I’m abandoning the rule about not speaking ill of the dead. Ruth Bader Ginsburg was a politician in robes and we’re in a political season.
Ruth Bader Ginsburg has died. These are my first, rough thoughts, and they’re not in any particular order. I’ve also skipped hyperlinks, although I’m pretty sure my facts are correct or, at least, correct enough. Please feel free to add your thoughts to the comments.
1. My thoughts are with her family. Losing the mama and the matriarch is a painful thing, even if you’ve known it was coming. Having said that, let’s talk about the public figure, not the private person. And considering that everything Ginsburg did was political, this seems appropriate.
2. Ruth Bader Ginsburg was an appalling anti-constitutionalist, who always put her politics ahead of both the constitution and the law.
3. All of the leftist and RINO encomiums for her refer to her “fighting” for “equality and justice.” The mere fact that they can say that proves what an awful judge she was. If you’re “fighting” for “equality and justice,” you’re a politician. As a justice on the United States Supreme Court, Ginsburg’s focus should always have been on the Constitution. Had she had any respect for her job, she would have understood that it was for the voters and their representatives to “fight” for equality and justice. Her political side also showed in the fact that, disgracefully, she voiced an opinion in the 2016 election.
4. A good judicial opinion relies on the solid building blocks of precedent and statutory authority. The decision then rises clean and strong, like a house made of the finest materials, standing firmly on a stone foundation, with that stone being the Constitution. Ginsburg’s opinions, especially on issues that mattered to the left, were amalgams of random bits and pieces of law that could be cobbled together in a rough simulacrum of a shack. Ginsburg and her clerks hid this shoddy construction in muddy and muddled writing surrounded by myriad case citations that were never quite on point. Ginsburg’s decisions were one of the reasons I became a conservative. As a lawyer, I realized that she could reach the conclusions she did only through dishonesty and judicial sleight of hand. If she couldn’t reach those “principled” conclusions honestly, how principled were they?
5. Ginsburg long ago gave the game away on abortion. She knew that it wasn’t about giving women choices and making their lives better. Instead, as she said, it was about getting rid of population groups that Ginsburg and her elite, most white, leftists didn’t want around. Ginsburg didn’t frame it in terms of race, but it certainly worked out that.
6. Ginsburg had no respect for the Constitution she was sworn to defend. I have a link somewhere of Ginsburg saying that, if she had the choice, she would have done it differently. She didn’t say so explicitly, but she implied that doesn’t like our Constitution because it is built upon a weak(ish) central government and inherent individual rights. She would prefer something along the lines of the EU’s constitution, which has a massive centralized government micromanaging individual lives, with “rights” being predicated upon people’s relative situation vis-a-vis the government class’s preferences. Moreover, despite being labeled as rights, they’re clearly mere privileges that the government can bestow and withdraw as it wishes.
7. Ginsburg’s politicizing the Court is part of why we’re at the situation we are today, where a Justice’s death can throw an upcoming election into an uproar. When judges legislate, as she and her fellow leftists on the Court have been doing, the Court takes on oversized importance. For decades, leftists who couldn’t get their fellow citizens to vote on their policies were able to use the Court as a super-legislative body. This is not what the Constitution intended, and it means that we Americans are being ruled by a cabal of 9 people who hold their positions for life. They are, in essence, a form of non-democratic absolute monarchy.
8. Ginsburg was a terribly selfish lady. Apparently she said on her deathbed that she didn’t want Trump to nominate her successor. If she didn’t want a Republican to do that, she should have retired on Obama’s watch. At the very least, despite a Republican Senate (it was Republican in his last two years, right?), Obama could still have pushed through a mildly leftist judge. After all, the Senate was a RINO funhouse then and, if Obama had nominated a black man, even a communist, they would have said yes.
9. Mitch McConnell apparently sent out the message that he stands ready to confirm whomever Trump nominates right now. The problem is that Lisa Murkowski has already said she won’t do anything until the inauguration. Mitt Romney has proven that he will always place his ego over the good of the country, proving that he’s McCain’s spiritual heir. Why, oh why, do voters choose such awful, weak people. There’s also speculation that Susan Collins is in a tough race, implying that she can’t win if she votes for a new Supreme Court Justice in the next 45 days. My current thinking is that a conservative Supreme Court nominee is more important even than a Republican majority in the Senate in the next term. We might be able to survive a “Harris/Biden” administration, but I don’t know that we can survive a Harris/Biden administration and a strong leftist Supreme Court. That means that Collins should put her country ahead of her career.
10. We have to brace for the storm. Combine the Ferguson riots with the George Floyd riots with the Kavanaugh madness, and you will have a rough sense of the temper tantrum the left will throw. We have two choices. We can say, “No, no, let’s just wait for the election to happen. If it’s Biden, well, it’s all over anyway. And if it’s Trump, well, then we’re ready to deal with the left.”
That’s wrong. The moment we say that, we’ve already yielded to the mob’s veto. Americans in 2018 gave Trump a Senate majority because he promised to give us a non-activist Supreme Court that’s guided by the Constitution, not Das Kapital, as run through a modern “social justice” filter. We’ve still got that president and that Congress for a few more months and we should get what’s promised. Yes, the left will run amok but we have to stand up to them. Otherwise, America becomes Mogadishu. The blackmail of violence has got to end.
11. I think Trump needs to nominate Amy Coney Barrett. As far as I know, in addition to being a superb judge in the strict constructionist mode, she’s as pure as the driven snow. The only way the left can attack her is that she’s Catholic, and I don’t think American voters outside of the leftist Swamp will like that approach.
The House is considering three articles of Impeachment. The Constitution is at issue in questions of Obstruction of Justice, Contempt of Congress and the form of the Senate Trial. Comity and Corruption are at issue as to the Bidens and Abuse of Power. And is this is an unlawful attempted coup?
The House is considering three Articles of Impeachment, one of which is expected to be for contempt of Congress. The House claims that Donald Trump refused to honor lawful subpoenas for testimony and documents as pertains to the Ukraine. Was Trump within his rights to do so? That is wholly a Constitutional question. It is also closely related in at least one relevant part to a likely Second Article of Impeachment, namely Obstruction of Justice as to the Russian Hoax inquiry.
The only vote the House of Representatives has held to authorize an impeachment inquiry of Donald Trump was defeated overwhelmingly in January, 2017. In response to the Ukraine IC IG matter, Nancy Pelosi, as Speaker, unilaterally declared an “impeachment inquiry” on September 24, 2019, and the House immediately began issuing subpoenas for witnesses and documents. As to the latest vote held a week ago to formalize the procedures being used in the ongoing Star Chamber, Speaker Nancy Pelosi was adamant that the Resolution was not an authorization of an “impeachment inquiry.“
Can anything less than a vote by the entire House of Representatives to authorize an “impeachment inquiry” be considered Constitutionally valid? As I’ve discussed before, this is far from mere form. If the House of Representatives approves a resolution for an impeachment inquiry, the House gains a power that it, by the explicit terms of the Constitution, does not otherwise possess — the judicial power to enforce subpoenas and requests for documents on matters outside its Art. I, Sec. 8 enumerated powers. Without that power, the White House was acting lawfully when it refused to cooperate. Tellingly, the House, rather than take those subpoenas to a Court to enforce them — and risk having a Court declare their proceeding unconstitutional — appears to be simply rolling all but one of their refused “subpoenas” into an contempt of Congress charge.
Then there is Part II of the Mueller Report. We can expect the House to adopt Part II virtually in toto as an obstruction of justice charge. There is a twist on this, however, and it is where this overlaps with the Contempt of Congress charge. Without the judicial power of an impeachment inquiry, the House has no power to subpoena the Grand Jury testimony that Mueller referenced in his report. The House subpoenaed the Department of Justice for that information and got the matter heard before an Obama judge (yes, John Roberts, there are progressive judges who rule by ideology, not the law) who ruled that the House was authorized to receive the material — and thus that their current “impeachment inquiry” was constitutionally sufficient. The White House made an emergency appeal to the D.C. Circuit Court, which granted a stay, and the matter is now to be heard on November 12 before the D.C. Circuit. If the D.C. Circuit affirms the lower court’s ruling, the Trump administration will assuredly bring it to the Supreme Court, but there is no guarantee that the Supreme Court will take up the case.
All of this brings up a huge, core Constitutional issue: Which branch of government has the power to determine the meaning of the Constitution — specifically in this case, when the question is whether the House may claim judicial powers without a vote of the House of Representatives to authorize an impeachment inquiry? There is no doubt that Articles of Impeachment (other than Contempt of Congress) that the House votes upon would be facially constitutional. So this question applies only to whether the President may be validly held in contempt of Congress for failing to cooperate with an impeachment inquiry that was never authorized by a vote of the full House of Representatives.
The Judicial Branch long ago claimed for itself the power to definitively interpret the Constitution, but that right to do so appears nowhere in the text of the Constitution. Can the Senate summarily dispense with any claim for Obstruction of Justice as to this “impeachment inquiry” because the Senators believe that the House acted “unconstitutionally?” Can the Senate do so in the face of a D.C. Circuit Court opinion to the contrary? Could the Senate do so in the face of a Supreme Court refusal to hear an appeal from the D.C. Circuit? And lastly, could the Senate do so even if the Supreme Court hears an appeal and concludes that the obscene House Star Chamber proceeding meets the standards for constitutionality? Those are all valid questions that I believe should be answered in the affirmative, but that could have long term ramifications for how our nation operates.
A second Constitutional question that touches on this and all of the Articles of Impeachment concerns whether Donald Trump will be afforded the same due process rights at trial (rules of evidence, right to bring definitive motions, etc.) that are afforded all Americans in court? As Supreme Court Justice Story said, in 1833 when remarking on impeachment:
It is the boast of English jurisprudence, and without it the power of impeachment would be an intolerable grievance, that in trials by impeachment the law differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevail. For impeachments are not framed to alter the law; but to carry it into more effectual execution, where it might be obstructed by the influence of too powerful delinquents, or not easily discerned in the ordinary course of jurisdiction, by reason of the peculiar quality of the alleged crimes.
Under current Senate Rules, the President does not explicitly have those protections. Under the modifications suggested here, he would gain them. Assuming that the Senate does adopt those changes then before trial begins President Trump should move to dismiss Contempt of Congress Charges for failing to state a legal claim — i.e., the House did not vote to authorize an impeachment inquiry, and thus the President did not obstruct a lawful process. As to the obstruction of justice charge, President Trump should make a motion to dismiss the claim on the grounds that, even assuming all of the facts alleged in the Mueller Report to be true, it does not as a matter of law show a violation of the law or a political offense for which impeachment is warranted. President Trump committed no underlying crime. President Trump substantially complied with the investigation and he committed no act that resulted in the investigation being hindered.
Corruption & Comity
A third Article of Impeachment, according to Breitbart, will be for Abuse of Power. The House’s Star Chamber proceeding is likely to result in a claim that President Trump abused his power by withholding aid from Ukraine subject to them investigating Joe and Hunter Biden for corrupt practices.
This is yet another Article that should be dealt with on a motion to dismiss. The President’s practice and authority to negotiate with foreign countries for the aid they may receive from America is a well-established power of the Presidency, one that has been exercised by numerous other Presidents. Thus negotiating foreign aid with the Ukraine cannot itself, be grounds for impeachment. It is axiomatic that, to again quote Justice Story, impeachment may not be used to “make that a crime at one time, or in one person, which would be deemed innocent at another time, or in another person.“ And in fact, the aid was ultimately released in full to the Ukraine in September, 2019, so there is no Constitutional concern with Congress’s power of the purse, nor any legal concern with the Impoundment Control Act of 1974.
That leads to the next question, whether what Trump was negotiating for — the facts surrounding Joe and Hunter Biden in the Ukraine and whether it involved corruption — was an improper purpose. (It should be noted that Trump never in the transcript explicitly said that Ukraine’s receiving the money hinged on looking into the Biden matter. Indeed, it’s a stretch even to read into the transcript his having said such a thing implicitly.) As a textual matter, Article II § 3 of the Constitution requires the President to “take care that the laws be faithfully executed.” So when the President looks into possible legal violations, he is acting in fulfillment of his Constitutional duties.
That leaves the last question: Did President Trump have reasonable grounds to suspect that Joe Biden violated federal rules of ethics, and perhaps American laws, regarding corrupt practices? That is a factual matter. Trump does not need to show actual guilt. But he needs to be able to show that, based on the facts as he knew them, a reasonable person would suspect that there was enough evidence of corruption that further investigation was warranted.
As a threshold matter, the Joe and Hunter show went far beyond Ukraine. It was both foreign and domestic. As to the former, when Daddy became Vice President and was given control of foreign affairs in certain countries, Hunter Biden became Joe Biden’s little lamb. With apologies to Sarah Hale and a hat tip to the poetess Bookworm:
Joe Biden had a little Hunter, That filled its nose with snow, And everywhere Joe Biden went Hunter was sure to go; He followed Joe to Ukraine, Romania & China too; He sold his daddy’s name there, But saying so sparked a coup.
Hunter Biden’s escapades are well documented in the Ukraine, Iraq, China and Romania, for we know that he followed his father into those countries (sometimes flying into them with his father on Air Force Two) and immediately struck lucrative deals with corrupt politicians or, in the case of China, the government itself. Standing alone, these undisputed facts stink to high heaven. The mere appearance of corruption is an ethical problem for Joe Biden. It becomes a legal problem for Joe Biden if he used his position as Vice President to further his son’s enrichment or to protect him from investigation. And to be clear, based on the facts as we know them, if Trump and Trump’s children had done what Joe and Hunter Biden did, the call to impeach and jail him would be deafening.
When it comes to Ukraine, we know Hunter Biden was hired to sit on the Board of Bursima, a Ukrainian energy company owned by a man who is a suspect in billions of dollars of government corruption. We know that Hunter Biden was not qualified for such a seat beyond his familial relationship to Joe Biden. We know that people associated with Bursima then dropped Hunter Biden’s name to lobby the State Dept. in order to quash the corruption probes targeting their client. We know that at least one American official raised this as a problem to Biden’s office. And we know . . .
It is in fact an open question, not yet definitively answered, whether the prosecutor whom Joe brags about getting fired had an active corruption investigation into Bursima — and perhaps Hunter Biden as well. That was the question Trump seemed to be asking the President of Ukraine to find an answer to in his 25 July phone call. If so, there is more to investigate, such as what did Joe Biden know and when did he know it.
But according to Democrats, it is an abuse of power even to ask those questions. They can go pound sand. No one is above the law, not even a Democrat candidate for office. The only thing Trump asked for is information from an investigation. Was that pretextual or warranted? The first might arguably be grounds for impeachment, the second cannot be. Thus the only factual issue to determine whether to proceed to a full impeachment trial on abuse of power grounds is whether Trump was justified in seeking an investigation of Biden’s seemingly corrupt dealings.
Bottom line, we need to hear from Joe Biden and Hunter Biden, under oath at any Senate trial, to determine whether there was sufficient appearance of corruption for a reasonable person in Trump’s shoes to investigate. Indeed, the rule changes I suggested for the Senate’s impeachment trial are in anticipation of precisely that reality.
Democrats are going nuts over that issue. This from the Daily Beast, warning that “comity” in the Senate would be irreparably damaged by forcing the Bidens to testify:
Senate Democrats issued stark warnings on Wednesday that Republicans would severely damage the institution of Congress if they acquiesced to a push from Trump allies to haul former Vice President Joe Biden and his son Hunter for testimony about their actions in Ukraine.
A top Biden ally, Sen. Chris Coons (D-DE), told The Daily Beast that calling the 2020 presidential contender—who served for 35 years in the Senate—and his son for testimony “would be literally rolling a grenade down the aisle of the Senate” that would have “lasting consequences” on the upper chamber’s ability to work together.
“Look, Joe Biden is well known, widely respected, and frankly beloved by many in the Senate on both sides of the aisle,” said Coons. “The impeachment process is already disruptive enough. I think we should be approaching it with seriousness, not by entertaining conspiracy theories that are utterly unfounded. And I think it would be a very unfortunate move.”
Zaid has since claimed that what he meant only a “legal” coup. There is no such thing. A coup is, by definition, an “illegal seizure of power from a government.” Now, if what Mr. Zaid had in mind was an unlawful abuse of the laws of this nation to effect a coup . . . that is still not legal. It is an act of sedition punishable at law.
We certainly now have evidence of Mr. Zaid’s state of mind. We have reason to suspect that his client was likely previously involved in the leak of classified information to the press in order to damage President Trump and may have spied on Trump on behalf of the FBI, both illegal acts. Then we have long standing ties between the whistle blower and Adam Schiff’s staff and we have Adam Schiff’s own statement that they coordinated filing a whistle blower complaint. Lastly, we have a grossly legally deficient whistle blower complaint that should never have been filed as such, and certainly never should have been addressed to Congress as a finding of urgent concern. The IC IG did not conduct due dillegence in his investigation.
Now, that could all mean nothing. Or, it could mean that certain people were conspiring to effect a bloodless coup. There is enough here to warrant an investigation to determine the truth. And prosecution would be warranted if what we discover is in fact a seditious conspiracy rather than a series of simple errors. That would in fact be an unlawful coup.
For most of America, September 17 was “Constitution Day.” For progressives, it was a day to launch a multi-pronged assault on the Constitution.
On September, 17, 1787, the delegates to the Philadelphia Convention signed their finished product, the Constitution, and released it to the states to consider for ratification. It would be a year before eleven states ratified the Constitution, passing it into law, and three years before all thirteen states ratified the Constitution. It would be four years before the states ratified ten of the first twelve proposed Amendments to the Constitution, creating the Bill of Rights. Regardless, it is the 17th of September that we commemorate as “Constitution Day.”
But not the progressive left. To the extent they spent any time at all referencing the Constitution this past week, it was to attack it. Call it “Un-Constitutional Day,” if you will. The most direct attack was an attack on originalism — the truism that the Constitution must be interpreted as closely as possible to its commonly understood meaning on the day it was signed in 1787. Next, the Left, through its house organ, the New York Times, launched an attack on due process, with Democratic candidates for President calling for Supreme Court Justice Kavanaugh’s head. And the last attack, without doubt the most dangerous in the near term, was a renewed call in the New York Times to pack the Supreme Court with progressive ideologues.
Supreme Court Justice Neil Gorsuch recently authored a book, the title of which, A Republic, if you can keep it, is from a famous Ben Franklin quote. At the end of the 1787 Constitutional Convention, Franklin, who was justly famous for his wit and brevity, was asked what type of government the men at the Convention had created. Franklin replied “A Republic, if you can keep it.”
What Franklin meant was that, in the words of Prof. Richard Beeman, “democratic republics are not merely founded upon the consent of the people, they are also absolutely dependent upon the active and informed involvement of the people for their continued good health.” Not surprisingly, Gorsuch’s book deals with his judicial philosophy of originalism as the Foundation of our Republic and the threat that progressives’ “living Constitution” obscenity poses to our Republican form of government.
Two paragraphs from Wiki (citations and links omitted) do a good job of summing up the issue and presaging Gorsuch’s recent book:
In a 2016 speech at Case Western Reserve University, Gorsuch said that judges should strive to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.
In a 2005 article published by National Review, Gorsuch argued that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda” and that they are “failing to reach out and persuade the public”. Gorsuch wrote that, in doing so, American liberals are circumventing the democratic process on issues like gay marriage, school vouchers, and assisted suicide, and this has led to a compromised judiciary, which is no longer independent. Gorsuch wrote that American liberals’ “overweening addiction” to using the courts for social debate is “bad for the nation and bad for the judiciary”.
It’s not clear whether Kim Wehle deliberately or from lack of acumen fails to understand this principle. What is clear is that, on Constitution Day, she claimed that the living Constitution philosophy is no worse than Gorsuch’s originialism because originalist judges also “make stuff up” as they go along — just as, she fully admits, progressive judges do. That is a calumny. Writes Wehle:
Accordingly, Gorsuch reportedly tells his law clerks: “‘Rule No. 1: Don’t make stuff up,’” and “‘when people beg, and say, ‘Oh, the consequences are so important,’ and when they say, ‘You’re a terrible, terrible, terrible person if you don’t,’ just refer back to Rule No. 1. And we’ll be fine.’”
Here’s the problem: The implicit suggestion that the law and the Constitution are black and white — and that all that honorable judges need to do is apply its plain language and move on — is a myth.
That is a horse manure statement of the issue. No one, not least of all an originalist, claims that the law is black and white. Teasing out the most likely meaning of a clause, a sentence, or a paragraph as the Founders drafted it and as the people who voted upon it understood it is not easy and, by the nature of the evidence relied upon, subject to a range of interpretations.
It helps the originalists that the Founders left us a fair number of clues about what they thought and intended. In addition to focusing on the words themselves, as those words were understood at the time and as were voted upon at the Convention and then as finalized by the Committee of Style, jurists can look to a few contemporaneous sources who describe the debates at the Constitutional Convention. They can also read what people wrote after the Convention but before ratification, such as the Federalist Papers and the Anti-Federalist Papers, which argue about the provisions and their meanings. There were debates in the state conventions. And lastly, there is the entire sum of historical events that were known to the Drafters and the people of the era and that we can assume had an impact on the way in which they drafted the Constitution, whether they mention these events or not.
The key to this “range of interpretations,” though, is that every one of them is anchored firmly in the history and soil of the American colonies in 1787. This history ensures that an originalist change has a limited range of permissible interpretations beyond which he may not go. Even within those parameters, the judge is further limited by the mandate that he choose which interpretation is most accurate, not which his conscience finds most desirable. That is not, as Ms. Wehle claims, “making stuff up.” And indeed, it often means that originalist judges will in good conscience disagree. As Ilya Shapiro recently opined at the USA Today, “Liberal Supreme Court justices vote in lockstep, not the conservative justices.”
The example Ms. Wehle uses to portray originalism’s alleged bankruptcy is bizarre, for it stands for the opposite proposition. Wehle focuses on Scalia’s opinion in a case almost two decades old. In that case, Scalia wrote that the Fourth Amendment requires that police show probable cause and obtain a warrant before using a thermal imaging device to observe a home for the excessive heat that home-grown marijuana generates. As Wehle points out, thermal imaging did not exist in 1787. Through that statement, she apparently thinks she’s proving that Scalia was of necessity “making stuff up.” Horse manure.
What the Supreme Court Justices are being paid to do is tease out the bedrock principles of the Founders and apply those to new situations, including new technology, which is precisely what Scalia did. The Fourth Amendment requires probable cause to search a private home. Whether they conduct that search physically, by breaking down a door, or without physical intrusion, using new technology, the core principal behind the 4th Amendment still applies. It is still a search requiring that police act with probable cause.
What Ms. Wehle is arguing for is policy-based jurisprudence with unelected, life-term Supreme Court Justices acting as a politburo, imposing their own policy choices as Constitutional law.. She wants judges to ” put their policy goals on the table for the rest of us to see and evaluate.” This is an outright assault on the Constitution. Justices on the Supreme Court have one power under the Constitution. Per Article III, Section I, they hold “the judicial power.” The power of imposing “policy goals” on this nation has nothing to do with the judicial power. Imposing policy goals is solely the province of the Congress which, under Article I, Section I of the Constitution has “all legislative power.” At least unless Ms. Wehle and other progressives win their slow motion coup to permanently bend the Judiciary, and with it the very Constitution, to their will.
The Attack On Due Process
The Democrats turned the Kavanaugh Hearings, the goal of which was to determine his fitness for the Supreme Court, into an utter travesty when, at the twelfth hour, they made public unfounded charges that Kavanaugh had engaged in sexual batteries in high school and college. It was, as to Kavanaugh, the same as the Russian collusion charges were to Trump — false allegations made at the last minute to forestall due process and to drum up a public outcry that would keep these two out of power or to weaken and delegitimize them so they could not fairly exercise power.
While due process of law is a foundation of our nation, its antecedents predate our Constitution by a millennium at least. The Magna Carta of 1215 famously makes references to due process, although even did not invent “due process” but, instead, acknowledged its pervasive existence at law in England and stated that King John could not suspend it. The words “due process” are shorthand for all of those systems and processes we have developed over a millennium — from probable cause to search and arrest to jury trials to appeals to actions of habeus corpus — to ensure that, whenever the state uses its police power, it will do so with reliable fairness.
Due process is an answer to the ancient question, quis custodiet ipsos custodes – “who watches the watcher?” Our Constitution answered that question in the political realm with checks and balances and in the legal realm with “due process.” The latter is our way of making sure that multiple people — and, to the maximum extent possible, these people should have no bias as to the particular case — have to examine facts to determine a person’s guilt before the state can take that person’s life, liberty or property.
Due process of law is so fundamental to a republican form of government that a republic cannot exist without it. If a government is free to exercise its power without the check of due process, then, by definition, you have a tyranny, even if it has not reached the tyrannical extremes of, say, North Korea. Our English forebears recognized a tyranny when they saw one and waded through a river of blood, in multiple rebellions and civil wars, from the First Baron’s War in 1215 to the Glorious Revolution of 1688, to ensconce the right to due process of law as one of their rights against government. Today, we call a government operating without due process of law a police state, a fascist state, a dictatorship, or a socialist utopia.
Kavanaugh’s true crime is that he is an originalist, and the left does not need due process to establish that. As to actual crimes, no need for due process when false allegations and a howling mob will do the job of limiting Kavanaugh’s right to life, liberty and property. The Constitution be damned.
Packing the Court
If the Constitution limits the Supreme Court to exercising judicial power then — as was the case until the middle of the 20th century — then its makeup should not cause major controversy. As progressives seized power in America, that changed, because they understood that they could expand their legislative reach by shaping a judiciary that intruded in the legislative sphere and, even better, exercised without check the People’s Article V power to amend the Constitution. Thanks to progressive policies, the Supreme Court became, not the least dangerous branch of government, as forecast by Alexander Hamilton in the Federalist Papers No. 78, but the most dangerous branch, which progressives routinely used to circumvent and subvert the ballot box and the Constitution itself. This is why the Court’s composition went from non-controversial to the most important political question in America. The progressives even gave us a new verb for this activism — “borking,” which describes progressive politicians assassinating originalist judges. Notably, in this lead-up to Election 2020, when Joe Biden is still considered the Democrat favorite, it was Joe Biden and Ted Kennedy who originated borking when they killed Judge Robert Bork’s nomination.
For the last century, a left-leaning Supreme Court has systematically and methodically changed our nation’s fundamental nature. They have removed Christianity from the public square, found a hidden right to abortion, expanded the regulatory state, approved disparate impact theory, authorized gay marriage, and given us a whole host of other decisions that, in ways both large and small, have gone beyond jurisprudence and, instead, fashioned new laws and amended the Constitution — acts beyond the Court’s powers, both statutory and Constitutional. Indeed, for the past century, the Supreme Court has been the single most important tool that progressives have wielded. In part, that was because Democrats regularly appointed hard left progressives to the bench whenever the opportunity arose. In part it was because, all too often, Republican-appointed jurists often took a hard left turn once on the bench.
Regarding that last point about Republican-appointed judges, there’s even a name for it: the Greenhouse effect. Thomas Sowell posited this effect have noting the way in which squishy conservative jurists, all of whom came from a social milieu in which the New York Times was tantamount to the word of God, seemed to shape their opinions to please Linda Greenhouse, the NYT reporter assigned to the Supreme Court beat.
Thankfully, Republicans have finally learned that appointing any ostensible “conservative” to the bench, if that person lacks solid originalist credentials (e.g., John Paul Stevens or Anthony “Gay Rights” Kennedy), will almost certainly lead to disaster. These people people inevitably begin to use their power to ensconce the New York Times‘ preferred policies rather than to interpret the Constitution. No one knows that better than conservatives in 2019.
Through the Supreme Court’s century-long shift to hard Left activism, conservatives kept playing by the rules. Now, though, the real possibility exists that five originalists may end up on the Supreme Court. This means that the Court will interpret the Constitution as written, ending the era of progressive “judicial legislation.” Rather than copying conservatives, who meekly acquiesced to the bastardization of the Constitution, progressives, faced with a return to Constitutional values, have announced that we need to change those rules.
More than a few progressives have floated a plan to pack the Supreme Court with progressive judges if the Supreme Court ever becomes staffed with five originalists. This is a raw play for permanent political ascendancy. The latest on Constitution Day came from professional race hustler and New York Times opinion columnist (but I repeat myself) Jamelle Bouie, who writes “Mad About Kavanaugh and Gorsuch? The Best Way to Get Even Is to Pack the Court.”
Bouie is a habitually sloppy thinker and writer, and here falls into two of the most common modes of partisan hackery. The first is the argument that his party must “play hardball” . . . lest the bad guys on the other team write their partisan “ideological preferences into the constitutional order.” . . . Bouie here is engaged in the New York Times version of shrieking “But they started it!” as a justification for playground misbehavior. Republicans don’t think they started it — not where judges are concerned, anyway. They think Joe Biden and Ted Kennedy started it in October 1987 with the smearing of Robert Bork, which permanently changed the character of Supreme Court confirmation hearings.
Bouie foreswears an intention of trying to “make the courts a vehicle for progressive policy,” and, of course, he does this as he writes of the ways and reasons for making the courts a vehicle for progressive policy. And here is the second common mode of partisan hackery: The belief that one’s own ideological preferences are not ideological preferences at all but self-evident moral truths. This belief can be held either insincerely (and cynically) or sincerely (and stupidly). For Bouie, it seems to be a bit of both.
The point of packing the courts, he writes, is “to make sure elected majorities can govern,” and he cites Supreme Court checks on the grander ambitions of Franklin Roosevelt and Progressive Era as examples of the Court frustrating the those “elected majorities.” He goes on to celebrate Roosevelt’s bullying the Court into submission like some tinpot caudillo. Roosevelt was unable to follow through with packing the Court, but the gambit, Bouie writes, “had the desired effect,” i.e. terrorizing the Court into giving the Roosevelt administration a freer hand. . . .
Do read the entire article. It is an excellent fisking of Bouie’s ramblings, though to be fair to Bouie, he is not innovating in idiocy. He is merely parroting run-of-the-mill progressive thinking, which is thoroughly ignorant of the Constitutional design on one hand and totalitarian on the other.
Williamson goes on to point out that the Constitution is in fact designed to thwart what he calls majoritarian rule — i.e., democracy. Our Founders feared and detested democracy as the worst of governing models. James Madison, the Father of the Constitution, was a man who was steeped in world history. With this background, he wrote of democracy in Federalist No. 10:
A pure Democracy, . . . can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of Government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths. . . .
What the progressives propose is dangerous stuff. Attempting to pack the Supreme Court to establish permanent progressive dominance in our nation would be an invitation to a second civil war. That’s a Hell of a way to celebrate Constitution Day 2019, eh?
But in truth, this all didn’t just start in the past week. The Progressive Left has engaged in sustained attack against the Constitution since President Woodrow Wilson obscenely declared the Constitution unworkable and inapplicable to the modern world. Wilson believed that experts, working without any constraints, should rule America. In other words, he envisioned our modern regulatory bureaucracy. The problem for progressives is that, in the early 20th century and today, far fewer than the two-thirds of Americans needed to amend the Constitution agree with them. Wilson and the progressives therefore invented “the living Constitution” — the theory holding that the Constitution can be reinterpreted to mean anything that five justices, carefully selected for their progressive ideological purity, want it to mean. With this background, modern progressives’s reaction to Constitution Day 2019 was just par for the course.
With Rep. Clyburn admitting that the proggies would prefer to govern without a Constitution, it’s time to take a look at their constitutional goals.
By Wolf Howling
Let’s face it. Progressives have gone a long way to making our Constitution a dead letter already. But as Rep. Clyburn makes clear in the video below, they are not yet wholly satisfied with the result. Work remains to be done.
What progressives want is nothing more than permanent power. That would be impossible to accomplish were they starting from scratch, but clearly they aren’t. A lot of the most important groundwork has already been laid over the past century. So with that in mind, let’s take a look at the state of our Constitution today, how it has already been altered, and how it would look once the proggies are done rewriting it.
Art 1 Sec. 1: Out — All legislative power is vested in Congress.In — Government by regulatory bureaucracy and Executive fiat (Presidential pen and phone).
This is one we don’t have to imagine. Progressives won this fight nearly a century ago with FDR’s court packing scheme, but it was not until Obama that we were treated to Congress becoming a secondary, and comparatively unimportant, source of legislation. And that is how progressives want to keep it. It’s much easier to make “fundamental changes” to society when bureaucrats write the laws without being subject to any of the checks and balances written into the Constitutional scheme.
As Justice Kagan stated recently in Gundy v. U.S., if Art 1, Sec. 1 of the Constitution actually means what it says, that “all legislative power” resides in Congress and cannot be substantively delegated, “then most of Government is unconstitutional.” She says it like its a bad thing. Of course, this is the same Supreme Court Justice who accused plaintiffs of “weaponizing the First Amendment” by relying on it to challenge forced union dues. This is a woman who should not be allowed to sit on a public park bench in the U.S., let alone the Supreme Court bench.
Two notes — One, Senate Republicans and Democrats alike are fine the way things are. That way, they don’t have to make any of the tough decisions. It is the only way to interpret the fact that the Republican controlled Senate killed the REINS Act. Worthless bastards, all of them. Two, the Supreme Court as it is now sitting (and if it does not get packed by the next Democrat administration) signaled in Gundy that it is probably going to force legislative authority back into Congress, whether Congress likes it or not. The proggies will die to a man (woman, or pick your favorite fantasy gender) on the hill before they allow that to happen.
Art. 1 Sec. 2: Out — Each State is entitled to two Senators.In — Let’s have two Houses of Representatives.
Letting small conservative states have an equal vote in the Senate with large states (the Connecticut Compromise) was necessary in 1787, but there was no progressive imperative then; now, it just sucks. Per The Atlantic just a few months ago, this equal representation of states in the Senate is a problem in need of a progressive solution.
Today the voting power of a citizen in Wyoming, the smallest state in terms of population, is about 67 times that of a citizen in the largest state of California, and the disparities among the states are only increasing. The situation is untenable.
Under the new proggie Constitution, there will be equal representation in both Houses . . . at least so long as that continues to yield a progressive majority.
Art I Sec. 8: Out — Enumerated Powers of Federal Government;In — Unlimited Power of Federal Government (for Progressives Only)
It’s been a long, long time since progressives started running wild with the “Commerce Clause” to justify federal legislation reaching every aspect of life in America. Its reach is practically unlimited today, though it did suffer a small set back a few years ago in the Obamacare cases concerning the mandate to purchase insurance. Not to worry though, for while even the power of the commerce clause can’t be stretched that far, our inventive Supreme Court can find other justifications. Our modern taxing authority, as Chief Justice John Roberts reinterpreted it, can substitute in a pinch to save the progressive bacon.
We are already a very long way from the Founder’s Constitution of limited federal powers, but under the Constitution as rewritten this will be a settled issue.
Of course, the flip side of this new doctrine is also worthy of mention. As courts repeatedly make clear in the Trump era, most recently here, even if a Republican president uses federal power in a wholly legal way, s/he can be stopped by a progressive in a black robe who doesn’t agree with the policy.
Art II Sec. 3: Out — The Electoral College.In — Pure Democracy
The Electoral College is, according to Chiquita Khrushchev, a “RACIST scam” standing athwart the progressive will to power. We could be enjoying nirvana under President Hildabeast today were it not for the horrible, racist Electoral College.
One man (woman, or pick your favorite fantasy gender), one vote sounds fair . . . unless you know a bit about political history and why our Founders would not even consider democracy as a viable option for this nation. As John Adams said:
Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.
Democracy invariably devolves into mob rule. Of course, that’s okay with the proggies, for any rule that gives them a benefit at the moment is, to hear them tell it, the only one with moral standing — whether it is actually in the interests of minorities or not.
And in that vein, a special mention here of Art 1 Sec. 2 clause 3’s Three Fifths Compromise. While it hasn’t been operative since about 1865, word is that AOC wants to revive it as part of the new proggie rewrite of the electoral college. She wants to have the votes of white people counted as only three fifths of a vote. As quoted at the Bee, AOC said “What if we count all white people as three-fifths of a person instead of a full person? Then, good votes would count more than bad, racist votes. Like, four or five times more or something, because 3/5ths is only like 10% of a real vote.”
Sometimes it is hard to figure out whether the Babylon Bee is satire or not. No wonder Snopes is so confused.
Art II Sec II: Out — Limited Presidential Powers;In — Presidential Powers Limitations Depending on Party Affiliation
Art. III Out — An Independent Judiciary Limited to Exercise of Judicial Power;In — A Progressive Judiciary with Statutory Legislative and Constitutional Amending Powers
For nearly a century, our judiciary has leaned progressive and has busily been rewriting our Constitution by assuming the powers of legislation (Art. 1 Sec. 1) and amending the Constitution itself (Art. V) (abortion, gay marriage, etc.). Now, with the Court in danger of becoming non-Progressive, well, that cannot possibly be allowed. It would be too blatant to rewrite the Constitution to require a progressive majority on the Supreme Court, but the practical way of accomplishing that is to pack the Court.
Actually, I can’t think of anything more likely to ignite a shooting civil war in this country, but . . . what’s a civil war when progressive dominance over the evil that is non-progressives is at stake.
The Bill of Rights
1st Amendment: Out — Religious Conscience Clause;In — Progressive Conscience Clause
The whole purpose of the progressive embrace of sexuality, and in particular, homosexuality and gender identity as moral imperatives, has been as a cudgel to attack the Judeo Christian religions and drive those religions out of the public square. Bookworm had the definitive look at this years ago at American Thinker.
1st Amendment: Out — Anti-Establishment Clause;In — Secular Religion Clause
The progressive war on the Judeo-Christian religions has been ongoing in this country for over a century. Socialism requires the replacement of a monotheistic God with government. It has been that way from the moment of socialism’s inception:
Sixty years after the French Revolution, Karl Marx, socialism’s greatest philosopher, famously wrote in his Critique of Hegel’s Philosophy of Right that religion is the “opium of the people” and that “[t]he abolition of religion as the illusory happiness of the people is required for their real happiness.” The British socialist party wrote in their 1911 manifesto that “it is a profound truth that Socialism is the natural enemy of religion.” Lenin, the father of the Soviet Union’s bloody experiment in Communism, wrote in 1905, “The modern class-conscious worker, reared by large-scale factory industry and enlightened by urban life, contemptuously casts aside religious prejudices, leaves heaven to the priests and bourgeois bigots, and tries to win a better life for himself here on earth.” Lenin further noted that “every socialist is, as a rule” an “atheist.” And Hitler himself was of like mind – “National Socialism and Christianity cannot co-exist together.”
1st Amendment: Out — Freedom of Speech;In — Freedom for Progressive Approved Speech Only
4th Amendment: Out: General Warrants are per se Unconstitutional;In — The police power of government can be used against political opposition
Whether it was using the IRS to target the Tea Party or using general warrants under the guise of a counter-intelligence operation against the Trump administration, this obscene abuse of power is okay as long as progressives use it against evil non-progressives. The only surprising thing about the Obama administration’s incredible abuse of power as to the investigation of Trump is that the proggies found nothing to actually charge as a substantive crime. Beria would be most unimpressed.
So as you can see, the rewrite need not be too much more extensive than already exists. Then we can finally have progressive heaven on earth. Somehow, I think it is more likely to resemble biblical hell.
No matter how imperfect Trump is, looking at his record of accomplishments, as to each one I say the Passover word “dayenu” — it would have been enough.
During the Passover dinner, one of the songs Jewish families sing is Dayenu. It is in the nature of a “count your blessings song,” with the song reciting each of God’s miracles during the Exodus and, after every verse reciting “dayenu,” which means “it would have been enough” or “it would have sufficed.” Growing up, I considered this song one of the best parts of the proceedings. I was in good company, for Jews have been singing Dayenu for around one thousand years.
The song consists of three groups of praise for God’s miracles. The first group recites the miracles that challenged Pharaoh, the second recites the miracles that were the Exodus itself, and the third recites the miracles of being with God and getting the Ten Commandants during the forty years in the wilderness. Chabad provides a nice version of the lyrics in both English and Hebrew:
If He had brought us out from Egypt, and had not carried out judgments against them Dayenu, it would have sufficed us!
So you can get a sense of the melody, here is the Maccabeats’ charming version of the song (although when we were kids we perked up rather than collapsing during the song):
The point of the song, obviously, is not to get greedy, but to be grateful for whatever gifts or miracles come your way. God doesn’t need cumulative miracles to prove His greatness and the debt Jews owe Him. Each little thing He did, standing alone, would have been enough.
So what’s this got to do with Trump? Well, let me first assure you that I am not likening Trump to God. He is no God. He is, instead, a very imperfect man, but one who nevertheless has taken a series of steps that, even if each stands alone, is a reminder why a Trump presidency is so much better than the Hillary alternative.
The genesis for this thought came about because I got an email from a very dear friend, one whom I respect more than you can imagine, who is baffled by my fondness for Trump. Before the Mueller report, he saw Trump as a crude buffoon. Since the Mueller report, he sees him as a dangerously corrupt individual. Worse, he sees Trump as way less successful than a good Republican president should be. As readers of this blog know, I’ve come to hold Trump in quite high esteem. Thinking about how to explain my esteem to my friend, I came up with the “dayenu” meter.
To begin with, remember that America’s choice in November 2016 was completely binary: Hillary or Trump. So we’re not measuring Trump against some perfect Republican candidate; we’re measuring Trump against Hillary, who was committed to continuing the Obama administration, although with the addition of the Clintons’ unique brand of financial corruption. It is in that context that I look at what Trump has done. (As an aside, I would argue, as Wolf Howling already has, that Trump is proving to be an extraordinary conservative president who, only halfway through his first term, can measure up even to Ronaldus Magnus.)
Also, regarding what Trump has not done, or not yet done, I never lose track of the fact that, for two-and-a-half years, Trump has been contending with the weight of an entirely false accusation that he entered into a conspiracy with Russia to keep Hillary from the White House. (Incidentally, that’s why Trump said he was “f**ked* when he realized the immensity of this whole Russia collusion hoax. He wasn’t saying, “Oh, my God, the jig is up! I’m going to jail.” He was saying, “Oh, my God, this will paralyze my effectiveness as a president.”)
So here’s my dayenu recital for Trump:
If Trump had merely presided over a booming economy, even if one accepts Leftist talking points that it wasn’t his policies that made the change — Dayenu.
If Trump had merely lowered taxes, even if one accepts Leftists talking points that lower taxes didn’t help the economic boom — Dayenu.
If Trump had merely massively cut regulations, even if one accepts Leftist talking points that lessening the government’s stranglehold over businesses didn’t help the economic boom — Dayenu.
If Trump had merely presided over minorities seeing the best economic years of their lives, even if one accepts Leftist talking points that Trump didn’t help the economic boom — Dayenu.
If Trump had merely appointed two conservative Supreme Court justices, even though the remaining Leftists Supreme Court justices show no sign of vacating their seats — Dayenu.
If Trump had merely put dozens of strict constructionists in federal appellate and district courts, even though enough Leftist judges remain to thwart many of his policies — Dayenu.
If Trump had merely taken seriously and worked hard to address American’s concerns about illegal aliens flooding our southern border security, even though the Democrats’ have successfully hamstrung Trump through Leftists activist judges — Dayenu. (Don’t get me started on Congress’s failure to act on the southern border when Republicans controlled both houses. Just don’t get me started.)
If Trump had merely shifted the long-standing, failed paradigm that saw the US sending no-strings (or almost no-strings) money to North Korea and, instead, offered Kim Jong-un a carrot and stick approach to abandoning North Korea’s nuclear program, even though Kim recently conducted a rocket test and talked to Putin — Dayenu. (I’m not worried about Kim allying with Putin, because he’s always been allied with communist regimes; I think his recent posturing, including that rocket test, is just that — posturing intended to keep his own worst enemies, the ones inside his regime, at bay.)
If Trump had merely defeated ISIS on the battlefield, even though radical Islamism remains a worldwide scourge — Dayenu. (You have to start defeating radical Islamists somewhere, especially because it’s the nature of Islam to respect a strong horse and want to gut and devour a weak one.)
If Trump had merely walked out of the illegal Kyoto Accord, which was set to deplete the American economy while propping up the hyper-polluting Chinese economy, even though his administration is still paying some lip service to the cult of climate change — Dayenu.
If Trump had merely supported a reinvigorated American oil, gas, and coal sector, which will bring employment to vast numbers of people and lower product prices for everyone, even though the climatistas are up in arms — Dayenu. (I have long believed that “renewables” cannot provide First World energy needs. Forcing America onto renewables will return us to a pre-industrial time which, while pastoral, was deadly and uncomfortable. The answer is to use our technology to make cleaner-burning fossil fuels and, if Scott Adams is correct, to turn to Generation IV nuclear reactors, which are completely safe and will burn up existing nuclear waste.)
If Trump had merely withdrawn from the illegal Iran Deal — which propped up the mullahs and funded world-wide terrorism — and instead reimposed economic sanctions on Iran, even though the mullahs are still rattling sabers and making trouble — Dayenu. (Nobody expected the mullahs to collapse the instant Trump undid that vile deal; it’s enough that he undid it and is starting to reapply pressure on a very shaky regime.)
If Trump had merely reinvigorated the American military by pouring more funds into it and by ending the habit of treating it as a social justice experiment, even though doing so hurts the feelings of transgender people — Dayenu. (The military exists to protect our nation, not to make people feel good about themselves.)
If Trump had merely put the screws to China’s predatory trade practices, which have been depleting the American economy for decades, in such a way that China appears to be backing down, even though people on the Left and the Right are now saying all tariffs are bad — Dayenu. (I believe in free trade, but free trade works only if there isn’t cheating. Moreover, while many claim that things will eventually right themselves if left alone, that’s a fine thing to say to one or two generations of Americans who are economically destroyed by China’s unfair trade practices, which include intellectual piracy, slave labor, and government underwriting in the marketplace. This “dayenu,” incidentally, also goes to the new trade deals Trump negotiated with other nations.)
If Trump had merely managed to de-fang most of Obamacare, which was a drag on the economy and which destroyed people’s relationships with their physicians while doing nothing to improve the delivery of medical care in America, even thought the vicious, unprincipled John McCain did everything he could to block Trump’s efforts — Dayenu.
If Trump had merely proved to be the staunchest friend Israel has ever had in the White House, or certainly the staunchest friend since Reagan, and implemented policies that are putting a stop to the Palestinians’ non-stop, bad faith demands, even as the whole Democrat Party is turning increasingly anti-Semitic — Dayenu.
If Trump had merely presided over a Department of Education that withdrew the “Dear Colleague” letter that turned already Leftist campus administrations into fanatically man-hating entities that destroyed young men without due process and on the merest threads of accusations, even though . . . I don’t know what “even though” clause could be used here — DAYENU!
If Trump had merely threatened to withdraw federal funds from institutions of (ostensibly) higher education that squash free speech, even though . . . heck! There is no “even though” here either. DAYENU!
If Trump had merely shown fearlessness in the face of stifling, Leftist political correctness, thereby freeing other Americans to speak honestly, even though . . . what’s the downside here? None. DAYENU!
I could go on all day with this. Trump is rude, crude, bumptious, impulsive, cold-blooded, combative, etc. I see that. I also see that he’s incredibly funny, that he has a wonderful knack for making Leftists reveal their true colors, and that his initiatives, even if imperfect or ultimately ineffective, nevertheless have shifted paradigms at home and abroad in ways that are important to and beneficial for America.
As far as I can tell, the worst thing that Trump has left completely unfixed and unaddressed — and something that is a dangerous time bomb that could destroy America — is the $21 trillion national debt, which skyrocketed under Obama and has continued to rise under Trump. This is unsustainable and we need to work hard and fast to bring government spending down even as we hope that the soaring economy will help increase tax revenues to pay off that debt.
Also, while I’m on the subject, I want to address the Mueller report’s statement that Trump refused to let Mueller interview him and the allegation that Trump played with the idea of dismissing Mueller and, while he eventually did not do so, asked White House counsel to lie about the fact that he even contemplated that dismissal.
First, the undoubted fact that Trump refused to allow Mueller to interview him: No sane attorney would have allowed Mueller anywhere near his client. We saw with General Flynn that the Mueller approach was to trip people up on small, inconsequential details, and then use those trip-ups to prosecute them for perjury in the hope of squeezing more out of them. It was Mueller’s version of the torture Torquemada used during the Spanish inquisition.T
Just think for a moment about the fact that the FBI agents who interviewed Flynn believed he was trying to tell the truth, but that he didn’t remember something they knew only because of their spying. Despite Flynn’s manifestly honest intentions, and the fact that he did not committed any of the crimes for which he was being investigated, Mueller destroyed Flynn professionally and financially, and finally brought Flynn to heel by threatening Flynn’s family.
Imagine what would have happened if Mueller, with all the information available to him through Obama-era spying, had gotten his talons into Trump. The only way to protect Trump was (a) to demand that Trump respond only to written interrogatories that could be carefully reviewed with an attorney and (b) to have Trump in those interrogatory responses denying remembering anything as to which he did not have absolutely perfect recall. To do otherwise would have thrown Trump into the maw of the new American Stasi.
I’m equally unimpressed with the allegation that, according to White House counsel Don McGahn, Trump wanted to fire Mueller, backed down on that desire, and then instructed his attorney to lie. It’s meant to show that Trump had evil in his heart, even though he didn’t fire Mueller, and then he tried to make his attorney complicit in that evil. Let’s unpack this, shall we?
First, we only have Don McGahn’s word for this. Trump was never asked about his side. The due process protections of examination and cross-examination are missing, making this pure hearsay from an attorney who had witnessed how Mueller destroyed the lives of those who didn’t cooperate with him. In that way, his testimony was probably as honest as any testimony coming from one of Torquemada’s victims.
Second, I can tell you as an attorney with decades under my belt that clients, when talking to their attorneys, often ask, “Can we do X?” or “Can we do Y?” with X and Y being either stupid or against the law. By the way, please remember that things can be against the law even if they’re not morally wrong. One of the scary things about today’s over-legislated and over-regulated world is that it’s impossible for us to know what the law is, making us sitting ducks for zealous or biased prosecutors. The fact that Trump didn’t know his suggestion couldn’t fly means nothing.
Once client asks such a question (“can we do X?”), the attorney’s role is to be extra cautious to protect the client. This may mean drawing lines that the attorney recommends the client not cross. When you have a bulldog client such as Trump, you, as the attorney, may have to take a strong stand to show that you’re not joking about the fact that something that seems logical and moral is still illegal: “No, you can’t do that, and if you insist on doing it, I’ll have to quit as your counsel.”
If that thread is indeed what McGahn had to make, Trump then did what 99% of clients do: He backed down and McGahn remained as his attorney. But Trump is in a unique class. Rather than this back-and-forth staying confidential, so that no one knows what ideas a client had before behaving perfectly legally, his attorney spilled the beans, making Trump look uniquely evil rather than completely ordinary.
One more thing about Trump’s query about firing Mueller, if he indeed did make that query: To the extent Trump knew he was being framed, it was quite reasonable for him to wonder if he could stop a baseless witch hunt intended to invalidate an American election.
Third, keep in mind that we’re dealing with exceptionally humorless people here. I sure you remember how, on the campaign trail, Trump said, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” Sane people immediately recognized that Trump was making a humorous riff about the fact that Hillary’s blatant, grossly illegal security violations meant that the Russians had almost certainly been in possession of her emails for years.
Insane people — and that means the entire Left — insisted that Trump had the brazen effrontery to demand in public that Putin collude with him to hack Hillary’s already hacked emails. When you remember that Mueller’s attack dogs were all die-hard Democrat establishment members, you start to wonder, as I do, it’s entirely possible that Trump made an obvious joke to McGahn (“Hey, remember not to tell Mueller I wanted to fire his humorless little ass”).
So, yeah, I’m totally unimpressed by Mueller’s obstruction drama. And if you’d like more reasons to be unimpressed, I recommend watching this Mark Levin video on the subject:
Finally, if you’re interested in a stellar analysis of Trump — warts and all — as well as an explanation for why every American should find appalling the behavior of the bureaucratic caste arrayed against him, I highly recommend this Victor Davis Hanson interview, every minute of which is entertaining and informative (hat tip: Maggie’s Farm):
The stabbing jihad at the Crossroads mall in St. Cloud, Minnesota, ended with no civilian deaths and only nine wounded because, entirely providentially, Jason Falconer, a firearms expert and certified NRA firearms instructor, was on the scene to take out Dahir Adnan. Adnan, in the course of a few minutes, had already stabbed nine people. Thankfully for the people at Crossroads shopping center, Minnesota allows concealed carry and the mall made a minimal effort to enforce its “gun free zone” status.
Israel’s experience in the last year shows that, in a fight between a gun and a knife, the gun prevails. In Israel, during the ongoing stabbing intifada, most of the terrorists have been quickly killed or disabled by gun shots from armed civilians, police, or members of the military. Israeli civilians weren’t always armed, although mandatory military training has meant they all know how to handle weapons. Israel, however, long ago realized that jihad takes seconds, but official responses can take a lot longer. It therefore substantially loosened its formerly strict gun control laws.
That moment of American-grown DIY jihad — and the way it illustrated the fact that guns can save more lives than they take — brings into sharp focus the issue of Second Amendment rights in America under either Hillary or Trump. Even before the stabbing jihad happened, Trump had already reminded Americans that, while Hillary wants your guns, she believes her life is more precious than yours and therefore is deserving of armed protection:
Now you know she’s very much against the Second Amendment. She wants to destroy your Second Amendment. Guns, guns, guns, right? I think what we should do is she goes around with armed bodyguards like you have never seen before. I think that her bodyguards should drop all weapons. They should disarm. Right? Right? I think they should disarm. Immediately. What do you think? Yes? Yeah, yeah. Take their guns away. She doesn’t want guns. Let’s see what happens to her. Take their guns away, okay? It would be very dangerous.
The media immediate tried to claim that Trump is inciting Hillary’s assassination, but people with half a brain (i.e., not Leftists) understand perfectly well that Trump was making a hypothetical point to highlight Hillary’s hypocrisy. Her worldview is “guns for me, but not for thee.”
On the heels of Trump’s speech and the Crossroads jihad, the NRA has released a short, powerful ad that graphically shows a world in which Hillary has “armed bodyguards like you have never seen before,” while the rest of us — you, your family members, your friends — are disarmed, sitting ducks:
People living in Chicago know exactly what that woman feels like. The Democrat regime in Chicago has disarmed the law-abiding, leaving guns in the hands of feral young men who have no compassion, no empathy, and no conscience. We are one Supreme Court justice away from turning America into the United States of Chicago — and the next president gets to nominate that one justice. Hillary will nominate the justice who believes you are undeserving of a tool that allows you to defend yourself and others. And of course, if Hillary wins, it won’t just be guns that make us the United States of Chicago. It will also be government corruption, economic despair, high crime, and a whole bunch of other social and economic ills endemic to areas under total Democrat control.
I could go on and on and on, but I’ll spare you that. If you’re interested in my thoughts on the Second Amendment (and they are, if I do say so myself, decently explored and explained thoughts), let me recommend my ebook, Our Second Amendment Rights In Ten Essays, which can be yours for only 99 cents. I estimate that it will take between 1 to 2 hours to read, which isn’t a bad money-to-time ratio.
I was thrilled to hear the news in the Pilot Online (The editorial board just lost their lunch today!) and confirmed at the Richmond Times-Dispatch: Former AG and gubernatorial candidate Ken Cuccinelli has been nominated by the Senator Courts of Justice Committee for the Virginia Supreme Court:
The Senate Courts of Justice Committee today placed former Attorney General Ken Cuccinelli’s name in nomination for the state Supreme Court to succeed Justice Jane Marum Roush.
And Senator Sturtevant seems on board:
Sen. Glen H. Sturtevant Jr., R-Richmond, who has thwarted GOP efforts to replace Roush, backed Cuccinelli in committee today and says he would support Cuccinelli on the floor.
I have had my differences with Cuccinelli but I think he would be a wonderful justice. I even think he could be Virginia’s Scalia.
Some of my readers will groan: No, not Ken Cuccinelli! The guy who wants to invade bedrooms and use superseded statutes for a personal agenda.
I can hear that criticism although I would disagree with it. Only the state supreme court or the US Supreme Court can definitely declare a state law unconstitutional on Federal grounds – not the Fourth Circuit. The Attorney General is honor and duty bound to defend ALL the state laws and constitutional provisions – not pick and choose what laws to defend and not.
Also an advocate for a client (even the state) is not the same as the judicial philosophy of a judge/justice. I would suggest that a Justice Cuccinelli would have a proper respect for judicial restraint and an appropriate respect for the actions of elected bodies. I also would suggest a respect for precedent as necessary to bring stability in the law.
Cuccinelli also co-authored three (at least) law journal articles (with former Virginia Solicitor General E. Duncan Getchell, Jr., considered seriously for a Fourth Circuit judgeship and former Deputy Attorney General Wesley G. Russell, Jr., now a judge on the Virginia Court of Appeals) one at the invitation of the law journal (not a bad law journal to ask you to write an article: The Harvard Journal of Law and Public Policy!) on judicial compulsion and the public budget.
I would urge the General Assembly to quickly confirm Ken Cuccinelli as a Justice of the Supreme Court of Virginia. I think he could be a Scalia for Virginia.
PS: It would be nice if one or two Democrat senators could vote for Ken – the two most likely are Senator Lynwood Lewis in Hampton Roads and perhaps Senator John Edwards in Roanoke area. Both moderates in rural areas. If you live in their district – contact them. Here is Lewis’ info and here is Edwards’.
I keep hearing about Ted Cruz and the nine times he argued before the Supreme Court. But I hear absolutely nothing about his record before the highest court in the land. And while arguing before the Supreme Court has to be one of the greatest honors in any Attorney’s career, Cruz was the Solicitor General of Texas. And that office exists to argue cases before the Supreme Court. So his job saw him visit the Supreme Court 9 times over 5 years.
As you will see below, there were really only 8 cases. One of the cases was sent back to the lower courts and later returned to SCOTUS where they finally ruled. And Cruz has shown he has an interesting way of spinning things, like 3 consecutive 3rd place finishes in the Primary proves he is the ONLY candidate that can beat Donald Trump.
But before SCOTUS you either win or lose. And how I judge this is based on how Cruz did on his arguments.
So here are his cases and a brief summary of each.
Medicaid funding – Frew v. Hawkins Oct. 7, 2003
This was Cruz first case before the Supreme Court.
Texas settled a class action lawsuit where the plaintiffs claimed that the state was not doing enough under Medicaid to adequately provide health care for children. Texas agreed to remedy the situation and settled the lawsuit. The state, according to the complaint, then failed to live up to it’s agreement and do more for medicaid children’s health care. So, essentially Cruz went to the Supreme Court to argue in favor of the inadequate care children were receiving in Texas. Not really an enviable position to be in, and a case that was probably doomed from the get go because Texas had agreed and then failed to fix the problem.
SCOTUS handed Cruz his butt on this one and he walked out of his first Supreme Court case with a unanimous decision against Cruz.
Sentencing error – Dretke v. Haley March 2, 2004
Cruz second case involved a guy that stole a calculator from a Texas Wal-Mart. So one might wonder how a simple case of shoplifting might end up before the Supreme Court. Well, the shoplifter got a whopping 14 years in jail for the theft. Now stealing is wrong, but 14 years? And there was no other crime involved.
So off Ted Cruz goes to the Supreme Court to try to justify a 14 year sentence for stealing a calculator.
Cruz could tell that he was going to lose and rather than suffer another loss, he changed his argument from justifying a 14 year sentence for a calculator and convinced the court to send the case back to Texas where they could save face and remedy the situation.
So back in the lower Texas court, the sentence was commuted to time already served. Cruz failed to defend the Texas case in the SCOTUS and the “calculator bandit” who had already been released won his effort to overturn the unreasonable sentence.
Somehow, Ted Cruz counts this as a win. But that is nothing but spin. This was a loss, plain and simple.
U.S. sovereignty – Medellín v. Dretke March 28, 2005 – Medellín v. Texas Oct. 10, 2007
This is a case that went to the Supreme Court twice. The first trip, SCOTUS sent it back to the lower court and the second time, the court ruled in favor of Cruz arguments.
A really bad guy who was a Mexican citizen raped and murdered two girls, one 14 and one 16. He was sentenced to death. The Mexican’s lawyers insisted that their client was not advised of his right to notify the Mexican diplomats according to a 1963 Vienna Convention treaty. George W. Bush initiated a review of Mexicans on death row based on a ruling from the International Court of Justice who ruled that the US was not in compliance with the treaty.
Cruz argued that since this was not brought up until years later, it was too late for the convicted killer to bring up. The first time this went before the court, Cruz did not win the argument and the case was sent back to the Texas courts. Which would not be a win for Cruz. But the second time this case went before SCOTUS, it was decided that the US Government could not enforce a treaty that had not been made into law by congress on the states.
This was an important case and Ted Cruz got a 6-3 decision the second time. One could argue that with the first case being a loss – Cruz did not prevail – would make this ruling a draw, but I consider it a win (and a big one) but it is essentially a continuation and the culmination of the first time this came before the Supremes. So one case, not two. A win, not a draw.
Redistricting – League of United Latin American Citizens v. Perry March 1, 2006
Texas redrew their voting maps in 2003 and the Republican majority was accused of gerrymandering and diluting the votes of minorities. (A case very similar to the one that forced Virginia to redraw their congressional lines this year. The court ruled 5-4 that the map violated the Voting Rights Act. Cruz spins this as a win because SCOTUS found that the entire map did not violate the Constitution and only the gerrymandered districts did. And these districts must be redrawn – pretty much what the recent Virginia decision said. Still, Texas violated the Voting Rights Act and the lines were ordered to be redrawn. This is a loss for Cruz.
Sentencing error – Smith v. Texas Jan. 17, 2007
A man with a low IQ robbed and stabbed a co-worker at a Texas Taco Bell. He received the death penalty but the jury was not advised of his mental deficiency. Cruz lost this case and SCOTUS set aside the death penalty sentence.
Death penalty for mentally ill – Panetti v. Quarterman April 18, 2007
This case was pretty similar to the previous case Cruz unsuccessfully argued 90 days earlier. This time, instead of a low IQ the guy had a mental illness and was unable to understand he was being sentenced to death. Cruz argued that the guy could be faking it. the justices didn’t buy that and handed Cruz another defeat.
Death Penalty for Child Rapists – Kennedy v. Louisiana April 16, 2008
I really can’t think of a crime more heinous than raping a child, aside from murdering one. Texas decided to put child rapists to death. But absent killing someone, child or not, is the death penalty appropriate? Where do we draw the line at Cruel and Unusual punishment? The Supreme Court ruled that this is where we draw the line. Cruz lost.
Cruz last case before the Supreme Court was a win, and his most decisive win at 8-1. Not as decisive as his 9-0 loss in his first case, but an impressive win if you are a fan of deep fat fryers. It seems a Hong Kong company reverse engineered a deep fat fryer patented by a French company. In a striking blow for freedom and liberty, Cruz won his last case as the courts ruled you can’t copy someone else’s deep fat fryer.
Two wins, 6 losses.
The win Cruz had in the Treaty case was an important one and I won’t take anything away from him for that.
But I now see why the Cruz supporters gleefully proclaim Cruz argued 9 cases in front of the Supreme Court, but stop short of actually telling anyone about the cases. Color me underwhelmed. All I see is one victory, 6 losses and a lot of spin.
The President is determined to make an early Supreme Court selection to replace the late Justice Scalia. The Senate GOP are ready to fight! It might be a titanic battle. But it could be avoided. How? Find another Scalia.
It would be hard to replace a jurist like Antonin Scalia (Did I ever tell you I met the justice? I was invited by another conservative lawyer to go to church with him: A Latin rite Catholic church in DC. Come and you’ll meet Pat Buchanan and Bill Buckley’s brother James (a judge and US Senator in his own right); well I did and it took two tries but I met Buchanan and James Buckley and I had just left the second time from services and I saw him – no way you can miss Justice Scalia – so I worked up a bit of courage to say hello to him. I think he is the only Supreme Court Justice I have ever met.); Scalia is a intellectual and spiritual giant on the Court. He will be missed.
But the President could scotch the GOP, have an immediate impact on the 2016 election and show people he is reasonable. Maybe improve his approval numbers. Do a Sister Souljah moment!
Here’s how: President Obama should nominate Senator Ted Cruz to be the new Justice. Yes Rafael Edward Cruz. The one running for President. That Ted Cruz!
Cruz has ability and experience (He clerked for Chief Justice Rehnquist,was an associate deputy attorney general, had something like 11 cases at the SCOTUS and was the Texas Solicitor General and a litigator at a large firm!), maybe first Hispanic male on the Court, too! Cruz is clearly qualified to serve on the Court, and his fellow GOP senators (and the Establishment, too) should be thrilled to be rid of Cruz. And there is no issue with eligibility to be on the Supreme Court, as opposed to the Presidency! And the vote Cruz would make would be similar to Scalia’s so it would not hurt the balance on the Court but the new justice would probably not write as well done at least at first.
Surely this is satire, Sanders! Well, the Washington Post op-ed writers are always ready to tell conservatives and Republicans what to do – so let’s turn the tables on them!
So take that bold move, Mr. President. Appoint Ted Cruz to be on the Supreme Court. Sandy will have your back on this one, sir.
Over the last couple of days, I have heard increasing insight into the role of the judiciary in the deterioration of American liberties. Mark Levin, hearkening back to his first book, Men In Black: How the Supreme Court is Destroying America, lambasted The Court last week for essentially superseding its authority, time and again. If you haven’t read Men In Black, consider it the classical introduction to judicial corruption on the market. You’ll want to check it out.
One could argue their enumerated fears over the Presidency have been largely errant… the true danger of the Presidency lies in willful defiance by those elected to the office of the bounds of its power (and for some, the existence of a perpetual standing army). So on that front – fears on the Presidency – the Anti-Federalists were largely incorrect. They were fearful of the right office, but for the wrong reasons.
Where the Anti-Federalists, specifically Brutus, proved to be spot on were on the dangers to the sovereignty and power of State governments from the Supreme Court as constructed in the Constitution.
Quoting the pseudonym, Brutus, the primary retort to the Federalist Papers, Werrell demonstrates the practically psychic prescience of the author (whoever he was).
Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accomodate themselves to the temper of the people.
And, of course, this is in fact what we’ve seen over these last hundred years.
But I wonder if the issue isn’t somewhat murkier and more disturbing. I agree with Zach, that, yes, the Anti-Federalists were right, though usually for the wrong reasons. Yet, why such a deterioration now? Why does Progressivism rise in tides over generations, only to be temporarily rebuffed, but always ready and able to rise again, and always to rise upon the foundations built before?
And one answer to this question is, yes, The Supreme Court; as future progressive courts will always use the precedent of previous progressive courts to support their current progressive rulings. This is the nature of power and corruption, but what bothers me is not the idea that power corrupts, or that progressives seek the unraveling of the United States Constitution. I take these for granted. Why has the Supreme Court been successful? Why has our Congress, perpetually unpopular and despised, never backed down from their own private political agendas – agendas unhinged from the foundation of the American populace and their constitutional sovereignty as citizens?
But the other answer is, “us”.
Is it really that the Supreme Court, and the Congress, and the Presidents, have stripped our liberties from us? Or is it We the People who have demanded, deliberately or stupidly, our government take these liberties from us, as though they were but a burden we no longer sought to bear?
I believe that we have divorced the moral and physical responsibilities necessary for the sustenance of liberty from the concept of liberty itself. There can be no liberty without self-reliance, personal responsibility, and a civic duty and respect toward ones’ fellow Americans. The reality is, that self-reliance, personal responsibility, and civic duty have never occurred naturally in the majority of men, but rather occur only in the best men born into this world.
A collection of such virtuous men may be enough to build a nation, but their memory was never going to be enough to sustain it. No conceivable ordering of words nor structuring of meanings, penned upon parchment three hundred years ago could have prevented Man from being Man, and the ones responsible for preserving the virtue, philosophy, and culture of those great patriots that freed this continent from tyranny was each man and woman living, from then until now, and we have failed. We have failed catastrophically.
What can we say to our government in our defense?
“You have no right to tread upon my liberty!”
The government retorts, “it was not we who demanded an expensive government necessitating centralized control over your employers and institutions, but you who demanded we provide you with more and more services; and it was you who demanded we step further and further into your lives to decide every irrelevant matter of justice imaginable. It was you who brought the lawsuits which ended in legislations and rulings and you who celebrated US every time WE came to save you from whatever peril you encountered in the course of your free exercise of liberty”.
“WE did not stop you from knowing how to survive in nature and thus, become dependent upon complex economies. That was your choice! And when your economies collapse, do you not look to US as responsible for doing something about it? Every time you’ve asked US to get involved in your lives, you’ve forced US to allow ourselves more power, powers attractive to the rich and powerful above you. And if WE can regulate your economies, was it not obvious to you at the time that those with the most on the line, would knock the loudest at OUR doors?”
“You kept demanding US to do something – and whatever did you think would happen by transferring your power as individuals to US as government? That WE, from time to time did things you approved of, makes you think for some reason that WE would not use those same powers to do things you despised? Hypocrites! Do not point the finger at US! If WE backed down and backed out of your lives and returned you to liberty you would panic! OUR power has always depended upon your consent and, for good or ill, your self-subjugation has made US what WE are today, and you can yell and scream all you’d like, WE don’t believe you really want US to let you free. WE don’t believe you even remember Liberty. Take your complaints elsewhere! WE have work to do!”.
And what is our defense? We’ve done this to ourselves. It’s not the federalists or the anti-federalists. It’s us.
Liberty demands self-reliance, personal responsibility, and civic duty. When we surrendered these, we surrendered everything. If we want to take our liberty back, we better embrace these and that which they depend upon, if we’re to have any chance in turning the tables on this government and our rulers.