Kristol: Wrong Again

William Kristol began his illustrious tenure at the New York Times last winter by getting his facts wrong in his very first column when he cited the wrong source for a quote. Since then he has managed to demonstrate his flair for the error in both perception and fact, and today is another case in point.

In trying to make the case that John McCain is the exception to the rule that the current crop of GOP candidates running in special elections in previously safe Republican strongholds stink on ice (0-3), he cites a number of factors that bode well for Mr. McCain, including the ruling last Thursday by the California State Supreme Court overturning the ban on same-sex marriage.

On Thursday, the California Supreme Court did precisely what much of the American public doesn’t want judges doing: it made social policy from the bench. With a 4-to-3 majority, the judges chose not to defer to a ballot initiative approved by 61 percent of California voters eight years ago, which defined marriage as between a man and a woman. In 2003, the Massachusetts Supreme Judicial Court redefined marriage in that state, helping to highlight the issues of same-sex marriage and judicial activism for the 2004 presidential campaign. Now the California court has conveniently stepped up to the plate.

Obama’s campaign issued a statement that its candidate “respects the decision of the California Supreme Court.” The McCain campaign, by contrast, said it recognized “the right of the people of California to recognize marriage as a unique institution ... John McCain doesn’t believe judges should be making these decisions.” Since the next president will almost certainly have one Supreme Court appointment, and could have two or three, this difference on judicial philosophy could well matter to voters — and in a way that should help McCain.

Furthermore, the action of the California court will remind voters of the Defense of Marriage Act, which says a state is not required to recognize same-sex marriages performed in other states and which was passed overwhelmingly by Congress and signed by Bill Clinton in 1996. McCain voted for and supports it. Obama opposes it.

If Mr. Kristol had bothered to read the history of the case or the ruling itself rather than launch his typical right-wing volley of "activist judges" missiles, he would have known that the court ruling was not making social policy from the bench at all, but doing exactly what the court was created to do in the first place: interpret the laws and the constitution of the state. The California Assembly had twice tried to pass laws legalizing same-sex marriage, only to have them vetoed by Gov. Arnold Schwarzenegger, who wanted the State Supreme Court to first decide whether or not such laws would pass constitutional muster. The court so ruled on Thursday, citing only the state constitution and pointedly avoiding the social policy aspect of the case.

This isn't rocket science. As Glenn Greenwald has pointed out in a column on the New Jersey case in 2006, you don't have to be a legal scholar to figure this out.

Anyone can read the judicial opinion, then go read the precedents on this provision, and inform themselves about what the [California] State Constitution does or does not guarantee. But -- as is true for any other topic -- a basic understanding of the relevant issues, so plainly lacking in all of these overnight experts, is required to be capable of anything more than baseless demagoguery.

The same is true for the California case.

The point is that whoever wants to make a reasoned argument about the court's ruling must -- by definition -- familiarize themselves with the relevant issues, and there is only one relevant issue here: does the California State Constitution bar the law in question? The way our government and system of laws were created, judges have no discretion if the answer to that question is "yes." They're required to strike down the law. As Alexander Hamilton put it in Federalist No. 78, regarding the duties of the federal judiciary: "wherever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former." [Emphasis in original.]

In other words, anyone who declaims on the ruling of the court without knowing the facts of the case and the basic premise of the law behind it is making it quite clear that they don't know what they're talking about and is using the ruling for nothing other than political posturing in hopes that the people who hear them will not have bothered to examine the issue themselves. The fact that William Kristol can try to get away with it is no surprise; this kind of demagoguery is his stock in trade, and I'm pretty sure that even if he had bothered to read the facts of the case, he would still try to exploit it. The fact that he uses it in a column to try to make the case for electing John McCain (and in doing so cites McCain's own ignorance of the facts as well) and contrast that with Barack Obama's position of respecting the decision of the court -- the same thing Gov. Arnold Schwarzenegger said -- only makes it very clear -- one might say Kristol-clear -- that he won't let reality get in the way of a right-wing talking point.

(Cross-posted.)