You did it. Thank you to those of you who heeded the call to contact U.S. Senators to encourage them to oppose the nomination of Goodwin Liu to a seat on the U.S. Court of Appeals for the Ninth Circuit. The Senate refused to end debate (or end the conservative-led filibuster) by a vote of 52-43.

Not only did liberals fall eight votes short, but the final tally suggests that Democrat-controlled Senate would be unable to confirm the Obama nominee even if Liu did get an up-or-down vote. Liu was one of Obama’s most radical and inexperienced judicial nominees. Our members (and thousands of other grassroots conservatives) mobilized, and we stopped this judicial disaster in the making. After the vote, Prof. Liu asked President Obama to withdraw his nomination. Victory achieved!

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The Ninth Circuit Court recently set forth a ruling on an interesting case involving arbitration clauses in contracts. A couple received two complimentary cell phones from AT&T as part of a bundled-service contract but were charged $30.22 in sales tax required by California law.  As part of their contract, the couple agreed to arbitration.  As part of the arbitration clause AT&T agrees to pay $7500 plus fees if an arbitration award exceeds the amount last offered by AT&T before the settlement.  The couple claimed they were misled and filed a class-action law suit, despite their having signed the contract agreeing to arbitration.

The ruling by the Ninth Circuit, in Laster v AT&T Mobility LLC, called the contract unconscionable and refused to enforce the clause requiring arbitration.  The Court felt that such a clause, by disallowing class action, would result in little enforcement of contracts.  Because the amount involved is small, the individual customer would probably not find it worth the opportunity cost of their time to go to arbitration, and thus AT&T could default on lots of small contracts for minimal amounts and not fear an arbitration settlement.

There are a number of reasons why this ruling should be overturned.  First, it flies in the face of the Federal Arbitration Act of 1925, which was passed to provide certainty to contracts that have arbitration clauses.  The Act requires federal courts to enforce arbitration agreements unless they violate standard contract law doctrine, such as fraud, duress, or are unconscionable.  For a contract to be unconscionable, in this particular case, it must be seen as a scheme of the party in a stronger bargaining position to cheat large numbers of consumers.  The standard arbitration contract doesn’t meet any of these standards.

The contract with AT&T is clear.

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Yesterday, the Supreme Court of the United States heard arguments in an appeal of a 9th Circuit decision, Winn v Garriott, a challenge to one of Arizona’s education tax credit programs. It’s been getting more press than I’d expected, in the New York Times, the Washington Post, USA Today. That’s great news, because the case is far more important than just saving a program that improves education and expands educational freedom.

The 9th Circuit’s reasoning arrogates to the state all property , dissolving the distinction between public and private funds as well as public and private choices. It is a disturbing, dangerous decision.

They assert that tax cuts are the equivalent of government funds, a conclusion possible only if one assumes that all personal income belongs by default to the state rather than to the individual who earned the money. It asserts as well that when taxpayers and parents privately choose to support religious educational organizations, they are in violation of the First Amendment. This reasoning blatantly ignores the logic and plain meaning of the 2002 Zelman decision upholding school vouchers, among others.

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Wednesday’s federal court decision on Arizona’s immigration law is being rightly criticized for a number of reasons. But there are three silver linings to this situation, which may result in the rule of law prevailing in the end.

On July 28, Judge Susan Bolton of the U.S. District Court for the District of Arizona issued a preliminary injunction—meaning she stopped from going into effect—most of the key provisions in Arizona’s new law. As I’ve written previously, this law should be held constitutional because it’s not an immigration law; it doesn’t determine who can become a citizen or who can be on American soil. Instead it’s a police-power law, where Arizona says that if you’re not permitted to be in this country, then you’re trespassing if you enter Arizona, and if you have a run-in with the cops for some other reason, then those cops can ask if you’re in this country illegally.

This is not an immigration law. It’s also not racist. It’s not racial profiling. And it’s not usurping the role of the federal government (which has abysmally failed here).

Instead, it’s an employment law and property law. That authority arises from Arizona’s police power to make laws for public safety, health, and societal welfare—which the Constitution reserves to the states through the Tenth Amendment.

But as bad as the federal court’s decision is, there are three silver linings to it that could see the rule of law prevail in the end, to the benefit of everyone—including foreigners who want to work here.

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The United States never was intended to be a democracy, but rather a compound republic delegating clearly enumerated powers to the federal government and creating a masterfully designed system of checks and balances amongst its three branches meant to limit Washington’s intrusions on the sovereignties of the several states and the liberties of their peoples.

As attentive students of the New Deal know, however, any brake that the federal judiciary might think of applying to the expansion of the central government’s powers was undermined by FDR’s proposal to “pack” the Supreme Court after his landslide reelection to the White House in 1936. Although it failed to become law, the court-packing plan nevertheless soon was followed by the famous “switch in time that saved nine”, thereby ushering in a period of judicial deference to the executive and legislative branches that fulfilled the president’s intent, namely securing a working majority of justices willing to clear the path of constitutional objections to the Social Security Act, the Wagner Labor Relations Act, minimum wages and other legislative monuments to his “progressive” agenda. More than any other consequence of FDR’s politically-motivated meddling, the Commerce Clause thereafter became a dead letter, as Ms. Kagan candidly admitted during her recent confirmation hearings.

Mr. Obama apparently has as little respect for the third branch of government as FDR had. Twice rebuffed in tests of the moratorium he imposed on offshore deepwater drilling by the federal courts, issued by executive order on May 27, the president responded by ordering a new ban on exploratory drilling in waters deeper than 500 feet, effective until November 30.

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The Constitution and the Second Amendment are in the spotlight this week on two fronts.  First is that oral arguments are being held in the McDonald v Chicago case to possibly apply the holding in Heller to the states.

In addition, Senators are beginning their evaluation of the judicial nomination of Berkeley professor Goodwin Liu to the Ninth Circuit Court of Appeals in a vote that will tell a great deal about Senator Reid’s adherence to Constitutional principles such as those specified in the Second Amendment.

Senator Reid has a terrible record on judicial nominees to the U.S. Supreme Court.  In DC v Heller, there were four dissenters from the holding that the right to bear arms is an individual right.  Harry Reid had a chance to vote on three and he voted for each one – Breyer, Souter and Ginsburg.  Harry Reid has a chance to vote on four of the majority justices, and he voted against three of them – Thomas, Alito and Roberts.  If Harry Reid had been successful in defeating any of these three, Heller would have been in jeopardy.  That’s six out of seven bad votes on the Supreme Court.

Four of those bad votes were cast in his very first term, when my primary opponent Sue Lowden was his loyal contributor.

There will be hearings on professor Liu, but I am specifically interested in a particular book he co-authored on jurisprudence entitled “Keeping Faith with the Constitution.”

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