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Tuesday, October 7, 2008 should be remembered as a day when federal judicial arrogance descended to a new low.

Apparently, before being appointed to the federal bench by President Clinton, United States District Judge Ricardo M. Urbina (District of Columbia) learned somewhere along his career path—student at Georgetown University and its Law School, practitioner at the DC Public Defender’s Office, teacher at Howard University School of Law, judge at the DC Superior Court—that Articles I (legislative) and II (executive) of the United States Constitution must succumb to the arrogance of unelected, life-tenured Article III federal judges.

That’s because on October 7th, Judge Urbina decided that the government’s power to hold seventeen Guantanamo detainees had “ceased,” that they were to be transferred to the District of Columbia within four days, that once there they were to be freed, that they were to be relocated in the greater DC area, and that the government better not use immigration laws to harass the illegally-here aliens.

Residents of the District of Columbia were not happy. The Wall Street Journal opined about The Terrorists Next Door. The White House was “deeply concerned by, and strongly disagree[d] with” Urbina’s ruling. Conservatives were outraged, especially at Urbina’s threat to the government that “I do not expect these Uighurs will be molested [!] by any member of the United States government,” arrogantly adding that “I’m a federal judge, and I’ve issued an order.”

Urbina believed he had the power to issue that order because of the Supreme Court’s recent 5-4 decision in the Boumediene v. Bush case, which held that alien unlawful enemy combatants have a constitutional right to use habeas corpus in American federal courts to challenge their detention.

In dissenting from, and lamenting, the majority opinion in Boumediene Chief Justice Roberts asked rhetorically, “So who has won?” His answer anticipated, in part, what Urbina did last week. Roberts wrote:

Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the [United States Court of Appeals for the District of Columbia Circuit] . . . . Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests . . . has been unceremoniously brushed aside. Not the Great Writ [of habeas corpus], whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges. (My emphasis.)

Roberts’s prophesy about the likes of District Judge Ricardo M. Urbina raised yet another question: If the detainees didn’t win, if Congress didn’t win, if the principle of habeas corpus didn’t win, if the rule of law didn’t win, if the American people didn’t win—and, one can add, if the Commander-in-Chief didn’t win—who did?

Earlier in his dissent Chief Justice Roberts suggested the answer, writing that the Boumediene decision is “not really about the detainees at all, but about control of federal policy regarding enemy combatants,” and that “[a]ll that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.”

Or, as Chief Justice Roberts put it: “unelected, politically unaccountable judges.” The Judge Urbinas of the federal bench!

Those of us who for years have had a bellyful of such judges and the damage they have done to our social, cultural, economic, political and military institutions today rightly fear that legions of Urbinas are waiting in the wings for appointment to federal courts following an election victory by Senate Democrats and Barack Obama.

Obama adheres to the doctrine of a “Living Constitution.” Those who subscribe to Living Constitution ideology believe that the founding principles of this Nation are passé, that the Declaration of Independence’s ringing endorsement of individual rights and limited government is outdated, that the Constitution’s creation of a representative republic is from a long past moment in history, and that the Bill of Rights is not a restraint on government but rather a source of newly invented “rights.”

If the federal judiciary, let alone the Supreme Court, falls into Obama’s hands (especially with a compliant Senate, let alone a filibuster-proof one), our Nation will surely be crippled, perhaps fatally, in its domestic battle against socialism and our foreign war against Islamofascism.

This is not a charge that I make lightly, but rather one rooted in the words of candidate Obama himself.

On July 17, 2007, Obama made a speech in Washington, D.C. to the country’s leading abortion-meister, “Planned Parenthood.” In the words of NBC reporter Carrie Dean Obama not only “leveled harsh words at conservative Supreme Court justices,” but “he offered his own intention to appoint justices with ‘empathy’.”

“Empathy,” according to Webster’s New World Dictionary of the American Language, is “the projection of one’s own personality into the personality of another in order to understand him better; ability to share in another’s emotions or feelings.”

Thus, we have been unmistakably warned that president-hopeful Barack Obama will appoint Supreme Court justices who will not honestly interpret the Constitution, Bill of Rights, and Fourteenth Amendment—let alone on the basis of what they say and meant to those who wrote them—but who, instead, will project their own personalities into others to understand them better; justices who can share in those others’ emotions or feelings.

And who might Obama’s empathy-receivers be?

Obama himself told us in that same 2007 Planned Parenthood speech: “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.” (My emphasis.)

It couldn’t be clearer what this candidate for the presidency of the United States admittedly has in store for the federal judiciary and thus for our Nation.

So much for the classical liberal philosophy that was at the founding’s core and in its fundamental documents. From now on, constitutional interpretation Obama-style is to be through the eyes of whom he sees as society’s alleged victims.

Obama’s confession drops the notion of a Living Constitutionalism into yet a lower rung of hell. His confession reveals that while in the past the Living Constitution’s acolytes sought to achieve the amorphous goals of “social justice, brotherhood, and human dignity,” a President Obama will feed the beast with what’s left of individual rights and limited government, all in the name of “empathy”—a code word for something much darker: sacrifice of true constitutionalism to the needs of society’s perceived victims.

This perversion of America’s essence—individual rights and limited government—is collectivism/statism squared. While our Nation has so far been able to survive Living Constitutionalism—though with the recent Guantanamo decisions, especially Boumediene v. Bush, who knows?—we may not be able to survive Obama-appointed federal judges in the mode of Richardo M. Urbina.

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Republican vice presidential candidate Sarah Palin on Saturday accused Democrat Barack Obama of “palling around with terrorists” because of his association with a former 1960s radical, stepping up the campaign’s effort to portray Obama as unacceptable to American voters.Palin’s reference was to Bill Ayers, one of the founders of the group the Weather Underground. Its members took credit for bombings, including nonfatal explosions at the Pentagon and U.S. Capitol, during the tumultuous Vietnam War era four decades ago. Obama, who was a child when the group was active, served on a charity board with Ayers several years ago and has denounced his radical views and activities.

The Republican campaign, falling behind Obama in polls, plans to make attacks on Obama’s character a centerpiece of presidential candidate John McCain’s message with a month remaining before Election Day.

Palin told a group of donors at a private airport, “Our opponent … is someone who sees America, it seems, as being so imperfect, imperfect enough, that he’s palling around with terrorists who would target their own country.” She also said, “This is not a man who sees America as you see America and as I see America.”

Palin, Alaska’s governor, said that donors on a greeting line had encouraged her and McCain to get tougher on Obama. She said an aide then advised her, “Sarah, the gloves are off, the heels are on, go get to them.”

The escalated effort to attack Obama’s character dovetails with TV ads by outside groups questioning Obama’s ties to Ayers, convicted former Obama fundraiser Antoin “Tony” Rezko and Obama’s former pastor, the Rev. Jeremiah Wright.

Ayers is a professor at the University of Illinois at Chicago. He and Obama live in Chicago’s Hyde Park neighborhood and served together on the board of the Woods Fund, a Chicago-based charity that develops community groups to help the poor. Obama left the board in December 2002.

Obama was the first chairman of the Chicago Annenberg Challenge, a school-reform group of which Ayers was a founder. Ayers also held a meet-the-candidate event at his home for Obama when Obama first ran for office in the mid-1990s.

Palin cited a New York Times story published Saturday that detailed Obama’s relationship with Ayers. In an interview with CBS News earlier in the week, Palin didn’t name any newspapers or magazines that had shaped her view of the world.

Summing up its findings, the Times wrote: “A review of records of the schools project and interviews with a dozen people who know both men, suggest that Mr. Obama, 47, has played down his contacts with Mr. Ayers, 63. But the two men do not appear to have been close. Nor has Mr. Obama ever expressed sympathy for the radical views and actions of Mr. Ayers, whom he has called ‘somebody who engaged in detestable acts 40 years ago, when I was 8.'”

Earlier Saturday, Palin spent 35 minutes at a diner in Greenwood Village where she met with Blue Star Moms, a support group of families whose sons or daughters are serving in the armed forces. Reporters were allowed in the diner for less than five minutes before being ushered out by the campaign.

Palin, whose 19-year-old son, Track, deployed last month as a private with an Army combat team, was overheard at one point commiserating with one of the mothers: “Any time I ask my son how he’s doing, he says, ‘Mom, I’m in the Army now.'”

Taking one question from reporters about competing in battleground states, Palin repeated her wish that the campaign had not pulled out of Michigan, a prominent state in presidential elections where Obama leads by double-digit percentage points in recent polls.

“As I said the other day, I would sure love to get to run to Michigan and make sure that Michigan knows that we haven’t given up there,” she said. “We care much about Michigan and every other state. I wish there were more hours in the day so that we could travel all over this great country and start speaking to more Americans. So, not worried about it but just desiring more time and, you know, to put more effort into each one of these states.”

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In the weeks preceding yesterday’s vice presidential debate, one might have been forgiven for suspecting a vast right-wing conspiracy to lower expectations for Sarah Palin. A platitude-filled interview with Katie Couric, spoofed on “Saturday Night Live” and lamented by unnamed but oft-quoted “top advisers to John McCain,” seemed to underscore the impression that the attractive Alaska governor was all style and no substance – and certainly no match for a Senate heavyweight like Joe Biden.

Palin did nothing to discourage such deflationary talk. For instance, she suggested that she was overmatched by the experienced Biden when she said that she’d been listening to his “speeches since I was in the second grade.” So pronounced did the underselling of Palin become that even the Obama campaign felt compelled to bolster the case for the really “terrific debater” who would “give a great performance next Thursday.”

Alas for the Obama camp, their spin was more precise. Time and again in their Thursday night debate, Palin not only stood her ground against Biden but, on issue after issue, outperformed her Democratic counterpart. This political pit-bull, it turns out, has bark and bite.

It didn’t hurt Palin that Biden seemed determined to rehearse the more dubious charges of the Obama campaign. Several times, Biden suggested that John McCain had pushed for a special tax break for oil companies like Exxon Mobil at the expense of tax relief for the middle class, a charge that first aired in an Obama TV ad earlier this summer. At the time, the non-partisan website PoltiFact.com, maintained by the St. Petersburg Times, demonstrated that it was a serious distortion of McCain’s support for a broad reduction in corporate taxes.

Palin went one better. Not only did she identify by name Exxon CEO Rex Tillerson, but she went on to point out, accurately, that Obama himself had voted for the 2005 energy bill that granted tax breaks to oil companies, and contrasted it with her own much-publicized battles with oil companies in Alaska. (Palin was too nice to mention that Obama’s crusading against Exxon hasn’t prevented him from pocketing more than $30,000 from Exxon-Mobil employees.) A minor issue in the context of the wider debate, it nonetheless established straightaway that Palin not only understood the details of policy – something that her recent televised flops had given cause to doubt – but would not be bullied on politics.

And, indeed, she wasn’t. Take foreign policy. As the reigning chairman and longtime member of the Senate Foreign Relations Committee, Biden was thought to have a clear advantage on the subject. It was just one of the assumptions demolished in the course of the debate. When Biden tried to defend Obama’s record on the Iraq war, Palin countered with some inconvenient praise, noting that Biden had earlier “opposed the move [Obama] made to try to cut off funding for the troops and I respect you for that.”

Going on the attack, Palin then asked how Biden could defend Obama’s position “especially with your son in the National Guard.” The reference to Beau Biden, a captain in Delaware’s National Guard, was particularly clever, coming as it did from Biden’s very own political playbook: During the primaries last August, Biden had scorned his Democratic opponents for voting against funding for the troops “to make a political point,” memorably adding that “there’s no political point worth my son’s life.” He couldn’t have imagined then how the line would come back to haunt him.

To shift the topic, Biden reached for a standard Democratic talking point. Iraq, he insisted, was a distraction from the real war on terror. Palin again gave no ground. Democrats’ claims to the contrary notwithstanding, she countered, Iraq is indeed a central front in the war on terror. “And as for who coined that central war on terror being in Iraq, it was General Petraeus and al Qaeda,” said Palin, amusingly pointing out that this was the “only thing that they’re ever going to agree on.” Against Palin’s pointed outline of the stakes in Iraq, Biden’s promise to withdraw troops in adherence with a political timeline seemed especially out of touch. And although Palin did not raise the point directly, viewers were left to wonder: How would President Obama make good on his promises to defeat al-Qaeda when he and his running mate refuse to recognize Iraq as a key battleground in the war on terror?

Palin proved even more adept in pricking the Democratic ticket’s pretensions to bi-partisanship. When Biden suggested that an Obama presidency would end polarization in Washington, Palin noted that Obama cast some 96 percent of his votes “solely along party line.” As Biden strained to play the loyal surrogate, Palin not only called attention to McCain’s record of breaking with his own party, but proudly boasted that he “never asked me to check my opinions at the door.”

Biden had hardly burnished his bi-partisan credentials when he revealed that his great insight as a senator was to recognize that judicial nominees should not be evaluated on their service record or qualifications but on the basis of their political ideology, citing as a putative achievement his successful 1987 campaign to defeat the Supreme Court nomination of Robert Bork. Those who recall Biden’s role in misrepresenting the record of Judge Bork – a Yale law professor and a member of the prestigious Court of Appeals whose great failing was to be a judicial conservative – might wonder how it supports his pledge to usher in an era of post-partisanship.

The discrepancy was not lost on Palin. In one of her most effective lines of the evening, she rebuffed Biden’s partisan attempts to tie McCain to the Bush administration by observing that “for a ticket that wants to talk about change and looking into the future, there’s just too much finger-pointing backwards to ever make us believe that that’s where you’re going.” As with so many other times in the debate, Biden had no compelling answer.

Nor could the Washington veteran match Palin’s engaging presence, which ultimately turned the debate in her favor. Charming, gracious, and politically fluent, she deftly inserted populist references to “Main Streeters like me” and even forced a crack in Biden’s steely façade when she premised a rejoinder with a ringing, “Say it ain’t so, Joe!”

Biden, by contrast, was stiff and hectoring, with his recurrent admonition – “Let me say that again” – calling to mind all the pompousness of the entrenched political class. One almost expected the Senator to address himself in the third person, which in fact he did, when he assured his interviewer, Gwen Ifill, that “no one in the United States Senate has been a better friend to Israel than Joe Biden.” That is debatable. More certain is that Joe Biden has had better debates.

Presidential campaigns rarely hinge on political debates, and yesterday’s duel is unlikely to reverse this history. It does, however, confirm a point that until yesterday seemed increasingly uncertain. If John McCain loses the election, it won’t be because of Sarah Palin.

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We are living through an age of liberal betrayal, but David Horowitz and Ben Johnson can only see a part of it in their new book, Party of Defeat. For them, the Left’s treason is of an old-fashioned kind: giving comfort to the enemy in a time of war. In the lucid style of a relentless prosecutor, they lay out ample evidence to support the charge. I could go through it all with you. A grateful Osama bin Laden paraphrasing Michael Moore’s excuses for tyranny, the Democratic congressmen trying to ensure the US Army lost the second Iraq war, MoveOn.org being cheered on by those same senior Democrats for denouncing General Petraeus as ‘General Betray Us’ when he worked-out a strategy for winning the second Iraq war…the case for the prosecution is long and convincing.

But although I can envisage a Democrat Senator or an editor on the New York Times being unnerved by an unfamiliar puncturing of their righteousness, I can also imagine liberals rallying robustly. To the authors’ assertion that the Left has undermined the American cause and diminished America’s ability to defend itself, they could reply that although the Left was wrong about the surge, it was right to argue that the second Iraq war was an ill-conceived, ill-prepared adventure. To argue against bad policy is no treason, they might say, but a democratic duty.

Horowitz and Johnson concede the point, although with reluctance. For my taste, they display a touch too much jealousy for the supposed advantages enjoyed by the strong man or reigning psychopath in authoritarian regimes. ‘A democracy at war is faced with problems dictatorships find avoidable,’ they sigh. ‘Its citizens have a responsibility – as the Left never tires of repeating – not to abandon the freedoms they are defending.’ Yet even Horowitz and Johnson pull back from the ugly implication of their complaint and conclude, that ‘criticism of every war, including the one in Iraq, is warranted’.

Given that concession, their targets may wonder where the problem lies. Even if Horowitz and Johnson can make what they said sound hysterical, paranoid or dumb in retrospect, they had good grounds for believing what they said at the time. The charge of betrayal doesn’t stick when the authors admit that there were no weapons of mass destruction worth talking about and that the Bush administration’s failure to prepare for the carnage of the occupation was shameful.

I’m sure conservative readers would not buy this defense. Having seen liberal opinion here in England go berserk during the war, I don’t buy most of it myself. All I am saying is that Horowitz and Johnson’s liberal opponents will think they can dismiss the arguments of this book.

But they cannot dismiss a deeper liberal betrayal. As conservatives, our authors can’t quite grasp its nature although the evidence screams at them from the first to last page.

They begin with of a portrait of George Soros – and I’m grateful to them for showing me that contrary to meritocratic theory a man can become very rich while remaining remarkably stupid. The financier was enraged by George W. Bush’s statement after 9/11 that countries had to choose whether they were going to help America or provide safe havens for terrorists. ‘Every nation, in every region, now has a decision to make,’ Bush said. ‘Either you are with us or you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime.’

Bush’s doctrine was unexceptional – a leader would be guilty of a dereliction of duty if he did not treat those countries which harbored those who would slaughter his fellow citizens as ‘hostile regimes’ – but it was not allowed to stand. First his opponents pretended that the he had said ‘you’re either with us or against us’ – an unforgivably crass notion to their minds that challenged the central belief of postmodern liberalism that moral problems are never black and white only blurred shades of grey.

Then Soros got to work. The Hungarian billionaire whose speculations on the money markets fund the supposed left-wingers at moveon.org declared: ‘When I hear Bush say,

“You’re either with us or against us,” it reminds me of the Germans. It conjured up memories of the Nazi slogan, “Der Feind hoert mit” (The enemy is listening). My experiences under Nazi and Soviet rule have sensitized me.’

They did not sensitize him sufficiently, and not only because fuehrers do not observe constitutions, as a rule, or retire to Texan ranches when their term limit expires. Bush was not an inheritor of the totalitarian tradition, but America’s enemies most assuredly were and are. Radical Islam takes the Nazi’s Jewish conspiracy theory. It also seeks to destroy what rights Muslim women have and kill homosexuals, free thinkers, Muslims who change their faith or challenge their interpretation of Islam, and, of course , all non-believers and idolaters. Meanwhile Baathism in Iraq was not only based on the Fuehrerprinzip but so emulated the model of 20th century totalitarianism it gassed the ‘impure’ Kurdish minority. The targets of Islamists and Baathists are many, but they include the traditional friends of rich western liberals: trade-unionists, feminists, democrats, journalists, intellectuals and free-thinkers.

Yet Soros and the millions like him cannot acknowledge the victims of Islamo-fascism or offer them the smallest support. In their liberal anxiety to denounce their government they betray liberals and liberalism.

There are many gruesome scenes in Party of Defeat none more so than the moment when a blogger with the Daily Kos, Democratic candidate and self-proclaimed ‘Mayanist poet’ called Jeeni Criscenzo flies to Iraq to schmooze with the Sunni remnants of Saddam’s regime and the political wing of the Shia death squads of Muqtada al-Sadr. One of the Sheikhs she met eulogized the mass murderers of al Qaeda. ‘These young men who came here from other Muslim countries are very brave. They left their homes and comfortable lives to protect Muslims,’ he cries. No they didn’t they left their homes to slaughter Muslim Iraqis including liberal Iraqis who had every right to expect the support of the American and European lefts.

It may not be a surprise that Ms Criscenzo could not see what was in front of her nose, but it is flabbergasting that George Soros, Barack Obama, Hilary Clinton and the New York Times shared her myopia. Their behavior calls into question what it means to be liberal in America and Europe, and what it means to be conservative as well.

Now what with one thing and another, American conservatives must be feeling a little bruised at the moment, so I hope they don’t think I’m nagging when I say they should take more notice of the ideological shifts around them. In the Arab world and beyond, people who are liberal and remain liberal are being betrayed by liberal Westerners simply because their suffering cannot be blamed on America.

The case Ayaan Hirsi Ali illustrates my point. She experienced abuse and forced marriage, renounced Islam and embraced feminism and atheism. She was, in short, a classic liberal heroine, the more so because psychopathic misogynists were trying to kill her.

The attack on her liberalism in the West, however, was not led by traditional conservatives but by liberals – Dutch leftists, Oxford dons and contributors to the New York Review of Books, who hated her for challenging the stereotypes of their reactionary multi-culturalism, and denigrated her in the most patronizing manner they could devise. In the end, she found a haven with the American Enterprise Institute. What we used to call ‘the Left’ had rejected her and offered nothing more than formulaic criticisms of those who would murder her, so she turned to what we used to call ‘the Right’.

I know from the last time she spoke in London that her commitment to feminism and atheism is undiminished. Has then she shifted from Left to Right or have all the liberals who criticized her? Is the American Enterprise Institute, which came to her rescue ‘conservative’, and the New York Review of Books, which demeaned her, ‘liberal’, or is it the other way round? These questions are becoming pointless because the conflicts of our time are draining old labels of meaning.

I can say with confidence that more will follow Hirsi-Ali, but only if conservatives accept the liberal values liberals are so thoughtlessly discarding.

I’m not sure if David Horowitz and Ben Johnson can take the necessary next step. Because they are patriots first and foremost they write with great brilliance and rigor on the liberals’ betrayal of country but cannot appreciate their betrayal of liberalism and of all those suffering at the hands of anti-American and anti-liberal totalitarian movements.

I expect that this is a criticism that neither gentleman is used to hearing, but the trouble with their critique of American liberalism is not that it goes too far but that it does not go far enough.

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