A POLITICALLY CORRECT DEATH

A really good one, from Bill Whittle.

Finally, I’m seeing light at the end of the tunnel, of course, it could still be a train.

Unpredictability, and Stability

My friend, Dan Miller over A Sclerotic Goes to War notes that

Kim Jong-un has been deemed “crazy” because he is unpredictable. Trump is far from crazy, but can be unpredictable when he wants to be. China does not know what Trump might do about North Korean nukes and missiles, and that is a good thing.

It is, in fact, a very good thing. The article continues

NBC News is reporting that the possible moves include not only assassinating Kim Jong-un, but moving nukes back into South Korea for the first time since the end of the cold war.

The National Security Council has presented President Trump with options to respond to North Korea’s nuclear program — including putting American nukes in South Korea or killing dictator Kim Jong-un, multiple top-ranking intelligence and military officials told NBC News.

Both scenarios are part of an accelerated review of North Korea policy prepared in advance of President Donald Trump’s meeting with Chinese President Xi Jinping this week.

The White House hopes the Chinese will do more to influence Pyongyang through diplomacy and enhanced sanctions. But if that fails, and North Korea continues its development of nuclear weapons, there are other options on the table that would significantly alter U.S. policy.

Well, that’s a couple of options we wouldn’t have heard in the last eight years, when as that article states Obama’s policy was to, “speak softly and never even pick up the stick”.

According to The Washington Examiner, The Secretary of State, Rex Tillerson said

Chinese President Xi Jinping has agreed to boost cooperation with the U.S. on trying to persuade North Korea to abandon its pursuit of long-range nuclear weapons, Secretary of State Rex Tillerson said Friday.

In an off-camera briefing with reporters on the second and final day of President Trump’s summit with his Chinese counterpart, Tillerson said the two leaders recognized the imminent threat North Korea poses and agreed to respond accordingly.

That’s a good thing, as we talked about a bit last week. But you know, I know, even your crazy Aunt Madge knows, the Chinese don’t give any more of a damn about the crazy little man/boy and his Norks than they did last week. What’s changed? Their perception of what Uncle Sam may do about it. Specifically that we might actually do something.

Putting Nukes back in South Korea has to give them nightmares of the same magnitude that the Sovs putting them in Cuba did us a couple of generations ago. China has always wanted buffer areas. That why they came in against us in the Korean War, and they had telegraphed that they would. That is why we didn’t approach their border in Vietnam. It’s also why the western Europeans were so desirous of expanding NATO eastwards.

Where the rubber meets the road for me is that as the superpower sheriff, America must have guidelines. If you do something, and using chemical weapons is one of those things, America will act. But you will not know what America will do, it might call on the UN to sanction you, it might destroy an airfield or two, then again, it might take your country apart, and arrange a meeting with your god for you. You have no need to know what the sheriff will do. You just need to know that he will do something, and so it is in your best interest to not call attention to yourself by doing things that Sheriff Sam has said are not acceptable behavior. If you don’t, he’ll mostly leave you alone.

I also noticed that almost everybody thought that the Syrian strike was a good idea, except the usual suspects.

via Did the Syria strike push China toward action on North Korea? |

And speaking of the usual suspects, the headlines from Iranian FARS News (more or less official) are interesting.

* ‘Emergency’ Protests across US Demand ‘Hands off Syria’

* Swedish Medical Associations Says White Helmets Murdered Kids for Fake Gas Attack Videos

* Syrian Army Chief Visits Airbase Hit by US Missiles before Resumption of Operation

* Anti-War Group Protests against US Strike in Syria

* Russia: US Fails to Prove Existence of Chemical Weapons at Syrian Airfield

* Top Iranian, Russian Security Officials Discuss US Missile Strike on Syria

* Hezbollah Condemns US Blatant, Foolish Attack on Syria

* Russian Ground Force to Take Part in Anti-Terrorism Operation in Syria’s Hama

* Blustering Toward Armageddon: How Trump Is Upsetting China While Antagonizing Russia

* Top Iranian, Russian Security Officials Discuss US Missile Strike on Syria

* Arab Analyst: US Attack against Syria Not to Topple Assad

* Syrian Fighter Jets Restart Combat Flights over Terrorists’ Centers from Shayrat Airbase in Homs

Sounds a bit hysterical to me, and I suspect if they challenge another US vessel in international waters, it will get worse.

Sometimes we can be like Ransom Stoddard and bring our lawbooks, but sometimes we simply have to be Tom Doniphan, using the old ways to advance civilization. The key is doing the right thing, at the right time, in the right way. It’s also very helpful to keep the cards close to our chest so that only we know what we are going to do.

Rep Nunes, Trump, and Russia

I think that’s the full version of the press conference, which is what I wanted because I don’t really trust anyone’s editing anymore.

This is my comment yesterday on a Brit blog whose author said they are seeing very little on it. I think it’s fairly close.

My best guess, from my reading (which I’m informed I do too much of, since I managed to cross names on Twitter) is that NSA and/or GCHQ slurp up nearly every electronic communication in the US. That was the point of that hugely expensive new installation in the west. What happened here, I think, is that somebody in the former administration ran one (or more) data searches specifically on Trump and/or his close supporters. The next stage was that Obama quietly authorized wide distribution of that information, and some/most/all of it was leaked, by what we’re currently calling the deep state, and the most supposedly damaging (to Trump) published to damage his administration.

Or something like that. Will we ever know? Maybe, maybe not. The Russians? Why would they favor Trump over a proven non-leader when he was fairly obviously going to revive American business, especially oil exploration and export to their detriment as well as reinvigorating the American military. Putin is simply another fall guy, I think. At least, that’s how I see it, after reading some of Nunes testimony. There are some really wild conjectures floating around, and while I don’t give them a lot of credence, in this “Alice in Wonderland” world, I won’t say they’re impossible either.

I have found Mollie Hemingway to be a pretty reliable source, here’s her take from The Federalist yesterday.

In the last three months of the Obama presidency, significant personal information from and about the Trump transition was collected and widely disseminated at intelligence agencies, according to House Intelligence Committee Chairman Devin Nunes.

Dozens of intelligence reports provided to Nunes by an unnamed whistleblower were floating around during the sensitive transition period following the election, he said. The information collection itself may have technically been legal, but the failure to properly mask the information “alarmed” the California congressman, who notified the White House of the surveillance and dissemination of information on Wednesday afternoon.

Many of the reporters present didn’t seem to grasp the significance of what Nunes revealed. You can — and should — watch that press conference here.

Nunes began his remarks by reiterating his Monday request that anyone with information on surveillance of Trump or his team come forward. “I also said while there was not a physical wiretap of Trump Tower, I was concerned that other surveillance activities were used against President Trump and his associates.” While Nunes’ earlier refutation of Trump’s wiretap claim received outsize attention by the media, his concern about other surveillance did not.

He then dropped the bombshell: “First, I recently confirmed that on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition. Second, details about U.S. persons associated with the incoming administration, details with little or no apparent foreign intelligence value, were widely disseminated in intelligence community reporting. Third, I have confirmed that additional names of Trump transition team members were unmasked. Fourth and finally, I want to be clear, none of this surveillance was related to Russia or the investigation of Russian activities or of the Trump team.” Again:

Ace did the bullet points for us.

1. “I briefed the president on the concerns I had concerning the incidental collection of data.”

2. The reports I was able to see did not have anything to do with the Russian ties investigation.

3. Reporter gets huffy and demands to know why he is briefing the president about this matter, as the reporter thinks Trump is a criminal and should not be told about the Legal Noose tightening around his gangster neck.

4. He answers that the reason is that from what he saw, the surveillance had nothing to do with the Russian investigation.

5. “Brings up a lot of concerns about whether things were properly minimized or not” (minimized = masking/redacting names of US citizens before disseminating)

6. “What I’ve read bothers me, and it should bother the President himself and his team, because some of it seems inappropiate.”

7. “It definitely goes beyond General Flynn.” “We don’t know how [that name] was picked up [collected, intercepted].”…

More at both links. Well, that what I think, and why I think it. I could easily be wrong, of course. We’ll just have to see. But if I am anywhere right, we have a major problem in the government, and we’d best start thinking how to fix it.

Judicial Tyranny

This terrific overreach by the federal judiciary is becoming most concerning. Donald Trump, like the first 44 incumbents, is President of the United States, whether you (or the federal judges) like it or not. He has all the rights, obligations, and duties of his predecessors. Like most of us, I worried about Obama’s overreach into prerogative rule with his pen and his phone. But we’ve seen none of that with Trump, his every action has been well within the Constitution. Mark Pulliam has some thoughts.

Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic.

Horowitz is a columnist for Mark Levin’s Conservative Review who writes frequently about constitutional issues. In Stolen Sovereignty he decries “a runaway judicial oligarchy and an unaccountable bureaucratic state.” He is concerned that the Left “has irrevocably co-opted [the courts and bureaucracy] into serving as conduits for their radical and revolutionary ideas—to the point that even if we win back the presidency and elect only constitutional conservatives to Congress, . . . it won’t matter.”

These words may have seemed like hyperbole at the time, but the federal courts’ implacable opposition to President Trump’s executive orders on immigration suggest that they were on the mark. In a recent post, I expressed dismay at the judicial resistance to the President’s first executive order on immigration (E.O. 13769). Unelected federal judges blocked the President from fulfilling a campaign promise to the American electorate—without even citing the federal statute that expressly authorizes his action.[1]

Some commentators saw the Ninth Circuit’s ludicrous decision as nothing short of a judicial coup d’état. Rather than challenge it in the deadlocked U.S. Supreme Court, on March 6 President Trump issued a revised executive order (E.O. 13780), attempting to correct the alleged defects. Incredibly, the revised order has met with even stronger judicial resistance, spurring  multiple lawsuits and injunctions: a limited temporary restraining order issued by Judge William Conley of the Western District of Wisconsin, a partial injunction issued by Judge Theodore Chuang in Maryland, and a nationwide injunction issued by Judge Derrick Watson in Hawaii. (All three were appointed by President Obama.)

This judicial obstruction of the executive branch on matters expressly entrusted to the President by Congress grossly violates the separation of powers and constitutes a grave threat to our republican form of government. The courts’ usurpation of presidential authority should be deeply troubling regardless of one’s political affiliation. Indeed one libertarian legal scholar, Josh Blackman, who is no fan of the President (he signed the Originalists Against Trump statement prior to the election), has harshly criticized the judges’ interference with these immigration orders, calling the Ninth Circuit’s ruling a “contrived comedy of errors.”

In a three-part blog post for Lawfare on the revised executive order, Professor Blackman concludes that the President’s authority to act unilaterally pursuant to Section 1182(f) is well-established:

Presidents Reagan, Bush, Clinton, Bush, and Obama all issued proclamations under § 1182(f), and there was never even the hint that the notice-and-comment process was required.

No court has ever held that aliens that are seeking entry, who have zero connection to the United States, or its residents, have due process rights. . . . . In short, the small subset of aliens who would in fact be denied entry under this policy have no cognizable due process rights, and to the extent that courts find some interest exist, the review and denial by a consular officer provides all the process that is due.

(…) In Horowitz’s view, the modest concept of judicial review expressed in Marbury v. Madison (1803) “has been transmogrified into complete authority over the future of sovereignty, marriage, culture, and the power to regulate every industry in our economy.” Simultaneously, the federal courts have become a bastion of liberal politics; unelected judges now wield more power than legislators; and judicial activism has become the favored means of Progressive policymaking.

via Judicial Tyranny’s Final Frontier – Online Library of Law & Liberty

That’s all true and very troubling, but what can we do about it? These are all Article III judges appointed during good behavior (which is not defined)m in other words, essentially for life, although they can be impeached, it is a very rare occurrence. It is also just possible that they could be removed by a writ of scire facias, a form of Chancery order which dates back to Edward I. The actual writ of scire facias has been suspended in the Federal district courts by Rule 81(b) of the Federal Rules of Civil Procedure, but the rule still allows for granting relief formerly available through scire facias by prosecuting a civil action.

Other than that, there is little legally to be done. I seem to remember that while the Supreme Court is constitutionally mandated, all the rest are the creation of the Congress, and could simply be disestablished, and new ones established, although at best, that would have the effect of retiring the judges, not firing them, and would certainly be messy for all concerned.

But perhaps there is a less, shall we say, formal method. Paul Mirengoff at Powerline writes this:

President Trump admires Andrew Jackson. He sees himself as Jacksonian.

Accordingly, it might instructive to recall how President Jackson is said to have responded when the Supreme Court ruled, in Worcester v. Georgia, that Georgia laws calling for the seizure of Cherokee lands violated federal treaties. Here is the statement Jackson may have made:

John Marshall has made his decision, now let him enforce it.

Jackson may never have uttered these words. However, both Georgia and Jackson ignored the Supreme Court’s decision. Chief Justice Marshall’s decision was never enforced.

At the rate liberal judges are going, we might see similar defiance of the judiciary by President Trump. I don’t expect Trump to respond that way if the ruling that he cannot temporarily ban immigration from six countries fails to survive judicial review. That ruling doesn’t seem important enough to defy the judiciary over.

I don’t either, but I can foresee occasions where it might be necessary. The founders considered the judiciary the weakest branch, and so there are fewer safeguards here, than anywhere else. That started changing with John Marshall and Marbury v. Madison, and that unchecked power has metatized rather badly in the last fifty years. I don’t know what the answer is, but a solution is needed.

Middlebury, Groupthink, and Riots

Thomas Sowell had a few things to say the other day about the fracas at Middlebury College. As always, it is very worth listening to.

Where have all these shocked people been all these years? What happened at Middlebury College has been happening for decades, all across the country, from Berkeley to Harvard. Moreover, even critics of the Middlebury College rioters betray some of the same irresponsible mindset as that of the young rioters.

The moral dry rot in academia — and beyond — goes far deeper than student storm troopers at one college.

Frank Bruni of the New York Times, for example, while criticizing the rioters, lent credence to the claim that Charles Murray was “a white nationalist.” Similar — and worse — things have been said, in supposedly reputable publications, by people who could not cite one statement from any of Dr. Murray’s books that bears any resemblance to their smears.

It seems to me increasingly that book reviews have become a political litmus test, where one writes what one believes about the author, whether or not (usually not) one has read the book in question. Not all, of course, there are plenty of good, useful reviews out there, but far too often.

The professors don’t usually riot against people whose ideas they disagree with, because they can just dismiss those ideas, with some characterization that there is no one on hand to challenge.

Professor William Julius Wilson of Harvard, for example, said of Justice Clarence Thomas, “He’ll say he pulled himself up by his own bootstraps. I say I was in the right place at the right time.”

Just where did Justice Thomas say that he pulled himself up by his own bootstraps? The central theme of his autobiography, titled “My Grandfather’s Son,” credits the wisdom of the grandfather who raised him as what saved him.

Nuns who taught him in school were brought to Washington, at his expense, to be present to see him sworn in as a Justice of the Supreme Court, to see that their dedicated efforts on his behalf had not been in vain.

But has anyone ever asked Professor Wilson on just what he based his claim about Justice Thomas? The central tragedy of academia today is that you don’t have to have anything on which to base dismissals of people and ideas you disagree with.

Of course not, He’s a Harvard professor, which in much of our society, is akin to a demigod. Well, I’d ask, because I learned long ago that Harvard professors believe many things that are just not so.

Why should we expect students to welcome debate about differences of opinion, when so many of their professors seem to think cheap shot dismissals are all you need? Lacking their professors’ verbal dexterity or aura of authority, students use cruder methods of dismissing things they disagree with.

So long as academia talks demographic “diversity” and practices groupthink when it comes to ideas, we have little reason to expect better of student mobs that riot with impunity.

via The Real Lessons of Middlebury College by Dr. Thomas Sowell | Creators Syndicate

And so we get riots, while fools look on from their ivory towers.

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

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