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.

Blackstone, Marshall, Court Packing, and RBG

So, we expect the President to nominate a Supreme Court justice within a week. This is news but it should not be an earthquake in Washington, yet it is. Why?

In large measure, it harks back to Marbury v Madison, the case that established judicial supremacy over the constitutionality of a bill. Thanks, Chief Justice John Marshall. I’m actually fairly well persuaded by his reasoning that he got the meat of the argument correct. Yet in a curious reversal of normal procedure, after he heard the arguments and found for the plaintiff (A Justice of the Peace in DC William Marbury) whom Jefferson declined to send his commission to, a clear duty of Secretary of State James Madison.

Then and only then, did Marshal by finding the Judiciary Act of 1789 was unconstitutional, violating Section III of the Constitution by giving the Supreme Court original jurisdiction where the Constitution gave it only appellant jurisdiction, Interestingly, in something current readers will recognize this was a case of a Writ of Mandamus, just as the revocation of the FBI’s charges against Lieutenant General Flynn is.

A Writ of Mandamus is sort of a catch-all for when there is no other relief available. Blackstone says in the third volume of his Commentaries, quoted by Marshall that:

‘In all other cases,’ he says, ‘it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.’And afterwards, page 109 of the same volume, he says, ‘I am next to consider such injuries as are cognizable by the courts of common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.

I include this mostly as a reminder on how US law grew out of the English Common Law. In any case, Madison v Marbury is really an insignificant case involving not very much, except for the rendering invalid of  The Judiciary Act. This is where the Court obtained the power to invalidate a law duly passed and signed.

Not much else bears on the subject until we get to the 1930s. The Supreme Court was deluged by a huge number of cases contesting the constitutionality of almost all the New Deal legislation, and nearly always finding it unconstitutional. The old conservative federal courts at work, as usual. But Franklin Roosevelt was incensed, he wanted to run the economy centrally from Washington, because he was smarter than the average citizen and knew what was best for them, and what was best was a cradle to grave welfare system. He basically owned Congress, with supermajorities subservient to his every whim, but the Court was blocking him.

This is the point where in 1937 he threatened to pack the court. The Democrats in Congress, to their credit, were aghast at the effrontery and the threat to the Consitution, but he submitted his bill to the House (as was customary), if I recall it never came to a vote, then he submitted it to the Senate with the same result. And so he was stymied, as designed by the founders.

But the threat scared the Court, and suddenly it changed course and we got the New Deal which made the Great Depression both longer and worse than it had been. To the point that the man that ended it was a guy by the name of Adolph Hitler.

From that time on, the Democrats have used the Court as a super legislature, doing things that the American people would never approve of. The two things we speak of most are abortion and gay marriage, neither things that would pass in any American Legislature, other than California, maybe.

In short, we live in what can be fairly termed a kritarchy, a regime ruled by judges.

And that makes the next Supreme Court Justice a matter of life and death both for the Republic and for the Democrats.

Sunday Funnies, the Kavanaugh Edition

Well, let’s see, was there anything to draw cartoons about this weel? Yeah, I thought not. Have a nice day. 🙂

Nobody spots sexual predators like Sen Gillibrand

 

Kind of a one-track week wasn’t it, that’s the way it was.

But there is this

Mostly, as usual from Powerline, but not all of them.

Raping Justice

Senator Chuck Grassley

And so we all wait, with bated breath, to see whether Dr. Blasey Ford will deign to speak with the US Senate Judiciary Committee. Personally, I doubt it, mostly because her motives might come out. But I’m no expert, nor do I want to be. Who is? Probably as much as anyone, R.S. McCain is, and he wrote about it in The American Spectator yesterday. Let’s take a look.

Where were you in the spring of 1982? Can you verify your whereabouts and produce evidence to establish that you weren’t molesting prep-school girls in suburban Maryland? Christine Blasey Ford insists she’s a victim and, while the main suspect is Brett Kavanaugh, perhaps no man can be entirely sure he won’t be summoned before the Senate Judiciary Committee in some future investigation.

Feminist “rape culture” discourse, which has sowed a climate of sexual paranoia on university campuses in recent years, has escaped its native habitat and is now wreaking havoc in our politics, to say nothing of its damaging effect on our culture. Do I want to discuss what allegedly happened at a party in Montgomery County, Maryland, on an unspecified night in 1982? Do you want to read such a discussion? Do any of us want to watch such a claim litigated on national TV with Judge Kavanaugh and his accuser testifying in front of a Senate panel, with cable-news pundits endlessly rehashing every angle of the sordid saga day after day?

No, we don’t. Particularly since it is apparent that while somebody may have attacked Dr. Ford, this entire attack is nothing but politics and a further unhinged scream of rage that Donald Trump is President.

One who sees clearly, perhaps because this is even more prevalent in the UK, is Laura Perrins, Co-Editor of The Conservative Woman. She notes:

First, the allegation is serious – namely that Kavanaugh held down Ford, groped her, attempted to remove her clothes and covered her mouth when she tried to call out. As I said, they were both minors at the time. However, secondly, and let’s be clear, there is no way this allegation can be seriously or fairly challenged either in a court of law (it is 36 years ago and I believe out of time under statute of limitations) or in the Senate politically. [Maryland, where the incident supposedly took place, apparently doesn’t have a statute of limitations, but that isn’t relevant, really. The Democrats, and Ford, don’t want justice, they want Kavanaugh destroyed. Neo]

The Democrats have set up a checkmate scenario here: any challenge by the Republicans against the testimony of an event that happened 36 years ago will be seen as bullying and harassing victims of sexual assault. In the #MeToo era this is toxic. As CNN gleefully pointed out: ‘If Republican senators attempt to impugn her character, they will disgrace themselves in the eyes of the American people.’Checkmate.

In sum, Kavanaugh is seriously limited in his defence. In fact many on the Left are saying that, as it will be men asking questions of the accuser, this disqualifies them straight off. So if the Judiciary committee don’t call Ford, they are not taking the allegation seriously. If they do call Ford, they are disqualified from asking her any questions by the mere fact of being men. Checkmate.

Democrat Senator Dianne Feinstein, the ranking Democrat on the Judiciary committee, could have brought this to the attention of the committee and FBI weeks ago. Instead she kept quiet, knowing it would leak eventually. And so the media circus continues and the show trial begins. Where were you, Brett Kavanaugh, 36 years ago, at a time we can’t specify, on a day we can’t specify, in a place we can’t specify? If this sounds Kafkaesque, it’s because it is.

One of the reasons I love ConWom is because of plain common sense like this, and she’s right, there is no way out? Or is there. Gateway Pundit tells us that Sen Grassley laid down the law yesterday.

“It is not the FBI’s role to investigate a matter such as this,” Grassley wrote, “The FBI does not make a credibility assessment of any information it receives with respect to a nominee.”

“You have stated repeatedly that Dr. Ford wants to tell her story. I sincerely hope that Dr. Ford will accept my invitation to do so, either privately or publicly, on Monday. In the meantime, my staff would still welcome the opportunity to speak with Dr. Ford at a time and place convenient to her,” said Grassley.

“The Constitution assigns the Senate, and only the Senate, with the task of advising the President on his nominee and consenting to the nomination if the circumstances merit. The job of assessing and investigating a nominee’s qualifications in order to decide whether to consent to the nomination is ours, and ours alone”

The short form of that is well known to all Americans of my generation: “Put up or shut up”. And that is the key. Conservatives have allowed the left to bully us for decades, and of course, they have taken advantage. When we elected President Trump we gave conservatives permission to fight back. And that is the key. Bullies stop bullying when they get a few sharp punches to the nose. You know it, I know it, we all know it. It’s time and past time for a brawl on this playground.

R.S. McCain ends this way:

Whether Ford’s accusation is true or not, Democratic Sen. Dianne Feinstein orchestrated the leak and subsequent release of Ford’s letter, not merely to sink Kavanaugh and level accusations in a way that would make it difficult for the judge to defend himself, but also to try and delay Republican efforts to confirm any nominee until after the midterms.”

There is only one possible way to resolve this. “We the People of the United States” are still sovereign in our national affairs, and the verdict in the case of Ford v. Kavanaugh will not come from the senators in the hearing room, but from the people themselves on Nov. 6. May God grant us the wisdom to judge rightly.

Amen. From his keyboard to God’s eye. I think the people will. If the Senate caves to this bullying, well, they will never have another chance to put a solid Constitutionalist on the Court. This is the last trench, the battle must be won.

And you know, even Sens. Flake, Collins, and Corker appear to be on board. Maybe they, like us, have finally figured out that enough is enough.

Anatomy of a High Tech Lynching

So, I imagine you’ve heard, this Bernie supporting California Professor, Christine Blasey Ford, has suddenly remembered that she was sexually assaulted by none other than Brett Kavanaugh. But she doesn’t remember what house, address, or even the year. Hard to defend against that, there is no there, there.

It’s a bit suspicious I think, that Diane Feinstein sat on the allegation for well over a month, during which the nomination interviews and hearing were held, and only brought it forth, and anonymously a few days before the committee vote. Odd, that?

Still, she deserves to be heard, but I’m pretty skeptical. So is Bookworm, as she relates here.

By now you’ve all heard that Christine Blasey Ford is the woman accusing Kavanaugh of attacking her 35 years ago, a claim he strenuously and absolutely denies. Her story is a bizarre pastiche of precise details and huge memory holes. It’s also got a big lie planted right in the middle, which is Ford’s claim that she always meant to be private and only went public now because she couldn’t hide anymore.

That’s bull crap. The moment Ford sent a letter to a Democrat pol, she knew with absolute certainty that this would be a big deal, that her name would emerge, and that she’d become the Democrats’ new darling.

Put aside for now the fact that the notes don’t jive with the accusations Ford is making. Focus, instead, on that date: 2012.

It’s a weird date. Keep in mind that Ford, aside from being a Bernie supporting academic, is a psychologist. Part of getting a degree in psychology is going through analysis. One would think that, even if, as a shy 15-year-old, Ford was too afraid to go public with her charge against Kavanaugh, when she went through psychoanalysis on her way to her degree, she would have spoken about this alleged assault, especially because she says it traumatized her for years. But she didn’t. Instead, suddenly, in 2012, she’s bathed in flop sweat from an incident decades before.

In an update, Book informs us that getting psychoanalyzed is not part of a psychology degree, although it is for an analyst. A small matter, really, but worth correcting. You may know what we called psychology majors in my world: “Nuts and s***s”. I’ve never found a valid reason to reverse that youthful opinion.

So what happened in 2012? Coincidentally (or not), 2012 was another election year.

In 2012, Romney ran against Obama. Up until his 47% gaffe, Romney was doing well. He actually had a shot of winning.

For the Democrats, as has been the case since Bork, having a Republican in the White House, especially with the ever-aging but never retiring Ruth Bader Ginsburg a perpetual risk, raised the specter of a conservative judge getting appointed to the Supreme Court. With that in mind, one Twitter user, who must have an amazing memory, remembered something interesting he’d read back in 2012:

I’ll save you a click to The New Yorker website. The article, which The New Yorker published in 2012, is a Jeffrey Toobin analysis about Bret Kavanaugh and the threat he would pose should he get on the Supreme Court. According to Toobin, Kavanaugh was a scary conservative who, if he got on the Court, might overturn Obamacare:

In other words, according to Kavanaugh, even if the Supreme Court upholds the law this spring, a President Santorum, say, could refuse to enforce aca because he “deems” the law unconstitutional. That, to put the matter plainly, is not how it works. Courts, not Presidents, “deem” laws unconstitutional, or uphold them. “It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall wrote in Marbury v. Madison, in 1803, and that observation, and that case, have served as bedrocks of American constitutional law ever since. Kavanaugh, in his decision, wasn’t interpreting the Constitution; he was pandering to the base.

In the nineteen-nineties, during Kavanaugh’s first brush with prominence, it was said that some conservatives suffered from Clinton derangement syndrome—an obsessive belief that the President and the First Lady had committed every misdeed that was attributed to them. (Hillary Clinton was involved in Vince Foster’s death; Bill Clinton had trafficked narcotics through Mena, Arkansas; and so on.) Kavanaugh’s bizarre opinion confirms that a contemporary analogue to the Clinton malady has taken hold: health-care derangement syndrome.

There’s more blah-blah from Toobin, a man who can never be trusted to be honest about the law. Don’t bother reading it. Just pay attention to that last paragraph:

If a Republican, any Republican, wins in November, his most likely first nominee to the Supreme Court will be Brett Kavanaugh. (Emphasis mine.)

In 2012, Romney might have won the election. In 2012, Toobin stoked Democrat fears that Kavanaugh, a conservative, might get on the Supreme Court and overturn Obamacare. And in 2012, Ford, a psychotherapist who undoubtedly had years of prior therapy herself, suddenly can’t stop talking about her hitherto undisclosed claim that Kavanaugh was a bad boy almost 30 years before.

There is quite a bit more there, and you owe it to yourself to read it.

Results: Well, so far the traitorous Jeff Flake, preparing for his new career as a Democrat wants to think about it. And that is enough to keep the nomination from reaching the floor from the committee, since no Democrat can survive Chuckie Schemer’s wrath and vote for Kavanaugh.

And Ford may even have a personal motive: It seems that when her parents were involved with a foreclosure case, years ago, the judge that ruled against them was Judge Martha Kavanaugh, Brett’s mother. Or so says PowerLine.

In other words, this has all the hallmarks of a planned character assassination, perpetrated by the Democrats, just as they did on Judge Bork and attempted to do on Justice Clarence Thomas, who first called it a high tech lynching in the Senate hearing. Of course, Democrats have lots of practice with lynching, although usually of black men who get uppity, as their action arm, the KKK used to say.

I speak for no one but myself, but if the Republicans (and even Susan Collins is very skeptical of this stunt) cannot get this nomination done, I see very little reason to ever vote for one of them again. I strongly doubt I’m the only one.

Why? Because the Republic in recognizable form will no longer exist. It is time for a bit of spine.

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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