOG had written them. This is surely disqualifying, even if she owned up to it completely, but not in today’s America.

3) Kagan’s non-answer regarding the so-called “Commerce Clause” of the Constitution is truly frightening. When asked whether Congress could mandate that Americans eat their vegetables, she refused to say “no.” Why is this so appalling? Because she seems to imply that our government is well within its rights to coerce – yes, that’s the correct word – to coerce Americans into purchasing something they may or may not want to purchase. It is one thing for our government to regulate commerce freely entered into by private parties, which is what our Founders intended, but it is wholly another thing to dictate to Americans that they  must positively engage in commerce. If our Supreme Court goes along with Congress in okaying the health insurance mandates, then there is virtually no end to what Congress can mandate that we buy and sell. If you think this is alarmist, I suggest you do some reading on the nature of man and the history of governments. The Founders were rightly afraid of what central governments could enforce upon the people, much more afraid than what merchants in a free trade system could do. Which brings me to Enron.

My wife has been reading Conspiracy of Fools, by Kurt Eichenwald, which tells in stunning detail the corruption and vice that went on during the Enron days. My wife keeps stopping at various points to recount to me the horrid and despicable things Enron’s top folks engaged in: Hiding losses, “creating” money that didn’t exist and then spending it, bribery, overbidding on contracts, getting rid of naysayers and whistleblowers, lying to shareholders, and all manner of moral filth. And she hasn’t even gotten to the terrible consequences this had for people who were invested in Enron, some to the tune of their entire pension. It almost defies the imagination. One thought, however, keeps gnawing at me when I think about these stories she recounts: The Enron scandal has wrought untold pain upon many lives and wasted a lot of money, but it also ended. In other words, when the truth came out, as it inevitably does, Enron was finished and some men went to jail (though not for nearly long enough, as it turns out). But what happens when the government runs Ponzi schemes, hides losses, makes up and spends money that doesn’t exist, passes budgets that don’t exist and then starts spending that money, engages in bribery, offers kickbacks, runs up crazy deficits, and generally does all of the things we associate with wicked Enron executives? What do we do with men who mandate that banks loan money to people to buy houses they can’t afford? When do the government folks go out of business? Who goes to jail? What kind of misery do they have to bring before they are brought to justice? Or do we just throw it on to the taxpayers and call it even?

I’ll say it again and again and again, I’m tired of the cultural narrative that is constantly drummed into us which says that those no-good, greedy, oily, vile bankers and businessmen are up to no good and are just looking to rip off from us every last penny while they all get rich. Meanwhile, the Robin Hood, righteous and generous do-gooders in government, dispensing regulation and oversight with supreme evenhandedness and wisdom, are the ones who will save us from those thieving corporate types. This is pure garbage, and needs to be debunked constantly. Many readers of this page will say that I’m being rather one-sided on this, that I seem to give the bankers a pass. Nothing doing! Rather, I keep writing this way because our cultural influencers who are the one-sided ones, and I’m just some nobody trying to say something against it. Virtually all of our major newspapers, major news channels and universities purvey the above myth, and where’s the balance in that? This is the myth we will be hearing endlessly in the run-up to the midterm elections. Our saviors, the Democrats, are going to ride into town and regulate those Wall Street bastards into submission. And the Republicans will go along with it, lest they be “the party of ‘no.'” But either way, we will know who are the villains and who are the sheriffs, right?



Written by Michael Duenes

July 6, 2010 at 10:41 am

Posted in Uncategorized

5 Responses

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  1. Regarding your Kagan thoughts:

    1. Completely agree.

    2. (In fairness, I haven’t heard much about this – I’m operating completely from a single National Review Online Article) It seems that the ACOG is more at fault. If her words went beyond the evidence, we cannot expect her to know so (she’s a lawyer, her job is to spin the evidence; it’s the experts’ job to make sure that spin doesn’t go beyond the facts). In other words, she was instructing the ACOG how to persuasively word their statement. But, when all is said and done, it is their statement.

    3. I, like yourself, disagree with her jurisprudence – but to claim she’s not qualified because she doesn’t accept a particular theory of jurisprudence is mistaken. The most influential justice of all time (at least, from the legal scholarship perspective) was Oliver Wendell Holmes, jr. He believed the government could forcibly sterilize people it deemed unfit to have kids! Yet he is considered (even by detractors like myself) one of the most consistent, principled, and talented lawyers ever. His intellectual heirs (Brennan/Bryer) have been no less talented. Kagan is incredibly qualified, if admittedly shallow from a scholarship position. I see no reason not to confirm her. Neither do most respected conservative or libertarian legal thinkers.

    Joshua House

    July 6, 2010 at 12:38 pm

    • Josh – I couldn’t disagree more about Kagan being disqualified. Notice, I did not say that she was disqualified due to her legal views (I don’t say her jurisprudence, because alas, she’s never been a judge, which I think is a strong mark against her, though not definitive). She’s disqualified because I believe her to have been dishonest about the partial-birth abortion issue. She has not come clean. I further think her non-answer to with respect to the Commerce Clause is inexcusable for someone who wants to be on the High Court. It’s one thing to disagree with me, which would then necessitate her saying something along the lines of, “Here’s how I read the Commerce Clause, and I think that, yes, it does include the government being able to mandate that you eat vegetables.” It’s entirely another thing to refuse to answer a straightforward question about the Commerce Clause which isn’t even asking how she would rule on a specific case. The same would go for any future nominees, whether they be “conservative” or “liberal,” whatever that means in legalese. You’d have to tell me what “talented” means when it comes to judicial rulings. Smarts is not enough, nor is knowledge of the law.



      July 6, 2010 at 5:35 pm

      • I guess I see her non-answers as part of the problem with the system, not as a sign of dishonesty. She probably has Obama administration advisors breathing down her neck telling her not to say anything. I might be wrong, but every justice, more so since the Bork hearings, has given the same nondescript answers.

        She’s a great lawyer. If you listen to oral arguments she has made in front of the Court, she oozes with wit, knowledge, and confidence. I can’t say the same for other (or even most) government attorneys. Her briefs (of which I’ve only read one) seem well thought and intellectually principled in so far as her clients’ interests are concerned.

        Also, on the personal level, I’ve heard only good things. I’m vp of the federalist society here at my law school, and fed soc people have only great things to say. She’s obviously not a member, because it is mostly made up of conservatives and libertarians, but she was always courteous and moderated fed soc debates fairly.

        “Jurisprudence” simply means legal philosophy, not judging style. I don’t know how she would decide many cases, but she seems to me fairly moderate. Regarding her legal philosophical beliefs, though she hasn’t published much, her scholarship generally seems laudable. So, I don’t know. I just think she’s one of the better choices for the post, especially during a democrat administration. It could have been lots worse.

        Joshua House

        July 6, 2010 at 6:09 pm

      • Yes, I agree with your point about the system being broken, and your explanation of her commendable points is well made. Thanks for correcting my faulty understanding of “jurisprudence.” I think we know very little of her jurisprudence, given her paucity of publishing. I think you and I might disagree about Constitutional philosophy and, more particularly, the hermeneutics of Constitutional interpretation. Needless to say, I think many are unqualified to be Supreme Court justices based on their interpretations of the Constitution, and I think she would be one. If I were a senator, I would take her non-answer on the Commerce Clause as indicating that she thinks Congress can mandate all sorts of things, and I would reject her accordingly. Bork was rejected in large part because he answered questions candidly. And Kagan will be confirmed because she refused to answer questions. This is calling good evil and evil good.



        July 6, 2010 at 8:13 pm

  2. The points you bring up are actually a topic of debate at the moment. I tend to believe that the Senate should just defer to the president’s choice, regardless of judicial philosophy, unless the nominee is blatantly unskilled in law. The separation of powers just seems better fit that way to me, though I haven’t given it a ton of thought. In any case, here is a short blog post on the topic, regarding Professor Jack Goldsmith’s written testimony on Kagan:

    Joshua House

    July 6, 2010 at 10:34 pm

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