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.
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.
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.
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:
“Trump’s decision to pardon Joe Arpaio could be a crucial piece of evidence in the Russia investigation”, Sonam Sheth, Business Insider, 8/27/17, https://www.yahoo.com/finance/news/trumps-decision-pardon-joe-arpaio-160000939.html
Citizen Action of New York website, http://citizenactionny.org/
Sonam Sheth’s brief profile at Business Insider website, http://www.businessinsider.com/author/sonam-sheth
“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
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
“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
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. Theruling 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 contemptas 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?
“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
