Tuesday, August 17, 2010

Ted Olson Comes Under Fire From Conservatives

I knew it was just a matter of time before it began. The vilifying of the austere legal career of Ted Olson. Mr Olson won a tough, long court battle recently involving the Constitutional rights of gay Americans to marry. He and David Boies, his liberal counterpart, are in the spotlight for the victory in California. The decision now goes to the liberal leaning 9th Circuit Court. It will work its way to the Supreme Court, of that we can be certain.

Now Mr. Olson is taking heat from the far right in their quest of conservative purity. Conservatives loved him as he argued, successfully, for George W. Bush in Florida against Mr. Boies, as the 2000 election results were in play. They loved him as he ascended to Solicitor General in the Bush administration. They loved him as the husband of Barbara Olson, a smart lawyer and GOP commentator and author who was tragically killed on 9/11/01. Now? Not so much. Now his legal heft is in question by the same folks. Now he is a judicial activist.

It is sad and predictable coming from the far right. Something that is evident - judicial activism is in the eye of the beholder. It would appear that just as anyone not agreeing with another person 100% of the time equates to being labeled a RINO on the far right of the GOP, then the same is true of a judge being labeled an activist. Granted, the decision wasn't written in the most scholarly terms, but it did allow for an explanation of the judge's justification in the decision.

The problem arises that this will continue on through the judicial system and end up at the door of the Supreme Court. Just as with the issue of abortion, gay marriage will be decided by nine people instead of allowing the issue to be one for the states. Gay marriage and abortion are not the business of government. Neither subject resides in the Constitution. It seems to me that the conservative thought would be to allow it to be a states right issue.

The public is fractured when those nine people sitting on the Supreme Court pass judgement on a basic individual right. We are all created equal. The Constitution was amended to allow the tragic history of slavery to be undone with equal rights for those of color - at the time specifically black Americans.

John Yoo makes the case for states rights:

This distortion of the judicial role and rending of the political fabric are wholly unnecessary. The Constitution creates a far better approach to decide contentious moral issues: federalism. Under our decentralized system of government, states offer different combinations of taxes, spending and rights. Citizens can vote with their feet and live in the states that satisfy their preferences. Arizona, Oregon and Hawaii can compete to attract gay couples dissatisfied with Prop 8 (as if California's fiscal mismanagement weren't reason enough to leave).

As "laboratories of democracy," in Justice Louis Brandeis's famous words, states can test a diversity of policies and produce a wealth of information on their effects. If gay marriage depresses heterosexual marriage, increases divorce, or leads to lower birth rates, we will see the proof soon enough.

Watch this video of two young men - gay Tea Party members - as they explain a very common sense approach to marriage as it relates to federal government involvement. They also discuss the anger aimed at them, not for being gay but for being conservatives, especially in the company of liberals.

Common sense. Our nation's political discourse is in dire need of basic, common sense.

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