D.C. Circuit Judge Janice Rogers Brown has long been controversial since her nomination was opposed by many for what were viewed as extreme view as a member of the California Supreme Court. She was finally confirmed in a deal in the Senate that many denounced as a surrender by Democrats. Now Brown has used an opinion to denounce “powerful groups” and courts for limiting “Cowboy capitalism” that she says has been “disarmed” in America.
The diatribe came in Hettinga v. United States, where the court rejected Hettingas that contribution requirements applicable to all milk handlers constituted a bill of attainder and violated the Equal Protection and Due Process Clauses. In the opinion below, Brown and conservative colleague David Sentelle wrote to express sympathy with the Hettingas and their “understandable” “sense of ill-usage.” The central point of the concurrence appears to be a desire to express dissatisfaction “with the gap between the rhetoric of free markets and the reality of ubiquitous regulation.” She then added:
“America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.”
The opinion has raised questions of the propriety of such statements in dicta. Opinions are not meant to be opportunities for judges to hold forth on their views of the proper course of political and legal trends. At the time of her nomination, then-Senator Barack Obama took to the floor to join those denouncing Brown:
Justice Brown has shown she is not simply a judge with very strong political views, she is a political activist who happens to be a judge. It is a pretty easy observation to make when you look at her judicial decisions. While some judges tend to favor an activist interpretation of the law and others tend to believe in a restrained interpretation of the law providing great deference to the legislature, Justice Brown tends to favor whatever interpretation leads her to the very same ideological conclusions every single time.
I do not see how this statement falls within any reasonable view of appropriate judicial opinion writing. It is less dicta than diatribe. What do you think?
Here is the opinion: 11-5065-1368692
“We are a fascist oligrachy as all government really are.”
No. What we are has happened over time. If all governments were fascist oligarchies, political science texts (and some law texts) would be about 10 pages long. Governmental forms are manifold and there are many different names to reflect this, but they are different and those differences are in operation.
“True capitalism would be if government didn’t exist as true communist is when no capitalism exists and everyone works for the government. All governments are on a sliding scale, fascist, depending on what levels of taxation and regulation the have. The lesser the level of taxation and regulation, it is said the greater the amount of capitalism and vice versa for communism but neither in totality has really ever been achieved. Most terms like this are used in context to specific issue, theories or systems and when people take them out of the appropriate contexts, the terms then become useless as communicaton tools.”
Libertarian nonsense. Government may not be perfect, but it is necessary. You also demonstrate that you don’t know what fascism the political science term actually means or that it comes in as many different forms as democracy. The dream of laissez-faire capitalism is just that: a dream. Without government? The contracts at the heart of capitalism wouldn’t be worth the paper they are printed on. Enforcement would only be as good as the individual ability to force compliance with terms. Also, the scree against taxation (which no matter what Rothbard or any of those clowns say isn’t theft) and regulation (which history shows to be required to prevent the abuses of industry to society as a whole, the labor force and the environment) is nothing more than an appeal to profitability: that which is profitable must be good. Horseshit. Many things that are good for a society simply cost. End of story. But corporatist fascism – which is the specific flavor of fascism currently infecting our country – depends upon profits and the free market mechanisms as incentive. As our individual freedoms erode, the incomes of the 1% skyrocket. If you think that’s a coincidence, you’d be wrong. The Libertarian anti-tax/anti-regulation mantra plays right into the corporatist fascist agenda by consolidating wealth to a narrow band of the populace and removing controls from industry and markets. Whether this is on purpose or out of sheer stupidity or ignorance I leave to the perception of the readers, but there is no mistaking what the mechanics of laissez-faire capitalism bring when put into practice – tyranny, be it corporatist fascism, plutocracy or some other form of oligarchy. There is only one positive cure for oligarchy and that’s more and better democracy – something neither of the two major parties or the Libertarians are interested in having no matter what their public pronouncements are to the contrary.
“Almost all institutions have various degrees of cronyism embeded in them as people recomment there friends, acquaintences, classmates etc. when jobs are available. It’s is a natural human trait. People generally don’t recomment strangers for a position.”
Systems, even political systems, can be engineered to minimize such behavior. Our current system is set up to encourage it. To expect perfection is to live a life of permanent disappointment. To try to maximize the efficiency of man-made systems though is the proper aspirational goal, a workable methodology and what this country is all about: seeking the better for us all, not just the 1%.
“We are surely not a capatalist nation as our money is not even free market derived, at least the last time I check, government was still printing up Federal Reserve Notes.”
Just more Libertarian nonsense. We most certainly are a capitalist nation, just not a laissez-faire capitalist nation. Throughout history, there has never been such a political/economic creature as a Libertarian/laissez-faire nation although nations have come and gone since the advent of those ideals. Their hasn’t been one for the same reason there hasn’t been any anarchist societies of any scale. They don’t work in practice and at scale. Like Communism, the inverse of laissez-faire Libertarian practices, they are a system that works only on paper. They are idealized and do not properly account for human nature and how to regulate the excesses of human nature on a societal scale. Communism failed in part becuase it discounted individual motives to work. Laissez-faire capitalism – which is encroaching on our system more and more each day as the corporatist fascists take over – will not work because it caters to the worst in human nature: unfettered greed. The only way to effectively manage society at scale lies somewhere betweeen the two extremes. Absolutists systems and solutions rarely if ever work. The nature of reality is an analog bell curve. Solutions, like problems, are rarely simply or absolute. A command economy is not the answer nor is a laissez-faire economy. The answer is somewhere in between. A form that recognizes democracy and works in the interests of all the citizens and yet allows non-abusive commerce to operate as freely as possible. There is a political/economic form that does that already defined, it just makes the both totalitarians and laissez-faire types heads explode when they hear it said aloud.
skiprob 1, April 17, 2012 at 2:14 pm
Dredd, I like the term oligarchs better. No need to complicate issues when there is no need. “Leadership by the Few”,
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Complication is the natural consequence of variance.
Like not trying to call every color “color” to “simplify”.
Like Einstein said, make things as simple as possible, but no simpler.
Here are some forms of government that are given different names because, golly gee, they are different:
(Who Are The Job Creators?). Different strokes for different folks is a reality.
Calling something “oligarchy” when it isn’t is perhaps something you like, which is fine, but that does not make it so.
The 1% – 99% divide creating the “two Americas” is based on wealth, thus the term plutocracy is a valid application.
Remember the pop term “money talks and bullshit walks?”
skiprob,
who is being taxed heavily? the wealthy aren’t, the corporations aren’t and unless Paul Ryan has his way, the middle class isn’t. At least on a Federal level. Tell us who is being taxed too heavily?
I can’t even believe I missed such ignorance. Who isn’t taxed too much? The medieval surfs, considered slaves, were only taxed 10% of their total income. Take a wild hair ass guess what the average person in the world is paying in total taxes today. $35% to 90% . Any mathematician could easily conclude that this Ain’t gonna work. Redistribution of wealth has always worked well hasn’t it???? Check out the world economic system. Doing wonderful isn’t it? How can it be that such smart people say such ignorant things? ?????
rcampbell:
I read her senior thesis from Princeton. She may not be a card carrying party member but she sure wouldnt have any problem sharing the wealth.
She is a radical political operative but so what? You have yours and we have ours.
The Supreme Court lost any respectibility it may have had a long time ago.
From Judge Brown’s definition it sounds like “cowboy capitalism” is fascism.
Dredd, I like the term oligarchs better. No need to complicate issues when there is no need. “Leadership by the Few”, works quite well to determine who is making the decisions even if you incorporate all of Congress, the central bankers and the Judiciary. What a few thousand people controling a nation of 325 MM +/- That’s power my friend. The use of heavy taxation and regulation is best defined in my opinion as fascsim and that is why I call the U.S. a fascist oiligarchy. It’s very fitting.
Gene H. 1, April 17, 2012 at 1:33 pm
Blame goes to the bad actor. Bush is not only an unidicted war criminal, but a corporatist pandering fascist too.
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Well said.
Bron 1, April 17, 2012 at 9:54 am
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Isnt that called fascism?
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Among other things. But from an economic perspective it is called a plutonomy.
From the perspective of those calling the shots, it is called a plutocracy.
Blame goes to the bad actor. Bush is not only an unidicted war criminal, but a corporatist pandering fascist too. His crony capitalism is what caused us to disastrously invade a country that did not attack us on 9/11 – Iraq – while aiding and abetting a country that did attack us on 9/11 – Saudi Arabia. That Obama has turned out to be just as pandering as Bush but to different special interests is irrelevant other than it points to the fundamental flaw in the system which is that unlimited political donations create a de facto state of graft – a pay to play system which is oligarchical and not democratic.
Gene, agreed except for the part on crony capitalism. We are a fascist oligrachy as all government really are. True capitalism would be if government didn’t exist as true communist is when no capitalism exists and everyone works for the government. All governments are on a sliding scale, fascist, depending on what levels of taxation and regulation the have. The lesser the level of taxation and regulation, it is said the greater the amount of capitalism and vice versa for communism but neither in totality has really ever been achieved. Most terms like this are used in context to specific issue, theories or systems and when people take them out of the appropriate contexts, the terms then become useless as communicaton tools. Almost all institutions have various degrees of cronyism embeded in them as people recomment there friends, acquaintences, classmates etc. when jobs are available. It’s is a natural human trait. People generally don’t recomment strangers for a position. We are surely not a capatalist nation as our money is not even free market derived, at least the last time I check, government was still printing up Federal Reserve Notes.
http://www.ourfuture.org/blog-entry/2011093715/top-5-list-5-biggest-right-wing-lies-about-solyndra
You’re right Gene. It doesn’t mean that. But when you single out “conservatives” and George W. Bush without mentioning Obama and “progressives” then it seems that such a mindset is prevalent.
Does not accepting the propaganda of the right mean one accepts the propaganda of the left? No.
rcampbell is demonstrating clearly the mindset of being trapped in a left/right, Democrat/Republican paradigm, AKA, the Matrix. Everything he is accusing Bush of doing is also being done in another way by Obama. Solyndra is a great example of an Obama fraud perpetrated on the public in an act of crony capitalism. The “too big to fail” banks are still getting bigger and bigger under Obama, and he reappointed Bush’s FED chariman, Bernanke, to make sure those banks had all the cheap money they needed.
I would add something, but Frankly, mespo and rcampbell hit the high spots. What they said.
And Bron! You’ve really got to stop using words you don’t know the meaning of like “fascism”. Sure, it’s greatly entertaining for literate readers, but it only makes you look ridiculous . . . which come to think of it is also greatly entertaining. So. Never mind. Carry on.
Since conservatives here choose to spew partisan trash and outright lies (“Considering Kagan is a socialist…..”) instead of choosing to think, I’ll define the easy phrase Cowboy Capitalism for them. Cowboy capitalism was best illiustrated during the fiasco of the GWBush presidency. It was, in fact, the hallmark and the approach of which he was most proud—and his and the country’s biggest failure. It’s where capitalists get to do whatever they choose to whom ever they choose whenever they choose to do it with no oversight, no regulations and no recourse for their victims. It provides a comfortable business environment at the expense of consumers, workers and the country in general. It’s what was ultimately responsible for creating the near worldwide credit crisis in 2008 which caused the economic disaster we’re still dealing with. It’s the cause of the dead miners in WVA and dead oil riggers in the gulf along with the worst environmental disaster in American history. In short, Cowboy capitalism is the unrestrained, government (and apparently this judge’s) approved assault on the American consumer by the wealthiest and most powerful. It is a plague on American-style regulated capitalism and something that MUST be stamped out like the cancer it is.
The use of taxation and regulation to fleese the taxpayers is not capitalism, it is fascism and legalized corruption by definition. Please read Capitalism; the unknown idea by Ayn Rand or Free to Choose by Friedman so that I don’t have to go into a discertation to give you a clearer understanding. There is no such thing as cowboy capitalism. It’s newspeak
Skiprob has nailed it. The government is a bird of prey with both right and left wings. These wings are both working toward the same ends.
The term “crony capitalism” simply refers to the government giving unfair advantage, unearned money, or other welfare assistance to corporations. The TARP program was a good example of the term, as was the bailouts of AIG, GM, and Chrysler.
Oh, please, Ron Paul again?? skiprob, attorneys sue other attorneys and powerful interests everyday. Have you heard of the ACLU? Attorneys who file suit against anyone and everyone who attacks the Constitution. I think Mespo hit on it. Judge Brown is looking for a promotion to join her fellow ALEC inspired judges.
Nope never heard of the American Civil Liberties Union. You actually think that Judge Brown is looking for the approval of ALEC. Go figure, another Federalist Judge. Man you’re sharp as a tack. Just busting you chops for busting mine a little. Government is a power brokerage cartel, of course she wants to be in the power group or she wouldn’t have gone through all the BS and brown nosing to get where shes at. What many don’t want to believe is that it is a single cartel with an illusion of competing philosophies. If you are one of those, you are as I say, still stuck in the matrix. The oligarchy is a highly coordinated group that’s sole purpose is to control the majority of major commerce, taxation and government spending. The central bank for instance is an integral part of the system as is the judicary.
The problem is that Mitt Romney is no better than Obama and Ted Nugent sadly doesn’t understand that. Nobody wants to believe the truth so guys like Ron Paul or Gary Johnson who actually do represent the full and total protection of individual rights are trumped by phonies like Romney and Obama. All that you have to do is check their voting records vs their campaign speeches. Don’t let guys like Nugent and Romney fool you anymore. There part of the problem because they are inconsistant in his beliefs. They don’t want to believe that government is truly a power brokerage cartel so they grasp on to the illusion of government being a necessary evil. How can an institution that is founded on theft (taxation) and coercion (threat of incarceration) promote or create an ethical and civil society.
skiprob 1, April 17, 2012 at 11:25 am
@Dredd, I still do not have a specific understanding of the term cowboy capitalism or for that matter crony capitalism. They’re newspeak along the propaganda methods noted in the book 1984, meant to confuse or misrepresent established economic terms, principles and/or theories. Don’t fall for this rhetoric. They’re BS terms, don’t use them. Apparently somebody wrote a book book about it so it must be true because the MSM picked up on it. It’s either free market capitalism or it isn’t.
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“I still do not have a specific understanding of the term cowboy capitalism” …
That is a good sign skiprob.
Doublespeak is the coin of the realm with “capitalism” being simply another coined phrase.
It means no more nor less than the other economic mythology pretending that capitalism is a reality in our empire.
A plutocracy running a plutonomy is the actual reality.