What is a Good Judge?

Poise the cause in justice’s equal scales,
Whose beam stands sure, whose rightful cause prevails.
William Shakespeare

The other day, the AP wrote this:

Many conservation groups say U.S. Supreme Court nominee Neil Gorsuch is too conservative and too much like the man he would replace, the late Justice Antonin Scalia, to be considered a friend of the environment.

But when it comes to Gorsuch’s judicial record on issues like pollution and environmental regulation, he can’t be painted as someone who always finds in favor of businesses, according to an Associated Press review of his rulings.

Funny thing, maybe the AP doesn’t understand is that judges represent neither the environment, business, employees, the people, or even the government. Their mission is to represent the law, and justice, and to ensure its fair and equitable dispensation upon all parties, notwithstanding any other factors.

As a judge for the Denver-based 10th U.S. Circuit Court of Appeals, Gorsuch has ruled both for and against causes that environmentalists hold dear.

He voted in 2015 to uphold a Colorado law that requires 20 percent of electricity sold to consumers in the state come from renewable sources.
***
But Gorsuch has also ruled against the EPA, as in a 2010 case in which the court found that the agency was wrong to classify land in New Mexico as Indian country when a company sought to obtain a mining permit.

I like the way John Hinderaker puts it here…

There is no “but” about it. A competent judge will rule for or against a party based on the law and the facts, not the identity of the parties. Only a corrupt judge–we have several such liberals on the current Supreme Court–will ascertain a political narrative and vote to advance it.

Indeed we do!

Then the AP offers very high praise to Judge Gorsuch, although I doubt that they understand that they do.

“He follows the law,” said Merrill Davidoff, the landowners’ attorney. “And in this case the law favored the plaintiffs — the landowners — not the government or the government contractors.”

If only all our judges did!

And that brings us to something that John and I have both written much about: administrative law. John says this

There is one major contemporary issue on which judicial philosophy bears strongly. That is the legitimacy of the administrative state. As I have said repeatedly, the government we live under does not resemble the one that is described in the Constitution. Today, we are governed mostly by a fourth branch, nowhere mentioned in the Constitution, the permanent federal bureaucracy. These office-holders persist from one administration to another, and in many cases resist any effort to bring them into line with a new administration’s policies. They are unelected, unaccountable, frequently incompetent, and almost always Democrats.

If I were president, the only question I would ask a prospective Supreme Court nominee is whether he or she will be willing to take a hard look at whether the administrative state comports with the Constitution. The AP eventually gets to this central issue:

A ruling that most worries some environmental groups came in a case that had nothing to do with the environment. In a much-noted immigration case, Gorsuch was critical of the longstanding Chevron doctrine, which gives deference to federal agencies’ interpretations of ambiguous statutes. Conservationists say that could be trouble for agencies like the EPA, which have the task of interpreting and implementing rules.

“If you look back at the Supreme Court’s rulings involving Chevron, most of those are environmental cases,” said Billy Corriher, deputy director of legal progress at The Center for American Progress, a nonprofit liberal advocacy group. “And I think that’s because the EPA really enforces a lot of statutes that are pretty broad, it gives them broad authority to regulate certain pollution and it leaves it up to the experts to determine exactly what threshold of pollution is acceptable and what threshold is dangerous. Judge Gorsuch would want to get rid of that standard and basically allow judges to substitute their own judgment for the judgment of the agency experts.”

That’s about as twisted as a corkscrew. The problem with administrative law (and Chevron gives overmuch weight to the agencies) is that legislation is not to be made by the agencies, they are there to execute the law the Congress has passed. That the Congress has abrogated their responsibilities under the law is no excuse. As John says.

The Constitution is not about rule by experts (even real ones, as opposed to bureaucrats) but rule by the sovereign people. Hopefully, Judge Gorsuch understands that.

via A Pro-Environment Judge Is a Bad Judge | Power Line

Swampcare v Obamacare

Well, Ryan’s healthcare plan is out. What is no surprise is that it is a statist, big government plan, not as bad as Obama’s but pretty bad all on its own.

Dan Mitchel wrote back in 2010

The only way to fix healthcare is to restore the free market. That means going back to a system where people pay out-of-pocket for most healthcare and use insurance to protect against genuine risk and catastrophic expenses. The time has come to reduce the size and scope of government. …Change Medicare into a system based on personal health accounts and shift all means-tested spending to the states. …the flat tax is ideal from a healthcare perspective since it gets rid of the healthcare exclusion in the tax code as part of a shift to a tax system with low rates and no double taxation.

This video, narrated by Julie Borowski for the Center for Freedom and Prosperity, looks at the Obamacare/third-party payer issue.

via Our Healthcare Policy Problem Is Much Bigger than Obamacare

Yep, and for that matter, back in 2013, I wrote this,

Understand this, 404Care isn’t healthcare, it’s a chance to buy insurance, executed properly, in some alternate universe it might even have been useful. But here, where the sky is blue, it’s not. Why? Because with the limited number of plans available and the narrowness of providers, you’re screwed. You’re screwed, even if your identity doesn’t get stolen, which is likely as well.

Why? Because healthcare is properly defined as having a doctor and/or hospital take care of you when you are sick or injured. Depending on your choices, insurance is a valid way of paying for that (which is required, since Obamacare, before that doctors and hospitals were required to provide minimal, lifesaving care, free, if necessary.) 80 years ago, chickens and/or eggs worked, cash nearly always works, nearly anywhere. The way this is written, since I’m from Nebraska, if I go see Mt. Rushmore, and get food poisoning (because I’m too stupid to refrigerate my potato salad, say) I’d better be tough, cause I ain’t going to see a doctor in South Dakota, unless I have cash, of course.

What all the noise then and now is about is how to pay for it. Medical care in this country is very expensive. Mostly that is so because of bureaucracy, of the government, of the insurance companies, and of the healthcare industry (although to be fair, much of the industry’s bureaucracy is driven by the other two).

In 2010, John Goodman wrote,

Almost everyone believes there is an enormous amount of waste and inefficiency in health care. But why is that? In a normal market, wherever there is waste, entrepreneurs are likely to be in hot pursuit – figuring out ways to profit from its elimination by cost-reducing, quality-enhancing innovations. Why isn’t this happening in health care?

As it turns out, there is a lot of innovation here. But all too often, it’s the wrong kind.

There has been an enormous amount of innovation in the medical marketplace regarding the organization and financing of care. And wherever health insurers are paying the bills (almost 90 percent of the market) it has been of two forms: (1) helping the supply side of the market maximize against third-party reimbursement formulas, or (2) helping the third-party payers minimize what they pay out. Of course, these developments have only a tangential relationship to the quality of care patients receive or its efficient delivery.

The tiny sliver of the market (less than 10 percent) where patients pay out of pocket has also been teeming with entrepreneurial activity.  In this area, however, the entrepreneurs have been lowering cost and raising quality – what most of us wish would happen everywhere else. For example:

  • There are more than 1,000 walk-in clinics spread across the country today – posting transparent prices and delivering high-quality, low-cost services;
  • Whole businesses have been created to provide people with telephone and e-mail consultations because third-party payers wouldn’t pay for them;
  • Mail-order pharmaceuticals are a huge and growing market – one which emerged to offer price competition to consumers who buy their drugs out-of-pocket;
  • Wal-Mart didn’t introduce the $4-a-month package price for generic drugs in order to do a favor for Blue Cross. It is catering to customers who pay their own way;
  • Concierge doctors are also providing patients with innovative services – services that health insurers don’t cover.

Nothing has changed. Except that the GOP has taken ownership of Obamacare, well it might accidently be a little better, but not much. David Harsanyi says this.

First of all, the preferred free-market plan for health care policy should be no plan whatsoever. The idea that we need a federal, top-down strategy to manage a huge chunk of the economy is at the very heart of the problem. We don’t need a federal “plan” for health care any more than we need a federal plan for food or clothing. Yet, Republicans have allowed liberals to frame the entire health insurance debate in these anti-market terms.

So the American Health Care Act is obviously weak tea, falling far short of a promised free-market solution, much less a full “repeal” of Obamacare. It’s a half-measure that endeavors to fix Obamacare with small doses of deregulation while failing to repeal its core. It’s almost as if Republicans were trying to mollify their constituents and save Obamacare at the same time.

Donald Trump tweeted out something about a three-phase rollout, but the specifics of the other two parts have yet to be confirmed as of this writing. Perhaps the full proposal will reflect better on Republicans, although considering the noise moderate senators have been making and Trump’s own views on entitlement programs, it’s unlikely to meet conservative expectations. So what can be done?

In a piece highly critical of the planThe Washington Examiner’s Philip Klein, who’s done some of the most insightful writing on Obamacare, states: “the GOP will either be passing legislation that rests on the same philosophical premise as Obamacare, or will pass nothing at all, and thus keep Obamacare itself in place.” What if this is the choice?

We know the Democratic Party’s plan for health care: constrain markets to create monopolies that can be controlled by a federal regulatory regime (this is why liberals oppose markets expanding across state lines); and rather than worrying about access, choice, or cost, continue to incentivize the growth of the welfare state. When this situation becomes untenable, pass single-payer. What Democrats understand, but Republicans often don’t, is that you can reach your goals incrementally.

He asks this: “is something better than nothing?”

Perhaps, at the margins, but the basic problem is that the government has been driving healthcare fiscal policy since World War II, and the market distortions are continually getting worse. Swampcare isn’t going to help much, if at all

Trump to the Joint Session of Congress

Pretty good speech, I think.

He does set piece speeches quite well. Must have been difficult for many in the audience, he did an admirable job of representing the people who elected him to Congress and the world. What do you Think?

UK and US Stuff That Caught My Eye Yesterday: Enjoy

Ramirez:

w10565

One of the really fun things to do here is to feature people who are friends, or at least you get to interact with on a regular basis. One of the people in this video is somewhere on that spectrum. Let’s see if you can figure out which.

Since they’re Brits, the arguments are slightly different than they are here, but I doubt you have many doubts that I admire Laura a good deal. Quite something to watch her take on a couple of leftists (one of whom works for the BBC) and wipe the floor with them. Well done, Laura. And yes, this level of competence in writing and commenting, as well, is much of the reason I enjoy The Conservative Woman as much as I do.

Also from Britain come a very sad story of what happens when the government becomes too big for its britches. From politics. co. uk and that is somewhat unusual, they usually strike me as pretty much statists, at best.

Two elderly ladies in Birmingham have been threatened with fines for sweeping up leaves. They did this because the leaves were a slip hazard – one of them had already fallen over. They left the leaves neatly in bags and tried to arrange for the the council to collect them. But rather than collect them, council officers slapped the bags with ‘illegally dumped garden waste’ stickers and threatened ‘action’.

This is not the first case of this kind. Other people have been fined for putting swept up leaves in their recycling bins. Another man in southern England was told he had to pay for the leaves to be collected, after he and other residents had cleaned their estate for it to look ‘spick and span’ for Christmas (if he put the leaves back on the road, he was told, he would be fined for fly tipping). [essentially littering, I think. Neo]

The maintaining of the street outside your house is one of those traditional, community-spirited things to do, which has rather fallen away. I am always struck with admiration when I see the elderly lady opposite sweeping up her pavement or pulling out stray weeds from the cracks. This is not something that my generation does. Yet community-spirited actions increasingly come into conflict with official rules. The communal space has become something solely occupied by the official actor.

So, it is only for the public authority to sweep up – or fail to sweep up – leaves on the pavement. Any citizen’s action into the public realm appears as a violation and a disruption of bureaucratic order. Spontaneous public action messes up the categories: they put the leaves in the wrong box, in the wrong place, or in the wrong bags. The state cannot appear to manage the interrelations with public action, even though people who have been sweeping up leaves say that they have been doing it for 30 years, and the council never used to have a problem with picking up the bags. It’s not that complicated to pick up a bag.

Right up there with penalizing 8-year-olds for running a lemonade stand, isn’t it? It’ll likely get worse before it gets better, both there and here. It’s why we need to get control back of our government, at all levels.

And finally, we talk some here about echo chambers, and yes, we all have them. The Federalist had an article yesterday about: Here Are The Media Hottakes We’d See If The Chronicles Of Narnia Were Released This Year

The press has certainly taken its lumps lately—and they’re not altogether undeserved. As Federalist contributor Tom Nichols points out in his new book The Death of Expertise: The Campaign Against Established Knowledge, a great deal of journalism currently exists more to confirm its audience’s preconceived notions than to inform them about reality.

Nichols’ book inspired me to reflect on how politically obsessed and ideologically sequestered our press has become, particularly when it comes to hot-button social issues.  To illustrate this, let’s take the debate into the world of counterfactuals: in the alternate history where C.S. Lewis’ classic children’s fantasy series is released this year and becomes a mega-hit, I think the hot takes would probably look something like these. 

The American Conservative: “Narnia and the Problem of Borders”
By not effectively maintaining border security, King Tirian ensured his nation would be invaded and plundered by the Calormenes. Also, Archenland should’ve been Narnia’s Benedict Option.

The Atlantic: “How World War II Shaped Narnia”
One of those very comprehensive and thoroughly researched articles that’s so long it’s divided up by roman numerals. […]

Including this, and quite a few more.

The Federalist: “17 Reasons Puddleglum Is The Most Hopeful Character In Literature”
We promise, there really is something good to be found in bottom-feeder mass-market material. Also, it has something to do with sex, gender, and Alexis de Tocqueville. Can’t we get that in the title?

Heh! Part of the reason I like The Federalist is that they occasionally laugh at themselves, as we all should. Read the whole thing™, I LOLed, likely you will as well.

A bit lighter today, because hey, why not.

 

 

Such a Conservative Cabinet?

donald_trump_august_19_2015_croppedIn yesterday’s post, Jessica was addressing the malaise that so many of us felt under Obama. That feeling that the world was going to hell in a handcart. I shared it, of course, and for some reason, Trump’s election has lightened it. That is not to say that Trump is really a conservative, nothing much in his record would so indicate. One of our commenters, Mike, spoke to this, in fact.

I view Ms. Jessica as half right. There is no question Donald is a reaction to everything she points out above. But Donald is not a Joe. So what is he? Why is he the subject of opprobrium? What behavior has he demonstrated that every politician competing for the same office had not? If he’s not Common… what is he?
He’s our reaction to the ruling class. He’s the antithesis of American ‘liberalism’.
It appears he has enjoyed success without the ever present hand of Government feeding it to him.
He represents a Danger to the Democrat Socialism, that Progressive yet patient Communism, which has permeated our (U.S.) political process to the point we have stopped teaching the Founder’s Enlightenment Philosophy to our children, do not require a single class based in Constitutional Law in order to secure one’s Law degree and are seriously considering the removal of any mention of U.S. History and the U.S. Constitution from our Naturalized Citizenship process.
We have wandered far and are in fact lost.
So this brings us to today.
The fear of what Trump represents is disturbing to our home-brewed Socialists because of the difficulty employing the tools of mass media, which they believe they own, to convince us of how stupid we the people are… this time. They’ve been ‘winning ‘ for so long, when confronted with what appears to be a minor set-back in the grand scheme, they’ve literally lost their Collective mind.

He’s not wrong. He has confounded the left, which is a good sign. But he is not to be trusted, ever, no politician is.

But one of the things I look at in a leader is the people he recruits to his team. That’s because experience says that no one man (or woman) can do everything, at all, let alone well. And here, Trump is doing exceptionally well, to my mind. I firmly believe the old saying: First-rate men hire the best men they can find, Second-rate men hire third-rate men, and third-rate men hire lackeys who will say yes to everything. And here, Trump is proving exceptional, on a level with Eisenhower, if perhaps not General Marshall, who had only one misfire in World War II. Others have noticed as well, from  Paul Mirengoff:

It seems clear that Donald Trump will end up with the most conservative Cabinet of any president in my lifetime. And yes, that includes Ronald Reagan (Steve will correct me if I’m wrong).

How did this happen? Maybe Trump, who never seemed all that conservative, has come to embrace conservatism nearly across the board.

He’s right, I can remember (somewhat vaguely) Eisenhower, and this is by quite a bit the most conservative, and I think, likely the most accomplished as well.

Trump might similarly be prepared to adopt conservative policies on domestic issues for the purpose of keeping his base and his party happy enough to let him do what he wants on the matters he truly cares about.

What does Trump truly care about? Pearlstein says what Trump wants is “to demonstrate that he can make good on his promise to cut through the gridlock and get things done.” I would put it this way: Trump is determined to do a few big things to “make America great again.” [Maybe …]

But the theory that Trump is largely indifferent about a wide range of policy issues and wants only to accomplish a few big things may sell the president-elect short. To write off the selection of Rep. Tom Price as throwing a bone to conservatives probably underestimates the extent to which Trump dislikes Obamacare. To write off the selection of Betsy DeVos as Secretary of Education may underestimate Trump’s disgust with the state of public education and his affinity for school choice.

Right now, conservatives need not worry much about why Trump has appointed such a conservative Cabinet. The point is that he’s appointed one, and that it likely will help the GOP reverse the statist, hyper-liberal course President Obama has charted and imposed.

via Why such a conservative cabinet? | Power Line Do read the whole thing! ™

For me that’s the bottom line, these are really good men, with bags of integrity. If Trump appointed them to provide cover, he’s going to have loads of internal trouble, because these guys and gals will fight their corner, as they always have. I think Trump knows that, and he appointed them because that is the prescription he thinks America needs to

Make America Great Again

Engineering Club Sensible

electoral-smallBy outlook, if not degree, I’m an engineer. My basic question is always, “Will it work, as designed, and can we build and run it on budget (or below)?” As far as I’m concerned, it’s what built the world we live in. It has nothing whatsoever to do with good intentions, it has much indeed to do with elegance. Maybe this is our year because it’s overwhelmingly a real world philosophy. It’s also overtly American, because America epitomizes the practical, yes, Americans are a very idealistic people, but down at bedrock, almost every American asks, “Does it work?”

Catherine Priestley wrote something about this the other day in The Spectator. Here’s some of it.

If there’s one thing we can all agree on, it is that the times are changing. When news of the Trump victory unfolded across the world, we watched from Sydney University’s Manning Bar. Never had it been so packed. Students piled in to watch history, all-consumed by the bright red map of America flashing on the screen.

My engineering friends bought me a beer and together we observed the room. On one side were slumped shoulders, ashen faces and tears from tragic left-wing students, whose world-view had suffered the rejection of the ballot box. The other side was a sea of red caps and raucous applause with each Trump gain; the unmistakable ecstasy of a formerly ostracised group, finally on the ascent.

The engineers are sensible people and don’t really belong to either extreme. Instead, they drink to democracy and are glad that a blow has at last been struck against political correctness. They talk excitedly of how they’d improve the data analysis of flawed polling and have a purely factual discussion about how the construction of the wall might be done. The upending of the status quo means the engineers, typically outsiders who stick to an isolated building on campus far away from frenzied student politics, are now invigorated to participate.

Leading up to Trump’s victory, one could sense change in the air. Doomsday articles threatening stock market crashes, polls that placed Trump firmly behind; all had a Brexit parallel about them. When Joe Hockey addressed the US Studies Centre the week before Trump’s election, he said that 70 per cent of Americans felt the country was heading in the wrong direction. ‘This is normally a game changer in politics,’ he remarked. […]

Although uncertainty is trending, one thing we can be sure of is that Outsiders everywhere are on the rise. In general, they are a broad alignment of people across all parties and factions who share a love of common sense and find themselves more consequential to politics now than they have been for some time. Perhaps they find themselves on the Left, but feel isolated due to the dogma of political correctness and identity politics. Or they are of the Right and have become angry with the authoritarian Insiders who appear to restrict personal freedoms. Either way, they are all members of what the late Christopher Pearson might have termed ‘Club Sensible’. While major parties appear to fragment and shrink in these changing times, Club Sensible’s membership base steadily grows.

via Engineering Club Sensible | The Spectator

I think she’s on to something here. That map at the top of the page, is about as red as I’ve ever seen, and overwhelmingly, the red parts are where people deal with the real world, you know the one where reality rules and good intentions don’t cut it.

Will Trump fix the world? No. But he may well drain at least some of the swamp, although that might anger some of the alligators that are up to our ass. We all know it out here, “No good deed goes unpunished,” we say. That’s all right, we also say, “What must be done, will be done.”

And so far, from the quality of the people he is picking, well, I’m very encouraged. It looks to me like he is picking some of the best of America, and that is the mark of the first-rate leader. That’s something that every grunt on a job site or enlisted soldier knows, but a whole lot of officers forget when they get stars in their eyes. But not all of them.

There’s a reason why 3d US Army had the fewest casualties while conquering the most ground back there in 1944. It was called “Lucky”. If I was an opponent of America’s, I would be praying very hard, because I think its new name may well be ‘Chaos’.

We’ve also been known to say with Jim Lovell, “There are people who make things happen, there are people who
watch things happen, and there are people who wonder what happened. To be successful, you need to be a person who makes things happen.”

bad-decisions

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