Topic category:  Government/Politics

At age 35, a natural-born American citizen is eligible to serve as President of the United States.

The hope is that by that age life experience has overcome the deficit in worldly wisdom or informed judgment commonly referred to as naivety.

When The New York Times was willing to post an op ed by Ramesh Ponnuru on judicial activism, Ponnuru should have realized that he was making a big mistake.

That op ed, titled "When Judicial Activism Suits the Right," fit the New York Times political agenda perfectly.

Ponnuru let himself be used.

The Judicial Confirmation Network is working to focus public attention on why Judge Sonia Sotomayor should not be confirmed as the next Associate Justice of the United States Supreme Court before it is too late.

The New York Times gave Ponnuru space because it realized that his article would be a distraction.

Soon Ponnoru will be 35.

Hopefully, there will be a magical transformation and he no longer will be easily gulled, will select only suitable targets to attack and will refrain from snide or silly comments.

Wikipedia:

"Ramesh Ponnuru (born August 16, 1974) is a Washington, D.C.-based Indian American columnist and a senior editor for National Review magazine. He is also a contributor to TIME magazine and WashingtonPost.com. He has written for several other newspapers and publications, including the New York Times, the Washington Post, the Wall Street Journal, Financial Times, Newsday, the New York Post, The Weekly Standard, Policy Review, The New Republic, and First Things.

"Ponnuru....went to Princeton University, where he earned an B.A. in history and graduated summa cum laude. He is of Asian Indian descent and has converted to Roman Catholicism....

"A conservative pundit, Ponnuru has appeared in many public affairs and news interview programs. He is perhaps best known for his 2006 book, The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life, published by Regnery Publishing...."

On June 23, 2009, The New York Times published Ponnuru's absurd attack on those he called his "fellow conservatives" for their approach to "race and the law."

Ponnuru: "The debates on these issues are highlighting a deep inconsistency in the way my fellow conservatives approach race and the law. Many conservatives oppose Judge Sotomayor’s nomination because she does not appear to support originalism, the notion that legal texts, including the Constitution, should be interpreted according to the meaning that the informed public assumed them to have when they became law. We argue as well that judges should try to overcome the biases of their backgrounds in the name of self-restraint. But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint."

Instead of criticizing Judge Sotomayor, Ponnuru criticized the United States Supreme Court's premier originalist, Justice Clarence Thomas!

Ponnuru:

"The Voting Rights Act decision was a case in point. Eight justices avoided weighing in on the constitutionality of the law’s requirement that certain jurisdictions, mostly in the South, get Justice Department permission before making any changes to election procedures. Instead they ruled that a utility district in Texas that wanted to be freed from the provision should have an opportunity to try.

"But Justice Clarence Thomas went further, declaring the provision unconstitutional. Congress, he argued, was justified in the 1960s in responding to the denial of the voting rights guaranteed by the 15th Amendment, but things have changed and the provision is no longer needed.

"Justice Thomas is, in my view, right to consider the law outdated. But is that really for him to say? Congress is the proper body to make that judgment. In 2006, it decided to renew the law for 25 years. Its determination that the law was still necessary may have been mistaken, but it is not clear that the Constitution authorizes judges to second-guess it."

To be clear, Ponnuru, apparently out of legal ignorance, accused Justice Thomas of what might be called "reverse judicial activism."

Ponnuru's op ed word limit also permitted him to awkwardly address the "reverse discrimination" case since reversed by the United States Supreme Court.

Ponnuru:

"This brings us to the case of Frank Ricci, a firefighter in New Haven who in 2003 passed a test to get a promotion, only to see the city throw out the test because black firefighters were not doing well on it. Mr. Ricci sued in federal court and lost.

"Nor did he catch a break from a panel made up of Judge Sotomayor and two of her colleagues from the United States Court of Appeals for the Second Circuit, which heard his appeal in 2007. They upheld the earlier decision with brief comments, apparently seeking to bury the case without considering the legal issues it raised....

"Mr. Ricci probably deserved his promotion and had a right to his day in court. But contrary to what many conservatives insist, that does not mean he should win the case. The legal arguments for his position, as for the invalidation of the Voting Rights Act, are not absurd: they include reasonable readings of Supreme Court precedent. They just aren’t originalist arguments."

Ponnuru added: "In their outrage over the Ricci verdict, I suspect, conservatives have gotten carried away by their laudable fervor against race-conscious policies. But we on the right, of all people, should know that not every wrong has a judicial solution. Conservatives are moved, as well, by their empathy for the Frank Riccis of the world. When President Obama has talked about empathy on the bench, conservatives have responded that, given free rein, it can lead judicial reasoning astray. On race, unfortunately, we are illustrating our own point."

Ponnuru's position is that equal protection of the law does not require colorblindness.

The self-described "perfect affirmative action baby" (Judge Sotomayor) must have been delighted with Ponnuru's op ed.

Inevitably, Wendy Long addressed the problematic Ponnuru op ed, with astonishing restraint, seeking to explain, not to excoriate.

Mrs. Long is legal counsel to the Judicial Confirmation Network. Until March 2005, she was a litigation partner in the New York office of Kirkland & Ellis LLP. A former law clerk to U.S. Supreme Court Justice Clarence Thomas and to Judge Ralph Winter of the U.S. Court of Appeals for the Second Circuit in New York, she is a graduate of Northwestern University School of Law, cum laude and Order of the Coif, where she was articles editor of the Northwestern University Law Review, and of Dartmouth College. She previously served as a press secretary in the U.S. Senate, for former U.S. Senator Bill Armstrong (R-Colo.) and former U.S. Senator Gordon Humphrey (R-N.H.).

Relying on humor to cure Ponnuru's problem, Mrs. Long posted this too generous and gentle piece at NationalReviewOnline's Bench Memos:

"I'm a little late to the table in the Ramesh-fest, but . . .

"I second Abby Thernstrom's admiration for Ramesh and admit that is precisely why I was mystified that he would willingly jump into the whirlpool of White House Spin on the eve of the Ricci decision and the run-up to the Sotomayor hearings. Honestly, when I read his column yesterday, I thought he must have been taken hostage by some NYT editorial page terrorists who waterboarded him until he agreed to sign that op-ed piece.

"Of course the principle in the Constitution — both the 14th and 15th Amendments, not to mention the Declaration of Independence — is one of color-blindness, as the first Justice Harlan noted in Plessy.

"There is nothing in the original meaning of the text that mandates race-conscious (i.e., racially discriminatory) policies, except perhaps in the limited context of remedying obvious race discrimination.

"The authors and ratifiers of the 15th Amendment gave Congress the power to 'enforce' it by 'appropriate legislation,' but not power beyond that, so that is the whole point about judicial review of the Voting Rights Act. If legislation to 'enforce' the 15th Amendment is not (or is no longer) appropriate, then it is a proper exercise of judicial review to strike it down. Upholding the Constitution (its text, principles, and/or history) is never judicial activism. That is both consistent with originalism and judicial restraint."

Mrs. Long, an experienced lawyer, is right.

Ponnuru, who is not a lawyer, is wrong.

In addressing the issue of whether the Congress had exceeded its authority, Justice Thomas did precisely what he was supposed to do and did not engage in judicial activism.

Mrs. Long did not note that Ponnuru is not a lawyer, but she try hard to dispel his confusion about judicial restraint:

Mrs. Long:

"Judicial restraint is not 'best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments.' That is a different canon, the canon of avoidance of unnecessary constitutional questions. If a constitutional question is legitimately raised, it is not any kind of 'virtue,' least of all 'judicial restraint,' to fail to decide it. Judicial activism is when judges use extra-legal arguments, authorities, personal preferences, or experiences to decide cases, instead of the law.

"To the extent Ramesh says it is 'not clear that the Constitution authorizes judges to second-guess' either the Voting Rights Act or other legislation, he sounds like he is questioning the premise of Marbury, which is not only the power of judicial review, but also the corresponding responsibility of judicial restraint. These are two sides on one coin, inseparable if the judicial branch is to uphold the Constitution properly (as, of course, all the departments and not just the judiciary must do). As the song goes, 'You can't have one without the other.'"

It is so.

Exasperating as Ponnuru's legal ignorance and naivety are, Mrs. Long sought only to illuminate, not to insult or to incite.

Mrs. Long:

"Attacking Justice Thomas on this score as a judicial activist is just incomprehensible, particularly coming from Ramesh.

"And with respect to Ramesh's assertion that the 'conservative' position on the merits of the Ricci case (not only that he 'probably deserved his promotion and had a right to his day in court' but also that on the merits he 'should win the case') is another example of judicial activism and/or abandonment of originalism is equally incomprehensible. If you accept the originalist position that the Constitution is indeed color-blind (and you should), then Title VII disparate-impact imperatives that would compel facial race discrimination don't cut it, in an originalist sense.

"Perhaps most important, Ramesh's entire premise, that Justice Thomas and conservatives are deciding cases and making legal arguments based upon the Obama empathy standard, is just so wrong and so misleading at the precise moment when we need to seize the moment to crystallize this debate between the Obama-Sotomayor view of judging and the Thomas-judicial restraint mode of judging. The White House is trying to fog up that debate, to blur the distinctions and confuse the citizens with double-talk so they can't decide for themselves which mode of judging they prefer. To feed the fog machine is doing a disservice to those people."

The New York Times happily published the Ponnuru op ed precisely because it would "feed the fog machine." It spiked the Obama/ACORN expose last October and now it's supporting the La Raza/ACORN backed Judge Sotomayor enthusiastically.

Ponnuru remained unenlightened.

He airily responded:

"I am happy to reciprocate Wendy Long’s admiration, but I cannot extend that admiration to her post. I just see assertion piled on top of assertion, often off-point. Thus, for example, she disputes the idea that the Constitution mandates color-conscious policies — an idea that I have never raised. She says that 'of course' the Constitution mandates color-blindness. That would be news to Andrew Kull, author of the The Color-Blind Constitution, which concludes that the idea to which his title refers 'died in the Joint Committee of the Thirty-Ninth Congress.' To Long I 'sound like' I am questioning Marbury v. Madison. All I can say is that she needs to listen harder. The idea that conservatives can never fairly be accused of judicial activism, by definition, is eccentric.

"Finally, the bit about how I am clouding the issues involved in the Sotomayor nomination and aiding the White House spin machine is repulsive. If my arguments are wrong, then that’s enough of an indictment. If they’re right, their inconvenience is irrelevant. (I have no desire to go to work for the RNC.) If they are right, in fact, then it is the indulgence of conservative judicial activism by the likes of Long that makes it harder for us to make the case against the liberal variant."

Hopefully, that response is an aberration and not typical of Ponnoru responses to admirers who point out his errors gently. What are repulsive are Ponnuru letting himself be played by The New York Times and then stubbornly refusing to recognize what judicial restraint and judicial activism actually are and snidely referring to "the likes of Long" because she had explained why he had ignorantly mischaracterized a couple of things as examples of conservative judicial activism.

Undeterred, Mrs. Long returned to the task of educating Ponnoru.

Mrs. Long:

"Ramesh, conservatives would certainly be guilty of 'judicial activism' if they engaged in it.

"But it's just very rare (nowadays) for 'conservatives' to do so —because they believe in fighting political battles in the proper (political) arena, win or lose. If you can provide a real current example of 'conservative judicial activism' — because the two you have provided do not qualify — I would readily agree that it is improper 'conservative judicial activism.'

"The economic substantive due process at work in Lochner v. New York was 'conservative judicial activism,' for example. But Justice Thomas's position on the Voting Rights Act does not qualify as 'judicial activism' or as any betrayal of originalism, nor does the legal argument for Frank Ricci.

"The text of the 14th Amendment says 'No person shall be denied equal protection of the laws.'

"The text of the 15th Amendment gives Congress enforcement power against racial discrimination in voting, not enforcement power in the absence of racial discrimination.

"And nothing in the history of the 14th Amendment undercuts the argument that a white or Latino firefighter is discriminated against when a promotion is denied to him after a non-discriminatory test, on the ground that no blacks could thereby be promoted.

"It is never 'activism' to faithfully interpret and apply the Constitution. If you are truly evaluating the text and history and principles of the Constitution (which never contradict each other, but where evidence is scanty in one area, it may be more plentiful in another; this is the opposite of inventing stuff out of thin air, applying one's own personal views, or invoking some evolving, enlightened global moral consensus), it isn't activism; it's the only correct way to apply the Constitution as an Article III judge.

"I want to bend over backwards to say you are right that 'conservative judicial activism' is possible, and that it's as bad a way for an Article III judge to behave as it is to engage in liberal judicial activism. I just want to come up with a better example, because your examples are wrong. And because any really good actual example is so elusive, it's proof that conservatives do not, as you imply, engage in anything like the judicial activism that liberals do. Just look at Ed Whelan's posts on this blog under 'This Day in Liberal Judicial Activism': could you, in a million years, construct a parallel continuing feature, 'This Day in Conservative Judicial Activism'? OK, 'On this day in 1905, a majority of the Supreme Court held that freedom of contract prevented New York from regulating the working hours of bakers....'

"The material just isn't there. Your examples do not cut it for the reasons stated, but I am happy to validate your hypothetical thesis with a hypothetical case of conservative judicial activism or two:

"Let's say that some hypothetical Supreme Court (because there is not even one vote for this position on the current Court) ruled that the Constitution prohibits any abortion at all, i.e. that the 5th and 14th Amendments affirmatively and absolutely protect the right to life of unborn human beings in this country from their moment of conception — i.e., the perfect judicial opposite of Roe v. Wade and Doe v. Bolton.

"Although this would be less of a constitutional and originalist stretch than were Roe and Doe themselves, and although some serious and scholarly people make this argument that the pro-life position is protected by the existing Constitution (I think, though I may be wrong, that this is the view of people such as Lew Lehrman and Doug Kmiec), I would understand if you said such an argument, or ruling, would represent 'conservative judicial activism.'

"Another example might be, if conservatives said, the Constitution (in its present form) enforces a regime of marriage limited to one man and one woman, and that if a state wants to legislate marriage among persons of the same sex, an unlimited number of persons of any sex, etc., states cannot do so. I can see where one might label this 'conservative judicial activism' — but, as we see, conservatives are not trying to do that, only to either (a) amend the Constitution properly, as the document itself provides, instead of illegitimately 'amending' it by judicial fiat, or (b) fight the battle for traditional marriage in the legislatures, where absent a proper constitutional amendment it belongs.

"That these are mere hypotheticals is the point: conservatives just aren't doing what liberals are doing in the judicial activism category. And if there were ever a moment when this point needs to be conveyed to the great majority of Americans whose instincts on this are so much sounder than Larry Tribe's, and Barack Obama's, and Ruth Bader Ginsburg's, and Sonia Sotomayor's, it is now. This is why your column was so heartbreaking.

"As one 'soccer mom' told me today, the arguments about the court seem like 'inside baseball' to her fellow Americans (the ones who are going to sustain or allow the collapse of self-government): 'They just think it's about liberal vs. conservative and whose ox is getting gored. They don't realize that this is about procedure and order and the rule of law, on the one hand, vs. chaos and power grabs on the other.'"

Don't expect that "soccer mom" to be invited to write an op ed for publication in The New York Times!

Ponnuru remained apparently oblivious (as well as silly and snide) in reply:

"In long stretches of Wendy Long's latest post about me, I have no idea with whom she thinks she’s arguing. I never claimed that the conservatives on the Supreme Court engaged in the same amount of judicial activism as the liberals. Long writes that 'nothing in the history of the 14th Amendment undercuts the argument that a white or Latino firefighter is discriminated against when a promotion is denied to him after a non-discriminatory test, on the ground that no blacks could thereby be promoted.' I never denied that Ricci was discriminated against; I questioned whether that discrimination violated the Fourteenth Amendment. Arguing that it did requires more than the ability to use boldface."

Perhaps Ponnoru wants to become the "favorite conservative" of The New York Times!

He should try law school instead.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.