Tag: SCOTUS

Incompetence v. Catastrophe

The Biden Administration is not (yet) a calamity, but it seems determined to get there. After all, the Administration appears to be taking a whole host of progressive policy proposals seriously, a prospect that ought to dampen the spirits of anybody who resides on this side of sanity. Fortunately there are some reasonable Democratic Senators—a dwindling group to be sure—who are uneasy with the current state of affairs, and who are consequently unlikely to support the more extreme structural proposals. 

It is doubtful for instance, that the Senate will succeed in either packing the Supreme Court or eliminating the legislative filibuster over the next two years. But all bets are off for after the 2022 off-year elections. If the historical pattern is upset and the Democrats retain the House and grab a few more Senate seats, the stage will be set for transitioning from mere incompetence to real catastrophe.  

I can hear the chorus wailing now…”But Donald Trump…”. Please let us get this straight once and for all. The fact that Donald Trump was and remains an ignoramus from the Archie Bunker school of applied politics is utterly irrelevant. The “what about Trump” argument is nothing more than a vacuous school yard taunt in the time-honored tradition of “so’s your grandmother”. It has nothing intelligent to say about the merits of the Biden policy agenda. 

So, about that agenda. Progressives seem to be pushing on an open door. The policies that the supposedly moderate Mr. Biden campaigned on have been tossed out the window. Instead he has embraced an agenda that actively subverts the Constitutional order and guts the rule of law in favor of bureaucratic central planning. All this under the guise of “saving democracy” and promoting “equity”. 

It has apparently not occurred to Mr. Biden that the point of the Constitution is to preserve liberty by dividing power. It was never designed to promote equal outcomes, which is what “equity” is code for. In fact, outcome guarantees are antithetical to liberty and an affront to the idea of equality before the law. Perhaps Mr.Biden missed that lecture during the time he was suspended from law school for plagiarism, a habit he seems to have retained from his school days.

Back to the progressive agenda. Needless to say the marketing campaign for it is, as usual, replete with dishonesty, combined with unyielding ignorance. Which may explain why CNN, The NY Times and The Washington Post are so enthusiastic about it.

For instance, consider the recently introduced Democratic bill to expand the Supreme Court to 13 members. In supporting the bill, Rep Mondaire Jones (D-NY) argued that “Court expansion is something that is deeply rooted in the American tradition”. Really? Congress last passed an act to amend the Justice system by increasing the number of Supreme Court justices to 9 back in 1869. That was 152 years ago. The size of the Supreme Court has remained at 9 justices ever since. 

As a follow up, President Biden has appointed a commission to consider changing the structure of the Court, including its expansion.  Speaker Pelosi has said that she supports Biden’s commission, but that the Democratic bill to pack the Court won’t get a vote on the House floor. That would be the same Speaker Pelosi who claimed that impeaching Trump (the 1st time) would require an overwhelming bipartisan consensus. We know how that worked out. 

All this is nothing more than an attempt to intimidate the Court into ruling the way progressives wish them to. This is the same crowd that spent the last 4 years accusing the Trump administration (often correctly) of violating democratic norms and politicizing federal agencies. And now they have launched a full fledged attack on the third branch of government; the branch that is supposed to be non political. The branch that is supposed to protect individual rights against mob rule. 

And speaking of mob rule, Representative Maxine Waters (D-CA) was in Brooklyn Center Minnesota where, referring to the trial of Derek Chauvin who is on trial for murdering George Floyd, she had this to say when asked what protesters should do moving forward:

“We’ve got to stay on the street and we’ve got to get more active, we’ve got to get more confrontational. We’ve got to make sure that they know that we mean business.”

We can be thankful in a way. Progressives have revealed what they are really all about, and always have been—the iron fist in the velvet glove—operating under the guise of democratic majoritarianism. Individual rights do not matter; they are subsumed by an ever changing collection of “group rights” AKA demands of Democratic constituencies.

What remains to be seen is whether there are enough Democratic Senators and Congressman willing to put an end to the madness. Perhaps there are, but we are getting very close to the edge. If not, the Biden administration is very likely to melt down like Icarus did as he approached the sun. Then we will be faced with a real calamity instead of a potential one. 

JFB

Sore Loser

On Friday evening the Supreme Court refused to hear the case brought by Texas’s Attorney General and joined by 18 additional Attorney’s General, all of whom are Republicans.  The plaintiffs in the case sought to have the Court throw out the votes of 4 states to be replaced by the state legislature’s choice of electors to the Electoral College. Conveniently enough, all 4 state were won by Joe Biden and all 4 states have Republican majority legislatures. 

In the event, when the Court declined to take up the case, it did so without dissent. Two Justices, Clarence Thomas and Sam Alito, took the position that the case should be heard, but pointedly noted that the case would fail on the merits. As Andrew McCarthy notes here, Thomas and Alito adhered to their longstanding position that “…the Court must accept cases when states invoke the Court’s original jurisdiction.” The net result is that the Court voted against Trump 9 – 0, a stinging rebuke no matter how you slice it. 

If anyone feels shame anymore then there ought to be a lot of shamefaced people walking around Washington this morning. Start with the man who initiated the lawsuit, Texas Attorney General Ken Paxton. Add the 18 other Republican state Attorneys General who joined the suit. And to that add the 100 or so Republican Congressmen who backed the lawsuit. 

They should be ashamed because not only was the lawsuit garbage from the very beginning; it also implied a wholesale rejection of the separation of powers as well as state sovereignty. It would have set the stage for the spectacle of the states suing each other over policies that clearly reside in the purview of the individual states. And not to put too fine a point on it, just the other day those very same Republicans were arguing that Democrats were turning the Court into a super legislature to achieve policy victories they couldn’t achieve through the electoral process. 

Well, perhaps the Republicans ought to consider the consequences of having nominated a narcissistic reality TV star for President. It ought to be pretty clear that the voters rejected both Trump the person and hard left collectivism. Maybe, just maybe, the Republicans will stop with the cult-of-personality nonsense and begin to act like adults, but I’m not counting on it. 

The Democrats don’t exactly come off well in this fiasco either. Keep in mind that they spent the last 4 years attacking the integrity of the 2016 election, arguing among other things, that Russian interference handed the election, which rightly belonged to Hillary Clinton, to Donald Trump. And Democratic here Stacey Abrams has yet to concede that she lost the Georgia gubernatorial race in 2018. Before the 2020 election even took place, Hillary Clinton announced that Joe Biden should never concede the result. And in Iowa, Democratic candidate for Congress Lisa Hart, who lost the race by 6 votes, has refused to concede and is petitioning Congress to seat her instead of the actual victor. 

Some interest should be given to the predictions of Democratic pooh-bahs  who launched an all-out attack on the Supreme Court. Consider for a moment the dire predictions of Sheldon Whitehouse (D-RI) who argued that as a result of the Citizens United decision (affirming the 1st amendment by the way) a wave of “dark money” would crash over the elections ensuring corporate control of “our democracy”. Or predictions that Republican Supreme Court nominees would “hand the election” to Trump. 

Well a wave of dark money did cascade over the 2020 elections. But it was largely Democratic money, much of which came from Wall Street. And it didn’t do the Democrats much good in Congressional races where they lost seats. Also consider that Trump has now lost something like 33 of 34 election related lawsuits, and that the Supreme Court turned him down cold without a dissent. It’s pretty hard to take the Sheldon Whitehead’s of the world seriously. 

As if the whole situation were not absurd enough to be the subject of a Fellini film, in the wake of the latest defeat, Trump got busy on his Twitter account. See below.

Donald Trump


Donald Trump. Again.

So what does it all add up to?

First, Donald Trump has presented clear and convincing evidence that he never should have received the Republican nomination and never should have been elected President in the first place. Second, the Republican Party, terrified of its increasingly yahoo electoral base, has abandoned its former principles and continues to display a remarkable profile in cowardice. Third, the leadership of the Democratic Party, is increasingly driven by principles–the wrong ones. They are headed down the path of a radical collectivist ideology that bears no dissent and has always led to ruin.

Cheer up, though. Voters in the U.S. have always been quite willing to throw the bums out for a new set of bums. And thus punished, one set of bums gets enough of the message to correct the errors of the last set of bums. And then the cycle repeats.

JFB

Reason TV on Judge Amy Coney Barrett

As the leftist hysteria continues to mount on Donald Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court, it may be a good idea to take a look a the libertarian perspective. Here below is a short video from Reason TV that provides such a look.

Reason TV on Judge Amy Coney Barrett

Judge Amy Coney Barrett

The Party of Science is about to make yet another spectacular display of its rampant anti-intellectualism as it gears up to contest the nomination of Judge Amy Coney Barrett to the Supreme Court. Among other things, we are told that Judge Barrett should be denied a seat on the nation’s highest Court because she has 7 kids, 2 of whom are non-white adoptees from Haiti. Trans racial adoption is supposedly evidence of racism. Then again, for progressives, everything is evidence of racism of one sort or another. 

One Democratic operative went so far as to insinuate (without evidence as CNN loves to report about Donald Trump) that Judge Barrett and her husband may have illegally spirited the 2 children in question out of Haiti. Dana Houle, a Democratic operative, recently tweeted that “[He]… would love to know which adoption agency Amy Coney Barrett and her husband used…Some adoptions for Haiti were legit. Many were sketchy as hell. And if the press learned they were unethical and maybe illegal adoptions, would they report it? Or not bc it involves her children.” 

Needless to say the airwaves haven’t been full of progressive objections to this sleazy innuendo. 

We have also been treated to attacks on Judge Barrett as being emblematic of the submissive women in Margaret Atwood’s dystopian novel the Handmaid’s Tale. This despite the fact that she graduated #1 in her class at Notre Dame Law school, served as executive editor of the Notre Dame Law Review, served as a clerk for Justice Antonin Scalia, served as a tenured Professor at Notre Dame Law school where she was awarded the Distinguished Professor of the Year 3 times, and despite the quality of her academic publications as well as her signed opinions as a federal appeals Court judge on the 7th circuit. 

Judge Barrett’s long publication record will be used —misused actually—to distort her positions on legal and political questions. Then again it is important to understand that truth is of little importance to Judge Barrett’s progressive opposition. Their goal is to make the confirmation vote as costly as possible for Republicans. Their chosen tactic will be to smear the Judge and her family with personal attacks on her religious beliefs and her policy preferences, and then imply that the Judge will use her position on the Court to impose those beliefs on the nation. 

The irony in this is obvious. It is progressive justices who have done precisely that, arguing that the Constitution is a “living breathing” document; apparently believing it is a document only capable of breathing progressive doctrine. And here it is worth considering what Judge Barrett has actually said and written.

For example, when during her 2017 confirmation she was queried about if and when it would be proper for a judge to impose her personal beliefs when applying the law, this is how she responded. (See The Washington Post).

“Never. It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else on the law.” 

This is where the rubber meets the road. Progressives and Democrats are united in their opposition to Judge Barrett precisely because she actually believes and acts in a way that progressives only pretend to. The proof is in the campaign against her. Progressives argue that she “will take your health care away”, that she will “restrict abortion rights”, that she has had the effrontery to write that 2nd amendment rights are not second class rights, and that she will not show sufficient deference to a bureaucracy dominated by progressives. 

These are all complaints about preferred policy outcomes; they are not legal arguments. Courts are not supposed to be super legislatures. Ruling on the law as written is what judging is supposed to be about. In a democracy changing the law requires gathering the votes to do so. The more important the change, the larger the required margin. That requires using powers of persuasion to develop a legislative consensus.  

That is why Amy Coney Barrett is such a threat to the control freaks who call themselves progressives. By adhering to the law as written, she respects the structure of the U.S. government as it was founded, with its checks and balances designed to allow a functioning democratic government while protecting individual people’s “unalienable rights” from the majority’s passions of the day. 

She should be confirmed without delay. 

JFB