Confirmation

Neo will roll his eyes but I have to mention the television series, West Wing. I learned so much from that series about which I had known nothing.

We’re watching the confirmation hearing for Amy Coney Barrett and I never understood what that entails. Fortunately, West Wing covers some of that and I always operate under the assumption that if I don’t know something, other people may not know either. I think it’s a fair assumption.

The process takes far longer than you may expect it to. There’s generally one person in charge of the confirmation process, usually the ‘policy guy’ (I don’t have to type ‘or woman’, do I? I think we’re all adults here). He’s the guy with the ‘check list’. Amy Barrett allowed that she submitted 1800 pages for the confirmation team. Several people will have been chosen to read all or some of those pages, depending upon what topic the page covers. They read to see if the nominee for Supreme Court Justice has any legal writings detrimental to the policy of the current administration. They look for any mention displaying bias, discrimination, defamation, and/or disagreement with the current administration. They look for malfeasance and any hint of scandal.

If the written collection holds nothing that red flags the nominee, they begin the interviews of friends, co-workers, family, neighbors of the nominee. They go to previous employers. They sniff out every possible wrong the nominee may have participated in.

If there are still no red flags, the confirmation team will meet with the nominee and have a few face to face meetings, and the person’s work record is questioned and uncertain ground can be clarified and cleared. If the confirmation team finds no issues that require further inquiry, the team will then inform the president of that administration of their findings. If the president has reasons of his own, he may turn down the potential nominee and ask that another person be looked at using the same process.

If the president accepts the recommendation of the confirmation team, he then meets with the potential nominee to decide for himself whether or not he thinks the possible nominee meets whatever his personal criteria may be.

Having gone through this process and passing all the attendant laser focus of this background check of all time, the president will then announce to the press his nominee for the seat of Supreme Court Justice. And from that second forward, the members of the ‘other party’ begin the same process in regard to that nominee, considering the other party has other interests and policies that they are concerned with.

The actual hearing for confirmation, as we have learned – large and in our faces on the major networks – is a mud flinging, party boosting, scandalous innuendos, aspersions casting attempt to both ruin and/or elevate the nominee, depending on the party asking the questions.

This is what we need to understand. In this particular case, in this particular place and time, the hatred for the President of the United States is such that there is no depth of disgusting to which the Democrats will not delve. According to the Democrats, Amy Barrett has been nominated by the President to INSURE that what He wants gets done to the DETRIMENT of millions of Americans. You’re all very nice people so all I’m going to say to that is ‘stuff and nonsense’! Should she be confirmed, she will be one of eight Justices. [Nine including the primus inter pares Chief Justice*] So when they repeat – ad nauseum – that her decision will kill Roe v Wade, Obama Care, any of the cases that will come before the Court – they are lying. Pure and simple.

*The Chief Justice has no control over any legal decision made by any Justice, he does assign the writing of opinions with which he agrees and has a fair amount of administrative control of the court. admin.

Sunday Funnies; The Nomination and More

And so, now we know

Keep this in mind, it is not Ginsburg’s seat nor is it a liberal seat. It belongs to the American people, and we long ago gave the President the power to nominate and the Senate to advise and consent on whom we allow to sit in it. They are doing what we said.

 

The Redhead of the week will never be as beautiful as this one. Right, Jess? Although I can think of one candidate.

Heh! My kind of Governor

But be careful fishing!

And of course

Random Observations

Came across a video regarding a television series that has been on television for a surprisingly long time. I will, from time to time, check in on a program, depending on the title and how badly I need a laugh. The video can be found at https://www.youtube.com/watch?v=z5FUMUWuylc. My halo is nice and shiny – I do this so you don’t have to. (Big cheesy grin)

With the passing of Justice Ruth Bader Ginsburg, we are (not) looking forward to a justice nomination and confirmation hearing in the very near future. Recalling the Kavanaugh confirmation hearing, the new candidate for the Supreme Court had better wear a hazmat suit, kevlar vest, and a helmet.

I’ve been watching the ‘peaceful protests’, formally known as President Trump’s campaign rallies. After I notice all the important things – the message, how he’s looking and holding up, how the people respond to him – I notice that the seasons are changing. That’s at least ONE thing that hasn’t been affected by the 2020 ‘curse’. Jackets are coming out, as well as hoodies (in colors other than black and with the hoods down [go figure!), and shorts are disappearing. Everywhere except in Florida. Well, season-wise, anyway. Nice crisp 88 degrees Fahrenheit with plenty of sunshine to go around. No ‘crispy grass’ this summer; been blessed with all the rain the West Coast needed. Seasons and cycles. There’s something reassuring about them. Dependable; expected; surmountable. Ahhh – the good old days.

 

 

Department of Homeland Security v. New York: A Win for Commonsense

In what may come to be the most important decision out of Washington this week, the Supreme Court ruled that the DHS may enforce the ‘Public Charge’ rule to go into effect. That’s all well and good, but the important part is that Justice Gorsuch really blasted the practice of nationwide injunctions in his concurring opinion. Tyler O’Neil has more at PJ Media.

“Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois. But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem. The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case,” Gorsuch wrote. […]

“Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit. When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place. But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III,” he explained.

“It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice. As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions,” he wrote.

These nationwide injunctions create confusion and “tend to force judges into making rushed, high-stakes, low-information decisions.”

“The rise of nationwide injunctions may just be a sign of our impatient times. But good judicial decisions are usually tempered by older virtues,” the Supreme Court justice insisted.

“There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal. Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide,” Gorsuch explained.

Worse, it is possible that plaintiffs can win “conflicting nationwide injunctions.”

“If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94- to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. A single loss and the policy goes on ice— possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay,” he noted. “And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari.”

And that is the crux of the problem. The executive can not exercise its governance because some US district court judge in some sh*thole district who is beholden to the other party issues a stay to whatever policy it is (and this could easily go either way) and then enjoins it on the entire country.

It’s a method to destroy the rule of law and transfer sovereignty to unelected judges. It is, I think, not only a tyrannical practice but prima facie a case of the judicial wildly overstepping its bounds. One way or another, it must be curtailed, and soon.

Justice Gorsuch is proving to be a stalwart conservative/originalist member of the court, I think.

Battles for Freedom

OK, people, I just can’t resist this one, from the Army-Navy game

From Clarice Feldman in American Thinker.

The Supreme Court agreed this week to hear the president’s appeals of three cases on congressional and state oversight of the commander in chief.

There is no doubt in my mind that both the legislative and judicial branches of our government have overreached in trying to hamstring the president and these three cases should prove a benchmark on how far this nonsense will be allowed to continue. As Judge Neomi Rao argued in her dissent from a decision for a rehearing below: “The Constitution and our historical practice draw a sharp line between the legislative and judicial powers of Congress. By upholding this subpoena, the panel opinion has shifted the balance of power between Congress and the President and allowed a congressional committee to circumvent the careful process of impeachment.”[…]

Oversight and Reform Committee’s subpoenas of Trump’s personal and corporate financial records and the House financial and Intelligence Committee’s subpoena of two banks Trump dealt with, again seeking a broad range of his financial records. It is clear to me that the intent is to cherry-pick and publicize from these records to smear the president.

Yep, there is no legislative purpose whatsoever here, and that is the only reason that Congres has the power of subpoena. It’s a witch hunt turning into a coup or a cold civil war.

Doubtless because their leading candidate Joe Biden is actually guilty of bribery and quid pro quo, Adam Schiff’s House Intelligence Committee ditched those charges in its articles of impeachment which now charge only obstruction of Congress and abuse of power, charges as vague as they are unconstitutional.

Both are so vague and open ended that they could be applied in partisan fashion by a majority of the House against almost any president from the opposing party. Both are precisely what the Framers had rejected at their Constitutional Convention. Both raise the “greatest danger,” in the words of Alexander Hamilton, that the decision to impeach will be based on the “comparative strength of parties,” rather than on “innocence or guilt.”

That danger is now coming to pass, as House Democrats seek for the first time in American history to impeach a president without having at least some bipartisan support in Congress. Nor can they find any support in the words of the Constitution, or in the history of its adoption. A majority of the House is simply making it up as they go along in the process, thus placing themselves not only above the law but above the Constitution.

In doing this, they follow the view of Representative Maxine Waters who infamously declared that, when it comes to impeachment, “there is no law.” From her view, shared by some others, the criteria for impeaching a president is whatever a majority of the House says it is, regardless of what the Constitution mandates. This reductionistic and lawless view confuses what a majority of the House could get away with, if there is no judicial review, and what the mandated duty of all House members is, which is to support, defend, and apply the Constitution as written, not as it can be stretched to fit the actions of an opposition or controversial president.

If the House votes to impeach President Trump on grounds not authorized by the Constitution, its action, in the words of Hamilton, is void. As he put it in the Federalist Papers, “no legislative act, therefore, contrary to the Constitution, can be valid.” If this is indeed the case, then the Senate will be confronted with a constitutional dilemma, if and when it will receive a void and invalid impeachment. It will have to decide whether to proceed with a trial of charges that are unconstitutional and therefore are void.

Also true, and also very likely to blow up in the Democrats’ faces.

Melanie Phillips credits the British working class for a victory which Boris credits to “literally everyone from Woking to Workington. From Kensington, I’m proud to say, to Clwyd South. From Surrey Heath to Sedgefield. From Wimbleton to Wolverhampton.”

Melanie explains:

The stakes in this election were enormous, not just for Britain but for the world. Labour is led by the most far-left leadership in its history, supporting terrorists abroad and incubating virulent antisemitism at home.[snip]

It was defeated by a seismic shift which may just have redrawn the British political landscape for ever.[snip]

The white working class, those blue-collar workers who had been tribal Labour supporters for generations, voted en masse for the Conservatives for the first time ever.[snip]

Because the British working-class is deeply, passionately patriotic and attached to democracy. They are the very best of Britain. Time and again they have saved the country in its wars against tyranny by putting their lives on the line to defend what it stands for: their historic culture, institutions and values.

That’s why in the 2016 referendum they voted en masse for Brexit. [snip]

It’s hard to exaggerate the anger by the Brexit-voting working-class at what they saw as an anti-democratic coup by Remainer Labour MPs who were determined to stop Brexit and spit in the eye of democracy.

These working-class voters also believe in hard work, responsibility and their own human dignity. They feel patronised and demeaned by welfare dependency, and have absolutely no time for the metropolitan liberals’ social agenda.

They are repelled by identity politics and victim culture, and are deeply worried by Muslim immigration and behaviour. Having watched with dismay the emergence of effectively segregated Muslim areas within their towns, they have been enraged by the way the allegation of “Islamophobia” has all but silenced concerns about outrages such as the Muslim rape and grooming gangs that have abused thousands of white girls, or the attempt to Islamise a number of schools.

So in this election, just as when they voted for Brexit in 2016, the working- class has risen up in revolt against the liberal universalists who control both their party and British culture.

(An often-seen Facebook meme echoes this sentiment: “They send our sons to Afghanistan and theirs to the Ukraine.”)

Read both articles, they are spot on.

So, for us, now what? Joe Herring in American Thinker has an idea.

He explains the reasoning behind his idea clearly and accurately, then this.

This episode has revealed a virus that threatens to kill us all unless destroyed.  There are numerous ideologies that are antithetical to liberty, utterly incompatible with a Constitutional Republic, and chief of these is socialism (and its associated collectivist, state-worshiping siblings).

The lure of unfettered power brings on a particular madness in those who fail to inoculate themselves against it.  Socialism relies on this madness to gain and expand power.  Indeed, it cannot exist without it.  It brutally enforces restrictions on contrary speech, lest its adherents develop a natural resistance to the madness.

The Democrat party have succumbed to the madness and, now fully insane, will brook no opposition to their aim of absolute power with which they will rid the world of selfish individuality and replace it with ordered utopia.  None of this is acceptable under our form of government.

Understand this: socialism requires the overthrow of our government, the very definition of a grave, prosecutable offense under 18 U.S. Code §2385.[*]

It’s time to arrest, prosecute, and imprison those involved in this coup at all levels, regardless of party.  Their punishments must be severe, crushing, and public if we hope to deter any further adventurism by the thousands of would-be Napoleons of the Deep State bureaucracy.

It’s time to reform the civil service code to facilitate the immediate removal of any member of government engaged in the abuse of his position by commission or omission.

He too is, I think correct. It is time and past time to end this charade.

75 years ago a prayer was written by Monsignor Francis O’Neill, chaplain of Third United States Army, as it entered into the Battle of the Bulge. It was written at LT GEN Patton’s request.

Almighty and most merciful Father, we humbly beseech Thee, of Thy great goodness, to restrain these immoderate rains with which we have had to contend.  Grant us fair weather for Battle.  Graciously hearken to us as soldiers who call Thee that, armed with Thy power, we may advance from victory to victory, and crush the oppression and wickedness of our enemies, and establish Thy justice among men and nations.  Amen.

As the British and American people once again enter battle to save our liberty, it is good to remember those brave men and women who came before us. The story of the prayer is here.

*18 U.S. Code §2385:

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or

Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—

An interesting sidelight, 18 U.S. Code §2385 was passed in 1948, by the Truman Administration and amended in 1956 (by the Eisenhower Administration), 1962 (by the Kennedy Administration), and in 1994 (by the Clinton Administration).

Debate and Decision

Remy does the Democratic debate

Enough said

In another matter, Ilya Shapiro writing on The Federalist tells us that the Supreme Court made a good start at rolling back the administrative state this week.

In an otherwise obscure case about veterans’ benefits, the Supreme Court on Wednesday took its first step in pushing back against the overweening administrative state that, at a time Congress isn’t legislating much, creates most of the law by which Americans live our daily lives.

In Kisor v. Willkie, the court was asked to decide how much judges should defer to bureaucrats who re-interpret their own regulations. It didn’t overturn that “Auer deference,” but it limited it in significant ways: All nine justices agreed that courts need to ensure that a regulation truly is ambiguous before giving the agency re-interpreting it any sort of leeway. (If a regulation isn’t ambiguous, then there’s no reinterpretation possible.)

In other words, the Supreme Court limited the types of cases where judges defer to agencies, while setting standards for evaluating those cases that boil down to “when the agency is correct and employs special expertise, having considered the reliance interests of those being regulated” rather than just making legal or political judgment calls willy-nilly. So Auerdeference technically survives, but this new rule sounds an awful lot like reining in the administrative state! (Full disclosure: I filed a brief for the Cato Institute, joined by superstar law professors Jonathan Adler, Richard Epstein, and Michael McConnell, arguing for Auer’s overruling.)

It gets quite confusing, legal English being qhat it is and the Court also being what it is. You should read the article, linked above, but this sums it up pretty well.

Or, as Kavanaugh put it in his own separate concurrence (joined by Justice Samuel Alito), if a court exhausts all the “traditional tools of construction” before concluding that a regulation is ambiguous and thus invoking Auer, it will “almost always reach a conclusion about the best interpretation of the reg at issue.” Have no fear, because courts “will have no reason or basis to put a thumb on the scale in favor of an agency.”

At bottom, Kavanaugh makes the perfect analogy to sum up the unanimous Supreme Court’s position: “Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules.” Executive agencies are on notice that it’s no longer “anything goes” when they rewrite their own rules, that judges will hold their feet to the statutory fire.

Call it Antonin Scalia’s revenge, because the late justice, having authored Auer back in 1997, came around to the view that he was wrong—and that in any event courts need to work harder to avoid finding ambiguity in both statutes and regulations such that deference doctrines come into play. Or call it Kisor deference; while Kisor didn’t overturn Auer, it’s definitely a jurisprudential shift. And that’s a pretty good start to curbing the administrative state.

Nice, I think. And here is something else, 3 years ago this decision probably would not have been reached, I just quoted Kavanaugh and the article quotes Gorsuch as well. Think about that, they were both appointed by President Trump.

And when we say that these start the rollback, what we mean is that the EPA, for example, can’t suddenly decide that a meadow is a wetland because it rained last night. For the most part, once something is interpreted, it stays interpreted. That starts to make the Founder’s words again paramount, as they should be.

That it comes now, 100 years to the week of one the worst Progressive achievements, the Versailles Treaty is remarkable. That treaty, a hodgepodge of identity politics written on a national scale, accomplished almost nothing other than guaranteeing that it would all have to be done over again in 20 years. More on that here, I don’t agree with it all, but he’s on the right path, I think.

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