The closest Democrats came to explaining why they opposed Brett Kavanaugh for the Supreme Court was when they said they wanted to prevent a conservative majority on the court. That's a legitimate position as far as it goes, perhaps, but they never explained, that I heard, why that's bad except to harp on the possibility, or likelihood, that Roe v. Wade might be overturned.
They were more concerned, actually, about future cases. What cases? Well, they don't know yet. They are cases involving elements of the liberal agenda that no one knows about now, but they'll tell us when they find out. They are the "liberties" that Justice Scalia referred to in his dissent in Casey (1992) when he wrote, If, indeed, the "liberties" protected by the Constitution
are, as the Court says, undefined and unbounded, then the people
should demonstrate, to protest that we do not implement their values
instead of ours. (See longer excerpt here.)
It is these "undefined and unbounded" liberties that are endangered by a conservative majority because conservatives believe that the Constitution should have a constant meaning under the judicial philosophy of originalism whereby the Constitution is interpreted according to the meaning of the words as understood at the time of adoption. Originalism is anathema to liberals because it opposes the "living Constitution" approach to Constitutional interpretation through which they've achieved their goals in social issues for decades now. Their fear is that the party is now over.
And good riddance. It is the "living Constitution" that accounts, as Scalia explained so well, for the existential battles that take place with each new Supreme Court nomination, especially when the so-called "balance" on the court is endangered as it is now. We're constantly being subject to hand-wringing about the strife we endure with nominations and what can be done about it. Well, this is the answer: Liberals should give up on the their project of achieving their goals through the courts. If they do that, the Supreme Court can get back to its job, as Scalia put it, of essentially lawyers' work
up here, and Supreme Court nominations can get back, as they once were, to the boring job of evaluating nominees solely on their qualifications as judges and not social engineers.
Sunday, October 7, 2018
Sunday, July 29, 2018
Chevron Deference and the Administrative State
In the fight over confirmation of Brett Kavanaugh to the Supreme Court the obsession by liberals with Roe v. Wade is greatly overblown in my opinion, and there's something of far greater importance at stake, namely Chevron deference and the administrative state.
Concerning Roe, there's wide agreement among commentators I follow that it's unlikely to be overturned no matter what happens. In addition, (a) policy and litigation concerning abortion turns more on Casey (1992) than Roe (1973), and (b) not much would happen even if Roe is overturned. However, Roe makes a far better talking point because everybody has an opinion on it (whether they understand it or not) whereas you'll likely get a blank stare if you ask the man on the street his opinion of Chevron deference.
Chevron deference is a principle of administrative law dating from a case in 1984 where the courts give deference to administrative agencies in cases where the law may be ambiguous. (See here for more complete definition). It has contributed greatly to the expansion of the power of executive agencies, notably EPA, which has run amok with regulations of dubious basis in law.
The broad issue of the expansion of the power of the administrative agencies has implications in Separation of Powers, where bureaucrats in executive agencies exercise power that should be reserved to Congress. Congress is to a great extent responsible causing it with laws that assign broad discretion to the Executive.
The courts have done their part through Chevron deference, and if Kavanaugh is confirmed there will be a solid majority (Roberts, Alito, Gorsuch, Thomas and Kavanaugh) on the court with a much more skeptical view of Chevron deference and the administrative state in general. I suspect Democrats are motivated by this to a large extent in the confirmation battle, a basic principle of their governing philosophy, in response to government bloat, being to make it ever bigger.
Concerning Roe, there's wide agreement among commentators I follow that it's unlikely to be overturned no matter what happens. In addition, (a) policy and litigation concerning abortion turns more on Casey (1992) than Roe (1973), and (b) not much would happen even if Roe is overturned. However, Roe makes a far better talking point because everybody has an opinion on it (whether they understand it or not) whereas you'll likely get a blank stare if you ask the man on the street his opinion of Chevron deference.
Chevron deference is a principle of administrative law dating from a case in 1984 where the courts give deference to administrative agencies in cases where the law may be ambiguous. (See here for more complete definition). It has contributed greatly to the expansion of the power of executive agencies, notably EPA, which has run amok with regulations of dubious basis in law.
The broad issue of the expansion of the power of the administrative agencies has implications in Separation of Powers, where bureaucrats in executive agencies exercise power that should be reserved to Congress. Congress is to a great extent responsible causing it with laws that assign broad discretion to the Executive.
The courts have done their part through Chevron deference, and if Kavanaugh is confirmed there will be a solid majority (Roberts, Alito, Gorsuch, Thomas and Kavanaugh) on the court with a much more skeptical view of Chevron deference and the administrative state in general. I suspect Democrats are motivated by this to a large extent in the confirmation battle, a basic principle of their governing philosophy, in response to government bloat, being to make it ever bigger.
Friday, July 27, 2018
An Escalation in the Judicial Confirmation Wars
That's what Ed Morrissey at Hotair.com called the fact that the New York Times and the AP have requested emails to and from Brett Kavanaugh's wife Ashley in her capacity as Town Manager of Chevy Chase. It could be said perhaps that the Times exercised some restraint by limiting their request to emails containing any of a list of words they included, but then the first word was "Brett."
Of course, they also requested emails from the spouses of Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan when they were appointed to the Court, right?
Good luck with that.
Of course, they also requested emails from the spouses of Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan when they were appointed to the Court, right?
Good luck with that.
Monday, July 23, 2018
Comey vs. Trump
In an interview with James Comey by Brett Baier on Fox a few weeks ago, Brett asked Comey, with a hint of incredulousness in his voice, whether Comey would have continued as FBI Director if Trump hadn't fired him. Comey answered that he would have continued in the job.
Given the unremitting contempt we now know that Comey held for Trump, which puts him in the same league as Peter Stzrok and Lisa Page except for being more discreet about it, the honorable thing for Comey to do would have been to resign. Comey has said that Trump is "morally unfit" to be president and that impeachment would be too good for him. How could he in good conscious stay in an administration he felt that way about?
In the same vein, Karl Rove on one of the talk shows said he was appalled that Peter Stzrok did not recognize that it was inappropriate for him to lead investigations of political campaigns in which he had such strong feelings. Stzrok testified that his personal opinions had no effect on his professional actions. This is implausible on its face, and even more so considering his obnoxious manner when testifying before Congress.
Given the unremitting contempt we now know that Comey held for Trump, which puts him in the same league as Peter Stzrok and Lisa Page except for being more discreet about it, the honorable thing for Comey to do would have been to resign. Comey has said that Trump is "morally unfit" to be president and that impeachment would be too good for him. How could he in good conscious stay in an administration he felt that way about?
In the same vein, Karl Rove on one of the talk shows said he was appalled that Peter Stzrok did not recognize that it was inappropriate for him to lead investigations of political campaigns in which he had such strong feelings. Stzrok testified that his personal opinions had no effect on his professional actions. This is implausible on its face, and even more so considering his obnoxious manner when testifying before Congress.
Saturday, July 21, 2018
Krauthammer's Law: Stupid vs. Evil
The passing of Charles Krauthammer was a great loss to the country, and I believe he was respected on all sides even though he gave no quarter to liberals in his commentary.
One of his outstanding observations was in a 2002 column in which he pointed out this "fundamental law": "Conservatives think liberals are stupid. Liberals think conservatives are evil."
Proof of this is everywhere. Hillary's "Basket of Deporables" speech proves both sides at once: Was it not stupid for a candidate for president to insult a large segment of the public? And her words describing them certainly fit "evil."
Restaurants are not refusing service to members of Trump's cabinet because they aren't dressed appropriately. John Brennan accused President Trump of treason for his press conference in Helsinki. Former CIA director Michael Hayden tweeted a comment about the separation of children at the border with a picture of Auschwitz attached. All of these show animus for the other side verging on evil.
They're also stupid. Michael Hayden doesn't really believe the border actions compare to what happened at Auschwitz, and for him to say as much was stupid.
In a column in yesterday's Wall Street Journal, Jason Willick relates this little story:
When I was a freshman at the University of California, Berkeley in 2011, the College Republicans announced plans to hold an “Increase Diversity Bake Sale.” The idea was to offer minorities and women discounts on cupcakes while white males would pay full price. This led to an emergency meeting of the student government and widespread calls to defund the group or shut down the event. For its organizers, that alone made it a wild success.
The Republicans' game wasn't just mockery; it was malicious.
Krauthammer's column ends with this: The most troubling paradox of all, of course, is George W. Bush. Compassionate, yet conservative? Reporters were fooled during the campaign. "Because Bush seemed personally pleasant," explained Slate, "[they] assumed his politics lay near the political center."
What else could one assume? Pleasant and conservative? Ah, yes, Grampa told of seeing one such in the Everglades. But that was 1926.
One of his outstanding observations was in a 2002 column in which he pointed out this "fundamental law": "Conservatives think liberals are stupid. Liberals think conservatives are evil."
Proof of this is everywhere. Hillary's "Basket of Deporables" speech proves both sides at once: Was it not stupid for a candidate for president to insult a large segment of the public? And her words describing them certainly fit "evil."
Restaurants are not refusing service to members of Trump's cabinet because they aren't dressed appropriately. John Brennan accused President Trump of treason for his press conference in Helsinki. Former CIA director Michael Hayden tweeted a comment about the separation of children at the border with a picture of Auschwitz attached. All of these show animus for the other side verging on evil.
They're also stupid. Michael Hayden doesn't really believe the border actions compare to what happened at Auschwitz, and for him to say as much was stupid.
In a column in yesterday's Wall Street Journal, Jason Willick relates this little story:
When I was a freshman at the University of California, Berkeley in 2011, the College Republicans announced plans to hold an “Increase Diversity Bake Sale.” The idea was to offer minorities and women discounts on cupcakes while white males would pay full price. This led to an emergency meeting of the student government and widespread calls to defund the group or shut down the event. For its organizers, that alone made it a wild success.
The Republicans' game wasn't just mockery; it was malicious.
Krauthammer's column ends with this: The most troubling paradox of all, of course, is George W. Bush. Compassionate, yet conservative? Reporters were fooled during the campaign. "Because Bush seemed personally pleasant," explained Slate, "[they] assumed his politics lay near the political center."
What else could one assume? Pleasant and conservative? Ah, yes, Grampa told of seeing one such in the Everglades. But that was 1926.
Thursday, July 19, 2018
Politicized Law Enforcement
It strikes me as unseemly that former top officials in law enforcement and intelligence of the Obama administration have since leaving office become so nakedly political in public statements. Former FBI Director James Comey yesterday recommended voting for Democrats in the coming election in addition to his unrestrained criticisms of Trump. Former CIA Director John Brennan and former Director of National Security James Clapper have also shown their political colors in stark terms.
Many will say with considerable justification, "who's surprised?", but it still grates. Andrew McCarthy as guest on Fox News yesterday put it this way: "If they're playing politics now, why should anyone doubt that they were playing it when they were in power?" Indeed.
Many will say with considerable justification, "who's surprised?", but it still grates. Andrew McCarthy as guest on Fox News yesterday put it this way: "If they're playing politics now, why should anyone doubt that they were playing it when they were in power?" Indeed.
Tuesday, July 10, 2018
Why are Supreme Court appointments so contentious?
The sad state of our debates on judicial appointments is a direct consequence of the strategy by liberals to enact their agenda through the courts. I can't improve on what Justice Scalia said about it in his dissent in Casey (1992, excerpt):
What makes all this relevant to the bothersome application of "political pressure" against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here - reading text and discerning our society's traditional understanding of that text - the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality, our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U.S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value [505 U.S. 833, 1001] judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school - maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. JUSTICE BLACKMUN not only regards this prospect with equanimity, he solicits it.
What makes all this relevant to the bothersome application of "political pressure" against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here - reading text and discerning our society's traditional understanding of that text - the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality, our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U.S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value [505 U.S. 833, 1001] judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school - maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. JUSTICE BLACKMUN not only regards this prospect with equanimity, he solicits it.
What is 'Conservative' judical activism?
Our friends on the left are up to DEFCON 1 over the appointment of Brett Kavanaugh to the Supreme Court and seem poised to attempt another Borking. The "debate," if you can call it that, will be a blizzard of demagoguery and little else.
Something that riles me is the claim on the left of a sort of symmetry in "judicial activism" on left and right. It is a highly elastic term, more often than not meaning decisions one doesn't like. but there is a real difference.
I'm not the first to point out that liberals have for decades promoted their agenda through the courts, with considerable success, and conservatives have rightly called it by that term. When liberals speak of judicial activism on the right, they actually mean opposition to that strategy. That is at base what has them worried with the Kavanaugh appointment: It looks like the party's over, and they'll have to win through democratic means.
If you take issue with the assertion that liberals have promoted their agenda through the courts, consider this from a recent editorial in the New York Times:
As hyperpartisanship, gridlock and a general abdication of responsibility have rendered Congress increasingly dysfunctional, the judiciary is taking an ever-greater hand in policy areas ranging from immigration to guns to ballot access to worker rights.
There you have it from the oracle of liberalism itself.
Something that riles me is the claim on the left of a sort of symmetry in "judicial activism" on left and right. It is a highly elastic term, more often than not meaning decisions one doesn't like. but there is a real difference.
I'm not the first to point out that liberals have for decades promoted their agenda through the courts, with considerable success, and conservatives have rightly called it by that term. When liberals speak of judicial activism on the right, they actually mean opposition to that strategy. That is at base what has them worried with the Kavanaugh appointment: It looks like the party's over, and they'll have to win through democratic means.
If you take issue with the assertion that liberals have promoted their agenda through the courts, consider this from a recent editorial in the New York Times:
As hyperpartisanship, gridlock and a general abdication of responsibility have rendered Congress increasingly dysfunctional, the judiciary is taking an ever-greater hand in policy areas ranging from immigration to guns to ballot access to worker rights.
There you have it from the oracle of liberalism itself.
Saturday, January 20, 2018
I'm against it
This shutdown kibuki reminds me of Groucho Marx's 1932 "I'm Against It."
https://www.youtube.com/watch?v=29E6GbYdB1c
Here are the lytics
Groucho Marx - I'm Against It Lyrics
[Groucho]
I don't know what they have to say,
It makes no difference anyway,
Whatever it is, I'm against it.
No matter what it is or who commenced it,
I'm against it.
Your proposition may be good,
But let's have one thing understood,
Whatever it is, I'm against it.
And even when you've changed it or condensed it,
I'm against it.
I'm opposed to it,
On general principle, I'm opposed to it.
[chorus] He's opposed to it.
In fact, indeed, that he's opposed to it!
[Groucho]
For months before my son was born,
I used to yell from night to morn,
Whatever it is, I'm against it.
And I've kept yelling since I first commenced it,
I'm against it!
https://www.youtube.com/watch?v=29E6GbYdB1c
Here are the lytics
Groucho Marx - I'm Against It Lyrics
[Groucho]
I don't know what they have to say,
It makes no difference anyway,
Whatever it is, I'm against it.
No matter what it is or who commenced it,
I'm against it.
Your proposition may be good,
But let's have one thing understood,
Whatever it is, I'm against it.
And even when you've changed it or condensed it,
I'm against it.
I'm opposed to it,
On general principle, I'm opposed to it.
[chorus] He's opposed to it.
In fact, indeed, that he's opposed to it!
[Groucho]
For months before my son was born,
I used to yell from night to morn,
Whatever it is, I'm against it.
And I've kept yelling since I first commenced it,
I'm against it!
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