A federal judicial panel recently ordered California to release some 40,000 prisoners over the next two years, if prison medical conditions do not improve markedly. In all the reportage on the remarkable ruling, the media missed one telling point:
All three jurists on that particular panel regularly judge from the more extreme side of the liberal bench. Two of them, District Judges Lawrence Karlton and Thelton Henderson, are Jimmy Carter appointees with long and distinguished extreme liberal records on the bench. The third, federal appellate judge Stepehen Reinhardt, is among the most extreme liberal judges on the U.S. Ninth Circuit Court of Appeals. Thus, news was made when, by the luck of the draw, a judicial panel was composed of three judges way-out-left.
No media attention was paid to the probability that such an extremely one-sided panel would be declared "tilt" on appeal.
The odds are overwhelming that a more balanced federal appellate panel will overturn the extreme ruling which, if impelemented, would convert California life overnight into scenes from a horror movie. If not overruled en banc, one would expect that the panel would be overruled by an appeal to the United States Supreme Court, unless the Supreme Court denies certiorari. But this one seems too important to be left unaddressed on appeal.
Showing posts with label U.S. Courts. Show all posts
Showing posts with label U.S. Courts. Show all posts
Thursday, August 13, 2009
Tuesday, December 16, 2008
Time to Pardon Jonathan Pollard
1. Pollard did a terrible, terrible thing.
2. A terrible thing. Just terrible.
3. Horrible. And he messed up the position and status of Jews in American government. He fed into anti-Semites’ worst diatribes about Jews being of diverted loyalty to foreign powers. He had no right to imperil the Jewish position in this country and, thereby, to lend credence to haters elsewhere in the world who wonder about Jews and our loyalties in those countries.
4. He has been sitting in prison for more than twenty-three years.
5. He never had a trial. He entered into a plea bargain. Then, suddenly-and-unexpectedly at sentencing, Caspar Weinberger (then the Secretary of Defense – a guy with a Jewish surname who opted for his mother’s interest in the Episcopalian Church) submitted a secret 46-page sentencing memorandum to the sentencing judge. No one knows what the memorandum said. Pollard’s lawyers were not allowed to see the secret memo. To this day, no one has ever been permitted to see what that guy wrote.
6. We know that Weinberger ultimately was found, in another context (Iran-Contra), to be one who would lie under oath. He ultimately was found guilty of perjury. The fact that someone swears to G-d to tell the truth one day and then lies that day does not prove that he lies under oath on another day. But it’s sure worse than gambling with dice. One may question whether Weinberger’s secret 46-page memorandum – which played a defining role in Pollard’s sentencing – contained pure truth or whether, as Rashi tells us about the cleverness of the m’raglim, the future-perjurous-felon began with the truth and then stretched it into falsehood. For nearly a quarter century, no one has been permitted to read the thing and dissect it.
7. Although charged with espionage (spying), Pollard never was charged with treason. Thus, he was guilty of passing classified info to an ally.
8. I am told that no one else in American history ever was sentenced to life in prison for passing classified info to an ally. I am told that the punishment for such behavior historically has been in the range of 2-4 years in prison. I have not independently verified this. I do note that the Rosenbergs went to death for passing American atomic secrets to the Communists at a time when the Communists actually were allied with America. I leave it to the objective-minded to consider the difference between passing atomic-bomb secrets to Stalin and passing whatever Pollard passed to the Israelis.
9. Pollard’s trial attorney failed him miserably by not timely appealing from the sentencing. The rules of federal appellate procedure are very strict.
10. Later, Pollard got new lawyers who perceived the outrage that no appeal ever was filed by the original attorney . They filed what-might-be-called an “appeal requesting the right to file an appeal.” (The more formal term is habeas corpus.) Three federal appeals judges considered the motion. The non-Jewish judge on the federal appeals panel ruled that Pollard had suffered a grave miscarriage of justice and deserved to have his appeal from the sentencing filed and heard. The two Jewish judges (one of them, Ruth Bader Ginzburg) ruled avar z’mano, batel korbano.
11. Israel has freed thousands of Arab terrorists, hundreds with blood on their hands, often under intense American pressure: "C'mon, Israel. Why can't you take a chance for peace? Just free them already." America itself has pardoned and freed FALN bombers. Also, a guy named – what is it? – Bill Ayers, I think – bombed American defnse establishments, and got off the hook over time. Also his wife – uh, whats-her-name Dohrn.
12. When Clinton left office, he pardoned some crook named Marc Rich, a crook on the lam in Europe. Clinton later curiously wrote an op-ed in the NY Times that he pardoned this crook at the personal request of Israeli Prime Minister Ehud Barak. Time Magazine legitimately calls this one of the Ten Most Notorious Presidential Pardons in American History: http://www.time.com/time/2007/presidential_pardons/index.html Clinton's pardon of Rich was an outrage.
13. Fittingly, another of the Ten Most Notorious Presidential Pardons in American History was the elder George Bush’s pardon of the perjurous Caspar Weinberger.
14. Clinton also quasi-pardoned (not a full pardon, just a reduced punishment) some other crooks affiliated with a Chassidic group in Monroe, NY. By coincidence, even though many among their number do not even read English (only Yiddish), the Chassidic group bullet-voted for Clinton’s wife in her first U.S. Senate race against Rick Lazio. If Teddy Roosevelt had given Americans The Square Deal, and Franklin Roosevelt had given Americans The New Deal, Clinton had given the Jewish-American bullet-voters The New Square Deal.
15. Several prominent legal scholars and men of letters are among those who have filed amici curae (friends-of-the-court) briefs for Pollard. My favorites include: the Rev. Theodore Hesburgh, President Emeritus of Notre Dame University; the ACLU, and a long list that can be found at: http://www.jonathanpollard.org/2000/122800.htm
16. I refer readers to a web page that lists comparative crimes and sentences: http://www.jonathanpollard.org/sentences.htm
17. Alan Dershowitz (of whom I am no Chasid, but he is a good gauge of whether it is an act of Jewish overreaching to seek Pollard’s pardon) has written why American Jews should be working for Pollard’s freedom: http://www.jonathanpollard.org/1999/030799.htm
18. Seymour Reich, a former chairman of the Presidents Conference, advocated a Clinton pardon seven years ago. More recently, the Conference of Presidents of Major American Jewish Organizations has called on President George W. Bush to pardon Pollard.
19. A final word: I cannot emphasize enough that Pollard did terrible, terrible stuff. I am not impressed with some people's arguments that he needed to do what he did, that he gave Israel documents that America was obligated to share with Israel anyway, that he had to do it to save lives. But, for G-d’s sake, after 23 years in prison, his continued incarceration no longer is about him. It is about us -- it is about Jews. It is a statement to American Jews that says to us every day: “We in Washington regard you differently from Irish-Americans, Italian-Americans, African-Americans, German-Americans, Polish-Americans, Latino-Americans. You may need a reminder that other people don’t need. You need to remember what we do to people who are not loyal to this country, who have loyalties diverted elsewhere.”
Thus, Pollard's continued incarceration is personally offensive to the Jewish community.
2. A terrible thing. Just terrible.
3. Horrible. And he messed up the position and status of Jews in American government. He fed into anti-Semites’ worst diatribes about Jews being of diverted loyalty to foreign powers. He had no right to imperil the Jewish position in this country and, thereby, to lend credence to haters elsewhere in the world who wonder about Jews and our loyalties in those countries.
4. He has been sitting in prison for more than twenty-three years.
5. He never had a trial. He entered into a plea bargain. Then, suddenly-and-unexpectedly at sentencing, Caspar Weinberger (then the Secretary of Defense – a guy with a Jewish surname who opted for his mother’s interest in the Episcopalian Church) submitted a secret 46-page sentencing memorandum to the sentencing judge. No one knows what the memorandum said. Pollard’s lawyers were not allowed to see the secret memo. To this day, no one has ever been permitted to see what that guy wrote.
6. We know that Weinberger ultimately was found, in another context (Iran-Contra), to be one who would lie under oath. He ultimately was found guilty of perjury. The fact that someone swears to G-d to tell the truth one day and then lies that day does not prove that he lies under oath on another day. But it’s sure worse than gambling with dice. One may question whether Weinberger’s secret 46-page memorandum – which played a defining role in Pollard’s sentencing – contained pure truth or whether, as Rashi tells us about the cleverness of the m’raglim, the future-perjurous-felon began with the truth and then stretched it into falsehood. For nearly a quarter century, no one has been permitted to read the thing and dissect it.
7. Although charged with espionage (spying), Pollard never was charged with treason. Thus, he was guilty of passing classified info to an ally.
8. I am told that no one else in American history ever was sentenced to life in prison for passing classified info to an ally. I am told that the punishment for such behavior historically has been in the range of 2-4 years in prison. I have not independently verified this. I do note that the Rosenbergs went to death for passing American atomic secrets to the Communists at a time when the Communists actually were allied with America. I leave it to the objective-minded to consider the difference between passing atomic-bomb secrets to Stalin and passing whatever Pollard passed to the Israelis.
9. Pollard’s trial attorney failed him miserably by not timely appealing from the sentencing. The rules of federal appellate procedure are very strict.
10. Later, Pollard got new lawyers who perceived the outrage that no appeal ever was filed by the original attorney . They filed what-might-be-called an “appeal requesting the right to file an appeal.” (The more formal term is habeas corpus.) Three federal appeals judges considered the motion. The non-Jewish judge on the federal appeals panel ruled that Pollard had suffered a grave miscarriage of justice and deserved to have his appeal from the sentencing filed and heard. The two Jewish judges (one of them, Ruth Bader Ginzburg) ruled avar z’mano, batel korbano.
11. Israel has freed thousands of Arab terrorists, hundreds with blood on their hands, often under intense American pressure: "C'mon, Israel. Why can't you take a chance for peace? Just free them already." America itself has pardoned and freed FALN bombers. Also, a guy named – what is it? – Bill Ayers, I think – bombed American defnse establishments, and got off the hook over time. Also his wife – uh, whats-her-name Dohrn.
12. When Clinton left office, he pardoned some crook named Marc Rich, a crook on the lam in Europe. Clinton later curiously wrote an op-ed in the NY Times that he pardoned this crook at the personal request of Israeli Prime Minister Ehud Barak. Time Magazine legitimately calls this one of the Ten Most Notorious Presidential Pardons in American History: http://www.time.com/time/2007/presidential_pardons/index.html Clinton's pardon of Rich was an outrage.
13. Fittingly, another of the Ten Most Notorious Presidential Pardons in American History was the elder George Bush’s pardon of the perjurous Caspar Weinberger.
14. Clinton also quasi-pardoned (not a full pardon, just a reduced punishment) some other crooks affiliated with a Chassidic group in Monroe, NY. By coincidence, even though many among their number do not even read English (only Yiddish), the Chassidic group bullet-voted for Clinton’s wife in her first U.S. Senate race against Rick Lazio. If Teddy Roosevelt had given Americans The Square Deal, and Franklin Roosevelt had given Americans The New Deal, Clinton had given the Jewish-American bullet-voters The New Square Deal.
15. Several prominent legal scholars and men of letters are among those who have filed amici curae (friends-of-the-court) briefs for Pollard. My favorites include: the Rev. Theodore Hesburgh, President Emeritus of Notre Dame University; the ACLU, and a long list that can be found at: http://www.jonathanpollard.org/2000/122800.htm
16. I refer readers to a web page that lists comparative crimes and sentences: http://www.jonathanpollard.org/sentences.htm
17. Alan Dershowitz (of whom I am no Chasid, but he is a good gauge of whether it is an act of Jewish overreaching to seek Pollard’s pardon) has written why American Jews should be working for Pollard’s freedom: http://www.jonathanpollard.org/1999/030799.htm
18. Seymour Reich, a former chairman of the Presidents Conference, advocated a Clinton pardon seven years ago. More recently, the Conference of Presidents of Major American Jewish Organizations has called on President George W. Bush to pardon Pollard.
19. A final word: I cannot emphasize enough that Pollard did terrible, terrible stuff. I am not impressed with some people's arguments that he needed to do what he did, that he gave Israel documents that America was obligated to share with Israel anyway, that he had to do it to save lives. But, for G-d’s sake, after 23 years in prison, his continued incarceration no longer is about him. It is about us -- it is about Jews. It is a statement to American Jews that says to us every day: “We in Washington regard you differently from Irish-Americans, Italian-Americans, African-Americans, German-Americans, Polish-Americans, Latino-Americans. You may need a reminder that other people don’t need. You need to remember what we do to people who are not loyal to this country, who have loyalties diverted elsewhere.”
Thus, Pollard's continued incarceration is personally offensive to the Jewish community.
Tuesday, May 27, 2008
Keep G-d in the Pledge of Allegiance
One Nation, Understaffed: Notice the Senate Dems’ silence on the Pledge.
From National Review Online (July 8, 2002)
A week has passed since a Ninth Circuit panel held that the Bill of Rights bars the government from requiring children to pledge their allegiance to the flag of the United States of America and to the republic for which it stands, one nation, under G-d, indivisible, with liberty and justice for all (4 U.S.C. § 4). As the intense public reaction to the panel's decision in Newdow v. U.S. Congress begins to settle, it is important to focus on the deeper crisis in our federal appeals courts arising from the Senate Democrats' campaign to obstruct President Bush from empanelling new appeals-court judges.
I have studied approximately ten thousand federal appeals-court opinions. In all fairness, Newdow is reasonably argued. Senior Judge Alfred T. Goodwin, writing for the majority he comprised with Judge Stephen Reinhardt, the Ninth Circuit's most liberal judge, published an opinion that is coherent and well written, cites appropriate authority, including legislative history from 1954, recognizes and confronts opposing authority, and makes a reasonable argument for the belief that the words "under G-d" infringe constitutional concerns. The opinion assesses the plaintiff's claims by gauging them against three traditional judicial yardsticks for deciding challenges under the First Amendment's Establishment Clause: (1) the "endorsement test" discussed in County of Allegheny v. ACLU (492 U.S. 573 [1989]); (2) the "coercion test," which was introduced in Lee v. Weisman (505 U.S. 577 [1992]); and (3) the classic three-pronged "Lemon test" named eponymously for Lemon v. Kurtzman (403 U.S. 602 [1971]).
On the day the news broke that the "Court in San Francisco" had decided to excise the words "under G-d" from the Pledge, it was fascinating watching liberal United States senators racing to the news microphones to beat conservative Republicans in condemning the panel's holding. Sen. Joseph Lieberman (D, Conn.) reacted quickly: "There may have been a more senseless, ridiculous decision issued by a court at some time, but I don't remember it." Sen. Robert W. Byrd (D., W. Va.) stated, "I hope [Goodwin's] name never comes before this body for any promotion, because he will be remembered." And Senate Majority Leader Tom Daschle (D., S.D.) raced to garner headlines by terming the court's decision "just nuts."
The Democrats' race to denigrate the decidedly liberal Newdow opinion was striking. If Sen. Lieberman desires assistance in "remember[ing]" an even more "senseless, ridiculous decision issued by a court at some time," he could be pointed to either of the two opinions handed down by the Florida supreme court during the height of the chad-counting controversies. The first of those decisions was reversed by a unanimous United States Supreme Court. Surely he must remember. Similarly, Sen. Byrd's promise to "remember" the "Goodwin" name if it ever comes up for promotion is so much bluster. Senior Judge Goodwin is 79; what promotion awaits him?
Sen. Daschle, too, speaks in hyperbole. For a federal opinion that truly is "just nuts," he could better turn to the 1996 decision by federal district judge Harold Baer Jr., a Clinton appointee in the Southern District of New York. Judge Baer turned a simple drug trial into national news when he rejected police evidence, including 75 pounds of seized cocaine and four pounds of heroin with a combined street value of $4 million, along with the drug courier's taped confession. The police had uncovered the evidence after becoming suspicious while watching four men rapidly approach a double-parked car with Michigan license plates, load two heavy duffel bags into the trunk while barely speaking a word to the driver, then flee as the officers approached them. In Judge Baer's opinion, the police had no basis for suspicion: "[R]esidents in this neighborhood tended to regard police officers as corrupt, abusive and violent. . . . [H]ad the men not run when the cops began to stare at them, it would have been unusual." After coming under withering criticism, even from Clinton, Judge Baer reversed himself. "Just nuts" indeed.
Thus, there appears to have been an unspoken agenda in the liberals' rush to condemn Newdow. Why the outrage among those who regularly defend the constitutionality of flag burning, justify federally funding "artists" who depict viciously offensive scatological images, and otherwise endorse court decisions that employ casuistry to set recidivist felons loose so they may violate society anew?
It seems clear that the Democrats' hasty race to pledge allegiance under G-d — and note that these primarily were the Democrats of the Senate, not of the House — has been sparked by their fear that Newdow will cast greater light on their role in stonewalling President Bush's nominees to the United States appeals courts. Since entering office, President Bush has nominated at least 30 federal appeals-court judges, but the Senate has confirmed only 9. While rejecting one Bush nominee, the Judiciary Committee has bottlenecked 20 others, primarily for ideological reasons. Of the first 11 judges the President nominated on May 9, 2001 for the appeals courts, 8 remain unconfirmed. In Michigan, for example, Democratic senators Carl Levin and Debbie Stabenow have refused to approve any Bush nominee to the Sixth Circuit. In California, Democrats Barbara Boxer and Dianne Feinstein have bottlenecked the president's choices for the Ninth Circuit. Meanwhile, amid Senate stonewalling, older federal judges continue to reach semi-retirement ("senior status"). In the Sixth Circuit, which normally empanels sixteen active appeals-court judges, there are now seven vacancies.
The vacancies raise concerns that appellate panels are being seated improperly and are not reaching decisions fairly reflecting impartial justice. Consider that many Newdow critics pointed to Senior Judge Goodwin's semi-retired "senior status." In fact, even when the circuits are fully empanelled, semi-retired senior judges often serve with distinction, much as dissenting Senior Judge Ferdinand Fernandez did on Newdow. Nevertheless, by playing politics with the appellate judiciary, Senate Democrats have weakened respect for the judiciary and perpetrated a growing national contempt of court.
At the height of the presidential balloting controversy in late 2000, Justice Stevens wrote in a dissent that many quoted out of context: "It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. . . . Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."
Here we go again. The American flag survived Texasv. Johnson (1989) and United States v. Eichmann (1990), the two Supreme Court decisions that permitted flag burning as a form of constitutionally protected expressive speech. If anything, our flag is more revered today, and the flag-burners played an important part in sparking our passions for the Stars and Stripes. Similarly, regardless of whether the federal courts ultimately adopt the reasoning of Newdow or of the Seventh Circuit's conflicting opinion, Sherman v. Community Consolidated School District 21, the Pledge has taken on new meaning for a generation that had recited it perfunctorily.
Old Glory has emerged with glory. The Pledge will prosper under G-d. Our concern ultimately must focus in the direction that the pledging Senate Democrats fear we will look: at the concerted logjam that blocks the president's appointments to the federal appeals courts. The imperative of an honorable appellate judiciary that impartially guards the law lies at the core of our nation's values. For the sake of the flag and the republic for which it stands, the Senate must begin ratifying and empanelling.
From National Review Online (July 8, 2002)
A week has passed since a Ninth Circuit panel held that the Bill of Rights bars the government from requiring children to pledge their allegiance to the flag of the United States of America and to the republic for which it stands, one nation, under G-d, indivisible, with liberty and justice for all (4 U.S.C. § 4). As the intense public reaction to the panel's decision in Newdow v. U.S. Congress begins to settle, it is important to focus on the deeper crisis in our federal appeals courts arising from the Senate Democrats' campaign to obstruct President Bush from empanelling new appeals-court judges.
I have studied approximately ten thousand federal appeals-court opinions. In all fairness, Newdow is reasonably argued. Senior Judge Alfred T. Goodwin, writing for the majority he comprised with Judge Stephen Reinhardt, the Ninth Circuit's most liberal judge, published an opinion that is coherent and well written, cites appropriate authority, including legislative history from 1954, recognizes and confronts opposing authority, and makes a reasonable argument for the belief that the words "under G-d" infringe constitutional concerns. The opinion assesses the plaintiff's claims by gauging them against three traditional judicial yardsticks for deciding challenges under the First Amendment's Establishment Clause: (1) the "endorsement test" discussed in County of Allegheny v. ACLU (492 U.S. 573 [1989]); (2) the "coercion test," which was introduced in Lee v. Weisman (505 U.S. 577 [1992]); and (3) the classic three-pronged "Lemon test" named eponymously for Lemon v. Kurtzman (403 U.S. 602 [1971]).
On the day the news broke that the "Court in San Francisco" had decided to excise the words "under G-d" from the Pledge, it was fascinating watching liberal United States senators racing to the news microphones to beat conservative Republicans in condemning the panel's holding. Sen. Joseph Lieberman (D, Conn.) reacted quickly: "There may have been a more senseless, ridiculous decision issued by a court at some time, but I don't remember it." Sen. Robert W. Byrd (D., W. Va.) stated, "I hope [Goodwin's] name never comes before this body for any promotion, because he will be remembered." And Senate Majority Leader Tom Daschle (D., S.D.) raced to garner headlines by terming the court's decision "just nuts."
The Democrats' race to denigrate the decidedly liberal Newdow opinion was striking. If Sen. Lieberman desires assistance in "remember[ing]" an even more "senseless, ridiculous decision issued by a court at some time," he could be pointed to either of the two opinions handed down by the Florida supreme court during the height of the chad-counting controversies. The first of those decisions was reversed by a unanimous United States Supreme Court. Surely he must remember. Similarly, Sen. Byrd's promise to "remember" the "Goodwin" name if it ever comes up for promotion is so much bluster. Senior Judge Goodwin is 79; what promotion awaits him?
Sen. Daschle, too, speaks in hyperbole. For a federal opinion that truly is "just nuts," he could better turn to the 1996 decision by federal district judge Harold Baer Jr., a Clinton appointee in the Southern District of New York. Judge Baer turned a simple drug trial into national news when he rejected police evidence, including 75 pounds of seized cocaine and four pounds of heroin with a combined street value of $4 million, along with the drug courier's taped confession. The police had uncovered the evidence after becoming suspicious while watching four men rapidly approach a double-parked car with Michigan license plates, load two heavy duffel bags into the trunk while barely speaking a word to the driver, then flee as the officers approached them. In Judge Baer's opinion, the police had no basis for suspicion: "[R]esidents in this neighborhood tended to regard police officers as corrupt, abusive and violent. . . . [H]ad the men not run when the cops began to stare at them, it would have been unusual." After coming under withering criticism, even from Clinton, Judge Baer reversed himself. "Just nuts" indeed.
Thus, there appears to have been an unspoken agenda in the liberals' rush to condemn Newdow. Why the outrage among those who regularly defend the constitutionality of flag burning, justify federally funding "artists" who depict viciously offensive scatological images, and otherwise endorse court decisions that employ casuistry to set recidivist felons loose so they may violate society anew?
It seems clear that the Democrats' hasty race to pledge allegiance under G-d — and note that these primarily were the Democrats of the Senate, not of the House — has been sparked by their fear that Newdow will cast greater light on their role in stonewalling President Bush's nominees to the United States appeals courts. Since entering office, President Bush has nominated at least 30 federal appeals-court judges, but the Senate has confirmed only 9. While rejecting one Bush nominee, the Judiciary Committee has bottlenecked 20 others, primarily for ideological reasons. Of the first 11 judges the President nominated on May 9, 2001 for the appeals courts, 8 remain unconfirmed. In Michigan, for example, Democratic senators Carl Levin and Debbie Stabenow have refused to approve any Bush nominee to the Sixth Circuit. In California, Democrats Barbara Boxer and Dianne Feinstein have bottlenecked the president's choices for the Ninth Circuit. Meanwhile, amid Senate stonewalling, older federal judges continue to reach semi-retirement ("senior status"). In the Sixth Circuit, which normally empanels sixteen active appeals-court judges, there are now seven vacancies.
The vacancies raise concerns that appellate panels are being seated improperly and are not reaching decisions fairly reflecting impartial justice. Consider that many Newdow critics pointed to Senior Judge Goodwin's semi-retired "senior status." In fact, even when the circuits are fully empanelled, semi-retired senior judges often serve with distinction, much as dissenting Senior Judge Ferdinand Fernandez did on Newdow. Nevertheless, by playing politics with the appellate judiciary, Senate Democrats have weakened respect for the judiciary and perpetrated a growing national contempt of court.
At the height of the presidential balloting controversy in late 2000, Justice Stevens wrote in a dissent that many quoted out of context: "It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. . . . Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."
Here we go again. The American flag survived Texasv. Johnson (1989) and United States v. Eichmann (1990), the two Supreme Court decisions that permitted flag burning as a form of constitutionally protected expressive speech. If anything, our flag is more revered today, and the flag-burners played an important part in sparking our passions for the Stars and Stripes. Similarly, regardless of whether the federal courts ultimately adopt the reasoning of Newdow or of the Seventh Circuit's conflicting opinion, Sherman v. Community Consolidated School District 21, the Pledge has taken on new meaning for a generation that had recited it perfunctorily.
Old Glory has emerged with glory. The Pledge will prosper under G-d. Our concern ultimately must focus in the direction that the pledging Senate Democrats fear we will look: at the concerted logjam that blocks the president's appointments to the federal appeals courts. The imperative of an honorable appellate judiciary that impartially guards the law lies at the core of our nation's values. For the sake of the flag and the republic for which it stands, the Senate must begin ratifying and empanelling.
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