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The Rise of the Shameless and Repulsive

The rogues gallery of the shameless and repulsive:

Sen. Kamala Harris (D, Calif.)
Sen. Dianne Feinstein (D, Calif.)
Sen. Corey Booker (D, New Jersey)
Sen. Mazie Hirono (D, Hawaii)
Sen. Richard Blumenthal (D, Conn.)
Sen. Kirsten Gillibrand (D, New York)
Sheldon Whitehouse (D, Rhode Island)
Sen. Charles Schumer (D, New York)

Many more senators with a “D” after their name – that means you, Sen. Dick Durbin – could be inducted into this hall of shame.  Space requires some restraint by limiting the inductees to those constantly running to the microphones and cameras to defile reputations.  These suspects come readily to mind.

And, of course, we have the bewildered:

Senate Judiciary Committee chairman, Sen. Charles Grassley (R, Iowa)

Judiciary Committee chairman, Sen. Charles Grassley, in probable consultation with his colleagues,  agreed to a week delay of the committee vote on the nomination upon the request of a Dem committee member.  Quite rightly, a person could be excused for suspecting something was up.  It was.  An orchestrated hell broke loose – a shameful and disgusting orchestrated hell.

The Senate Republicans always appear flat-footed when it comes to women making charges against other Republicans and conservatives.  The Dems are much more agile.  Look at their dexterity in defending Bill Clinton.  They smeared Ken Star, created new partisan media flagships in the form of MoveOn.org, rhetorically manipulated Clinton’s perjury and perversities into Republican prurience, and vilified the women accusers of Clinton’s adult sallies into rape and less abusive forms of abuse.  And got away with it!  Heck, his chief enabler, his wife, Hillary, was only 43 electoral votes shy of appointing liberals to the bench and wreaking other havoc on our republic.

Of course, lefty types dominate the newsrooms which makes a headwind for Republicans but fills the sails of the Dems’ political racing yachts.  The Dems have a perpetual downwind advantage.  So, credible charges of rape quickly go down the memory hole as hazy teenage charges of teenage antics of ancient vintage get the full rectal examination.  Go figure.

Lets’ face it.  The Kavanaugh imbroglio is about one thing: keeping a conservative from joining the 8 other potentates in black robes … at all costs!  It stands to reason.  Progressives wouldn’t be progressives if they weren’t on a mission to remake mankind in their own image.  The state, not churches, is the engine for the recreation since their image doesn’t comport with the biblical one.  So they fight tooth and nail to control the levers of power.  It’s who they are.  It means so very much to their political identity.

On the far end of the lefty side of the political spectrum, we have Lenin, a political operator whose credo entails the ends always justifying the means.  The notion has seeped into the owner’s manual of politics for Dems in their drive for perpetual reform.  The connection is not surprising since lately they have been ideologically sliding ever closer to the old and still-deceased goat in his Kremlin mausoleum.  He endorsed state-sponsored terror.  The Dems are only slightly more humane, stopping short of the blood on the wall and floor, even though we’re getting close to that.  Simple decorum and decency be damned.

Their enthusiasm to get us back on the track to the pc-plagued nirvana means ginning up the hive, using anything at hand.  And they have a political mre-equivalent in the estrogen-rich swarm of women’s marches and Mee Too.

Vagina caps for participants in the Woman’s March of January 2017.
Woman in vagina suit at the Woman’s March in January 2017.

Everything gets tossed into that maelstrom including Supreme Court nominations, and especially Supreme Court nominations.  If the Dems can’t find anything compromising in the nominee’s adult and professional background, just extend the time frame to childhood or at least those in-between years of 15-18.  In fact, the teenager phase with its hormonal hyperactivity is probably dense with potentialities for later chicanery.  The Dems have hit upon a rich source of tar for their brushes.

One thing about our modern overheated politics is the huge number of willing recruits into the legions of political cannon fodder.  What budding NeverTrumper and SJW, with some long-ago life intersection with Kavanaugh, or not, wouldn’t relish the opportunity to step forward to take one for the team?  Brush off Andy Warhol’s 15-minutes-of-fame moniker, but replace “fame” with “shame”.

The Folly of “No Woman Lies”

People with vaginas for headgear are chomping at the bit to enter Warhol’s hall of mediocrities.  They have in mind a war with the white male patriarchy in the form of Harvey Weinstein, Matt Lauer, the guys running CBS and NBC, and any of the other suits in charge of things.  But bear in mind that along with the certified brutes we have Columbia University’s mattress girl, Emma Sulkowicz.  Fully reminiscent of the sexual revolution’s hookup culture in the college dorm rooms of today, she had consensual sex with fellow student Paul Nungesser.  Somehow she turned it into a cause replete with agitprop. (1)

The accuser: Emma Sulkowicsz and her dorm mattress and her supporters at Columbia University.
The accused: Paul Nungesser.

The University of Montana tells its incoming freshman “Almost no one lies [meaning female accusers]” in its flabby attempt to assuage the female-genitalia-headgear squads. (2)  Really, no woman lies?  Emma did.

She filed complaints against Nungesser with the school and New York police and both concluded that action was unwarranted.  Corroboration – you know, that thing that presupposes that we are not a god with the power to make pronouncements from a heavenly throne and therefore we must backup what we say – was lacking.  There was much to contradict her.  And she pursued him as a sexual interest for months after the purported “assault”.  She concocted a sham and turned it into a cause.

For 3 years Sulkowicsz was the poster child of the campus “rape culture” movement.  The hifalutin Feminist Majority Foundation and others heaped honors upon her for her “courage”.  Harassment on campus – the real kind – haunted Nungesser till graduation.  Then, in 2017, Nungesser sued Columbia.  In the settlement, Columbia apologized and promised “that every student — accuser and accused, including those like Paul who are found not responsible — is treated respectfully and as a full member of the Columbia community.” (1)  Mea culpa, but now the cause takes on a life of its own.  The genie is out of the bottle.

The Silkowicsz-Nungesser case illustrates the enthusiasm of left-wing activists to turn the Fifth Amendment into the irrelevance of the Third.  Lenin would be proud.  It’s a rewrite of western civilization’s legacy of enlightened jurisprudence.  The rights of the accused are supplanted by the ambiguous “preponderance” of believability and the need to protect at all costs the feelings of the accuser and her allegation from being questioned.  The woman-as-accuser is our new god.

The event is only a small chapter in a long tale of moral monstrosities.  They include the 2006 public lynching of the Duke lacrosse team, complete with the connivance of the local DA, and the subsequent vindication of the accused and Duke’s agreement to pay the 3 male students $20 million each.  Rolling Stone in 2017 had to cough up $1.65 million to the Virginia Alpha Chapter of the Phi Kappa Psi fraternity for its hit piece on the group for a false claim of gang rape.  Additionally, the Rolling Stone writer of the article, Sabrina Erbin Erdely, was assessed $3 million for defaming Nicole Eramo, a Virginia University administrator, as the “chief villain”. (3)

The history of our current “rape culture” hysteria is a mixed one.  There are real instances of real assaults along with mutual abuse and bald-faced lies.  It’s really a story of the sexual revolution’s Sherman’s March through the culture and college life.  Hookup, be sexually liberated, experience this integral part of the college experience, and consequences be damned.  That’s the message and the kids live it.  Don’t be surprised that we lose much of our cultural integrity along the way with a few out-of-court settlements and ruined futures to boot.

Private citizens accused of high-octane falsehoods, and few things are more high-octane than a charge of rape, have recourse to a court of law.  Brett Kavannaugh, as a public figure, presents the perfect target.  He can be smeared without consequence  by any accuser and their huckstering Dem supporters.  Support her, damn him, and expunge any semblance of fairness from our deliberations is their sickening message.

We can only hope that they won’t get away with it at the ballot box come November.

The Miasma of Polygraph Tests and Repressed Memories

Miasma by Brian Mashburn.

Unbeknownst to Brett Kavanaugh as he jumps in the water of the nomination approval process is that he just became chum for a partisan shark frenzy.  Thrown in as accusatory chum for Dem sharks is Christine Blasey-Ford.  She purports an attempted rape by Kavanaugh of 36(?) years ago but witnesses dispute her story.  She’s fuzzy on the details.  But she is to be believed despite her own 4 witnesses contradicting her and no other evidence.

Oh, she has passed a polygraph test.  What about that test?  For her examination, Blasey-Ford was asked only 2 questions with the important one being, Is your written statement truthful?  This was no deep dive into her accusations.  The examiner said that this was to avoid traumatizing the accuser.  The test only tells us that she has a foggy recollection, since her written accusation is so foggy, but she believes it.  But is it the “truth”?

A polygraph test measures certain bodily reactions such as heart rate and blood pressure to an interviewer’s questions.  If the subject remains calm, ipso facto, she must be telling the truth, or so it is assumed.  No, it’s only proof that she remained calm, period.  Remaining calm can be an intuitive or coached skill.  The test also might indicate that the subject believes in something that isn’t true.  And aren’t we really concerned about getting to the truth and not ending proceedings with a measurement of a person’s serenity?

Criminal defense attorneys, and most jurisdictions in the country, find polygraph tests highly suspect.  Here’s from one law firm’s website: “… a polygraph machine does not have any reliable capacity for detecting the truth or falsity of a statement…. While these [blood pressure and heart rate] may be indicators that a person is lying, they may also simply indicate that a suspect is feeling pressurized by the interrogation even if they are telling the truth.” (4)

What are we to conclude?  Blasey-Ford has a long-in-the-tooth murky allegation and she remained calm as an examiner asked her about her “written statement” and not the details of it.  Is this the stuff of truth or even justice?  Hardly.

But she has “repressed memories”, which can be scientifically suspect and an excellent source of fairy tales.  Many adults have languished, and are languishing, in prison due to testimony of “repressed memories”.  The use of “repressed memories” catapulted Florida state attorney Janet Reno to fame and a seat in Bill Clinton’s cabinet as Attorney General.  Sadly for Reno and the claque of psycho-therapist fans of “repressed memories”, the convictions are being reversed.  It’s a poor rack for Dem”solons” to hang their hat.

It’s not that people can’t have “repressed memories”.  The problem lies in the tactics in the conjuring of them into the rudiments of testimony.  Even as strong a defender of the  phenomena as Jim Hopper (Teaching Associate in Psychology in the Department of Psychiatry of Harvard Medical School) acknowledges that, “There is strong evidence that people can sincerely believe they have recovered a memory or memories of abuse by a particular person, but actually be mistaken [my emphasis]”.  Further he writes, “There is strong evidence that such memories have led to accusations about particular events that never happened and accusations of people who never committed such acts.”  For Hopper, the potential for misuse of the theory lies with the therapist. (7)  True, very true.

“Repressed memories” as false accusations turned into false convictions?  Enter Harold Grant Snowden, Bobby Finje, Janet Reno, and the “Miami Method” into the unhinged child sex-abuse saga of the 1980’s and 1990’s. (6)

Harold Grant Snowden
Bobby Finje, 14, at the time of his rial.

The “Method” involved a brew of “expert” testimony, multiple child witnesses, and questionable physical evidence. The physical evidence is doubtful because it might, or might not, be supportive of the charges.  The tests for sexually transmitted diseases produce positive results for conditions not necessarily sexually transmitted.  The tests as corroboration don’t corroborate. And, by the way, conveniently for Janet Reno, the test samples were mysteriously destroyed.  Witting or unwitting destruction of evidence by the state?

What of the multiple young accusers who allegedly confirm each other’s stories?  The problem with their testimony is the same as with the testimony of the child-therapist “experts”.  The children were saying things on the stand that came out of the interview sessions of therapists Joseph and Laurie Braga.

The characters of Joseph and Laurie Braga as depicted with kids in the made-for-tv movie “Unspeakable Acts”, 1990.

Later courts found their techniques suggestive and coercive to the point of planting false “memories” in the kids’ heads.  Young adolescents playfully interact with an interviewer when the questioner starts presenting elements of a scenario no matter how outlandish.  An Easter-bunny-believing kid can come to accept the reality of the Bragas’ new artificial reality.  The kids on the stand were confirming a Braga story of the suspect’s abuse of children in oral/anal sex, spaceships, dismembering babies, and Satanic rituals.  The Bragas added new meaning to the word “travesty”.

Both Snowden and Finje were exonerated.  Bobby Finje, 14 at the time of the accusation, was acquitted by a jury.  It took Snowden  11 years to be cleared on appeal.  Many of the other convictions were overturned or sentences commuted by parole boards due to “substantial doubt” about guilt. (8)

Janet Reno still became Attorney General.  She refutes the Peter Principle because she kept rising despite showing incompetence at lower levels.

Caution is wise when tinkering with the “repressed memory” stuff.

Today, caution is out the window as the old child sex-abuse hysteria feeds into another hysteria, the delirium to neuter Trump and conservatives.  Blasey-Ford’s hypothetical “repressed memories” of attempted rape first appeared in marital counseling in 2012.  That’s a 30+-year repressed memory.  Important details are missing, the named 4 witnesses/participants deny it, and her verbal and written statements contradict her therapist’s notes.

The only non-corroboration corroboration is that of people who confirm that she mentioned the matter to them not in 1980-1-2-? but in … 2012.  Kavanaugh’s name wasn’t attached to the story till 2016 or 2017.

So what do we have?  We have a repressed memory of an event allegedly with many people present but none can validate.  What can we conclude?  We can conclude that she was serene while wired to a polygraph.  Anything more than that belongs in the fever swamp of The Resistance.

Auditioning for the Role of Additional Accuser

The week-long interregnum in the Kavanaugh hearing was a busy time for the left-wing/Dem hive.  Its minions went fishing for candidates to fill roles in the expanded cast of their not-based-on-facts docudrama, “The Sick and Evil Brett Kavanaugh”.  It didn’t take long for auditioners to show up.

The New Yorker article on the second Kavanaugh accuser, Deborah Ramirez.

The New Yorker made a splash with a second accuser, Deborah Ramirez.   She claimed Kavanaugh exposed himself to her at a Yale party in the early 1980s.  She was drunk; there are gaps in her memory; she pieced together the story over 6 days of flogging her memory and consultations with her attorney; and the red flag in these allegations: no reliable corroboration.

The New York Times couldn’t find anyone.  The paper reported,

“The Times had interviewed several dozen people over the past week in an attempt to corroborate her story, and could find no one with firsthand knowledge. Ms. Ramirez herself contacted former Yale classmates asking if they recalled the incident and told some of them that she could not be certain Mr. Kavanaugh was the one who exposed himself.” (9)

Only one person could admit to hearing something like this from someone.  That attempt at validation lies somewhere between not-for-certain hearsay and hallucination.

Next, we have the tall tales of Julie Swetnick.

Julie Swetnick

Her story upped the ante from mere attempted rape and exposure to serial gang rapist.  Now we’re getting close to the Satanic-rituals-in-spaceships style of accusation that was evident in the 1980’s child sex-abuse fever.  She spins a tale of Kavanaugh at 10 drug-induced gang-rape parties from 1981 to 1983.  Further, she was raped at one of them in ’82.  What she was doing at high school parties when she was a sophomore in college is anyone’s guess. (10)

And, as in all the others, no one can corroborate.  How is it that serial gang rape in a small community of high school students – with one college sophomore in attendance – can go unnoticed for 35+ years?  How is it that corroboration is so difficult about something so heinous and so well attended for such an extended period?  Her claims evaporates any possible meaning of credible.

There have been other stories coming down through the ether equally as bizarre.  The fact is, there appears to be no shortage of auditioners.  My Demdar (radar capable of detecting Dem bogies) is activated.  Lawyers and other handlers within the loose network of Dem operatives have fingerprints all over much of this.

This May Not Be A Criminal Court But It Certainly Looks Like A Lynching.

One of the Dem talking points in response to their clear intent to discard the presumption of innocence is to assert that the Kavanaugh hearing isn’t a criminal trial.  Yes, and neither was the above.

The Dems intentionally miss the point.  The presumption of innocence and the rest of the rights of the accused go to the heart of elementary fairness, one of the great projects of western civilization.  That legacy was an attempt to establish and codify the simple rules of fairness.  The rules are more than a matter of guidelines for court proceedings.  They touch upon how we relate to one another in the broader course of our lives.  The Dems have conveniently forgotten them in their zeal to smash their opponents.

Here’s a sample of the forgotten civilized principles that the Dems would do well to remember.  (1) Before the accused can defend themselves, he or she must know the accusation in order to refute it.  (2) The burden of proof must rest with the accuser since it’ll be forever hard to prove a negative – the demand that a person must prove that he or she didn’t do it.  (3) The charge must be stated in a falsifiable manner. That is, it must be stated in way for it to be capable of being proven or disproven.  It’s simple logic (see the writings of the philosopher Karl Popper).  (4) And a charge against a person can’t be allowed to stand on the say-so of one person alone.  More is required.

That’s how it should be, but that’s not how it is for the Dems when the swing seat on the Supreme Court is in the balance.  It’s amazing how quickly they jettisoned our inheritance for a leg-up on those who disagree with them.  Disgraceful.  Disgraceful.

RogerG

Footnotes and Bibliography:

  1. A full accounting of the Emma Sulkowicsz episode is found here: “It’s High Time Columbia’s Mattress Girl Was Discredited”, Mona Charen, National Review Online, 8/4/2017,   https://www.nationalreview.com/2017/08/columbia-university-mattress-girl-emmas-sulkowicz-paul-nungesser-lawsuit-rape-accusation-exonerated/
  2. Once more, Mona Charen: “What the Left and Right Don’t Get About Campus Rape”, Mona Charen, The Federalist, 8/31/2015,   http://thefederalist.com/2015/08/31/what-the-left-and-right-dont-get-about-campus-rape/
  3. “Rolling Stone to Pay $1.65 Million to Fraternity Over Discredited Rape Story”, Sydney Ember, 6/13/2017, NYT,   https://www.nytimes.com/2017/06/13/business/media/rape-uva-rolling-stone-frat.html
  4. “Why Polygraph Tests Are Not Admissible in Court”, Broden & Mickelson: Criminal Defense Attorneys website, 10/13/2015,   https://www.brodenmickelsen.com/blog/why-polygraph-tests-are-not-admissible-in-court/
  5. An excellent introduction into the mania about child sexual abuse at daycare centers can be found here: “The Child Terror”, PBS Frontine, originally aired on 10/27/1998.  A synopsis and transcripts can be seen at https://www.pbs.org/wgbh/pages/frontline/shows/terror/.
  6. “Harold Grant Snowden”, The National Registry of Exonerations: A Project of the University of California Irvine Newkirk Center for Science and Scoeity, University of Michigan Law School & Michigan State University School of Law,  https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3871
  7. “Child Abuse: Recovered Memories of Sexual Abuse”, Jim Hopper,  https://www.jimhopper.com/child-abuse/recovered-memories/
  8. A recounting of the 14 significant child sexual-abuse cases can be found here: “Day-care sex-abuse hysteria”, wikipedia.org,   https://en.wikipedia.org/wiki/Day-care_sex-abuse_hysteria
  9. “Christine Blasey Ford Reaches Deal to Testify at Kavanaugh Hearing”, Sheryl Stolberg and Nicholas Fandos, New York Times, 9/23/2018,   https://www.nytimes.com/2018/09/23/us/politics/brett-kavanaugh-christine-blasey-ford-testify.html
  10. “Things Fall Apart: NYT Delivers Another Kill Shot To Kavanaugh Sexual Misconduct Fiasco”, Matt Vespa, Townhall.com, 9/27/2018,  https://townhall.com/tipsheet/mattvespa/2018/09/27/things-fall-apart-nyt-delivers-another-kill-shot-to-kavanaugh-sexual-misconduct-n2522947

 

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Disgraceful II

Bedlam by Hogarth.

Bedlam was a hospital for the mentally disturbed in London – officially named the Royal Bethlem Hospital. Right? Wrong. It’s been moved to the Senate Judiciary Committee hearing room. The overwhelmed director of “bedlam”, Sen. Charles Grassley, seems bewildered by the antics of the hostile and equally unstable medical staff, the Dems, as they make a mockery of the profession with the assistance of the inmates, the voluble hair-trigger left. Welcome to the “World’s Greatest Deliberative Body”. Ha!

A protester is led away by police after disrupting the second day of the confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh on Capitol Hill.
Protester is removed during the fourth day of Senate Judiciary Committee confirmation hearings for Brett Kavanaugh, September 7, 2018. REUTERS/Chris Wattie.
U.S. Capitol Police remove a protester from the Kavanaugh hearing.
Protesters outside the capitol during the Kavanaugh hearings.

The hostile “bedlam” staff – Dems – have unleashed at the last minute, after sitting on it for 2 1/2 months, a vague charge of teenage sexual misconduct from 36(?) years ago. 36(?) years ago! The accuser can’t substantiate nor provide important details because she is about as hazy about the alleged incident as the allegedly drunken teens were the alleged morning after. Something that wouldn’t get past the Dean of Students smell test is now grist for the inmates running the Senate’s asylum.

Christine Blasey-Ford, the accuser with the hazy memory.

The Dems sprung it at the last moment so it couldn’t be properly vetted by the sober-minded. For it to be vetted now, the inciters of bedlam would accomplish their goal: delay, delay, delay. They had their chance in those 2 1/2 months and a week of witness interrogation and took a pass. They knew about it and knowingly waived their right by sitting on it.

Blasey-Ford demanded anonymity and she also waived her right by doing so. Instead, an outrageously hazy charge benefits from outrageous demands like the insistence on the accused going first, the FBI swallowed in a months-long probe, and the insistence on giving a “voice” to a mouth with not much to say. Nothing like turning the 5th Amendment, Blackstone, and common decency upside-down.

The nomionee, Brett Kavanaugh, having to sit through the antics.

Blasey-Ford and the Dems had a 3-month window to smear reputations while retaining at least some semblance of due process. It’s disgraceful for them to profit from political hooliganism.

Take a few depositions under oath and the next day, Tuesday, have the vote.

RogerG

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A Vyshinsky Democrat: Sen. Kamala Harris

The historical model for Sen. Kamala Harris (D, Ca.) at the Kavanaugh hearings is Stalin’s prosecutor Andrey Vyshinsky.

Comrade Sen. Kamala Harris from the DPR (Democratic People’s Republic) of California.
Andrey Vyshinsky, Stalin’s chief prosecutor in the late 1930’s.

During the purge trials of the 1930’s, the fate of the defendants was sealed before interrogations and evidence. The trials were extravaganzas to create an aura of malevolence over the subjects in the dock and thereby justify the political and physical necktie party (actually, a shot to the back of the head after a lonely walk down a basement hallway). The defendants didn’t even have to be present to be found guilty.

I wonder if comrade Harris closely studied the Vyshinsky playbook. She was among the Democrat claque on the committee who didn’t wait for the public announcement of the nomination to proclaim their “no” vote. California has given us a senator who has taken on the role of prosecutor as political attack dog, like Andrey Vyshinsky. Her goal isn’t truth. It’s conviction without the formality of just cause.

Her questions were littered with loaded and partisan political rhetoric in which any answer would be tantamount to accepting a distorted and one-sided storyline. For instance, she, like her other Dem colleagues, kept interrogating with questions freighted with “voter suppression”. It’s lefty code for regularly clearing voter registration rolls of deadwood, reducing voter fraud, and implementing voter ID, three very popular fixes to our election system. A good Vyshinki tactic is to hide the obvious details behind an odious conceptual accusation, place it within a question, all to embarrass and trip up a witness.

Another favorite slander was the attempt to plaster Jim Crow on the witness. Racial disparities, whose causes run deeper than Kamala’s makeup, were reduced to the toddler-like reasoning of “racial disparities = hidden racists everywhere = you must be a racist if you oppose me”. It’s a new take on the loaded question gambit of “When did you stop beating your wife?”, only understandable as a natural law in the Leninesque world of the ends justifying the means. The macabre scene is plainly revolting.

Is Comrade Harris in the running for the Order of Lenin? I can’t think of a more deserving candidate.

The highest civilian award in the Soviet Union. I nominate Kamala. Is there still an authorized committee out there to receive the nomination?

RogerG

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Disgraceful Behavior

Can any objective observer come away from yesterday’s Kavanaugh hearings with anything but disgust? Democrats on the committee, with a straight face, petulantly disrupted the chairman from even making his opening remarks. Then, a few spectators jumped up shouting spiteful epithets at Kavanaugh, so much so that his wife and daughters had to be escorted from the room under police protection. Has today’s hard progressivism become a synonym for mob rule?

That debacle yesterday wasn’t an accident. There was coordinated agency by the Dem caucus to make it happen. Everything from conference calls to distributing tickets to fevered activists created an unsafe atmosphere for Kavanaugh’s family while making a mockery of the “august” Senate. The decent thing for the Dems to do would be to publicly apologize. Don’t hold your breath.

As a point of comparison, look at the friendly and light-hearted treatment of Elena Kagan by Sen. Graham (R, S.C.) in 2010 alongside the fracas yesterday in the comment section below.

Sen. Lindsay Graham from 2010.

Sen. Kamala Harris and the other Dems at the recent Kavanaugh hearings.

RogerG

 

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A Reaction to “Judges as Legislators”

Respondent:  If we as a nation have had fair elections and that we did not disenfranchise so many throughout American history. What exactly is your point, Roger?

My response: Jon, many arbitrary discriminations could be eliminated without judges acting as activist sociology professors. Remember, we’re a nation of laws. Laws rely upon the dictates of some sense of nature and popular sovereignty. For those remaining discriminations, they are evidence of the failure to convince our fellow citizens that they are sufficiently arbitrary. Democracy is the worst system, except for all the others — to borrow a cliche’.

Respondent: Yes, Winston Churchill I believe. But the Constitution must uphold majority rule and minority rights. Just because some swath of society has passed legislation (albiet illegally with respect to disenfranchisement from 1890s to 1908 or so) doesn’t mean that that majority can trample and disregard the rights of minorities, correct? The role of the SCOTUS is to interpret the Constitution and make sure rights and laws do not violate it. We had laws (14th Amendment being the MOST important in my opinion and many others) that were not followed. Thus the Civil Rights movement, etc.

My response: Yes, and those rights can be protected without the recruitment of activist-sociology-professors in black robes. The damage to the law and respect for it is too great for judges to be allowed to fly by the seat of their pants in almost any fashion that excites their fancy. Remember those southern state governments were also activist Democrat governments … just in the pursuit of Jim Crow. Our highest law protects these basic rights and its the clear wording of the law that does so. It may take awhile, but remember that it took nearly 10 years after Brown for the enactment of the ’64 Civil Rights Act. Sometimes it takes awhile for facts on the ground to catch up to our Constitution. But such is human frailty.

Respondent: Roger, Jim Crow was already well entrenched in the South. If by activist southern state governments you mean the Bourbon Democrats sho really controlled the Democratic Party and used the terrorist organizations of the kkk, etc. yes they were activist. Albeit to suppress black voting rights which was law. I would argue that the SCOTUS is needed to balance the other branches of government and make sure that minority rights are being upheld. And you know LBJ only passed the 64 act because of mounting pressure for various civil rights groups who were advocating for the law to be followed.

My response: The Jim Crow South was an extension of the state of “expert”, “elite”, and “scientific” reasoning that arose in the early 19th century. Freshly imbued with Hegel’s philosophy of “progress”, whose dialectic was instrumental to Marx and Darwin, we have the race musings of John C. Calhoun. Race theory continued after Appomattox and supplied the justification for the denial of rights to an entire category of citizens, who were so proclaimed by the 14th Amendment. If SCOTUS was so wise, look at the jurisprudence prior to 1954. Those black-robed “wise men” embossed second-class status on blacks for an additional 4 generations, as well as forcing sterilization on “imbeciles” … in Holmes’s unillustrious phrase. Plus, the damage caused by imperial decree-making outside the law far outweighs any momentary benefit of any individual ruling. The losers in any Article I and Article II election should not have easy recourse to replace a judge’s insight for the voters. If that becomes commonplace, our constitutional republic is dead. Be careful about readily dispensing with popular sovereignty for a yearning for mommy government in a black robe.

And so it goes.

RogerG

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Judges as Legislators

Another Court pick – Brett Kavanaugh in this case – and the partisan circus is revving up. Why? Well, so much is at stake since now we have unelected commissars, appointed for life, reaching way beyond the law, sitting on the bench. What happened to the republic? Will these black-robed grand viziers practice self-restraint? Don’t know, but nominating people who will is an absolute necessity.

President Trump with Supreme Court nominee Judge Brett Kavanaugh at the White House, July 9, 2018. (Jim Bourg/Reuters)

How did we get to this juncture of near imperial rule? Sadly, Brown v. Board of Education did much to send us in that direction. While legally mandated segregation is a blot, the Court christened “social jurisprudence” as the means to eradicate it. So, it isn’t the law anymore as the basis for many rulings. It’s a judge’s conjecture on the current state of society. As a result, judges are unhinged from the tethers of the law, whether it be the Constitution or statute.

The 1954 Court, anxious to end the practice of forced segregation, couldn’t rely upon tried-and-true “originalism” to make the desired legal rendering, since the 14th Amendment’s authors of 1868 had enshrined segregation in their own contemporaneous laws (mandates for segregation in DC public schools). To achieve the desired end, they fashioned a new role for themselves as legislators, or pontificators on our social conditions. Discontent and ambition has a powerful new avenue for satisfaction. If you don’t get your way at the ballot box, recruit a judge among the 677 District Court black robes littered throughout the country.

The late jurist, Antonin Scalia.

Avoiding the pitfalls of lifetime-tenured lawmakers as we pursue justice requires some threading of the needle. Scalia’s “textualism” may get the thread through the eye. The law’s words, not legislative history, point the way. Here’s the logic for ending segregation using textualism: 14th Amendment’s citizenship clause for blacks > incorporation (applying the Bill of Rights to the states) > due process protections in the 5th and 14th Amendments (which includes equal protection) > forced segregation violates the clear wording in the Constitution. No need to resort to the witchcraft of “social jurisprudence”.

Brett Kavanaugh could be a nice addition to the cause of self-restraint. For most of the endless list of pet causes, it would be nice if people realized that they must win legislative elections and not turn to a mommy in a black robe. Not prevailing normally means too many people disagree with you. Live with it.

RogerG

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Journalism as Wish-Fulfillment

Sonam Sheth, politics and national security reporter at Business Insider, from her Twitter page.

While scanning Yahoo news, I ran into an article by Sonam Sheth (pictured above) of Business Insider about Trump’s pardoning  of Joe Arpaio, the sheriff accused of challenging one judge’s definition of the amorphous abstraction of “racial profiling”.  What was presented as a straight-up news piece was essentially a stitched together product of lefty wish-fulfillment.  The article went along a boozy path from the pardon to Trump-as-mafioso.  Journalism isn’t journalism any longer.  It’s fevered imaginations run wild.

To grasp the pitiful state of journalism, let’s go on a journey through Sheth’s personal profile.  It will illuminate a lot about her unconscious – or conscious –  mingling of bits of hard news with barnstorming lefty politicization.  This will be brief.

Her’s is a compressed odyssey from a Rutgers University classroom to a couple of extensions of the classroom in internships and a “columnist” for the college newspaper.  While in the college cocoon, she had a 3-month layover with Citizen Action of New York.  Currently, Citizen Action is one of the lefty activist groups in the vanguard of The Resistance.  Check out these gems of left wing boilerplate from the website:

“Build the Movement. Add Your Name to the Restistance Rapid Response: We’re building the statewide movement we need to take on Trump and make health care for all a reality. Build it with us.”

“Gov. Cuomo: Stop Trump’s Climate Attack!  While we fight the Trump administration every step of the way in D.C., New York must lead on climate change by transitioning to 100% renewable energy. It’s up to Governor Cuomo.”

There’s more, but you get the idea.

What would attract a future Business Insider staffer to an organization of politically strident lefty activism?  Hmmmm.

Oh well, from there she dropped into a short internship with CNBC and was picked up by Business Insider.  I’m sure that the Rutgers econ degree drew attention with the HR departments, but with the degree comes a load of ideological fixations.  They make it easy to leap from assumption/premise to disjointed fact to conclusion, all in a surreal and dreamy narrative landscape.  It would make Salvador Dali cringe in envy.

Salvador Dali

Now to the article.  The title says it all: “Trump’s decision to pardon Joe Arpaio could be a crucial piece of evidence in the Russia investigation”.  A person could stop with the title and be just as informed.

The article was riddled with so much bounding from point to point that my wife could only hear, as I was reading, my repeated refrain of “This is bull@#$&*!”. The bravo sierra begins with the grasping for a link  between the pardon and hoped-for proof of obstruction of justice.

First, right out of the gate, she constricts Arpaio’s sin as “criminal contempt in July for violating a court order to stop racially profiling Latinos”.  “Racial profiling” is one of those politically loaded terms that are bandied about like a frisbee.  It’s become so expansive that a victim might shy away from using the word “black” to describe a black  assailant.

Besides, Arpaio’s tough illegal immigration stance, and his use of “racial profiling”, might have something to do with the overwhelming type of illegal that a sheriff might confront in a state that shares a border with the Latino world south to the Strait of Magellan.  In effect, the judge is either ordering the sheriff to ignore the rule of law – immigration law that is – or pretend the obvious doesn’t exist as he does so.  Either way, it’s a court-ordered charade.  Trump’s pardon put an end to the judicial lunacy.

Illegal immigrants sit in a group after being detained by U.S. Border Patrol agents in McAllen, Texas. (Associated Press).

For our budding journalist, it may never have occurred to her that an immigration hawk of a presidential candidate has a natural affinity for a sheriff thinking, and doing, the same.  It’s not proof of criminal intent and conspiracy to clear a sheriff from the clutches of an activist judge for carrying out policies in line with the policies and constitutional authority of the president of the United States.  But no, Sheth’s surreal potboiler must take precedence.

From the pardon, she builds the edifice.  In quoting a single source, Renato Marriotti, she tries to weave a story of criminal intent from, once again citing Marriotti, Trump hypothetically “ending investigations as to his friends”.  The presence of “friends” is not evidence of “intent” of criminal conspiracy to “obstruct justice”.  Arpaio isn’t an example of the kind of cronyism typical of the Clintons.  If viewpoint sympathy can be strung into the kind of relationship most typically found in criminal conspiracies, then most assuredly Bill Clinton should be dressed in striped livery for the pardoning of Marc Rich.  There was much more evidence of illicit behavior in that whole unseemly affair.

President Bill Clinton and Denise Rich attend a funraiser for ‘The G & P Charitable Foundation for Cancer Research’ in October 1998, in New York City. (DIANA WALKER/LIAISON)

As for Sheth’s insinuation of  “obstruction of justice”, where’s the underlying crime?  You know, the criminal conduct that a person seeks to hide.  For Bill Clinton, it was perjury in Federal District Court in Arkansas and his subsequent dissembling testimony before a federal grand jury in Washington, DC.  For Trump, as the constitutionally ordained chief executive officer of the United States government, he simply asked about the possibility of ending the investigation of Michael Flynn.  Even here, Sheth can’t present proof of an order by Trump do so.  She’s only got Comey’s “feelings” of pressure.

I’m reminded of my discussions with my teenage sons after they came home late.  Certainly they felt “pressure”.  Am I guilty of “obstruction of justice” simply because they felt “pressure” … but I’m hiding no crime for which the “pressure” is applied?  Sheth’s pseudo-logic enters the realm of the ludicrous.

Of course, lurking behind the curtain is the fantasy of all denizens of the left: the Trump/Russian criminal conspiracy, the philosopher’s stone of explanations for the 2016 election results.  There’s been no evidence of “criminal conspiracy” … up to now.  But, then again, there’s no evidence of an underlying crime in my sitdowns with my clock-challenged sons … up to now.  I can only hope and pray that they never discover Sheth-logic.

Possibly Sheth could benefit from 2 doses of reality.  First, the president is the federal government’s alpha law enforcement officer.  In essence, he’s the chief DA of the federal government.  He can inquire into any investigation under his purview.  It may prove to be embarrassing to his supporters and much fun to his detractors, but voters can deal with that at the next election.  Alan Dershowitz, no card-carrying member of the “vast right-wing conspiracy”, said as much in June of this year (see 6 below).

Furthermore, the president’s pardon power is near absolute.  If Trump so wished, he could pardon the entire roster of inmates in the federal penal system.  He doesn’t even have to wait for convictions to fling the power around.  It may not enhance his electoral viability, but he could do it.

Sheth’s story is a mess.  It is more lefty wish-fulfillment than it is journalism.  It doesn’t even make for good commentary, and more resembles a bad term paper.  As per the old cliché, there’s no there there.  For the Sheths of the world, it’s as if they want to overturn an election with smear-mongering and an endless manipulation of the criminal justice system.  The more appropriate venue for their angst is the ballot box … which, by the way, they have difficulty in winning.

RogerG

Bibliography and sources:

  3. Sonam Sheth Twitter page, https://twitter.com/sonamsays
  4. Citizen Action of New York website, http://citizenactionny.org/
  5. Sonam Sheth’s brief profile at Business Insider website, http://www.businessinsider.com/author/sonam-sheth
  6. “Alan Dershowitz: History, precedent and James Comey’s opening statement show that Trump did not obstruct justice”, Alan Dershowitz and contributor, Washington Examiner, 6/8/2017,  http://www.washingtonexaminer.com/alan-dershowitz-history-precedent-and-james-comeys-opening-statement-show-that-trump-did-not-obstruct-justice/article/2625318
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The Republic on Fire

Riots at UC Berkeley, Feb. 2, 2017, to protest the campus appearance of Milo Yiannopoulos.
Gorsuch before the Senate Judiciary Committee, March 2017. (NBC News)

The Gorsuch nomination is a barometer of the condition of our politics. It’s a toxic environment of a lack of candor and a surplus of self-serving hyperbole.  The very definition of a party partisan has gone through a transformation from party loyalty to ideological conformity.  Heterodoxy in the parties has given way to orthodoxy.  The fever is aggravated by the dramatic rise in the stakes.  The breathtaking expansion of government power has exponentially increased the consequences and opportunities for those who wish to monopolize it.  So much at stake and so many true-believers.  No wonder Court nominations threaten to rip the republic apart.  And, by gauging the reaction of Democratic Party activists to Trump’s victory, now the same is true of presidential elections.

“The Resistance” takes to the streets in – where else? – Berkeley, Ca.

How did we get to this sad state of affairs?  For one, let’s consider the main legacy of Progressivism: the omni-competent state, or a government of virtuosos and unlimited possibilities.  The Progressives’ faith in the “expert” means the deliberations of representative assemblies are more and more replaced by the deliberations of panels of hypothetical geniuses.  The assumption is that the fortunes of humanity should not be left to the petty whims of politicos not in tune with the academic zeitgeist.  The most undemocratic features of our constitutional order – the administrative agencies and courts – have feasted on this prejudice.  Today, regulations govern more than laws, and judges have extracted prerogatives that were previously left to state legislatures and city councils.

Their legitimacy to rule doesn’t rest on the franchise but on their self-proclaimed knowledge and wisdom.  When they or their politician advance-men lose an election, intelligence is said to be thwarted.

C.S. Lewis

The danger posed by such a narrow caste with pretensions to power was obvious to some.  C.S. Lewis – writing at a time (1943) when Fascism was one of the popular versions of caste-rule, just as it was reified into a Luftwaffe bombing British cities – fingered the error in his essay, “The Poison of Subjectivism”.  He wrote,

Many a popular “planner” on a democratic platform, many a mild-eyed scientist in a democratic laboratory means, in the last resort, just what the Fascist means.  He believes that ‘good’ means whatever men are conditioned to approve. He believes that it is the function of him and his kind to condition men; to create consciences by eugenics, psychological manipulation of infants, state education and mass propaganda.

The rule of “experts” is the rule of perpetual busybodies, a class of people without second-thoughts.  Humility doesn’t appear as a defining characteristic.  Leave it to Friedrich Hayek, though, to bring them down to

Friedrich A. Hayek

earth when he stated, “No human mind can comprehend all the knowledge which guides the actions of society”.  Expanding the field from a single person to a small group doesn’t  much improve matters.  Hayek asserts that markets, as large aggregates of individuals, know more than a small cohort of self-ordained wise-men.  Failure results when power follows the false assumption that all pertinent knowledge is concentrated in a few.

Hayek’s lesson never caught on with our modern Progressives.  The power of the centralized authority in the federal government, as gauged in 20th century federal outlays through Republican and Democratic administrations, resembles a ski slope — or, as Bob Hope would have said, his nose.  It’s proof, once you start this kind of thing, that the government becomes a perpetual-motion-machine almost immune even to the best of intentions of those wishing to restrain it.

Stephen Moore, “The Growth of Government in America”, April 1, 1993, https://fee.org/articles/the-growth-of-government-in-america/. In inflation-adjusted 1990 dollars.

The incline continues into the new millennium in federal spending per household. The dip in 2009 was due to the end of many TARP bailouts.

Veronique de Rugy, “The Rapid Expansion of Federal Spending Per Household”, Mercatus Center, George Mason University, Nov. 1, 2010, https://www.mercatus.org/publication/rapid-expansion-federal-spending-household. In Inflation-adjusted 2010 dollars.

The federal government’s hyperactivity has distracted it away from its core Constitutional responsibilities like defense and managing immigration in favor of crusades like inflating our energy bills, directing our choice of light bulbs, a national sanctioning of sodomy as the basis for marriage, imposing a national license to take prenatal life, and dictating your elementary school’s bathroom policy.  It’s so ludicrous, but nonetheless a sign of the times.  Increasing federal power has intensified the battle over who’s to man (or woman) the federal parapets.  Every election and Supreme Court appointment is freighted with dire potentialities.

The intensity of modern political battle has weeded out the faint-hearted and those lacking the zeal of the true-believer.  A 2014 Pew Research Center study of party registrants illustrates the growing ideological polarization of the two parties.  As they found,

The overall share of Americans who express consistently conservative or consistently liberal opinions has doubled over the past two decades from 10% to 21%. And ideological thinking is now much more closely aligned with partisanship than in the past.

Distribution of Democrats and Republicans on a 10-item scale of political values. Pew Research Center, 2014.

The chart shows a widening rift  in 2014 in ideological purity among the parties’ rank-and-file.

Or, take a look at this chart from the same study.  The mountain peaks for the Democrats (blue) shift to the left as the peaks for the Republicans (red) move right.

The same phenomena shows up in the halls of Congress (below).  In the 93rd Congress (1973-4), there existed liberal Republicans and conservative Democrats.  By the 112th Congress (last bar graph below), they’re as extinct as woolly mammoths.

The party bases are uniformly polar opposites, and its reflected in the two Congressional caucuses.  The leavening of other voices is gone.  For nominees like Gorsuch, the Democrats’ howling base will push any Senator with a “D” after their name into rabid opposition.

Even the definition of “moderate” has shifted.  Today’s moderate Democrat is only interested in some restraint in the party’s abortion blank check.  Other than that, the vast majority are in lock-step with Mother Jones and the rest of the left-wing hive.  Not good for any Republican Court nominee … unless a Republican president commits political suicide by presenting a choice who’ll gain the editorial board endorsements of Mother Jones and The Nation.

Don’t get me wrong.  I’m not decrying the vanishing “moderate” in both parties.  It’s one thing to to be moderate in temperament, quite another to be moderate in your thinking.  All-too-often the moderate thinker has a mind that resembles an attic.  In it one finds a collection of mental bric-a-brac.  Lying around is the anachronistic foolishness of grandma’s time alongside some of more recent vintage – all thrown up there to be accessed for the production of inane pronouncements.

But these “moderates” serve the purpose  of forcing the core of both parties to come together to make political sausage.  Their presence makes the art of governing easier, even if, as is more likely, the result is a continuation of the non-stop march to social and fiscal ruin.  Remember the old adage of Republicans as caretakers of the Democrat-engineered welfare state?

Sen. Joseph Biden (left) leaning and talking to Robert Bork during Bork’s confirmation hearings, 1987. (The New Yorker)

Yet, the consequence of the disappearance of the muddled middle is no-holds-barred political war on nearly everything and in nearly every venue, including Supreme Court nominees before the Senate.  The writing was on the wall when Robert Bork’s name came up in 1987.  Ted Kennedy manufactured party opposition with the now-familiar chant, “He’s out of the mainstream”.  Honestly, the “mainstream” for Ted is the blue hump in the previous chart’s last bar graph.  Qualifications be damned; for the true blue like Kennedy, the ramifications are too important to be left to quaint considerations like “qualifications” and “bi-partisanship”.

After pioneering ideological reasons for blocking a Supreme Court nominee, the Democrats didn’t want to push their luck and swiftly approved Bork’s replacement, Anthony Kennedy, shortly thereafter.

In today’s political total war, everything is enlisted for the cause.  The older self-restraint became the first casualty.  Take for instance the filibuster.  Talking a bill to death ended in the House in 1842 when the House became too large a herd to corral for meaningful work.  It persists in the Senate, but rarely used for federal judicial nominations.

Here’s where it gets tricky for the Senate.  There’s two types of Senate filibusters with different cloture (end debate and go to a vote on the issue at hand) requirements.  To end a “legislative” filibuster, a three-fifths (60) vote is required by Rule 22.  Ending a rules-change filibuster demands a higher threshold of two-thirds (66) … until Harry Reid in 2013.

To clarify, the old claim that it takes a vote of 60 to approve a nomination is inaccurate.   A majority is required to approve a nomination.  It’s just getting to the consenting vote that presents the problem.  60 votes are required to end debate (cloture) and proceed with the vote on the fate of the nominee.

As majority leader, Reid sidestepped the rules for ending debate (cloture) by motioning that Rule 22 requires a majority vote for cloture.  Of course, Rule 22 says no such thing.  The presiding officer rejected Reid’s intentional misreading of Rule 22.  Having worked all this out beforehand in the Democratic caucus, Reid appealed to the whole Senate who voted to accepted his interpretation of Rule 22.  A majority of Senators – all Democrats – voted to accept his reading of the rule in spite of its plain language.  This is the “Reid Rule”, a method to change the rules of the Senate with only a majority vote.

Watch Senators Reid and the Republican leader McConnell speak to the matter in 2013.

Prior to the Reid Rule – or maneuver if you will – it was next to impossible to alter the operations of the Senate by changing the rules.  Tooth fairies were more real than a 66-vote for cloture.  Hellbent on getting Pres. Obama’s judicial choices past Republican opposition, Reid paved an interstate through any road blocks to his desired end: Pres. Obama’s goal to pack the courts with “living Constitution” wunderkinds.

A Progressive in a black robe is a dangerous person – dangerous only in a political sense, that is.  A Progressive is impatient to change things and regards the Constitution, laws, and any stricture as wet clay to be molded to that end.  One wonders why we should even bother to publish or put anything in writing.  Separation of powers?  What separation of powers?  The delineation of powers in Articles I, II, III was made pointless.  Applying the law in cases morphed into boundless interpretation following a witch’s brew of allegedly modern circumstances.  The courts became super legislatures following penumbras rather than law.  The possibilities are only as limited as a judge’s imagination.

Control of the courts, all of a sudden, became a high-stakes game.  Everyone knows it.  A state’s plebiscite to define marriage in a manner familiar to anyone going back to Emperor Justinian and further to Hammurabi – and maybe even to Lucy, our prehistoric ancestor in East Africa – could now be interpreted by jurists as something akin to the Nuremberg Laws.  The beginning of life is not be defined by the people’s elected representatives but rather a majority of nine life-time appointees on a judicial panel in Washington, D.C.  Conceivably, nothing is outside the purview of the judiciary.

With so much at stake, the days were numbered for the filibuster, especially in light of the gathering around opposing ideological poles in both parties.  The only modern use of the filibuster for Supreme Court appointments prior to the new millennium was Abe Fortas’s attempted elevation from Associate Justice to Chief Justice in 1968 by Pres. Johnson.  It occurred at a time when liberal R’s and conservative D’s still existed.  As it turned out, opposition was truly bi-partisan and Fortas had a darker side of corruption.  Not only did Fortas fail in winning his Chief Justice appointment, he was forced to resign his Associate Justice seat to avoid impeachment.

Pres. Johnson presenting Assoc. Justice Abe Fortas (r) as his nominee for Chief Justice of the Supreme Court, June 1968.

The Fortas mess was an extremely rare occurrence in the history of the Senate filibuster for Court nominees.   Even Clarence Thomas didn’t face one.  We’d have to wait the dawn of the new millennium, after party orthodox purity was well under way, and judicial powers have raised the stakes so high, before the filibuster became a reliable weapon in ideological warfare.

The election of George W. Bush in 2000 incensed Democrats.  He was considered by them to be a usurper after the hotly contested election.  Immediately following the inauguration, the liberal hive was all abuzz.  In January 2001, Bruce Ackerman, Yale law professor writing in The American Prospect, fearing a wave of conservative jurists, favored the Democrats’ use of the filibuster to block Bush’s judicial appointments.  The judicial filibuster ball really started rolling after that.

Bush’s first 11 courts of appeal nominees never made it out of the Democrat-controlled Judiciary Committee from 2001 to 2003.  To be fair, Republican majorities did the same to Clinton’s choices by 2000.  Yet, widespread filibustering didn’t begin till 2003 and a slim 51-49 Republican majority.  10 appeals court choices were then blocked by Democrats with a filibuster threat.  Bill Frist, the Republican Majority Leader, began to publicly talk of the “nuclear option” – ending the filibuster for judicial nominations – as Democrats’ use of the filibuster promised to be a frequent tactic.

The threat of the “nuclear option” faded after a compromise got the bulk of Bush’s nominees through in 2005.  But blocking tactics without the need for filibusters continued through Bush’s second term as Democrats assumed control of the Senate in 2007.

When Republicans objected to Obama’s nominees in 2013, prior advocates of the judicial filibuster turned into vehement critics.  Politics produces a bumper crop of hypocrites, and ideological zealotry sanctions a scythe to cut through anyone and anything to achieve a secular eschaton.  What was done by the Democrats – invent a way to change the Senate’s rules with a simple majority and use it to end the filibuster for judicial nominations – will be picked up by the Republicans to approve an originalist on the bench.

Watch Senate Majority Leader McConnell exactly repeat Harry Reid’s 2013 maneuver to change the 60-vote threshold for cloture (end debate and vote on the nominee) in advance of the Gorsuch vote.

After this, the vote to approve the nominee follows the historical precedent of a majority to approve the nomination.  The fate of Neil Gorsuch could have been decided on a simple majority vote if the Democrats eschewed the filibuster, as what happened to Clarence Thomas’s nomination in 1991.  Now it’s kaput for the judicial filibuster.

One of the arguments against ending the filibuster was that the loss would put the last nails in the coffin of bi-partisan comity.  News flash: comity was well on its way out since the Florida recount imbroglio of 2000.

We would see the increasing reliance on ad hominem politics occurring as credal purity came to characterize the parties.  How many adherents of Hayek and Friedman still exist in the Democratic Party?  Conversely, what about the standing of Keynes in the Republican Party?

The fate of ex-Democrat Phil Gramm of Texas is instructive.  Gramm was a Democrat and a believer in the Laffer curve, two things that don’t comport in today’s Democratic Party.  Like many such Democrats, their party’s hostility to anyone challenging the reigning statist orthodoxy drove people like them out.  They became Republicans.  It was a harbinger of things to come.

The Gorsuch nomination got caught up in this new political ecosystem.  It’s a jungle with the courts as the new Tyrannosaurus Rex, with the administrative state in tow as clones.  Their presence draws the attention of everyone.

The temperature once had a chance to cool when the state didn’t have such a large apetite.  It’s different today.  Control of the state is on everybody’s radar screen because the cost of playing blind and deaf may make you the meal.  The stakes are too high for quaint niceties.

Maybe our chances for civility would improve if we scaled back the monster.  But that would require the defeat of the Democrats’ statism.  If true, a return of the Democratic Party to a more heterogeneous composition would be more therapeutic than a revival of RINO’s (Republicans In Name Only) in the GOP.  Something to consider.

RogerG

Sources:

“Scalia’s Supreme Court Seat Has Been Vacant For More Than 400 Days”, The New York Times, March 20, 2017,  https://www.nytimes.com/interactive/2016/02/15/us/supreme-court-nominations-election-year-scalia.html?_r=0

“The Poison of Subjectivism”, C.S. Lewis, 1943 essay.  It can be obtained in Microsoft Word format here: https://calvin.edu/search/?q=the+poison+of+subjectivism&btnG=&site=calvin&client=calvin&proxystylesheet=calvin&output=xml_no_dtd&sort=date%3AD%3AL%3Ad1#gsc.tab=0&gsc.q=the%20poison%20of%20subjectivism&gsc.page=1

“Lewis & the Omnicompetent State (Part 1)”, Dr. Alan Snyder, professor of History, Southeastern University, Pondering Principles, Nov. 7, 2015,  http://ponderingprinciples.com/2015/11/lewis-the-omnicompetent-state-part-1/

For a fuller treatment of Hayek’s knowledge problem see “The Use of Knowledge in Society”, Friedrich A. Hayek, The American Economic Review, Sept. 1945.  A free copy can obtained here:  https://fee.org/articles/the-use-of-knowledge-in-society/

“The State of Disunion”, Lucas Rodriguez and Spencer Segal, Stanford Political Journal, Nov. 2, 2016, https://stanfordpolitics.com/the-state-of-disunion-901513b6b356

“Political Polarization in the American Public: How Increasing Ideological Uniformity and Partisan Antipathy Affect Politics, Compromise and Everyday Life”, Pew Research Center, June 12, 2014, http://www.people-press.org/2014/06/12/political-polarization-in-the-american-public/

“Polarization in Congress has risen sharply. Where is it going next?”, Christopher Hare, Keith T. Poole, and Howard Rosenthal, The Washington Post, Feb. 13, 2014,  https://www.washingtonpost.com/news/monkey-cage/wp/2014/02/13/polarization-in-congress-has-risen-sharply-where-is-it-going-next/?utm_term=.e7cc91347bef

“A Filibuster on a Supreme Court Nomination Is So Rare It’s Only Worked Once”, Elizabeth King, Time, 2/8/17,  http://time.com/4659403/neil-gorsuch-filibuster-abe-fortas/

“Filibuster and Cloture”, U.S. Senate website,  https://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm

“Filibuster”, wikipedia.org,  https://en.wikipedia.org/wiki/Filibuster#United_States

“Nuclear option”, wikipedia.org, https://en.wikipedia.org/wiki/Nuclear_option

“U.S. Senate goes ‘nuclear,’ changes filibuster rules”, USA Today, 11/21/2013,  https://www.usatoday.com/story/news/politics/2013/11/21/harry-reid-nuclear-senate/3662445/

“George W. Bush judicial appointment controversies”, wikipedia.org,  https://en.wikipedia.org/wiki/George_W._Bush_judicial_appointment_controversies

“How Schumer turned against a filibuster he once tried to save”, Reid Pillifant, Politico, http://www.politico.com/states/new-york/albany/story/2013/11/how-schumer-turned-against-a-filibuster-he-once-tried-to-save-009838

“How 52 Senators Made 60 = 51”, Sen. Orrin G. Hatch, Stanford Law & Policy Review, March 19, 2014,  https://journals.law.stanford.edu/stanford-law-policy-review/online/how-52-senators-made-60-51

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The Courts as Demigods

Trump nominates Neil Gorsuch for the Supreme Court, 1/31/17

Today, nominations to the Supreme Court are the casus belli for apocalyptic struggles.  It’s understandable.  The courts have achieved a god-like status in our political system.  A court’s decision is treated as the thundering voice of Yahweh.  As demigods, their judgments intervene into every nook and cranny of creation.  It was not always so.

Does our Constitution demand the supremacy of the courts?  No.  Has the judiciary achieved primacy in our constitutional order?  Yes.  The former is a hot topic of debate in academic circles.  The latter is the current reality.

The primacy of the courts is the inescapable result of the way the subject of our government is taught and discussed.  Take for example the ubiquitous, and misleading,  definition of “judicial review”.  Scholastic’s translation would be at home in any public school textbook.

“Judicial review is the power of courts to decide the validity of acts of the legislative and executive branches of government. If the courts decide that a legislative act is unconstitutional, it is nullified. The decisions of the executive and administrative agencies can also be overruled by the courts as not conforming to the law or the Constitution.”

Is it true?  Maybe not.  Could it be that determining the constitutionality of an act may not be an exclusive power of the courts?  The logic of the primacy of a court’s decision, rising above the powers and acts of the other branches, would leave us at the mercy of an unelected cabal, appointed for life.  Really, swearing an oath of loyalty to the Constitution upon taking office would essentially mean swearing an oath of loyalty to the Supreme Court, through the meanings it confers on the document.

The other branches (called departments), the executive and legislative,  and states would be forced into the thickets  of constitutional amendments and impeachment to reverse the ukases of this grand council.  Neither of which are likely avenues for success.

Judicial supremacy as currently construed is not prudent nor in conformance with “separate but equal branches” (Federalist Papers, No. 47).  The claims of the courts’ primacy is a hot mess.

Andrew Jackson

History gives us a different picture of the courts’ reach.  Andrew Jackson was famous for his blunt ripostes.   The Supreme Court had just issued its ruling in Worcester v. Georgia wherein it invalidated a Georgia statute governing non-Native Americans on Indian lands.  In a letter to John Coffee, Jackson allegedly wrote, “John Marshall has made his decision; now let him enforce it!”  Since Chief Justice John Marshall didn’t order U. S. marshals to enforce the decision,  he avoided a showdown with the hot-tempered Jackson over the matter.  He knew the limits of the Court’s authority and didn’t want to test them against Jackson.

Announcement for a meeting to protest the Dred Scott decision

The confrontation wouldn’t happen today because of the expectation of an immediate surrender of the president to the Court, something Lincoln would have found strange.  The Dred Scott case is highly instructive in this respect.  The ruling created, to put it mildly, an uproar.  It led to the rise of the Republican Party, the candidacy of Lincoln, and the first Republican president.

Abraham Lincoln

Lincoln’s disdain for the monstrosity of the Dred Scott decision was palpable.  In his first inaugural address, with Dred Scott in mind, Lincoln laid out the danger posed by the Court’s claim of supremacy on all matters constitutional.

“… the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, … the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.”

Once as president, he used his executive powers to put the kibosh to the thing.  He ordered the issuance of passports to free blacks in direct contradiction of the Court’s finding that blacks weren’t citizens under the Constitution.  There’s more.  He supported and signed legislation to ban slavery in the western territories.  In effect, gutting Dred Scott through executive and legislative fiat.

What would be the reaction if George W. Bush treated Roe v. Wade with as much contempt as Lincoln did Dred Scott?  The wailing and gnashing of teeth from abortion absolutists would be heard for miles.  The media, the partisan bloodhounds in academia, and the satraps in the Democratic Party – the usual haunts of progressivism – would be howling for scalps.

Jackson, Lincoln, the founders, and almost anyone on the scene prior to the progressives’ mangling of our Constitution, would have recognized what is referred to today as “departmentalism”.  It holds that each department has the decisive authority to interpret the Constitution regarding its core constitutional functions.  The concept flies in the face of the court’s pedestal placement in a high school textbook.

Bringing the concept to the present, President Trump could simply ignore the Ninth Circuit’s decision on his temporary travel ban executive order.  To borrow from Jackson, he could announce, “Judges Michelle Friedland, William Canby, and Richard Clifton have made their decision; now let them enforce it.”  Directing foreign affairs and national defense are, if anything, integral to the functions of a chief executive.  Without these powers, he’d be as ill-equipped as a eunuch in a pagan fertility rite.  What would be the point in having the office?

The potential for the courts to emasculate a president or legislature is real.  What is the check on their power if the judiciary has the final say on all matters before it?  Point of act: there is none!

Forget about departmentalism.  The Supreme Court killed it.  The judiciary has conferred upon itself supremacy.  In Cooper v Aaron in 1958 – and in other near contemporaneous rulings-  the Court bellowed that all governing entities must bow to their will.  As legal scholar Matthew Franck wrote about Cooper,

“It is quite another thing to say, as Cooper did, that Supreme Court rulings are ‘the supreme law of the land’ owing to an exact identity with the Constitution itself, and thus binding with Article VI force on all rival interpreters of the Constitution.  From this it would follow that Congress and the president, no less than the states, are bound by their oaths to accept Supreme Court decisions as binding expositions of the meaning of the Constitution.”

From here on out, the judiciary has an unlimited veto power on the other two branches.

Appointed for life, they can stray into any issue arising from the plethora of interactions in all of creation.  No limit on the subject matter or their power to intervene.  The situation is eerily like Rome’s shift from republic to empire.  Our courts are seated like Augustus in the Roman governmental order, the wise check on an unruly Senate.  In effect, Rome had an emperor.  In effect, we have black-robed jurists, appointed for life, with power to command anything, as our new emperors.  The only thing lacking is the hereditary principle.

Maecenas Presenting the Liberal Arts to Emperor Augustus, Tiepolo Giovanni Battista

Don’t worry, some court in the not-too-distant future will read it into the Constitution.  It’s coming.

With so much power in the hands of a judge,  an Armageddon erupts over every Supreme Court vacancy – if, as of yet, they haven’t given themselves the power to appoint their own successors.  Our only hope is the seating of judges who will exercise self-restraint, because there are no external ones.

The juiced-up political battle over filling Supreme Court vacancies is a sign of our dysfunction.  Filling a Supreme Court vacancy has much greater weight than electing a Congress or President.  All sides recognize its importance, but few understand that it was never meant to be that way.

Missing in the debate is the realization that we’re now ruled by demigods.  Do we really want to go the way of Rome?  Is emperor worship next?

RogerG

Sources:

List of nominations to the Supreme Court of the United States, wikipedia, https://en.wikipedia.org/wiki/List_of_nominations_to_the_Supreme_Court_of_the_United_States

Judicial Review, Scholastic, https://www.scholastic.com/teachers/articles/teaching-content/judicial-review/ – major publisher of curricular materials

“Does the Constitution mean only what the judges say it means?”, Timothy Sandefur, Liberty Blog, 6/30/2010, http://blog.pacificlegal.org/does-the-constitution-mean-only-what-the-judges-say-it-means/

“Epimenides paradox”, wikipedia, https://en.wikipedia.org/wiki/Epimenides_paradox

“Our Overly Sanctified Judiciary”, Richard Lowry, NRO, 2/10/17, http://www.nationalreview.com/article/444775/donald-trump-judge-robart-tweet-was-wrong-not-threat-our-republic

“Judicial Supremacy vs. Departmentalism”, Matthew J. Franck, NRO, 3/23/15,
http://www.nationalreview.com/bench-memos/415856/judicial-supremacy-vs-departmentalism-matthew-j-franck

“Populist Presidents and ‘Demoralized’ Judges”, Andrew C. McCarthy, NRO, 2/10/17,  Read more at: http://www.nationalreview.com/article/444786/donald-trump-judges-attacks-andrew-jackson-did-much-worse

“Worcester v. Georgia”, wikipedia, https://en.wikipedia.org/wiki/Worcester_v._Georgia

“The Federalist Papers : No. 47”, The Avalon Project,  http://avalon.law.yale.edu/18th_century/fed47.asp