French voters dealt a crushing defeat to the European Constitution today, demonstrating their determination to punish the leaders of France and of Europe after a bitter campaign that split the country in two.

 

As the polls closed, the French Interior Ministry said the no camp had 57.26 percent, compared to 42.74 for yes, with nearly 83 percent of the votes counted

Burt Neuborne of New York University law school said recently that his fellow Democrats may be making a mistake by depending so heavily on judges to establish law without seeking true public support.

 

Well, that's one way of putting it. Another is simply to say that the Democrats consistently rely on judges to impose legislation that they can't get through the normal democratic process because majorities don't want it. As a result, our politics and our courts have been deformed. A contempt for majorities keeps growing on the left, and contempt for the courts keeps rising on the right.

My broader point is that the real issue in the filibuster fight isn't the filibuster itself — or blue slips or Rule IV or any other specific rule — it's the general principle that rules shouldn't be cynically changed en masse just because your guy is in power and you've decided they're no longer convenient. As it happens, I'm not much of a fan of filibusters myself: their history has mostly been anti-liberal, and in principle I think majorities should be able to pass legislation if they can muster the votes. However, the rules shouldn't change midstream. If Republicans and Democrats could agree on a broad set of rule changes that eliminated the filibuster but didn't take effect until 2009, I'd support it. That's fair, since no one knows which party will be in control then. I'll take my chances that the Dems will win in 2008 and the rule changes will work in my favor.

California Supreme Court Justice Janice Rogers Brown is a right-wing extremist unfit for confirmation to a federal appeals court, and Republicans in Congress are exhibiting the height of arrogance by jamming her down Democrats' throats, U.S. Sen. Barbara Boxer said Friday.

And after a wave of courthouse violence, Texas Republican John Cornyn said on the Senate floor that he wasn’t sure there was a cause and effect, but he could understand how people get so upset. Republican Rep. John Sensenbrenner, chairman of the House Judiciary Committee, announced he would hold hearings on federal court budgets, suggesting there is more than one way to rein in judges and that is to starve them into submission.

 

This is dangerous business when an inflamed minority, the religious right, demands the ouster of any judge that doesn’t rule their way.

“I tend to be a traditionalist, and the right of unlimited debate has been a hallmark of the Senate since its inception. Without question, though, I am strongly opposed to the use of the filibuster to block judicial nominations."

The confirmation process has been politicized beyond anything we've seen in the past. Special interest groups have staked out extreme positions on a host of issues -- the death penalty, racial preferences in education, and partial birth abortion, to name a few. If a nominee fails to meet a litmus test on any one of these issues, the groups demand a filibuster. All that is required is the announcement by the minority that it is filibustering and the normal presumption of simple majority rule is notched into a three-fifths requirement. Accordingly, filibusters are now more readily available. The predictable has occurred: interest groups have been unleashed, and the confirmation process has become longer, more contentious, and more divisive.

I recall two judicial nominations of President Clinton's particularly troubling to me and my fellow Republican members when I was the Republican Leader in the Senate. Despite our objections, both received an up-or-down vote on the Senate floor. In fact, I voted to end debate on one of these nominees while voting against his confirmation. Republicans chose not to filibuster because it was considered inappropriate for nominations to the federal bench. 

 

By creating a new 60-vote threshold for confirming judicial nominees, today's Senate Democrats have abandoned more than 200 years of Senate tradition. 

 

 For the first time, judicial nominees with clear majority support are denied an up-or-down vote on the Senate floor through an unprecedented use of the filibuster. This is not a misrepresentation of history; it's a fact.

If anyone doubted which side of the political aisle is playing dirty in the fight over federal judicial nominees, he hasn't read about the National Abortion and Reproductive Rights Action League's mission to dig up financial and other dirt against 30 sitting federal appellate judges.

 

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But what makes this more interesting is that one of the partners in the consulting firm is Craig Varoga, a former aide to Senate Minority Leader Harry Reid. Should we assume complicity on Reid's part?

 

Until I hear him denouncing this outrage, I'll presume he's supportive of it. With his consistent pugnaciousness and pettiness in these Senate skirmishes and his recent demeaning reference to President Bush as a "loser" before high school students, we now know Reid's not the mild-mannered public servant he pretends to be.

 

Don't forget, also, that Reid recently smeared by innuendo one of the president's appellate court nominees when he suggested that very damaging information existed in the judge's confidential FBI file.

 

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If everyone's finances are so relevant all of a sudden, perhaps someone should do an expose concerning the financial workings of NARAL to inquire, among other things, into what kind of incentives NARAL and other such groups have actually to be pro-choice, as opposed to pro-death. What's good for the goose ...

Whether persons involved in consensual sexual relations owe each other a legal duty of reasonable care in the conduct of those relations is a question of first impression in Massachusetts. Generally, as the plaintiff claims, tort law requires that a duty of reasonable care be exercised to avoid injury to others. Reasonable care is determined by the "standard of conduct demanded by the community for the protection of others against unreasonable risk." Restatement (Second) of Torts § 283 comment (c) (1965). However, "[i]t should be recognized that 'duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." Prosser & Keeton, Torts § 53, at 358-359 (5th ed. 1984). Here, the defendant can be found liable to the plaintiff for his injuries only if we determine that the defendant owed him a legal duty of reasonable care in the conduct of their consensual sexual relations. If we determine that no such duty of care existed, the defendant is entitled to summary judgment. See Dhimos v. Cormier, 400 Mass. 504, 507 (1987).

 

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While it is inappropriate and unworkable to hold consenting adults to a standard of reasonable care in the conduct of private consensual sexual behavior, we conclude that it is appropriate that they be held to a standard that requires them not to engage in wanton or reckless conduct toward each other during such consensual sexual conduct. "The words 'wanton' and 'reckless' are . . . not merely rhetorical or vituperative expressions used instead of negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind." Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). See Cohen v. Davies, 305 Mass. 152, 156 (1940) (indifference to consequences distinguishes wanton or reckless behavior from negligence). Since "[t]he essence of wanton or reckless conduct is intentional conduct . . . which . . . involves a high degree of likelihood that substantial harm will result to another," Commonwealth v. Welansky, supra, citing Restatement of Torts § 500 (1934), we believe that a fact finder is capable of recognizing such extreme conduct, impartially and without prejudice, even in the context of consensual sexual behavior.[7] 

Interestingly, the court mentions that the policy behind sports assumption of the risk ("no duty") cases is that if everyone involved in a sport had a duty to use reasonable care to one another, then that might have a chilling effect on sports participation.  The court did not reiterate that policy with regard to sexual activity, though!

Tod Lindberg: 

The point is that each escalation has been seen by the escalating side and presented as nothing more than a reply in kind: an eye for an eye. In fact, we have gone from "a tooth for a tooth" to "a whole upper palate for a tooth," and future generations may come to think that justice is depicted as blindfolded in accordance with the doctrine of "two eyes for an eye."

A showdown can be averted if a half-dozen senators from each party can unite both to stop filibusters and to prevent reckless rule changes. Are there enough senators who value their institution enough to resist the irresponsible incitements of the interest groups on both sides?

"what some lawmakers call a constitutional crisis"

The Senate's institutional paralysis over judicial confirmations is a political problem for which there is a political solution: 60 Republican senators. The president believes that Democratic obstruction of judicial nominees contributed to Republican gains in 2002 and 2004. In 2006, 17 of the Democrats' seats and that of Sen. James Jeffords of Vermont, their collaborator, are up, five of them in states the president carried in 2004.

It has been 98 years since Republicans have had 60 senators. But in the past 50 years, there were more than 60 Democratic senators after seven elections: 1958 (64), 1960 (64), 1962 (67), 1964 (68), 1966 (64), 1974 (61), 1976 (62). Republicans might reach 60 if the president devoted as much energy to denouncing obstruction of judicial nominations as he is devoting to explaining Social Security's problems. Solving those problems is important, but not as important as achieving a judiciary respectful of the Constitution.

No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters.

Back in January, Senate Democrats were saying that they would shut down the Senate if Republicans made this rule change. Now they are singing a different tune. Minority Whip Richard Durbin, one of the most partisan Democrats, assures everyone that they're not really going to obstruct very much at all.

 

The reason is that Democrats know that obstruction does not play well at the polls. Voters at some point ask what you stand for. Old Media are not going to paint Democrats as obstructionists. But New Media can. For years, Sen. Tom Daschle received positive coverage in the Sioux Falls Argus Leader, South Dakota's dominant newspaper. But during the 2004 campaign, several local anti-Daschle blogs took on Daschle and the paper, and circulated stories that put him in a less favorable light. Daschle had won seven elections in South Dakota. He lost in 2004.  

 

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How this issue will play out in Congress is unclear. But do Democrats want to face this reshaped electorate with our reconfigured media with no other message but obstructionism?

"filibuster fight will be disastrous for the GOP"

The latest liberal crusade is against the Wal-Mart stores.

 

A big headline on a long article in The New York Times asks "Can't A Retail Behemoth Pay More?"

 

Of course they can pay more. The New York Times could pay its own employees more. We could all pay more for whatever we buy or rent. Don't tell me you couldn't have paid a dime more for this newspaper. But why should any of us pay more than we have to?

 

According to The New York Times, there is a book "by a group of scholars" due to be published this fall, arguing that Wal-Mart has an "obligation" to "treat its employees better."

 

This can hardly be called news. Nothing is easier than to find a group of academics -- "scholars" if you agree with them -- to advocate virtually anything on any subject. Nor is this notion of an "obligation" new.

 

For decades, there has been lofty talk about the "social responsibility" of businesses or about a "social contract" between the generations when it comes to Social Security. Do you remember signing any such contract? I don't.

It would be devastating to the egos of the intelligentsia to realize, much less admit, that businesses have done more to reduce poverty than all the intellectuals put together. Ultimately it is only wealth that can reduce poverty and most of the intelligentsia have no interest whatever in finding out what actions and policies increase the national wealth.

 

They certainly don't feel any "obligation" to learn economics, out of a sense of "social responsibility," much less because of any "social contract" requiring them to know what they are talking about before spouting off with self-righteous rhetoric.

The stakes in politics are about to get a lot higher.

 

The partisan battles in the coming weeks -- on judges, Social Security and the future of Tom DeLay -- are part of a larger struggle in which Republicans are seeking to establish themselves as the dominant party in American politics. Essential to their quest is persuading Democrats, or at least a significant number in their ranks, to accept long-term minority status.

 

The current acrimony in politics is incomprehensible unless it is understood as the inevitable next act of a long-term struggle. Its ferocity arises from the Democrats' refusal to accept the role assigned them by their opponents. They are taking a stand across a broad front not simply to "obstruct" current GOP designs but to reverse a Republican political offensive that began during Bill Clinton's presidency.

 

In fact, every one of today's fights can be seen as a response to something that happened in the 1990s.

If you were to do a survey of large companies, you would find that the No. 1 concern of large organizations in the United States and large businesses in the United States today is tort reform. Tort reform is seen by the business community, or I should say by most in the business community, as sort of a hydra-headed monster. It costs, in frivolous lawsuits, every American about $800 a year. The results in runaway jurisdictions turn to what has come to be known as "jackpot justice," where these incredibly big settlements for relatively minor offenses seem to take place.

 

We at the U.S. Chamber of Commerce believe that justice should be simple, fast, fair and not frivolous. But we also believe that people who have a claim, the claim should be heard and addressed. It is not to say there is not a role for tort. It is to say, where does it fit in? And where are the excesses? And, as I say, it is the No. 1 concern of large businesses, and, interestingly, it is the No. 2 concern of small businesses. Small businesses often see themselves as one lawsuit away from bankruptcy.  

 

So what are the issues within tort reform that makes it a hydra?

 

• First, class-action fairness. And here the chamber was part of an important victory, which has to do with jurisdiction shopping. They've addressed some of those issues in legislation that was passed in Washington earlier this year.

 

• The second issue they look at is medical malpractice. This is terribly important to hospitals, doctors and insurance companies. It is a very, very challenging issue. We've more recently found that the American Medical Association has joined forces with us to deal with some of these issues. If you live in St. Louis, look across the river at Illinois and you'll find that the hospitals are closing their obstetric, gynecology operations. The people are just . . . the doctors are just simply abandoning the field; the hospitals can't afford the insurance, so you're seeing a real reduction in those areas. In Missouri, doctors are leaving practices because they can't afford to pay for the malpractice insurance any longer, and we believe that it's important that insurance costs come under control in this regard and that we see caps on some of the damages.

 

• We're also looking at asbestos litigation, which has bankrupted a number of companies. You've seen them here in Colorado - companies that have been forced into bankruptcy because of asbestos litigation. We estimate this has cost 60,000 jobs so far, and it has the potential in the eyes of some to be a bigger issue than tobacco. And yet 90 percent of the claimants have had no injury. So the people who desperately need financial relief are being held back in most cases because of these people trying to get these incredible blockbuster lawsuits rather than saying let's get the money to the people who need it and get it to them now. We would advocate that.

To appreciate the value of history, we must also accept that human nature is constant and fixed across time and space. Our kindred forefathers in very dissimilar landscapes were nevertheless subject to the same emotions of fear, envy, honor and shame as our own.

 

In contrast, if one believes human nature is malleable--or with requisite money and counseling can be "improved"--then history becomes just an obsolete science. It would be no different from 18th Century biology before the microscope or early genetics without knowledge of DNA. Once man before us appears alien, the story of his past has very little prognostic value.

 

Washington: Ever wonder just what it is about Janice Rogers Brown that prompted the Democrats to so fiercely oppose her nomination to the U.S. Court of Appeals? It's her radical position on the Constitution.

 

Or rather, it's her dedication to constitutional limits that has enraged the left. They don't want anyone on the bench who might get in the way of federal policies and programs that can't withstand constitutional scrutiny.

California Supreme Court Justice Brown says that same enlargement of Washington's power "inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document."

 

Tough words. No wonder Brown is getting rough treatment in the Senate and media.

 

She dares to utter what has become obvious to many — that when it comes to governing, collectivism, not constitutionalism, is often the guiding principle.

Nowhere has Brown said she would base her legal opinions on her observations of these "perilous times." But the fact that she even notices them makes her unfit in the eyes of some.

 

In our view, Brown's courage to point out this nation's leftward slide is refreshing. And her religious beliefs clearly indicate she is part of the large core of American believers — not on some extreme fringe.

 

We have enough judges who are eager to look the other way as lawmakers expand government far beyond its constitutional limits.

 

Brown would be a welcome change from that.

"When I was in Alabama 13 years ago, they had no child labor law," wrote labor activist Mary Harris Jones, better known as Mother Jones, in 1908. "In Alabama 13 years ago, women ran four or five looms. Today, I find them running some 24 looms. This is the Democratic south, my friends -- this is a Democratic administration. This is what Mr. Bryan and Mr. Gompers want to uphold."

 

The "Gompers" that Ms. Jones judged to be insufficiently concerned about the subjugation of labor was Samuel Gompers, the 10-year-old who was taken out of school to become an apprentice shoemaker and then a cigar maker in the sweatshops of New York before becoming the first president of the American Federation of Labor.

 

"Mr. Bryan" was William Jennings Bryan, the Democrats' three-time candidate for president, in 1896, 1900 and 1908, and a three-time loser. Still, he was skilled at tossing around the anti-capitalist rhetoric, such as on Labor Day in Chicago in 1896 when he famously called for "putting rings in the noses of hogs," referring to how politicians should be treating people like John D. Rockefeller and Andrew Carnegie.

 

***

 

In the end, neither Gompers nor Bryan was anti-capitalist enough for Ms. Jones.

 

"I stand for the overthrow of the entire system that murders childhood," she explained, referring to child labor. "I stand for the day when this rotten structure will totter of its own vileness. I stand for the day when the baby will live in God's fair land, enjoy its air, its food, its pleasures, when every mother will caress it warmly."

Fast-forward 100 years and the kids are at GapKids, not in the mines. Karl Marx got it wrong about the working class becoming inescapably poorer under capitalism. So much so that Mother Jones -- the magazine, not the activist -- is complaining in its March-April 2005 issue about America's increasing affluence:

 

"Since 1970, the size of the average new home has ballooned by 50 percent. Great rooms, Viking ranges, 10-acre lots -- can moats and turrets be far behind?"

 

And the more specific grievances: "In 1950, 1 in 100 homes had 2.5 baths or more. Today, 1 in 2 do." "One in 4 Americans want at least a 3-car garage." "Fourteen million households own 4 or more TVs."

When someone in Washington tells you "it isn't about the money," you can rest assured on one point.

 

It's about the money.

 

The Association of Trial Lawyers of America insists that its members' opposition to tort reform isn't based on protecting their billions of dollars in annual contingency fees. Now they've installed a new chief, veteran Washington public relations specialist John Haber, to promote that fallacy by putting a good face on what really amounts to unbridled greed.

 

Haber is being paid a cool half-million dollars to transform the image of America's personal injury bar--the equivalent of giving Ebenezer Scrooge an extreme makeover. Which leads one to ask, "Why do personal injury lawyers--who love to portray themselves as Robin Hood--suffer from an image problem?"

 

One answer would be because they overestimated what the American public would tolerate. Whether suing fast-food restaurants, flooding the media and the Internet with carnival barker ads promising easy money, or systematically targeting our health-care system, the plaintiffs' bar has proved repeatedly there's little it won't try if there's money to be made.

It feels like Armageddon is just around the corner. The Republican threat to eliminate the filibuster rule in judicial confirmations has led both parties to cautiously assess what the political landscape would look like if the so-called nuclear option were used.

 

But for many here, this political brawl is only a dress rehearsal for the coming battle over a replacement for Chief Justice William Rehnquist, whose recent illness has led to the expectation that he will retire before the end of the Supreme Court term in June.