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Posts tagged “Supreme Court

The Dems Tried to Make Brett Kavanaugh Their Handmaid. He Wasn’t Having Any Of It.


images (1)The bible of “third wave feminism” is Margaret Atwood’s The Handmaid’s Tale. Written in 1986, it is a dystopian novel in which societal collapse stemming from climate change, pollution and low birth rates has brought about a technologically enforced über-puritanism. Women are now slaves, and anyone who dares cross the regime is summarily executed, often on trumped up charges.

As a fan of dystopian fiction, I first read the novel in the early 90s. Personally, I don’t think the novel is particularly good. I found the story to be disjointed and not particularly engrossing. It’s entirely possible the author was hoping to evince a negative emotional response to her narrative. It wouldn’t surprise me; evoking negative emotional responses (loathing, fear, anxiety) is a hallmark of the progressive movement. Certainly, the entire circus around Brett Kavanaugh’s confirmation has been based on those emotions. The Democrats have whipped up the notion that Judge Kavanaugh’s elevation to the Supreme Court will mean the end of civil rights. This, despite the fact that his record as a jurist is in opposition to that supposition.

But this wasn’t what made me think of that story when watching yesterday’s testimony. No, it was one particular scene in the book. A member of the elite is found to secretly be supporting the ideal of liberty and fairness. The regime drums up a false charge, a charge rooted in the puritanical mores of the dominant society (yep, sexual assault). There is a sham trial. At the climactic moment of the scene, the crowd is whipped into a frenzy and turned loose upon the poor guy. He is literally torn to pieces in their anger and blood lust.

How is that any different than what we watched yesterday?

Do I think Dr. Blasey-Ford is sympathetic? Yes. Do  I think she’s credible? No. Her testimony was only clear on one point: she honestly, absolutely believes that Brett Kavanaugh attempted to rape her when both were in their teens. Despite that, she cannot even recall when that happened (not even a year, much less a month or a day). She does not know where it happened. She does not know how she got to where it happened (even though any of the possible locations are about a 20 minute drive from her childhood home) or how she got home afterwards. She does not know how long she was at the party where she alleges the attempted rape happened.

As if that weren’t enough, her testimony changed rapidly once being questioned by an admittedly compassionate and empathetic prosecutor. She didn’t run down the stairs; she walked calmly out of the house. She only told her husband, before she they were married. She only told her husband, but after they were married. She only told her husband while in couple’s therapy over how many doors she wanted on their McMansion. She only told Rep. Anna Eshoo. No, wait – she only told Anna Eshoo’s staff and a reporter from the Washington Post. No, she told, Eshoo, her therapist, Diane Feinstein, a reporter from the Washington Post, and a friend at lunch, another friend at another time that she can’t quite recall, some more friends on the beach. She’s afraid of flying. No, she isn’t afraid of flying; she flies for work and family events all the time. Ok, she’s afraid of flying, except when she’s flying for a vacation to French Polynesia.

Dr. Ford has more memory lapses than a blackout drunk, which leads me to believe that the neurotransmitters in her hippocampus are defective. Or maybe she is a blackout drunk. Either that, or she remembers everything possible in a traumatic experience, but the other people she names as being at the party – including her lifelong friend, Leland Keyser – are lying when they say it never happened.

So how do I explain why she honestly believes Judge Kavanaugh tried to rape her? I’m not a medical expert, but we know memory transference is a real thing. By her own testimony, she was something of a social outcast in high school and the group she most wanted to be a part of was the circle that included a youthful Brett Kavanaugh. Perhaps an assault did happen, but she’s substituted the people who scorned her into the roles of the truly guilty.

Regardless of her credibility, however, is the process by which this entire episode has been handled by the Democrats. Among the more shocking things that came out during yesterday’s testimony is this. When Judge Kavanaugh met with Senator Feinstein on August 20th, she was not only aware of the allegations against him, but was actively working with Blasey-Ford on her future testimony through legal counsel. The entire idea that she didn’t leak the “anonymous” letter and that this wasn’t a manufactured crisis was blown apart with that fact.

Who can blame Brett Kavanaugh for lashing out at the Democrats during his testimony? He knows he is innocent of these allegations – and the even more ridiculous and spurious allegations that have followed. His credibility attacked, his family denigrated, his honor and reputation sullied? How would you expect him to react? Especially when Democratic Senators Kamala Harris, Cory Booker, Chris Coons, Diane Feinstein, Richard Blumethal and Dick Durbin announced they wouldn’t vote for him, even before the confirmation hearings began. Booker went so far as to call Kavanaugh “evil.” Think about that, for a moment.

Given all that, Kavanaugh’s confrontational manner wasn’t only justified, it was muted. I would  not have blamed him had he gone on a Lindsey Graham-esque tirade.

Democrats are reacting as they always do, given the circumstances, with outbursts of rage and indignation. They don’t like it, and like an emotionally overwrought child, they are throwing temper tantrums. They were certain that weaponizing criminal allegations against an upstanding citizen whose political views are at odds with theirs would result in the mob turning against him. Well, indications are their mob is ready to do to Judge Kavanaugh what happened to the poor guy in Atwood’s book: literally tear him limb from limb.

They attempted to turn Brett Kavanaugh into their Handmaid. He refused. After years of treating Republicans as their Handmaids, the GOP has finally risen up and declared, “Enough!”

The saddest, and most ironic, thing about this entire episode is that by weaponizing the #MeToo movement, Democrats have neutered it. By supposedly advocating for the rights of abuse victims, they have done the opposite. By lending credibility to incredible allegations, they have cast the pall of suspicion over all allegations of sexual victimization. By calling Dr. Ford’s allegations “credible,” despite an independent prosecutor saying there wasn’t enough evidence to even file charges, they have sullied not only the reputation of Judge Kavanaugh but those of every woman who’s been assaulted.

By playing politics with people’s lives, Democrats have shown themselves to be the cold, heartless would-be rulers who would turn all of us into their handmaids.

The Senate should confirm Brett Kavanaugh. We should reward them by voting for every Republican on the ballot come November 6th. We should tell the Democrats, with the same vigor and fire as Kavanaugh and Graham, that we will no longer be your handmaids.

 

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The SCOTUS Argument Debunked


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Perhaps the most convincing argument coming from those who’ve decided to back up the truck to Donald Trump’s candidacy is the one regarding appointments to the Supreme Court. Even the most politically clueless individual realizes that Hillary Clinton will never nominate anyone with a conservative viewpoint. Hillary probably doesn’t even know any lawyers or professors who aren’t decidedly liberal. With one court vacancy already and the majority of the sitting Justices eligible for Social Security benefits, odds are the next President will have a once in a century opportunity to shape the Court. Certainly, nobody who cares about the Constitution can reasonably argue that a Clinton Presidency wouldn’t greatly imperil our system of government.

So the argument becomes we know what Hillary will do as regards SCOTUS, and that’s pack it with as many anti-gun, pro-abort, big government types as she can get past the Senate. Trump has at least made noises about nominating conservative justices. Who knows? He might actually keep his word on at least this subject and select people from the list he published a couple of weeks ago.

I’ll admit, that’s almost a compelling argument. Nobody of sound mind wants to see the Supreme Court packed with people who make Lenin look like James Madison. Of course, it relies on assuming that Trump will hold true to his word on this topic. And we know the old saying about assumptions… The question becomes, can we trust Trump to nominate, as he claims, a justice worthy of Antonin Scalia’s seat?

Well, no. In fact, I’m here to show that not only won’t he nominate a Scalia type to the court, but that his nominees would be every but as dangerous to the long-term health of the republic as Hillary’s. And I have two reasons I can say this with absolute, complete and total certainty.

First, one only need look at that list a little more closely. It’s a list of potential jurists that any high school junior could have put together in about 15 minutes by doing a Google search (and that’s assuming they were slow at copying and pasting). Of the eleven potential nominees, nine are politicians first, jurists second. None are considered an actual legal scholar, much less in the intellectual vein of Justice Scalia. Only three have taught law (one in an adjunct capacity only) and none taught the Constitution. Besides being intellectual lightweights, they all share two other things. The first is a trail of opinions justifying judicial activism. Their other common trait (one that frankly I applaud) is that all have struck down restrictions on the 2nd Amendment. Unfortunately, reading through their legal reasoning in doing so is at best, bewildering. Judge Sykes, for instance, is most famous for striking down Chicago’s attempt to outlaw gun ranges. (Well, in legal circles, anyway. She’s also famous for another reason). But in her opinion, she gave credence to the idea that prior restrictions on gun possession and ownership could and should be considered when adjudicating 2nd Amendment cases. In  other words, had a prior legislature outlawed firing ranges and another court upheld that ban, she would have gone along with it. Or to put it more bluntly: she would place legal precedent ahead of the Constitution. That is about as far from Justice Scalia as one can get and not end up with someone named Ginsburg.

Perusing through the other nominees’ legal opinions reveals the same sort of bent. These are not legal conservatives. They may be social conservatives, but are willing to tear the Constitution to shreds in the name of their “conservatism.” Of course, that isn’t conservative at all. That’s the flip side of the same judicial coin that social liberals have been flipping for 70 years. It’s also the sort of person Trump has consistently been throughout his life. Which is to say, one with little regard for the law – and if the law gets in your way, either ignore it or change it. A politician willing to change the law willy-nilly is dangerous enough. A Supreme  Court justice willing to ignore the Constitution in furtherance of a goal is inherently dangerous. In fact, we have one such “conservative” justice now occupying the Chief Justice’s seat, and it was his pursuit of maintaining the court’s “integrity” over the Consitutional principles it is supposed to be upholding that gave us Obamacare.

In this light, it isn’t surprising that actual Scalia-type legal scholars, who also happen to be social conservatives, are nowhere to be found in Trump’s thinking. Not one of Janice Rogers-Brown, Brett Kavanaugh or Paul Clement seems to even have been considered. I’m not even going to mention Mike Lee or Ted Cruz. We all know how Trump feels about Cruz, and putting Thomas Lee on the list seems like a sop towards Mike (they’re brothers). The point is, those are people who firmly believe in the Constitution’s delineation of powers, including restrictions on executive authority. If there’s one thing the Donald hates, it’s anyone telling him what he cannot do, especially a legal authority.

Which brings me to the second proof that Trump will not nominate a Scalia-type conservative. As you are probably aware, he is facing several lawsuits for his involvement with Trump University, about as scammy an operation as has ever operated in these United States. The one that is closest to being heard is in California, being presided over  by US District Judge Gonzalo Curiel. Late last week, Trump launched into one of the most hateful diatribes against a sitting federal judge in US history. It was certainly a first for a presidential candidate. In terms of political assassination of a court, the only comparable thing that comes to mind was President Obama’s singling out the Supreme Court for not bending to his will during his 2010 State of the Union.

Stop to let that sink in for a moment: Donald Trump and Barack Obama have the same regard for courts that don’t do as they want.

Of course, Trump did his best to poison the well further. He decried Judge Curiel as Mexican (he’s actually from Indiana) in his inimitable “I’m-not-a-racist-but-I-am” wink & nod cattle call. Indeed, he pushed right up to the edge of facing contempt of court charges. That he hasn’t is an example of judicial restraint, a concept foreign to Judge Trump (as is restraint in anything). But more instructively, Trump’s willingness to harangue a sitting federal judge tells us what he expects from the judicial branch of the federal government: total compliance with Trump. Comply, or face my Brownshirts. In Curiel, however, Trump’s threats probably don’t have much currency. After all, he’s faced down Mexican drug cartels in his courtroom.

Besides sending a shudder up the spine of anyone who happens to think the separation of powers provided by the Constitution is a good idea that’s worked really well, this type of behavior also lays low one of the other arguments I’ve heard. Namely, that Trump would be constrained by the both the Constitution and the grinding bureaucracy of the federal system. Trump has already subverted the second half of that argument; watching the likes of Mitch McConnell and Marco Rubio licking his boots proves that. Seeing what Trump expects of a justice, and the lengths he will go to exact compliance, makes the first invalid, as well.

 


The Supremes vs… Everyone Else?


I hear that EVERYONE is up in arms over the way the Supreme Court has ruled on this term’s cases. Conservatives are mad about the rulings on gay rights, liberals feel savaged by the ruling on the 1965 Voting Rights Act. Both are upset about the not ruling in the affirmative or negative on Affirmative Action. Indians are crying foul over an adoption case. All over the country, municipalities are wrinkling their noses over “new” limits on eminent domain laws. Governors had a large part of their executive authority executed, thanks to an overlooked ruling. Felons woke up with a hangover, realizing that they’re never going to be free of the Department of Justice. And in what may be a first, the Court managed to upset both liberals and conservatives with a pair of anti-discrimination decisions.

(h/t CNN)

Yes, there was something in this term to make EVERYONE upset with the 9 Justices. Everyone, that is, except libertarians. We’re actually smiling at the end of this term. Essentially, the Supremes ruled that trying to regulate all of these social wedge issues are nothing more than a waste of EVERYONE’s time and effort.

The reason for this is actually easy to understand, if you look at the Court’s makeup. There are four staunch liberals, three staunch conservatives, one constitutional conservative and one originalist. If you’re unfamiliar with the terms, here’s a layman’s way of defining it:

  • Justices Thomas, Alito and Scalia are the staunch conservatives. They generally rule for limiting government authority, except on social issues – where expansive government is perfectly acceptable in promoting socially conservative values.
  • Justices Ginsburg, Breyer, Sotomayor and Kagan are staunch liberals. They generally rule for expansive government, period. Unless the expansive government happens to directly threaten a liberal social value.
  • Justice Kennedy is the constitutional conservative. He actually reads the text of the Constitution and tries to see where the issue lies within the document. Once upon a time, this is what social conservatives swore they wanted (remember the arguing over “strict constructionalism” in the late ’90s?). Then Kennedy started making decisions that weren’t socially conservative. That narrative  is almost never heard anymore.
  • Chief Justice Roberts is the originalist. He weighs precedent to see how past Justices have interpreted the Constitution and apply that to modern cases.

So, how does this wind up with a more or less libertarian court? In almost any case involving a socially divisive issue, there will be four votes for the liberal position and three for the conservative, even before oral arguments. This leaves Chief Justice Roberts and Justice Kennedy as the deciding votes on these cases. Justice Roberts tendency to avoid making new law from the bench means he generally votes with the conservative justices. That leaves Justice Kennedy, who is more concerned with actually applying Constitutional principles to the case being decided.

This dynamic gave us what we’ve seen this term. Kennedy voted with the majority in every decision, except for Hollingsworth v. Perry. In that case (the punt on Prop 8), there was a rare majority of conservative and liberal justices who voted 6-3 that the plaintiffs didn’t have standing to bring the case. Kennedy, in his dissenting opinion, wrote that he believed the court had standing to decide the case regardless of the plaintiffs and that remanding it to lower courts only ensured the case would return later (he’s probably right, too). 

Most commentators like to portray Justice Kennedy as a Reagan conservative who has surprised conservative lawmakers by often voting with the Court’s liberal bloc. I often wonder where these people have been for the past 30 years. While it is true that he was nominated by President Reagan in 1987, anyone who has cursorily reviewed his prior rulings would understand that his primary concern has been in determining the limits of government power. Among his 9th Circuit rulings can be found ideas like “indifference to personal liberty is but the precursor of the state’s hostility to it” and “a zone of liberty, a zone of protection, a line that’s drawn where the individual can tell the Government, ‘Beyond this line you may not go.’” These are the same principles that define the libertarian cause. Given that the “swing vote” of the Supreme Court espouses libertarian views, why is anyone shocked when the courts decisions follow the same?

For all practical purposes, the political result is that neither liberals nor conservatives are going to be terribly happy with this court. Which is how the Court’s decisions should affect popular opinion. After all, is the Supreme Court is supposed to be an independent arbiter on the Constitutionality of the laws passed by the Legislative branch and the regulations created by the Executive. It isn’t supposed to stick a collective finger in the air to determine which way the political winds are blowing.


John Roberts is not a Villian


ObamaCare CartoonI’ve read today – far too often today – that Chief Justice of the United States Supreme Court John Roberts is a cross between Judas Iscariot, Pontius Pilate and Benedict Arnold. Or maybe something worse. Although I doubt Chief Justice Roberts needs me to come to his defense (or that he even cares, to be honest), I’m going to give it a shot. Let’s look into what the Supreme Court ruling on the PPACA actually means before passing judgement, shall we?

The Supreme Court ruled that the government cannot compel anyone to buy anything. Ever.

Big? You bet this is huge. We’ve heard for two years from academicians and progressives that under the Commerce Clause, Congress has the ability to force us to buy stuff. Their theory was that because everyone needs health care at some point, we all engage in commerce related to the health industry and the very act of not purchasing health insurance was an action. Well, not so fast.

“The individual mandate, however, does not regulate existing commercial activity. It instead compels  individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority…The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.”

So, the Obama administration’s argument (echoed by the same academicians above) got the royal smack-down. Chief Justice Roberts may as well have wrote, “What are you, a bunch of moe-rons?”. The result is the same. Rarely does a published opinion go this far (nearly 16 pages) to explain why an argument is so plainly stupid.

The Supreme Court ruled that ObamaCare is the biggest tax hike in US history.

Yes, they ruled the PPACA can move forward, but that the government can no longer try and hide behind the facade of an individual mandate. No, they ruled: ObamaCare is actually a tax increase. Or more precisely, a combination of 21 different tax increases that total $1.2 trillion in new revenue annually. How big is that?  It amounts to new taxes that consume 8% of the nation’s economic output. With only a little over 4 months until the election, I’m not sure how either the President or his minions in Congress feel about running for election on a platform of delivering the biggest tax increase in history. I doubt they’re relishing the chance to find out. Already the cries are being raised about the impending sequestration, with it’s 1.5% tax increase and strong possibility of pulling the economy back into recession. ObamaCare represents a tax increase more than 5 times that impact. By ruling as they did, the Court hand-delivered a gift-wrapped campaign theme for the Republicans this Fall. “If you thought the economy was bad before, just wait until ObamaCare sinks it forever.”

States cannot be forced to participate in ObamaCare. 

A big part of how ObamaCare delivers affordable insurance to the masses is through a massive expansion in Medicaid, by enrolling anyone at 133% of the federal poverty line or below in the program. A big part of how the administration covers up the cost of that expansion is by removing federal subsidies for it by 2017, but still compelling the states to pick up the tab. As of right now, 13 states are balking at the idea of pushing their budgets into the red to make good on this mandate. The Supremes issued another smack-down on this, ruling that unfunded mandates are unconstitutional, even if the mandate is to an existing program.

“It is enough for today that wherever that line may be, this statute is surely beyond it. Congress may not simply “conscript state [agencies] into the national bureaucratic army,” and that is what it is attempting to do with the Medicaid expansion.”

Either the administration can relent and pick up the entire tab for the Medicaid expansion, or live with fact that the original goal of covering more than 95% of Americans in some form of health plan is by the boards.

So, is this really a win for Team Obama? Only in Pyrrhic sense. Yes, the PPACA stands for now – but not all of it. The Medicaid smack-down means that a very large part of the administration’s base of support won’t see any benefit from the law. As for the rest of it, Team Obama is now left to campaign on the largest tax hike in history, in the middle of the worst economy in 80 years. It is also already galvanizing support for the Republican challenger as nothing else could have – especially given Mr. Romney’s own dubious record on health reform.

The President may be heading to bed this evening with a smile on his face. But I bet the one on the Chief Justice’s face come November 6th will be a bit bigger.


ObamaCare Constitutional (Sort of)!


The Supreme Court issued their ruling on the Patient Protection and Affordability Care Act earlier this morning. The short story is, the act stands. But there is much in the  ruling that I can see making the President and entire Federal government wishing they had never taken this up to begin with.

For staters, the Individual Mandate is  completely unconstitutional. No ifs, ands, or buts.

“Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.'”

Instead, the Court ruled that Congress can impose a “health tax” as part of the individual tax code, but again, it cannot apply a penalty to persons who refuse to participate in the insurance market. They can only impose the tax uniformly – on everyone – and then refund or credit people who do buy insurance.

But the biggest bombshell coming from this ruling is the Court’s take on unfunded federal mandates. They’ve basically eviscerated one of Washington’s favorite ploys – requiring the states to do something, but not paying for it. In this instance, it is the expansion of Medicaid to cover all persons up to 133% of the federal poverty line. Although Congress offers short-term relief for the increased expenditure, that ends in 2017 and the states eventually pick up most of the tab – or face losing all of their federal funding for Medicaid. The Court ruled that if the Feds want to expand Medicaid that way, they need to pick up the full tab – permanently.

“The Medicaid expansion thus violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. The constitutional violation is fully remedied by precluding the Secretary from applying §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion.”

Taken broadly, this opens a Pandora’s box of mandates to legal challenges, in everything from education (“No Child Left Behind”) to transportation (Federal Highway Funding). Fun times lie ahead, I’m sure.

I’ll have more in a few days, once I’ve fully digested all 193 pages of the decision. If interested, you can read the full thing here.