Category Archives: Constitution

UPDATED (7/10): Kavanaugh Questions

Constitution, Federalism, Justice, Law, The Courts

Brett Kavanaugh, of the U.S. Court of Appeals for the D.C. Circuit, has been nominated to replace Justice Anthony Kennedy on the Supreme Court.

Kavanaugh comes from Administrative Law—was he good at fighting the Deep State?—was appointed and recently praised by George W. Bush, who gave us John Roberts, and George Washington University professor Jonathan Turley, who approved of Neil Gorsuch, suggests Kavanaugh is not an intellect of Gorsuch’s order.

For his part, libertarian-leaning Rep. Justin Amash (R­–Mich.) is openly unhappy. He tweets:

Kavanaugh is not another Gorsuch—not even close. Disappointing pick, particularly with respect to his 4th Amendment record. Future decisions on the constitutionality of government surveillance of Americans will be huge. We can’t afford a rubber stamp for the executive branch.

Randy Barnett, on the other hand, approves.

I don’t know that libertarians want “big fierce nominees,” but I see what Turley, an interesting thinker himself, is saying in the must-read op-ed, “Why ‘big fierce’ nominees are rare.”

An original thinker is always a good thing (and how few of those there are).

Supreme Court nominees. Most are not especially remarkable in their prior rulings or writings. They are selected largely for their ease of confirmation and other political criteria. Big fierce minds take too much time and energy to confirm, so White House teams look for jurists who ideally have never had an interesting thought or written an interesting thing in their increasingly short careers. … The last nominee was a remarkable departure from this judicial ecology rule. As I testified at his confirmation hearing, Neil Gorsuch was an intellect of the first order with a long list of insightful and provocative writings as both a judge and an author. …The history of Supreme Court nominations is largely one of planned mediocrity. The influential legal minds of a generation often are avoided for more furtive minds. … There is a difference between fierce ideology and fierce intellect. Many on the list of 25 judges stand out for commitment to conservative values but are not particularly distinguished in contributions to legal thought. Most fall closer to the mold of Samuel Alito and Clarence Thomas, as opposed to Antonin Scalia and Gorsuch.

Confirmations tend to reward young lawyers who avoid controversies to advancement on the Supreme Court.

Jonathan Turley cites Richard Posner and Robert Bork as examples of “big fierce minds,” which simply could not be countenanced on the mediocrity-necessitating SCOTUS.

Brilliant piece. Turley is brilliant.

UPDATE (7/10):

John G. Roberts Jr.? Please no.

Leftists Are Convulsing Over A Conservative Court. It Doesn’t Get Better. OK, Maybe It Will.

Conservatism, Constitution, Law, Republicans, The Courts

Quite correct: Republicans have had the chance to consolidate a conservative majority on the Supreme Court and … FAILED, REFUSED, or chose to break bread with the opposition, rather than keep the faith with the base and the original Constitution. As the author of this New York Times Review of Books essay suggests, the “mishaps” of previous republican presidents in appointing justices to the SCOTUS suggest “something less than full-throated judicial conservatism on their part.”

… In retrospect, it is remarkable that a strong conservative majority on the Court has not emerged before now. Since 1980, Republicans have held the presidency for twenty-two years and Democrats for sixteen. Ronald Reagan, who campaigned on the platform of choosing conservative judges, appointed three justices—Antonin Scalia, Sandra Day O’Connor, and Kennedy—and elevated William Rehnquist to the chief justiceship. That should have established conservative control. Yet O’Connor turned out to be a centrist, controlling the Court for a quarter-century by casting the decisive fifth vote in controversial cases. When she retired in 2006, Kennedy assumed her position as the swing justice and unexpectedly emerged as a liberal hero, voting, for example, to extend constitutional rights to detainees in Guantánamo Bay and marriage rights to same-sex couples.

George H.W. Bush also had the chance to consolidate a conservative majority. He appointed Thomas to replace Thurgood Marshall but also replaced William Brennan with David Souter, who underwent a subtle yet significant evolution from Burkean conservative to Burkean liberal. Bill Clinton, George W. Bush, and Barack Obama each got two justices confirmed, which maintained the Court’s balance. That conservative control has been so long in coming reflects either miscalculation by Reagan and George H.W. Bush or (more likely) something less than full-throated judicial conservatism on their part. …

… THE REST IN “Tipping the Scales by Noah Feldman.”

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NEW COLUMN: Applauding The Donald’s Ongoing Creative Destruction

Constitution, Democrats, Donald Trump, Left-Liberalism And Progressivisim, Natural Law, Republicans, The Courts, The State

“Applauding The Donald’s Ongoing Creative Destruction” is the current column, now on WND.COM.

An excerpt:

Big Media, the policy veterans and the chancelleries across Europe and Britain are constantly complaining: Donald Trump has had the temerity to defy their international order, summit—and seek peace—with their enemies, and mess with the multilateral maze they call agreements. He even declared, early in June, that the US would be far better off if it negotiated bilateral trade agreements.

Or, in Trump speak, “country-on-country agreements.”

But what does an entrenched punditocracy, a self-anointed, meritless intelligentsia (which is not very intelligent and draws its financial sustenance from the political spoils system), oleaginous politicians, slick media and big money care? They’ve all worked in tandem to advance a grand government—national and transnational—that aggrandizes its constituent elements, while diminishing those it’s supposed to serve.

These political players have built the den of iniquity Trump keeps trampling. Against these forces—NAFTA, NATO, FBI, DOJ, CIA, a whole alphabet soup of acronyms that stands for the Permanent State, national and international—is Trump, still acting as a political Samson that threatens to bring the house crashing down on its patrons.

And his latest. Trump’s judicial appointments, in particular, might just prove to be “his most enduring legacy,” lamented the liberal Economist. These certainly threaten to cement the Supreme Court’s originalist bent:

.. No president has confirmed more federal appellate judges (12) in his first year than Donald Trump. He has also seen six federal district-court judges confirmed, and one Supreme Court justice, Neil Gorsuch. Another 47 nominees await confirmation; 102 more federal judgeships remain open for Mr. Trump to fill. With two of the Supreme Court’s liberal justices, and its one unpredictable member (Anthony Kennedy) aged 79 or older, the president [will] get to name another justice [maybe two] …

Published in June of 2016, “The Trump Revolution: The Donald’s Creative Destruction Deconstructed” made the case that Donald J. Trump is the quintessential post-constitutional candidate.

In the “Opening Statement” titled “Welcome To The Post-Constitutional Jungle,” oldies will recognize a nod to the Guns N’ Roses classic, “Welcome to the Jungle,” as well as to broadcaster Mark Levin’s coinage.

We inhabit what Levin has termed a post-constitutional America. The libertarian (and classical conservative) ideal—where the chains that tether us to an increasingly tyrannical national government are loosened and power is devolved once again to the smaller units of society—is a long way away.

Where the law of the jungle prevails, the options are limited: Do Americans get a benevolent authoritarian to undo the legacies of Barack Obama, George W. Bush and those who went before? Or, does the increasingly ill-defined entity called The People continue to submit to Demopublican diktats, past and present?

The quintessential post-constitutional candidate, Trump’s candidacy was for the age when the Constitution itself is unconstitutional. Like it or not, the original Constitution is a dead letter, having suffered decades of legislative, executive and judicial usurpation.

The natural- and common law traditions, once lodestars for lawmakers, have been buried under the rubble of legislation and statute. However much one shovels the muck of lawmaking aside, natural justice and the Founders’ original intent remain buried too deep to exhume.

The Constitution has become just another thing on the list of items presidential candidates check when they con constituents.

The dissembling words of many a presidential candidate notwithstanding, the toss-up in the 2016 election was, therefore, between submitting to the Democrats’ war on whites, the wealthy and Wal-Mart, or being bedeviled by mainstream Republicans’ wars on the world: Russia, China, Assad and The Ayatollahs. Or, suffering all the depredations listed and more had Candidate Clinton been victorious. …

… READ THE REST. “Applauding The Donald’s Ongoing Creative Destruction” is the current column, now on WND.COM

“Liberal Brains Are Pickled In The Formaldehyde Of Identity Politics”

Constitution, Democrats, Donald Trump, Ethics, Law, Left-Liberalism And Progressivisim, libertarianism, Republicans, War

THE NEW COLUMN IS “Liberal Brains Are Pickled In The Formaldehyde Of Identity Politics.” It’s now on WND.com and on the Unz Review.

“There are no more civil libertarians left,” warned celebrated attorney Alan Dershowitz.

The topic was the left. The location was Tucker Carlson’s TV studio, May 30.

Dershowitz, a life-long liberal and civil-libertarian, has refused “to allow partisan politics to pre-empt his views on the Constitution,” in general, and in the matter of Grand Inquisitor Robert Mueller and his tribunal, in particular.

Conversely, the  American Civil Liberties Union has supported the FBI’s manifestly unconstitutional raid on Michael Cohen’s offices, even asserting that the seizing of client-attorney privileged files from the Trump attorney was kosher.

“… all indications thus far are that the search was conducted pursuant to the rule of law,” crowed the ACLU, in “stunning rebuke to the basic concepts behind the [organization’s] mission.”

To ACLU silence—and in contravention of that quaint thing called the Fourth Amendment—Mueller had previously taken possession of tens of thousands of emails exchanged among President Donald Trump’s transition team.

The meek, weak Jeff Sessions has failed miserably to bust these sham, kangaroo-court proceedings, leading former House Oversight Committee Chairman Jason Chaffetz to carp: “The attorney general is just not up to the job.”

In the absence of an effective legal counterweight, Mueller, of course, is getting away with it.

On TV, Dershowitz has been joined by the talented Mr. Turley (Jonathan Turley, Esquire), in protesting the warrantless theft of the Trump campaign’s emails.

Let the record show that Dumbo Napolitano (Fox’s Judge Andrew) seconded Mueller’s legal authority, declaring, on December 18, 2017, that, “Mueller did not improperly obtain Trump’s transition emails.”

Talk to the hand, Judge Napolitano, because this face ain’t listening to you any longer.

“The left is less interested in civil liberties,” observed Tucker, ruefully, to which Alan Dershowitz quipped: “The ACLU is dead in the water when it comes to defending the civil liberties of people they don’t agree with.”

Do “the shoe is on the other foot test,” Dershowitz instructs. Ask yourself: “If the shoe were on the other foot, would you be taking the same position you’re taking today?” Everyone has to pass it.

Having taken the test, you’ll sympathize with the intractable positions against the partisanship of justice, taken by civil libertarians like Alan Dersh and libertarians like this writer. …

…  Another near-extinct political animal is your old-school, antiwar liberal. …

… READ ON. THE NEW COLUMN IS “Liberal Brains Are Pickled In The Formaldehyde Of Identity Politics.” It’s now on WND.com and on the Unz Review.