Nottingham impeachment should proceed

"During good behavior" is the constitutional standard for a federal judge to continue serving. Sen. Ken Salazar has wondered publicly whether Judge Edward Nottingham of the US District Court in Denver measures up. It certainly appears he does not, and I hope the senator takes action. We think of the federal judiciary as serving for life, only because a mere 13 judges have ever been impeached, and only seven of those have actually been convicted and removed from office. But the congressional power of removal is right there in Article II, Section 4, of the Constitution.

The allegations against Nottingham, a George H.W. Bush appointee and former law-firm associate of Salazar's, were characterized by the senator in a Denver Post story on Mar. 28 as suggesting the judge has failed to "serve in an exemplary manner, both on and off the court." He is accused of drunken carousing at strip clubs, surfing porn sites in his chambers, patronizing an escort service, and behaving abusively toward a wheelchair-bound woman in a parking dispute.

The case highlights a definitional gap between the Article II language about "impeachment for... treason, bribery, or other high crimes and misdemeanors," and the Article III clause about good behavior. While being a sleaze, a lush, and a boor may not be a firing offense in some jobs, let alone a crime or misdemeanor, it surely violates the behavior expected of federal judges, as Salazar's words indicate. "Bringing disrepute on the federal judiciary and betraying the public's trust" were two of the three offenses for which Judge Harry Claiborne of Nevada was impeached and convicted in 1986, according to the Justice at Stake campaign. Sounds like Judge Nottingham to me.

The Justice at Stake backgrounder linked above quotes the late Chief Justice William Rehnquist as saying that removal of judges by Congress over policy disputes was forever put off limits by the 1806 acquittal of Samuel Chase, the only Supreme Court justice ever impeached. This is no more than one man's opinion, however, since the judicial branch (and the executive) explicitly have no role whatsover in, and no judgment over, the legislative branch's impeachment power. Indeed the institutionally self-serving bias of Rehnquist's opinion could not be more obvious.

Of course he wouldn't want any countervailing authority from Congress against the Supreme Court's potential overreaching and abuse of judicial power. But so what? It remains for Congress to do what its members have the constitutional fidelity and political courage to go ahead and do.

Though I as a Republican seldom agree with Salazar as a Democrat, in this case I salute his fidelity and courage for threatening the ultimate sanction against a seemingly out-of-control Judge Nottingham. The concern here is obviously not policy, but morality, ethics, decorum, and demeanor (NB: the opposite of misdemeanor). Regardless, I argue we need more -- much more -- recourse to impeachment of judges, and as the legislative branch begins finding its nerve on the personal-conduct front, perhaps congressmen and senators will start picking the right fights on the power-abuse front as well.

Justice at Stake, as you will see from their website, is a coalition of the judicial and legal establishment which seems to want just the opposite of what I and other judicial reformers do. They note worriedly that three of the seven successful removals of wayward federal judges have occurred in the past two decades -- that of Claiborne in 1986, followed by those of Judge Alcee Hastings in Florida for perjury and bribery and Judge Walter Nixon in Mississippi for lying to a grand jury, both in 1989. They also note that threats of impeachment to state judges have recently almost doubled, from 27 in the four years before 2001 to 51 in the four years after.

This they attribute to a "growing 'outrage industry' seeking to intimidate and fire judges." That's one view. Another view would be that judicial activism on policy -- and the accompanying God complex leading to personal recklessness such as Colorado has seen in the recent Nottingham, Manzanares, and Biddle episodes -- has pushed citizens and political actors to the breaking point, with consequent willingness to treat the impeachment provisions of our federal and state constitutions as less of a dead letter.

One of the most dramatic moments of my six years in the Colorado Senate (and one of my keenest personal regrets for not having supported it) came in the spring of 2004 when then-state Rep. Greg Brophy and other House Republicans filed House Resolution 1007 as a bill of impeachment against state Judge John Coughlin on two counts of "malfeasance in office for denying the right to freedom of religion guaranteed by the First Amendment of the United States Constitution and Section 4 of Article II of the Colorado Constitution" and one count of disregarding the Colorado Revised Statutes, stemming from his ruling in a two-mommies adoption case.

That measure, sadly, died in the Republican-controlled House Judiciary Committee, with Speaker Lola Spradley offering little encouragement and with Gov. Bill Owens -- along with Senate President John Andrews -- on record against it.

But Brophy was right and I was wrong. If I had it to do again, I would support the Coughlin impeachment. Ken Salazar is right about the Nottingham impeachment today. It should proceed.

Memo to my libertarian friends

“Conservative gathering, liberal dose of pessimism,” was the headline over a Mar. 28 story on the previous night's panel hosted by Face the State, America's Future Foundation, and the Independence Institute. The Rocky's reporter, who was sitting to my right, not laughing while feverously jotting notes, did a passable job describing the occasion. The article, however, didn’t quite capture the feel of the event. The venue was elegant, the food and wine quite tasty. The speakers, of which four (including the moderator) were libertarian and one lone conservative, bantered about the libertarian-social conservative rift and its toll on the party.

One of the libertarians, Independence Institute’s Jon Caldara, identified Republican disintegration along with liberal Democrats' solidarity, cash, and smarts, as the reasons the West was lost. Even more insightful was his observation that big-government Republicans -- be they of the blueblooded country club variety, the big spending, entitlement expanding “compassionate” variety, or the give me taxpayer money for my business/chamber of commerce/organization/pet project variety -- are the real enemy of conservatism, not social conservatives. I hope other libertarians were listening.

I think what surprised me about the event is just how much antipathy libertarians have for social conservatives. That might be too strong of a characterization but there seemed to be an unkind edge in some of the humor. As a person who is both a fiscal and social conservative I felt a little battered. Nevertheless, I want to help heal the breach. And so here’s a little food for thought for my libertarian friends.

Stereotypes: not helpful. Evoking Jerry Falwell as a typical social conservative is not useful. A) He’s deceased. B) Though a player two decades ago, he’s been largely irrelevant since. A disheveled, government-phobic, dental-challenged libertarian from a fortified bunker in Montana probably has little in common with you, so I won’t conjure that image in every single speech and debate.

Secondly, on our differences (gay marriage and drug legalization just to pick two), I actually have some logical reasons for my beliefs. We could discuss them and possibly find common ground or at least an appreciation for each other's reasons.

Calling me a bigot who wants to deprive people of civil rights isn’t exactly a thoughtful response to my concerns about the impact of gay marriage. My primary objection to same-sex marriage is a libertarian one – it suppresses dissenting views. The state of Massachusetts shut down a Catholic adoption agency because it did not adopt to same-sex couples (the agency does not even receive government money). The same thing has happened in England. In Colorado, gay couples are free to call themselves "married," live together, have children, etc. Their status is recognized by those who agree with their lifestyle. State intervention in favor of these unions would force anyone who does not agree to shut down their business or organization. That doesn’t sound like freedom to me.

On drug legalization, I sympathize with cancer victims and believe strongly that if marijuana helps them they should have as much of it as they need. Let’s not be naïve. The average pot smoker is not a terminally ill cancer patient or a responsible yuppie couple who smoke occasionally in the privacy of their own home after the kids are tucked in. It’s the guy who is unemployed or underemployed who uses me, the taxpayer, as his health insurance provider. Even though he might be able to handle working behind the 7-Eleven counter, his counterpart on meth is probably a little too wired and wild-eyed for customer service. This guy would rather break into my house and steal my stuff to pay for his habit.

How much of my taxpayer money goes to health care, food, housing, treatment programs, and other services for potheads, meth addicts, junkies and crackheads? We sure need more of these guys, and legalization would guarantee it. I’m happy to have a civil debate about the impact of legalization of drugs or vice generally on civilization if you promise not to drag cancer patients and hemp farmers (hemp is used to make rope, by the way) into it.

Yes, I’m being cheeky but the point is that people in this coalition are going to have differences based on real concerns. Conceit, stereotyping, and bitterness are not productive. We need each other. If we only want to work with people with whom we agree 100% of the time, it’s going to be a small crowd, powerless against the proponents of big government control.

The Cato Institute speaker that night predicted a mass of libertarians going over to Obama. Great idea if you want to work with people who are diametrically opposed to everything you’ve worked for all your life. National health care, high taxes, adding a gazillion more government programs to an already behemoth federal government – yep, that’s compatible with libertarian thought.

If you want to jump ship out of spite, you might end up in the water with the sharks. Or, we can work together. Your call.

Editor: See also Jessica Corry's followup report from the same evening.

Barack spins for survival

Obama on the campaign trail isn't practicing what he preached (pun intended) in last week's widely praised speech where he sought a more open, honest dialogue about race in America. Barack Obama was in North Carolina yesterday, giving a new version of his stump speech. The senator has apparently found the Lord, and wants to share with his audiences just how pure and mainstream a religious man he is. He's on a new strategy to downplay his 20+ year association with Reverend Wright of the Trinity United Church in Chicago. The four-part spin goes something like this:

(1) Minimize it: In comments to one crowd, Obama called this whole issue of Wright an unnecessary "distraction" from the real problems people face in this country. "We can't lose sight of America's real issues -- like the War in Iraq -- every time someone says something stupid".

Now, calling Wright's sermons simply "stupid" is, in my view, a significant back-track from the major speech he gave last week on the issue of race, when he rejected Wright's views and condemned them.

Obama also stressed that Wright has given three sermons a week for 30 years and that those opposed to his candidacy had found "five or six of his most offensive statements" and "boiled" them down to play over and over. "I hope people don't get distracted by that."

Why should people get distracted by the fact that the spiritual adviser to the presumptive Democrat candidate for President of the United States should blame white America for 9/11, the Palestinian problem and all the problems of blacks in this country?

(2) Mainstream it: Yesterday, Obama spoke of the Trinity United Church as if it were the most tolerant, open congregation in the country. "Everybody is welcome to come to Trinity United Church of Christ on 95th Street. It is a wonderful, welcoming church," he said. "If you were there on any given Sunday, folks would be doing the same things in church at Trinity as they do everywhere else. They're praising Jesus. They've got a choir singing. It's a very good choir. And the pastor is trying to teach a lesson to connect scripture to our everyday lives."

Unfortunately, Obama stopped short of citing the specific scriptures that tells us that the U.S. government created AIDS to destroy the black community, or that introduced drugs into black neighborhoods.

(3) Backtrack from it: Though in his widely reviewed speech on Race last week Obama admitted to having attended some of the Wright sermons that were universally found offensive, yesterday he backtracked, saying that Wright had said some "very objectionable things when I wasn't in church on those particular days."

I guess it depends on what the meaning of the word "in" is...if it means "in church" as actually sitting in the pews, or if it means "in church" as in standing in the parking lot where he couldn't really hear the sermon going on inside. Bill Clinton would be proud of such practiced dissembling.

(4) If You Can't Beat 'em, Join 'em: In Greensboro, Obama's campaign staff has found the Lord as well, now using prayer before his events, something that began since the controversy over Wright and his remarks. "Thank you for this time of excitement and enthusiasm," a local reverend prayed. "I pray a special blessing, oh God, a special blessing, on Barack Obama." The audience was then led in the Pledge of Allegiance. And if there was any question that Obama is a religious and patriotic American, he ended his speech with a "God bless America."

So, the candidate who wouldn't wear an American flag on his lapel pin is now cloaking himself in both the bible and the flag at his campaign events. Does this not strike you as a cold and calculating way of actually avoiding that real discussion of race that he says he so desperately wants in America?

This strikes me as disingenuous, and I hope most of America will not buy what Obama is selling now: a "slick Willie" style attempt to triangulate his position and his beliefs, with an obvious hope that the public will eventually be so confused by the ever-changing position that they will simply remember the last thing that the candidate says.

We've had enough dissembling in the White House. It is time for some straight talk!

"Eat an environmentalist"

So goes the joke: If you're freezing and starving in the dark because the green movement made energy and food ever more expensive, eat an environmentalist. But the thing about the left is, you can't lampoon them because their actual behavior is ludicrous in itself. The latest example is "Earth Hour" at 8pm this Saturday, when the World Wildlife Fund wants everyone's lights off to signal alarm about global warming -- and Mayor John Hickenlooper is of course genuflecting to the "Go dark" ritual on Denver's behalf.

If you thought technology, progress, and the advance of civilization were leading to a brighter future for all of us, rich and poor alike -- especially the poor, ahem, Mr. Mayor -- the joke's on you. A darker, chillier, hungrier future is in store if the gloomy greenies get their way, which they seem to be doing.

"Darkness was cheap, and Scrooge liked it," Dickens tells us. The same Hick who tried to steal Christmas off the facade of city hall a couple of Decembers ago is now leading the lights-out brigade for the Mile High City, just in time for April Fool's. No shining city on a hill for him.

Here's how the World Wildlife Fund explains the Earth Hour stunt: "Cities around the world will join together in literally turning off the lights for one hour to offer leadership and symbolize their commitment to finding climate change solutions. Lights will be turned off at iconic buildings and national landmarks from 8 p.m. to 9 p.m. Local businesses and restaurants will also be asked to turn off their lights. People at home can take advantage of the hour by replacing their standard light bulbs with energy-efficient compact fluorescent bulbs."

Doing the latter by candlelight, we presume; no flashlights allowed either.

Cross-posted on the Gang of Four blog at PoliticsWest.com

Obie didn't make the sale

Obama failed to explain how a church can harmonize Wright's "God damn America" with Christ's "blessed are the peacemakers." My own limited experience worshiping in a black inner-city church has been diametrically different. Rather than Wright's hateful condemnation of white people, the message at this church contained not a tinge of racial exclusivity. [Editor: That's from Mark Hillman's latest Capitol Review column. Here's the column in full.]

Obama not so different rationalizing race, Wright

"If you really believe black people are 'fellow Americans,' then treat them as such." - John McWhorter, "Losing The Race"

If Barack Obama truly wants to transcend race, he would do well to apply the words of John McWhorter to his "explanation" of his pastor, Rev. Jeremiah Wright.

Obama is supposed to be different: a messenger of hope and change, not just another beltway politician; an agent of reconciliation not grievances and reparations; a unifier who transcends partisan and racial divides.

That's why many gave him the benefit of the doubt when he explained that he didn't wear a U.S. flag lapel pin because he viewed it as a "substitute for ... true patriotism."

That's why some gave Michelle Obama a mulligan when she said, "for the first time in my adult lifetime, I am really proud of my country."

That's why Obama's rating as the most liberal senator in 2007 by the respected National Journal never seemed to resonate beyond conservative circles.

However, in addressing his 20-year relationship with Wright, whom he calls his spiritual mentor, Obama sounded like every other scripted politician snared by a public relations debacle. Obama's devotion to Wright peeled back the veneer in a way that voters of every stripe could not ignore.

If he was prescient enough, according to fellow travelers, to have foreseen the perils of war in Iraq, how can he imagine that Jeremiah Wright never talked "about any ethnic group in derogatory terms" in private conversations?

If he really possesses "judgment to lead," why wasn't his judgment as keen as that of Oprah Winfrey who left Trinity United Church of Christ several years ago?

If his oratorical skills are so remarkable, why didn't he explain how sermons referring to the "US of KKKA" or "a world ... where white folks' greed runs a world in need" can conceivably coincide with aims for racial harmony?

The insurmountable obstacle for people who previously extended to Obama the benefit of the doubt is that the aforementioned can no longer be easily dismissed as aberrations or gaffes. Instead, they fit more easily into a profile of someone who doesn't afford that same benefit to others.

If U.S. flag lapel pins are symbols of superficial jingoism, were we to ignore that Obama surrounded himself with at least a half-dozen full-size flags for his speech explaining his relationship with Rev. Wright? Equally conspicuous was the absence of trademark signs sloganeering for Hope, Change, Judgment and Leadership.

Absent, too, was evidence of the courage so often assigned to Obama. Few people who take their faith seriously would continue to attend - much less donate $20,000 to - a church where the pastor regularly punctuates his sermons with rants like those Obama described as "not only wrong but divisive."

The very public rift between the Catholic church and parishioners who disagree with church doctrine on abortion and gay marriage is a marked contrast to Obama's supposed silent disapproval of Wright's message.

Moreover, Obama's assertion that Wright's church contains "the bitterness and bias that make up the black experience in America" should be insulting to black congregations that, regardless of their political ideology, recognize that the universal message of Jesus Christ compels Christians to preach the truth in love and to embrace forgiveness.

Obama failed to explain how a church can harmonize Wright's "God damn America" with Christ's "blessed are the peacemakers." My own limited experience worshiping in a black innercity church has been diametrically different.

Rather than Wright's hateful general condemnation of white people, the message at this church whose congregants were almost certainly aligned to the political left was vibrant, both spiritually and personally challenging, and although socially candid, contained not a tinge of racial exclusivity.

Accepting Obama's contention that Wright's public pronouncements do not square with his private persona requires, to quote Hillary Clinton, "a suspension of disbelief."

Obama's white grandmother, he says, confessed a fear of black men and uttered racial stereotypes. But she did so privately. People are generally more coarse and unguarded on any subject in their private utterances than in their public pronouncements. Obama would have us believe that Wright said things from the pulpit that he would never say privately.

The candidate who would unify us by transcending race has, unfortunately, resorted to the same race-based rationalizations that perpetuate division and thwart hopes for a post-racial society.

"A person you excuse from any genuine challenge is a person you do not truly respect," McWhorter writes. Obama's desire to be elected appears to have surpassed his desire to be respected.