In case you didn’t notice, the Legislature is NOT in session today…

Having a busy workday today, and don’t really have time a lot of time to dwell on the SC Supreme Court’s sensible decision in stopping Nikki Haley from violating the separation of powers. The salient part:

Chief Justice Jean Toal and justices Donald Beatty and Kaye Hearn voted to block Haley’s order to call lawmakers back at 10 a.m. Tuesday, writing that the General Assembly “has not adjourned … and, therefore, is still in its annual session. Under these specific facts, respondent (Gov. Nikki Haley) cannot convene an ‘extra’ session of the General Assembly since it is currently in session. To do so would interrupt the annual session and would violate the General Assembly’s authority to set its calendar and agenda and would constitute a violation of the separation of powers provision.”

That was the thing. My good friend Kevin Hall (the governor’s attorney) had stated rather forcefully that the governor has the authority to call back lawmakers. Yeah. But she can’t call them BACK when they’re still in session (although in recess), and already have a defined agenda, and tell them have a whole other session in the middle of this one, and use it to do what I want. As I’ve said before, I am for having a much stronger governor in South Carolina (which is why I agree with the gov on three of the four things she wants). But I want a chief executive with more power to run the executive branch, not dictate legislative matters to a coequal branch.

A perceptive friend who doesn’t follow this stuff as obsessively as I do said, after reading The State‘s story, that Glenn McConnell doesn’t seem to think much of the governor. Well, to be fair, Glenn McConnell doesn’t think much of any governor, although they’re all right in his book as long as they know their place.

After saying in his courtly way that he would be happy to support amending the agenda when lawmakers come back as planned so as to allow them to take up the matters that concern the governor, he said this:

“I support the bills, and we’ll vote (on whether) to put them in the sine die,” McConnell said Monday, referring to the resolution that lays out the bills that senators can consider when they return. “But I’m only one of 46 senators. If (Haley) will use as much energy to get votes as she did to run over the Constitution, she’ll make it. She needs to get out and get the votes. The ball is in her court.”

I was busy laughing at the Senate president pro tem’s statement that “I’m only one of 46 senators” (he is such a wacky cutup) but when I got to the next sentence, I was like, “Whoa! Sen. McConnell is not amused…”

68 thoughts on “In case you didn’t notice, the Legislature is NOT in session today…

  1. Brad

    By the way, here is McConnell’s statement released last night after the ruling:

    “There are two important points to be made about today’s ruling by the South Carolina Supreme Court:

    First, this is a victory for a limited and constitutional government. What we saw today is an example of the system of separation of powers operating the way the founder’s designed it.

    An equally important point to stress is this ruling is also a victory for reform.  It simply means we will enact reform within the law and within our Republican form of government.

    As I have said all along, I support the restructuring measures the Governor advocates.  And I’m hopeful those issues can be addressed when the General Assembly returns to session on June 14.

    As one Senator, I will support efforts to move restructuring forward by including them in the Sine Die Resolution. I hope that the Governor’s attempted unconstitutional actions to this point do not hurt efforts to give the executive more power.

    Thanks to today’s ruling we can now all focus on achieving reform that is lawful and constitutional.”

    I THINK he meant to say, “our republican form of government” rather than “our Republican form of government.” (Maybe not a big deal to you, but I believe in the former and not in the latter.) Of course in South Carolina, I guess it works either way…

  2. bud

    Yeah, Yeah. The governor overstepped her authority and got slapped down. But at least she tried to get her agenda passed. Everyone should admire her efforts even if you don’t agree.

  3. Scout

    Haley said this in response to the ruling:

    “It is unfortunate that today three of the five members of the Supreme Court disagreed with every other court in the nation and the attorney general,” Haley said in response to the court’s ruling. “But we must move on, and Sen. McConnell now insists that he ‘support[s] the effort to add those items to the Senate’s agenda when [they] return on June 14.’ We expect him to be true to his word, and that as Senate President Pro Tempore he will ensure the Senate take up – and pass – these critical government reforms first thing next Tuesday. The people of this state have demanded this, and the Senate needs to deliver.”

    What is she talking about saying they disagreed with every other court in the nation? Did I miss something? Also, how can she think that McConnell can ensure that the Senate pass these bills?

  4. Brad

    Yeah… that was a pretty bizarre comment. I didn’t say anything about it because I could not figure out quickly where to grab hold of it, it was so odd.

    It’s sort of like Sarah Palin’s Paul Revere comments in that regard — just not as obviously wrong to the average schoolchild.

    For instance — this was a question of SOUTH CAROLINA law. That is something about which other state courts do not make rulings. And if they did, it would not count. The latter statement also applies to the attorney general. What the attorney general thinks is a mere matter of opinion. What the court rules counts. Different as night and day. What she said was better than if she had said “It is unfortunate that today three of the five members of the Supreme Court disagreed with every member of the studio audience on ‘So You Think You Can Dance’…” but not much more relevant.

  5. Brad

    This, of course, is a key to who Nikki Haley is. She thinks it’s the same. She thinks everybody has a legal opinion that is equally valid. This sort of nonsense can arise when one dabbles too much in populism…

  6. Doug Ross

    Isn’t her point that a 3-2 decision means there must be some disagreement over the interpretation of the law?

    Roe v. Wade was a 7-2 decision. So why do we still talk about it?

  7. Doug Ross

    Anyway, given the choice between public opinion and the biased opinions of politically appointed justices (especially those with significant personal foibles), I’ll take public opinion.

  8. Tim

    you may as well say “Mob Rule”. I don’t know of another way to get justices other than through the political process… except maybe a lottery.

    I have a mantra,… “Politics is what the other guy does”

  9. Brad

    That is a toweringly cynical statement even for you, Doug… “the biased opinions of politically appointed justices…” You’re kidding, right? You prefer uninformed public opinion? Really? Tell me, what would be a method for choosing justices that would be without political taint in your mind, that would cause you to have respect for the rule of law — which necessitates trusting justices to do the jobs they are duly appointed to do?

    As for “Isn’t her point that a 3-2 decision means there must be some disagreement,” that was PART of her point. And, you’ll note, not a part I argued with.

    As for Roe — that was not an illegitimate thing that arose from “the biased opinions of politically appointed justices.” It was just based on a really bad precedent, a previous case that had absurdly “discovered” a “right to privacy” in the constitution, a right supposedly so clearly established that it overrode issues of life and death, based on nothing more substantial than a “penumbra.”

    In terms of the legitimacy of the system, the worst thing about Roe is the awful gyrations that serious people have gone through in the years since to defend it. It has truly distorted the thinking of even really smart people like Barack Obama, in terms of their concepts of the way to approach judicial selection. I wrote about that before the election

  10. bud

    Seems like if a 7-2 court ruling is against Brad’s worldview then it:

    “… was just based on a really bad precedent, a previous case that had absurdly “discovered” a “right to privacy” in the constitution”

    On the other hand if the decision is 3-2 for something Brad defends then we should all just shut up and “respect the rule of law”. Seriously Brad you can’t have it both ways. Either court rulings are the rule of law that should be respected or they’re not. To continue to hammer away at an issue (Roe) that has clearly been settled and then accuse the other side of defending it with “awful gyrations” is simply dispicable.

  11. Doug Ross

    Why shouldn’t judges be term limited and elected by the people?

    Sorry, but the appointments of Kagan and Sotomayor to the highest court FOR LIFE is not a sign of a good system. They were appointed because of their particular baised view of the law. Just as Scalia and the useless Clarence Thomas (who apparently has never asked a single question during a Supreme Court case). That’s the best we can do?

  12. Doug Ross

    And they don’t call her Queen Jean for nothing… please don’t try to tell me she hasn’t used the power of her position for her own personal gain.

  13. Doug Ross

    From that same article:
    “In response to a complaint from the liberal advocacy group Common Cause, for example, Thomas in January amended years of financial disclosure filings to include the employment of his wife, Virginia. Thomas had failed to report income by his wife, a conservative activist who has backed Tea Party issues and candidates”

    As usual, Brad, you tend to focus on the theoretical ideal and dismiss the practical reality. Pointing out the obvious isn’t cynicism. Thinking it won’t ever change is. And it won’t change.

  14. Mark Stewart


    You’ve got that as wrong as Doug did.

    If the “thing about Roe is the awful gyrations that serious people have gone through in the years since to defend it…” is indeed true, then one would have suspected that there would be a majority view to repeal it. There is not. On this, as on a couple of other issues, you are out of step with both the majority view and the “best” outlook (since they aren’t the same 1/3 of the time). That’s okay, we all find ourselves on the “wrong” side of some issues. But please don’t say I’ve got to go to any extreme to see that Roe v. Wade was good and just for America.

    On the other hand, it is kind of appalling that two of the state supreme court justices could find a way to validate Haley’s actions. While I support a stronger executive branch in this state, I see no possible basis in law for her to do what she did – the way she did it. Nobody since has made a compelling argument in her favor. So what were the two justices thinking? What was Alan Wilson thinking?

  15. Brad

    Wow. I’m having a lot of trouble being understood today. But that happens whenever people bring up the subject of Roe… which I did not…

    And I must confess that while I infer that Mark misunderstood me, I’m not entirely sure, because I’m not certain what point he is making (which is unusual, because Mark is usually so clear). My point was that very smart people have come up with some really unfortunate ideas about judicial selection as a way of perpetuating and defending that ruling. Did you follow my link to that previous column? That explained my point more fully.

    And Bud’s comment seemed to assume that I was ATTACKING Roe in that bit that he quotes, presumably because it’s “against Brad’s worldview” when what I was trying to do was say that Roe wasn’t something that illustrated the illegitimacy of the court (Doug, remember, had called the SC court decision illegitimate and then drew a comparison to Roe, thinking that I would feel about Roe the way he felt about the SC case. But I don’t. And then I went on to explain what I DID see as the problem with Roe, and how that was different from what Doug was saying.

    That’s OK, isn’t it — that I have an opinion about Roe, and have reasons for that opinion? I hope so… I mean, I do have reasons for all my opinions. That’s because I’ve thought through each one, rather than buying my views wholesale from the left or the right. If I didn’t do that, I wouldn’t blog. I realize a lot of blogs are about resonating to one party’s view or the other’s — touting the party line and attacking whatever the other SIDE does. With me, it’s about taking advantage of the medium to explain how my views differ from those, and why.

    Oh, as for Doug’s “Why shouldn’t judges be … elected by the people?” The answer is, because that would be the worst of all possible options. Might as well not have a judiciary.

    One of the key ideas in our system — right up there with separation of powers — is the idea that the three branches are able to check and balance each other. A significant reason why they are able to do this is that the different branches are chosen differently. Two out of three branches — the POLITICAL branches — are in one way or another elected by the general electorate. But even among THOSE, the Framers wisely came up with an assortment of election methods, giving them differently constituted constituencies, so that they would NOT all be coming from the same political frame of reference. In other words, they wouldn’t all be trying to get elected by the same bunch of people at the same time, and trying to resonate to the exact same political whim of the moment (the Framers, rightly, had a horror of momentary political whims; if you read the newspapers they did, you probably would, too). In modern terms, they were trying to avoid having everybody reacting to the same latest poll results. They wanted the long view, and a careful view.

    Not that the momentary, popular thing didn’t have a seat at the table. That was what the House was for — directly elected, and elected for only two years. The House was designed to twitch to whims of the moment, and tends to do so.

    The Senate WAS designed to be very different — representing states instead of narrow House districts (a way to give smaller states with less population more of a say in the new union), and elected for longer terms, and staggered so that they’re not all running at the same time. We’ve weakened that quite a bit by going to direct election of senators, which I tend to believe was a mistake, but we still have the longer, staggered terms, and that keeps the Senate different from the House.

    Then there is the presidency, the only official (aside from the virtual nonentity of the vice presidency), elected nationally, using the Electoral College. The Framers wanted to make sure the president’s power was limited, with their fears focused on avoiding having a king. (What they could not anticipate was a modern-media presidency that has every single move it makes scrutinized by the entire country, or a White House that vibrates to every Tweet.)

    The Court was lifted above all that political madness, as much as humanly possible, by requiring that the president nominate and the Senate confirm (thereby making the process more consensus-like), and by making them lifetime appointments. A lifetime appointment has its drawbacks (if you get a bad one), but the Framers saw it as worth it to have someone who doesn’t worry about re-election interpreting the law. (Of course, the principle of judicial review wasn’t firmly in place until Marbury v. Madison, but at least that happened during the Framers’ generation, with the leading Framer as one of the parties.)

    The absolute worst system imaginable — and unfortunately, a number of states have imagined it — would be direct election of judges, with the candidates running about with their fingers constantly in the wind.

  16. Doug Ross


    ” Nobody since has made a compelling argument in her favor. So what were the two justices thinking? What was Alan Wilson thinking?”

    They were thinking the same thing the three who voted against Haley thought, “What’s in it for me?”

  17. Kathryn Fenner (D- SC)

    @ Mark Stewart–Alan Wilson + thinking

    Your search has returned 0 items.

    Alan Wilson apparently didn’t want to get “called out” for Darla Moore treatment–sure, he’s an elected official, but one who dares not cross the powers that be–or maybe he really is as dim as he seems.

    Similarly, Chief Justice Toal knows which side of the case butters her bread (well, lately, it’s been margarine, but…)….

  18. Doug Ross

    “Doug, remember, had called the SC court decision illegitimate ”

    Where did I do that? I didn’t say anything close to that. I said a 3-2 decision means 2 of the highest ranking judges in the state saw some merit in the Haley decision. Your narrative about the situation would lead one to think it was a 5-0 decision without any merit.

    So 3-2 wins. But 3-2 means one of two things: a) it isn’t a clear cut case or b) there is politics involved in the judicial decision making process. My guess in this case is that it more of b than a. On both sides.

    And there you go again.. you expound eloquently upon the virtues and history of the three branches in theory but ignore the reality of the implementation of said system which doesn’t come close to those lofty ambitions.
    Jean Toal ain’t Solomon.

  19. Brad

    OK, whoa, hang on… I was about to say “Wow, Doug, you are really on a, uh, tear today…” I knew you were cynical, but WOW.

    And then Kathryn, an officer of the court, seems to agree (there at the last). “Butters her bread?” Really? In what sense? Explain to me the personal advantage she gains in such a ruling.

    Sorry, folks, but I’ve spent a great deal of time observing our court system, and our political system, and the rest of the world (especially the wild-and-woolly private sector that Doug likes so much), and the thing that strikes me about the judiciary is the degree to which it overcomes the HUGE human inclination toward self-interest, in the service of the law. Nothing is perfect, but this does far better than a student of human nature should expect.

    Yes, certain judges and justices, and certain courts, have a tendency to rule certain ways (compare the 4th Circuit to the 9th, for instance), but that tends to coherently follow tendencies to actually interpret the LAW in those different ways. I see little sign that personal self-interest is involved in these differences of opinion. Again, given the way humans are, the system is remarkable for the LACK of such.

    When we did Power Failure (1991), I had a lot of concerns about the Court being what Doug thinks it is today — a hotbed of cronyism. Specifically, I was concerned that it was an extension of the Legislature, and its active ally in preserving the status quo. (This worry was based mainly in the fact that in SC the Legislature has too much power; in a state with a stronger executive I’d have been less concerned.) The main danger was that there was little in the way of standards to ensure that justices were NOT political hacks.

    But — largely through the efforts of Glenn McConnell, whom you will see me disparage on other occasions, but who deserves credit here — the screening process was vastly improved to raise the quality of the bench. Am I satisfied? No. I’d like to see the Legislature sharing this power with the executive, along the federal lines. (And I suspect that Glenn probably reformed the system, in part, to weaken any movement in that direction. That’s an old legislative pattern in SC — to retreat a bit to absorb the momentum for reform.) But the system is much better.

    And it is FAR better than the alternative most often proposed — direct election. That would be disastrous.

  20. Brad

    Doug, you characterized the ruling as “the biased opinions of politically appointed justices,” which is an attack on the legitimacy of the Court. You placed it lower than popular opinion, which when you’re talking about an institution such as the court, is pretty much delegitimization.

  21. Brad

    But I’m glad you clarified. I’m glad you defended the minority opinion as being the views of two of “the highest ranking judges in the state.” That’s the way I view it, too. I see merit in the minority opinion, and respect the minority just as I do the majority. I do not dismiss the minority as “the biased opinions of politically appointed justices.” But of those two respectable views, I think the majority one was right.

    That’s the thing about the way I view our courts. People rant and rave against certain “liberal justices,” or against Scalia, Roberts, et al., largely based on their own political prejudices. I tend to respect most of them, including when I disagree with them. That doesn’t keep me from criticizing what I see as a bad tendency — as I did above with the Obama view (which is hardly his alone) on judicial selection (which, briefly, is alarmingly outcome-based rather than law-based). But as you know, I greatly respect Obama.

    What disturbed me was the language you used to describe the majority of the court, which did not reflect that same sort of respect that I value…

  22. Mark Stewart


    Hilarious! Thanks for the laugh. No offense to Alan Wilson, but he had an opportunity to do what he said he would do and he missed it by a country mile.


    I give all the players more credit than that; and yet I do also assume that that thought entered the calculus for all (see, math skills ARE good, no?).

  23. Mark Stewart


    I took your comment as more broad-based than you intended it I see (at least in this instance regarding abortion). I did not read your link to the older blog until later; so I did miss the narrowing of the issue that you were framing to one of judicial selection.

    But once I read it, I still didn’t agree with it. There you were (on the old blog) getting all State’s Rights on us about an issue of personal life, liberty et al and presenting what three years later still looks to be a bit of a stilted view of both McCain and Obama. Maybe I’m a bit more of a Hamiltonian Federalist then McCain’s kind of “Federalist” or something. Separation of Powers means just that; it does not mean that the Supreme Court should have fewer powers than the Executive or Legislative Branches – just different ones. It would have been possible in the intervening decades for the US Congress to override Roe v. Wade legislatively in some way so as to significantly restrict abortion availability. And yet that branch has not done so…

    Furthermore, the idea that this kind of issue ought to be one of State’s Rights is most bizarre. That to me is distorted thinking. With social issues related to life, liberty and the pursuit of happiness, and all the controversies which surround them, state legislatures have proven for centuries to be little more than forums for mob rule. Isn’t that what you say you abhor?

  24. Doug Ross

    Sorry… but I did not call the specific ruling illigitimate. I said what I said – it was 3-2, which means it was either a matter of interpretation of the law and not a clear cut case of Haley being out of order in her request/demand. Your personal bias toward everything Haley says and does “flavored” your writing to make it look like Haley was tossing aside the SC Constitution. 3-2 decisions can’t be that egregious… you just want to present Haley in the least positive light.

    My comment about favoring public opinion is what it is and was addressing the judicial system generally not this specific case. You just refuse to get bogged down in the details and the reality.

    For example, there is a case involving a high ranking USC employee convicted of embezzlement who has yet to be sentenced after many months. Here’s the story from The State on Sunday:

    Why should judge Casey Manning be able to avoid sentencing this criminal AND not even explain WHY he is avoiding doing so? In the court of public opinion, the crook would be sitting in jail right now. But when the crook has ties to USC and the judge has ties to USC, well, maybe there’s a little less judicial purity going on.

  25. Kathryn Fenner (D- SC)

    Brad–Did you miss the pilgrimage Justice Toal is required to make each year to secure even halfway decent funding for the judicial branch? I didn’t mean to say she personally needed the grease–it’s that she’s forced to go coif in hand to beg for her branch of government.

    Plenty of lawyers agree that jurisprudence in SC is greatly affected by the need to remain in the good graces of the holders of the purse.

  26. Brad

    Kathryn, I see your point, but I must have missed it when the Legislature got all generous with the judiciary. I thought the court system was hurting for adequate funding — backed-up dockets from lack of enough judges, etc. But I admit I haven’t looked at it in a couple of years, at least…

    Doug, let me tell you something about Nikki Haley… I was backing Nikki Haley probably before you had heard of her. But a couple of things happened, and they are important. One, I had one concern back when I was endorsing her, one thing that gave me pause — she did not have a particularly deep understanding of issues, or even of fundamental concepts of how the American system of government not only works, but is supposed to work. She spoke in bumper stickers, rather than offering thoughtful analysis. I wrote that off to inexperience, and figured she’d learn. I thought she had the capacity to do that. In the meantime, I comforted myself that she occasionally signed on to a good idea — such as greater voting transparency (or for that matter, three of the ideas she was trying to get the lawmakers to come back to consider) — and was willing to push it. I was willing to put up with a little superficiality and naivete on that basis.

    Unfortunately — and this is the second point — she became infected with overweening personal ambition and a willingness to pander to some pretty unsettling strains of populism in order to gain power, and gain it quickly. As a result, she did not get better with experience; she got worse. Rather than gaining a deeper understanding of the issues she was talking about, she embraced her oversimplifications as a badge of honor. Among the constituency she was riding to power, experience and nuance and understanding are BAD things, and so she happily rejected them.

    She became — and this was a startling transformation — openly arrogant about her own poorly-considered assumptions about the world. She became, in her own unembarrassed estimation, the A-plus governor, the woman who never loses, the person who is so wise and wonderful that she presumes to grade everyone else on their performance, based on (of course) whether they agree with her.

    She really was not like that when I was endorsing her. That is to say, she was not OPENLY like that. But now, every time we turn around, she’s doing something else wrong, and loudly proclaiming that it’s everybody else that’s wrong, not her.

    She is terribly unqualified and unprepared for her current position (even as she looks eagerly beyond it to higher office), and yet acts as though she is the perfect person to hold that office, and is always right.

    This is interesting… we’ve had a couple of cracks here about Jean Toal and her drinking-and-driving incident(s). A comparison is instructive. Here we have a flawed person who has made personal mistakes, but is by the estimation of every qualified person I’ve ever heard from on the subject HIGHLY qualified for her job, which she does very well. That’s Jean Toal.

    Then we have Nikki Haley… let’s not even get into the (unsupported) allegations about HER personal life. Let’s look instead at the way she has conducted herself in office, quite publicly, and how it indicates, time and again, her unsuitability for the position she holds. Again and again, we see someone who is in over her head, but is convinced she’s doing a fantastic job.

    That’s a real problem. And I’m sorry that you don’t like it that I keep pointing it out. That’s what I do; it’s what I’ve always done. Ask Mark Sanford. Ask Jim Hodges — or David Beasley.

    This state badly needs the leadership of a good governor with a full toolkit of the powers that a chief executive should have in order to be effective. We’ve never had a governor with all the tools a good governor should have. And it’s been awhile since we’ve had a really good governor. I see pointing that out as an essential function of political commentary.

  27. Scout

    It is interesting to read what the judges actually said:

    They only disagreed over when she could call an “extra” session; they were in complete agreement over her not being able to set the legislative agenda. The 3 majority judges thought you couldn’t have an “extra” session if another session was still in progress. The 2 minority judges thought the Governor could call an extra session any old time. I think they also said that the Governor’s judgement on what constitutes an extraordinary occasion cannot be challenged (which is a little troubling) so they didn’t even get into the reasons.

    But all the judges were unanimous on the point that even if the Governor calls an extra session, she/he does not have the right to set the agenda – only the legislature can set their agenda, due to the separation of powers. It is comforting to me that they said this unanimously.

    so…… you can lead a horse to water but you cannot make him drink.

    Haley can’t make them take up the bills she wants. She probably ought to practice being not quite so bossy about it if she wants them to actually cooperate.

  28. bud

    This state badly needs the leadership of a good governor with a full toolkit of the powers that a chief executive should have in order to be effective.

    After all the rambling we finally get to the crux of the matter – restructuring. Geez, with the governor’s we have had isn’t it clear what a complete disaster that would be? And please don’t start in on that nonsense about how better people would get elected if we just had that restructuring. Anyone who believes that I’ve got a great bridge I’ll let go at a bargain price. Really Brad try to think this through. The voters are not going to choose a decent governor, ever. Didn’t the last election lay that fiction to rest once and for all?

  29. Steven Davis

    To add to your comparison, do you think if Toal had to run for her position that she would get elected? If you’re hearing she’s “highly qualified” you need to talk to others besides Democrats.

  30. Brad

    Steven, what you say about “Democrats” makes no sense. It was the Republican-dominated Legislature that re-elected Chief Justice Toal in 2004 (and a Republican-run HOUSE when she was re-elected the first time, in 1996 — and in judicial elections, it’s the House that matters). Jean Toal’s qualifications are simply not something against which you can raise a credible partisan argument.

    As for “do you think if Toal had to run for her position that she would get elected?” Ummm… maybe you missed when I said electing a judge is the worst possible idea. This helps illustrate it. If Jean Toal had run for her position against, say, John Edwards (also a skilled attorney, in his way), John Edwards would have won. After all, he won his one major primary here. And that helps illustrate what’s wrong with popular election of judges.

  31. Kathy

    Thank you, Brad, for your comments about Nikki Haley. Brilliant observation. She is a woman in way over her head. She doesn’t know it, and the state is suffering and will suffer more because of it.

  32. Steven Davis

    So our choices would have been John Edwards, who had an affair and child out of wedlock or Jean Toal, who likes to drink and drive. Is one really better than the other? I can’t stand either one of them but I’ll take an affair over someone who repeatedly puts my life in danger.

  33. Kathryn Fenner (D- SC)

    Brad– Jean Toal has correctly advocated for more funding, saying that justice is getting seriously delayed, to the point of denial. She has not been as successful as she should have been–and therefore cannot afford to further antagonize the keepers of the purse….

    There ought to be a constitutional guarantee of minimally adequate funding for the judicial branch.

  34. Kathryn Fenner (D- SC)

    @ Steven and Brad– Jean Toal is indeed widely agreed, among those in the best position to judge–people with advanced training in jurisprudence, a/k/a/ lawyers, to be highly qualified. Her judicial chops are excellent–she can analyze and write opinions with the best of ’em.

    She is also widely known for less savory traits–bullying underlings and other high-handed behavior, for one. A tendency to be more “results” oriented than precedent-following, especially when it is politically expedient. Maybe she has to be that way, maybe not. The subject of many debates among members of the bar.

  35. Brad

    I don’t know about that. My cousin used to clerk for her, and I’ve never heard any complaints…

    As for a constitutionally guaranteed budget — I’m leery of that. It’s kind of an essential element in our system that the legislative branch sets funding priorities. Brings us back to separation of powers…

  36. Brad

    Oh, by the way, everybody should read what Scout said above. Dead on. That’s what I should have said, instead of going off on my tangent about the American System, with the fife playing “Yankee Doodle” in the background. I do that sometimes — I go into Oliver Wendell Douglas mode with little provocation…

    What I said makes more sense AFTER you read what Scout said

    Thanks, Scout.

  37. Steven Davis

    Give constitutionally guaranteed budgets for the judicial branch, then education is going to demand this, then higher education, then SLED, then every other state sponsored social program, etc… We’ll end up with the TERI program all over again.

  38. Kathryn Fenner (D- SC)

    Except that in the balance of powers, the judicial branch is one of three–not like education, SLED, etc….

    But you knew that, unlike our Governess.

  39. Kathryn Fenner (D- SC)

    Wait staff across the Midlands tell different stories from your clerk niece about Madame Justice Toal.

  40. Doug Ross


    Don’t bother trying to present an opposing case on Toal… once the blinders are on, they don’t come off. I still think Brad would endorse John McCain today.

  41. Mark Stewart

    And then there is the point that the two things that do check the Judiciary Branch are legislative appointments and budget allocations. So I’m good with that model – it keeps the balance in balance.

  42. Kathryn Fenner (D- SC)

    –but Mark–the power to tax is the power to destroy–as is the power to allocate budgets. At some point, there needs to be some decency in budget allocating….at some point, the legislature is starving the judiciary to the point that the judiciary will do anything….we are closer to the second point.

  43. Brad

    Going back a couple of days: I think Mark misunderstood me on that column from 2008. It wasn’t a “State’s Rights” thing. It was about separation of powers. And subsidiarity.

    Representatives elected to a legislative body should decide something like abortion. It should NOT be decided by plebiscite; nor by judicial fiat. It should go through the same political process of deliberation as laws about the regulation of commerce, or insider trading, or bank robbery.

    Then subsidiarity comes into it. It would make little sense for something like that to be decided on the federal level. Whether you consider abortion to be a form of homicide or just another medical procedure, it would fit generally into the categories of things that are otherwise decided on the state level. I’m not talking the kinds of fundamental sovereignty issues that are at stake when someone says “state’s rights.” I’m just saying that’s the level at which such things are normally decided.

    I realize that if you believe abortion is a fundamental U.S. Constitutional “right,” you find that hard to believe. Personally, I find it hard to believe that we first, in Griswold, discovered a “right” to privacy previously hidden to us in the Constitution, and then used that as a basis for an absolute right to an abortion. The most bizarre manifestation of that, in a country based on laws and not men, is that doing it that way allowed a life-and-death matter to be absolutely decided by the one most personally interested individual involved in each case. It flies in the face of everything else we do in our legal system, which normally requires interested parties to recuse themselves.

    Mind you, I would dread having state legislatures fighting over this, distracting them from all sorts of other things they need to be dealing with. The passions would overflow onto everything, and poison any hopes for consensus on issue after issue.

    But in our system, it IS the proper way to decide such an issue.

  44. Mark Stewart

    No Brad, I did understand your position. I was fundimentally disagreeing with the idea that civil rights issues ought to fall under the jurisdiction of individual states. As you said, that’s where simple civil and criminal codes, etc are rightly to be decided. Those issues which rise to a higher level of relevance within the framework of our Constitution, whether enumerated or not, ought to be considered at the congressional level. Whether you find a right to be an actual right is immaterial, the mear fact that an issue is considered in those terms is enough to make it of national importance.

    We are Americans, first, before we owe an allegence to a state.

  45. Brad

    And there’s the fundamental disagreement, the place where we fail to hear each other because we start from such different places.

    To me it’s about due process to decide whether a life will be terminated. Capital punishment is a state legislative matter; why wouldn’t abortion be? For you, that life is not relevant to our discussion; it’s about the supposed “right” of another individual altogether. One that, surprisingly, the court decided existed — on the basis of the equally unlikely previous discovery of a “right” to privacy.

    I wonder, just to change the subject a bit… in this Facebook age, with the notion of personal privacy in tatters as a result of the constant voluntary surrendering of privacy by hundreds of millions, will a successful challenge to Griswold eventually surface? And then, what happens to Roe?

  46. Doug Ross


    Next time you are in Borders browsing, take a look at Ron Paul’s new book “Liberty Defined: 50 Essential Issues That Affect Our Freedom”.

    The issues are ordered alphabetically and “Abortion” is first. I think you would be pleasantly surprised to read Dr. Paul’s view (it only runs a couple pages). I could picture the exact words coming out of you.

    And he makes a great case for the states rights position… as well as asking the important question of how one can determine when a fetus has rights. As an OB/GYN Paul has a very clear understanding of the process and the impact.

  47. Kathryn Fenner (D- SC)

    Brad–the Supremes discovered the right not to be discriminated against because of race fairly late in the game, too.

    As I’ve said many times before, if you believe abortion is homicide, your approach is far different from when you believe a fetus is a dependent clump of cells with only the potential to be a separate life at viability.

    I guess coming at Griswold v. Conn. from the modern side, I find it very hard NOT to see a Constitutional right to privacy in marital contraception decisions, but then I’m also not a Catholic with a handful of offspring. We have protections against unreasonable searches and seizures–that’s a huge right that casts what seems to me to be a penumbral shadow that encompasses a right to privacy in contraceptive decisions. Otherwise, the State cannot search your house without a warrant or extreme exception, but they can say what’s in your bedside table. Since to a majority of the Court in Roe v. Wade, as well as an enduring majority of Americans, a pre-viability fetus is not the same as a baby, we are talking private medical decisions one step further than contraception….

  48. Mark Stewart

    I was thinking the same thing; your viewpoint from the criminalization perspective (the sancity of life from conception) and mine from another entirely.

    Whether you meant to or not, your starting point – a specific religious perspective – points out why this is and should be a federal issue. That’s the appropriate due process venue in my mind.

    I think things will play out a bit differently over time. I would say it more likely that the Supreme Court will end up taking up the issues surrounding the concepts of marital / spousal rights.

  49. bud

    Brad, I’m not going to repeat my arguments favoring the pro-choice position on abortion. It would do no good, even though to me the arguments are both sound and completely unassailable. I would suggest to you that you stop wasting your time on this. I understand you feel very strongly about it but honestly this whole state’s rights approach to abortion is utterly ridiculous. It’s a 100% federal issue, period. I just don’t follow the state’s rights argument on this at all. It just makes no sense.

  50. Brad

    I did not bring it up. I hate seeing it come up at any time. I’ll close with two points, for clarity:

    — I don’t view it as a “states’ rights” issue. That was someone else’s term, and it doesn’t really describe my position.

    — I realize y’all do this out of habit, but you don’t get to dismiss this as a “religious” issue, banishing it behind Jefferson’s rhetorical wall. You may find that convenient, but it’s not accurate.

  51. bud

    Capital punishment is a state legislative matter; why wouldn’t abortion be?


    I don’t view it as a “states’ rights” issue.


  52. Brad

    That’s right. Surely, when you’re talking about which level of government would normally deal with a matter, you don’t always call it a “states’ rights” issue.

    To me, and I think to most people, “states’ rights” refers to fundamental issues of sovereignty. The kind of thing that led to that dust-up in 1860-65. Or the thing that has all these Tea Party types reviving the Nullification movement over Obamacare. Big, fundamental matters of RIGHTS. Or perceived rights, anyway.

    This is more like… well, I don’t think there should be a federal department of Education. It just doesn’t make sense. It’s not a function of the federal government. But there are no “rights” or sovereignty issues involved. It just doesn’t make sense to involve that level of government in that particular matter. It’s about the sensible administration of government, not about “rights.”

    In fact, it’s when you start talking rights that we get into trouble on this — one absolute standard at war with another, incompatible one.

    To me, it’s more like… when I was editorial page editor, and somebody called with a state government matter. I would probably refer the caller to Cindi. That was her area. I wouldn’t have referred the person to Warren, because Warren has his hands full with metro-area issues.

    This is not because giving it to Warren would violate Cindi’s “rights;” it’s just that it wouldn’t have made good organizational sense. See what I mean?

  53. Brad

    Y’all will like this. I just got an invitation via Facebook to a “House Party Fundraiser and letter writing campaign” in Forest Acres. So I’m like, THAT’S really nonspecific, so I followed the link to the page, and found this:

    “The fund is the only one of its kind in South Carolina that raises funds from the community to help women afford pregnancy terminations. Some are for young woman as young as 13…. We have helped over 30 women obtain this legal service in SC and want to continue our assistance…”

    Oh, hell yeah! Put ME down for TWO checks to that cause…

    I’ve been getting a lot of screwy stuff lately on Facebook…

  54. Mark Stewart

    Not that I’m believing the marketing hype or anything like it, but let’s have a little empathy for a thirteen year old.

    This is a classic example of why I find this whole debate to be so distasteful: dogma trumps all.

    On one hand the example of a (too) young girl is used to solicit support, and on the other a reader would use ellipses to highlight a section of the appeal and yet not remove the line about the 13 year old.

  55. Brad

    I think we are all perfectly horrified by the plight of the 13-year-old.

    That’s what my pro-choice friends find it hard to conceive of — that I could be fully empathetic, and rule out the nuclear option for such situations. And yet… my pro-choice friends who oppose the use of force in the conduct of foreign policy make just such a decision. That yes, there may be great injustices, people could be dying for the lack of our actions in this or that trouble spot, but for them it does NOT justify using deadly force. Well, that’s where I am on this.

    And I’ll admit that I am guilty of thinking sometimes that my more pacifistic friends (and to make this easier to take, let’s not talk about Iraq, let’s talk about, say, people who don’t want us involved in Libya) sometimes don’t care enough about the plights of people oppressed by a Qaddafi.

    But that doesn’t mean I’m right, does it?

  56. bud

    I oppose foreign intervention because they invariably result in huge numbers of civilian casualties and displacement, military casualties, increased levels of radicals who hate America and the high cost. It is a completely false to suggest we oppose American intervention in foreign countries even though that will help alleviate suffering and death. I find those arguments crap.

  57. Kathryn Fenner (D- SC)

    re: states rights– I think commenters are using that term as short-hand for “those rights not explicitly federal rights, as in those reserved to the states under the tenth amendment.” “matters of state law, rather than federal.”

    The personal federal civil rights are trumps to the general police power of the sub-federal government.

  58. Brad

    People come to all sorts of accommodations with themselves. One of the most frustrating conversations I’ve ever had with someone on this subject (and that’s really saying something, since I have known very few such conversations ever to produce anything like progress toward agreement) was with a friend who managed to convince me that she was fully cognizant of what an appalling thing an abortion was — she recoiled from the horror of it — and yet nevertheless made the cold calculation that having it freely available on demand was necessary. This was horrifying because this person wasn’t the sort to be cold or calculating or Spocklike about anything else.

    And I looked at her the way antiwar friends look at me when I propose to send in the Marines somewhere, and for the same reason. I fully get how horrible war is. That is, I do as much as anyone possibly can without directly experiencing it and being personally scarred by it. But sometimes the moral cost of not acting militarily seems greater. Some people truly can’t imagine how I could advocate such a thing. I find it equally puzzling that thoughtful, moral people could believe that whether abortion is right or wrong is a matter of personal choice.

    I see the impasse both ways. And I don’t know how to get past it.

  59. Brad

    Oh, and thanks for reaching out and trying to be understanding there, Bud. (I read his comment after I wrote the above one.)

    Kathryn, here’s the thing: I am not talking about “rights.” I mean, I could. I could talk about the right to due process before a life is taken away, which I happen to think is WAY more strongly implied in the Constitution than a “right to privacy.”

    But I’m not. I haven’t proposed that argument. Y’ALL are the ones who insist that a “right” — civil or otherwise — is involved here. So yeah, from your point of view rights talk, and the involvement of the federal court system in protecting said right, makes a certain sort of sense.

    But I’m not talking about a right. See? I mean, you do see the difference between that and an argument based in subsidiarity about the proper level of government for dealing with a particular issue? As you say, “commenters are using that term as short-hand for ‘those rights not explicitly federal rights, as in those reserved to the states under the tenth amendment.’ …matters of state law, rather than federal.”

    But the “those rights… reserved to the states” does not enter into what I’m saying…

  60. Kathryn Fenner (D- SC)

    Well, abortion has been going on since the beginning of history. It is not going to stop happening just because you make it illegal again. Millions of young girls and women have died horrible deaths or permanent mutilations from illegal abortions. All making it illegal is going to do is hurt more women and girls–especially poor ones who cannot fly to Canada or Europe for a safe legal one.

    That seems like a defensible position to me. It’s like butchering animals for meat, or euthanizing a human or animal in great pain–I find it very difficult to contemplate doing, but there are many unpleasant things in life…

  61. Brad

    I’m just going to say this as calmly and dispassionately as I can…

    It most assuredly is NOT, in any conceivable moral sense, “like butchering animals for meat.”

    I’m going to disengage for a bit now.


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