There’s not much that I think I need to add to what I said on the last election year SCOTUS nomination four years ago, other than perhaps to re-emphasize a couple key points: The President of the United States of America is elected to a term of four …
Before giving you my two cents on President Trump’s nomination of Judge Kavanaugh to fill the seat on the Supreme Court that’s been left by the departing Justice Kennedy, here are a few links that give good overviews. This one gives a good, brief, syno…
What a wonderful week at the Supreme Court of the United States of America! On Monday, those rights that are defended by the 1st Amendment, were upheld as the “Supreme Court Backs Anti-Abortion Pregnancy Centers in Free Speech Case”, which struck down …
What a wonderful week at the Supreme Court of the United States of America! On Monday, those rights that are defended by the 1st Amendment, were upheld as the “Supreme Court Backs Anti-Abortion Pregnancy Centers in Free Speech Case”, which struck down …
Well. I’m late to the SCOTUS party and just getting started on looking into Judge Neil Gorsuch’s legal opinions, but… suffice to say that for the moment, it’s looking good. While skimming various bios of him last night, my attention was caught by this bit from the Atlantic,
“…The most remarkable thing about the book is its measuredness. Gorsuch is a Jesuit-educated Episcopalian, but he does not rely on theology to make his argument. In fact, he takes pains to ground his work in “secular moral theory,” laying out a careful case based on the writings of thinkers from Aquinas and Epicurus to contemporary scholars Peter Singer and Ronald Dworkin. His work reads more like a philosophy paper than a legal brief, which is appropriate given his background: He holds a doctorate in philosophy from Oxford.
Gorsuch reveals a few interesting lines of thinking in his book. First, it’s clear that he’s deeply interested in fundamental moral principles. The common wisdom around his nomination is that he’s an originalist, reading laws and the Constitution based on their authors’ intended meaning. During his nomination announcement, he emphasized this principle: “I respect … the fact that in our legal order it is for Congress and not the courts to write new laws,” Gorsuch said. “It is the role of judges to apply, not alter, the work of the people’s representatives.”…”[emphasis mine]
This was especially timely, in that I was just grousing to folks, about how, with the rare exception of someone like Justice Clarence Thomas, few in our courts have much, if any, regard for the concepts of Natural Law that our Constitution was drawn out of in our Founder’s Era. Instead, we’ve had to settle for, at best, the more primitive modernist ‘Originalists‘ and ‘Textualists‘ – and now here this fellow Gorsuch is sounding as if I may have to, well, not quite ‘eat my words’, but I may possibly have to nibble on them a bit. Around the edges.
And frankly, that’s the kind of crow I’d gleefully chow down on all day long – fingers crossed!
Then this evening, in the first opinion I selected, his concurring opinion (starting on about pg 15) in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016), which focuses upon how Administrative Agencies have been allowed to overstep their power (to say the least (which the ‘Chevron‘ case is referring to), the concurring portion starts with a Bang! and keeps getting better, and better.
“There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth…”
, and they just keep coming,
“…Even more importantly, the founders considered the separation of powers a vital guard against governmental encroachment on the people’s liberties, including all those later enumerated in the Bill of Rights. What would happen, for example, if the political majorities who run the legislative and executive branches could decide cases and controversies over past facts? They might be tempted to bend existing laws, to reinterpret and apply them retroactively in novel ways and without advance notice. Effectively leaving parties who cannot alter their past conduct to the mercy of majoritarian politics and risking the possibility that unpopular groups might be singled out for this sort of mistreatment — and raising — along the way, too, grave due process (fair notice) and equal protection problems. Conversely, what would happen if politically unresponsive and lifetenured judges were permitted to decide policy questions for the future or try to execute those policies? The very idea of self-government would soon be at risk of withering to the point of pointlessness. It was to avoid dangers like these, dangers the founders had studied and seen realized in their own time, that they pursued the separation of powers. A government of diffused powers, they knew, is a government less capable of invading the liberties of the people. …”
, and,
“…But however that may be, none of it rescues us from our riddle. For whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. Those problems remain uncured by this line of reply”
, and,
“…Even supposing, too, that we could overlook this problem — even supposing we somehow had something resembling an authentic congressional delegation of legislative authority — you still might wonder: can Congress really delegate its legislative authority — its power to write new rules of general applicability — to executive agencies? The Supreme Court has long recognized that under the Constitution “congress cannot delegate legislative power to the president” and that this “principle [is] universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.” Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892). Yet on this account of Chevron we’re examining, its whole point and purpose seems to be exactly that — to delegate legislative power to the executive branch…”
, and,
“…Even under the most relaxed or functionalist view of our separated powers some concern has to arise, too, when so much power is concentrated in the hands of a single branch of government. See The Federalist No. 47 (James Madison) (“The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”). After all, Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive). Add to this the fact that today many administrative agencies “wield[] vast power” and are overseen by political appointees (but often receive little effective oversight from the chief executive to whom they nominally report), and you have a pretty potent mix… “
My initial reaction to all of this?
I’m feeling like I’m in judicial heaven, or at least the Court Candy Store… but… that’s a first impression. And yes, I’ve heard some folks complaining that he didn’t come out with a full throated defense of the 2nd Amdt in another case – worrisome, but it’s a bit difficult to see how that gibes with the ideas put out in this case – if he is stays consistent with the ideas dealt with here, having this judge on the Supreme Court, would be a big step back onto the road to restoring the Rule of Law.
Still though, I’ve got quite a bit more reading to do before I really buy into it – good or bad.
But so far? This is the kind of ‘Winning!‘ that I could get used to.
I don’t like Trump. I still haven’t resolved for whom I am voting in November. However, the budding movement to change the convention rules after the fact in order to deny Trump the nomination he won with the votes of legitimate (albeit misguided) primary voters and caucus attendees is the wrong thing to do. Here are a couple reasons why.
Some pro-life activists like Erick Erickson are plotting ways to sabotage Donald Trump’s candidacy for president. They probably haven’t stopped to think. If they succeed in defeating Trump, they will be culpable in many, many abortions. That’s a lot of guilt for a guy like Erickson to carry around, isn’t it?
Regarding President Obama’s nomination of D.C. Circuit Judge Merrick Garland to the Supreme Court. I know the Senate has wussed out and said that they won’t consider any nominations to the Supreme Court of the United States of America, until after the election (I ranted against the Right gone Wrong here), but it’d be nice if they would give this nomination the consideration it’s due – two, maybe even three hours – and then simply issue a statement, such as:
“After a brief review, it is obvious that Judge Garland has a preference for ruling in favor of regulatory agencies exercising their power over, and against, the interests and rights of the American people. He has shown a questionable lack of respect for the individual rights that are protected by the 4th & 5th amendments, and a clear hostility towards the protections of the 2nd Amendment. We therefore see no need for further consideration of this judge potentially having a seat on the Supreme Court of the United States of American, where his views could further endanger the individual rights of our citizens.
Our consent is denied, and our advice to the President, is to fuhgedaboudit.
Sincerely,
The United States Senate. “
Alas, our Senate lacks the intestinal fortitude for such a statement, so we’ll have to settle for the (hiding beneath the) blanket rejection which they’ve re-affirmed.
Note to my Conservative friends: I’m not saying that the Senate must vote on a nominee – ignoring a nominee is not only constitutional, but a feature, several nominees have received no consideration, let alone a vote, in the past, as the Democrats know full well, having pushed it themselves, and more than once. What I’m saying is that the GOP’s position to oppose ‘any nomination‘ to the SCOTUS, even before a nominee is made known, doesn’t look to me like an example of taking a ‘firm stand’, it looks more like a cowardly retreat, it looks like someone seeking to flee from not just confrontation, but the fear of stating their reasoning and positions for all to see. I see it as a dereliction of, if not their constitutional duty, then at the very least as a dereliction of their moral responsibility to advise the nation of the substandard, harmful, candidates for the Supreme Court of the United States of America, which the President of the United States of America, is nominating to sit in judgment over our beleagured liberties.
Note to my Pro-Regressive friends: this is not about me disagreeing with a nomination simply because it was President Obama that made it, or about the ‘impeccable reputation’ which Judge Garland enjoys – he does seem to be quite a scholar and a gentlemen.
What this is about, is whether or not the ideas and judgment of the nominee, and of the President, demonstrate a respect for, and an understanding of our Constitution and of the Individual Rights it was designed to uphold and protect. And as it is my judgment, based upon the evidence of their opinions and actions of record, that they have no such respect or understanding of either, and that they have instead demonstrated a desire to disregard both in pursuit of their shared pro-regressive ideals, which are explicitly in opposition to both a written constitution and to Individual Rights as such. Nominees such as these, pose real threats to the preservation of our liberty, and to our ability to enjoy the pursuit of happiness under a sound, limited, constitutional representative form of government, securely bound down through the Rule of Law.
To say that Judge Merrick Garland, fine person though he undoubtedly is, has an undoubtedly fine legal mind, is as frustratingly uninformative about how he uses that mind, as it is to say that someone is a fine sharpshooter and leaving it at that, while withholding the knowledge of whether he is a soldier or an underworld assassin – a person should not be called a paragon of fine legal reasoning, without first knowing the purposes and principles, if any, which his reasoning skills are aimed at serving. Do those aims comport with the Constitution? IMHO, no.
Judge Garland’s fine legal mind is not aimed at legal reasoning, but at legalism. He supports the idea that laws, in and of themselves, are the sufficient basis for, and justification of, other laws (what I’ve called the Doppelganger’s Rule of Rules to rule the people by).
Legal Reasoning, on the other hand, is only achieved by proceeding from an understanding that no law is a valid law, which violates Reason, and that in respecting the reality of the nature of being human, the necessity and importance of our individual Rights become self evident, making it necessary
“… to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”
, and so become the basis of our laws, which all additional laws must integrate with. If you ignore that, or disregard that, then you devalue and disregard Individual Rights as such, let alone the defense of them.
We don’t need to make an exhaustive examination of Judge Garlands judicial opinions, when a brief inspection shows them to be at odds with the understanding of the ‘conservative’ majority in the senate (just don’t play coy when such dismissals comes back to bite us in the future). For instance, in the New York Times,
“If Judge Garland is confirmed, he could tip the ideological balance to create the most liberal Supreme Court in 50 years. Measures of ideology by four political scientists show where the justices stand in relation to one another. Judge Garland’s score is based on the score of his appointing president, Bill Clinton. This methodology is considered to be a “reasonably good predictor of voting on the Supreme Court,” says Prof. Lee Epstein of Washington University.”
, a position that places him far to the left on the court, nestled snugly between Justice Ginsberg and Justice Kagan, and despite the NYT’s seeing that as bringing a ‘new perspective’ to the court, it’s a new seating chart that I’m not all that comfortable with, and there’s no constitutional reason why a conservative majority should approve of that.
This is not, and should not be about jockeying for political power, but about how the law is to be interpreted and applied, and the effect that will have on our liberty. The fact is, that Judge Garland’s opinions and rulings consistently show that he sees that the purpose of the court to be to uphold the interests of the state, over the interests and individual rights of the citizens, and demonstrates insufficient interest in keeping the power of the state securely within the boundaries set out for it by our Constitution, and it is for that reason, that I say his rulings, especially if elevated to the SCOTUS, would pose a grave threat to the safety and integrity of our individual rights.
For instance, this is from a SCOTUS Blog entry in 2010, that was intended to portray him in a favorable light,
“Judge Garland has strong views favoring deference to agency decisionmakers. In a dozen close cases in which the court divided, he sided with the agency every time. .”
That’s a problem.
Numerous times he’s voted on the side of the National Labor Relations Board, against the interests of both the employers, and the employees, in favor of the NLRB and of Labor. He’s voted with the Dept Labor, with the EPA, with the FCC, the SEC, the Army, FED, Commerce Dept, and in opposition to the Freedom Of Information Act (FOIA) – and those are just the cases mentioned in an article that was written in glowing approval of his judgment, aiming to show how moderate he is.
This is what we’re supposed to see as ‘Moderation’? An attacker who moderates between between using the left hand and the right hand to punch you in the face with, is not being moderate? Such moderation is of no benefit to the person – We The People – who’s being punched. Such ‘moderates’ aim only to appeal to the powerful of both the left and right, which is no virtue, it is only a progressive grinding down, of our rights, favoring giving those in power, even more power over us – that is no virtue,
In the the case of ‘NRA v. Reno’ in 2000, Garland refused to require President Clinton’s DOJ to follow federal law and destroy the records of legally purchased firearms, intruding upon and arguably seeking to aid in the abridging of the Second Amendment’s defense of the right of citizens to keep and bear arms. His lengthy defense of the attorney general’s policy of retaining the records of firearms purchases for six months, despite the law saying that they must be destroyed, amounted to, as the dissenting Justice Tatel ably characterized as the protests of petulant children:
“…In no case has a court held that power has been granted to a federal agency by Congress’s failure to enact a limitation to a directly contradictory statutory command. Congress said, “destroy all records.” Congress said, do not “require that any record ․ be recorded.” Brady Act § 103(i), 107 Stat. at 1542. The Attorney General asserts, “Congress did not say that I have to destroy the records immediately. Therefore I am empowered to retain the records.” The Attorney General’s position strikes me as reminiscent of a petulant child pulling her sister’s hair. Her mother tells her, “Don’t pull the baby’s hair.” The child says, “All right, Mama,” but again pulls the infant’s hair. Her defense is, “Mama, you didn’t say I had to stop right now.”
I do not think that the parent’s command to the child is ambiguous, nor that of Congress to the Attorney General. I do not find the child’s response reasonable; nor is that of the Attorney General.”
IOW, he went to a great deal of effort to rationalize giving govt the power to do what its functionaries desired to do with that power, despite what the law told them to do, at our expense, pecking away at our liberty, violating not only the letter of those laws, but the spirit of the 2nd Amendment and arguably the 4th amendment as well.
He also voted to retry the Heller Case,
“…But Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalia’s most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.
Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one’s own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the “[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights” in a previous case. Had Garland and Tatel won that vote, there’s a good chance that the Supreme Court wouldn’t have had a chance to protect the individual right to bear arms for several more years….”
Thankfully, in the Heller case, Justices Scalia and Thomas’ opinions prevailed (BTW, in the opinion of myself and others far more suited to such opinions, Justice Thomas’ opinion was the better opinion), reaffirmed the rights of the people to keep and bear arms. Justice Garland opposed, and opposes that view.
That doesn’t make him a bad man, or any less the scholar and gentleman that he was before, but it does make him someone whose ideas are in direct opposition to the principles of the Declaration of Independence and the Constitution – which ‘conservatives’ supposedly want to conserve – it makes him someone who prefers the Pro-Regressive view that administrative ‘experts’ in government should hold power over the choices, rights and lives of We The People, for the greater good – as they define it, rather than as we choose to live our own lives by. That doesn’t make him a bad man either, but it does make him unfit to hold a judicial chair with such great power over the laws that are supposed to uphold and protect our Individual Rights.
Our Bill of Rights were amended to the constitution, because We The People
“,,,expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added,,,”
in order to prevent the federal government from infringing upon our rights and liberty, and in too many ways, Judge Garland has supported, aided and abetted, the government in encroaching upon at least three of them:
- 2nd Amendment (to keep and bear arms),
- 4th Amendment (secure in your possessions and privacy),
- 5th Amendment (due process and takings),
, and that’s only what I came up with after only a couple hours of digging. For that reason alone he is unfit to serve on the Supreme Court, and is cause enough for the U.S. Senate to issue a statement such as I noted above.
And the failure of our Senators to make such a statement, and to list the reasons for it, is, IMHO, negligent, cowardly and despicable.
Regarding President Obama’s nomination of D.C. Circuit Judge Merrick Garland to the Supreme Court. I know the Senate has wussed out and said that they won’t consider any nominations to the Supreme Court of the United States of America, until after the election (I ranted against the Right gone Wrong here), but it’d be nice if they would give this nomination the consideration it’s due – two, maybe even three hours – and then simply issue a statement, such as:
“After a brief review, it is obvious that Judge Garland has a preference for ruling in favor of regulatory agencies exercising their power over, and against, the interests and rights of the American people. He has shown a questionable lack of respect for the individual rights that are protected by the 4th & 5th amendments, and a clear hostility towards the protections of the 2nd Amendment. We therefore see no need for further consideration of this judge potentially having a seat on the Supreme Court of the United States of American, where his views could further endanger the individual rights of our citizens.
Our consent is denied, and our advice to the President, is to fuhgedaboudit.
Sincerely,
The United States Senate. “
Alas, our Senate lacks the intestinal fortitude for such a statement, so we’ll have to settle for the (hiding beneath the) blanket rejection which they’ve re-affirmed.
Note to my Conservative friends: I’m not saying that the Senate must vote on a nominee – ignoring a nominee is not only constitutional, but a feature, several nominees have received no consideration, let alone a vote, in the past, as the Democrats know full well, having pushed it themselves, and more than once. What I’m saying is that the GOP’s position to oppose ‘any nomination‘ to the SCOTUS, even before a nominee is made known, doesn’t look to me like an example of taking a ‘firm stand’, it looks more like a cowardly retreat, it looks like someone seeking to flee from not just confrontation, but the fear of stating their reasoning and positions for all to see. I see it as a dereliction of, if not their constitutional duty, then at the very least as a dereliction of their moral responsibility to advise the nation of the substandard, harmful, candidates for the Supreme Court of the United States of America, which the President of the United States of America, is nominating to sit in judgment over our beleagured liberties.
Note to my Pro-Regressive friends: this is not about me disagreeing with a nomination simply because it was President Obama that made it, or about the ‘impeccable reputation’ which Judge Garland enjoys – he does seem to be quite a scholar and a gentlemen.
What this is about, is whether or not the ideas and judgment of the nominee, and of the President, demonstrate a respect for, and an understanding of our Constitution and of the Individual Rights it was designed to uphold and protect. And as it is my judgment, based upon the evidence of their opinions and actions of record, that they have no such respect or understanding of either, and that they have instead demonstrated a desire to disregard both in pursuit of their shared pro-regressive ideals, which are explicitly in opposition to both a written constitution and to Individual Rights as such. Nominees such as these, pose real threats to the preservation of our liberty, and to our ability to enjoy the pursuit of happiness under a sound, limited, constitutional representative form of government, securely bound down through the Rule of Law.
To say that Judge Merrick Garland, fine person though he undoubtedly is, has an undoubtedly fine legal mind, is as frustratingly uninformative about how he uses that mind, as it is to say that someone is a fine sharpshooter and leaving it at that, while withholding the knowledge of whether he is a soldier or an underworld assassin – a person should not be called a paragon of fine legal reasoning, without first knowing the purposes and principles, if any, which his reasoning skills are aimed at serving. Do those aims comport with the Constitution? IMHO, no.
Judge Garland’s fine legal mind is not aimed at legal reasoning, but at legalism. He supports the idea that laws, in and of themselves, are the sufficient basis for, and justification of, other laws (what I’ve called the Doppelganger’s Rule of Rules to rule the people by).
Legal Reasoning, on the other hand, is only achieved by proceeding from an understanding that no law is a valid law, which violates Reason, and that in respecting the reality of the nature of being human, the necessity and importance of our individual Rights become self evident, making it necessary
“… to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”
, and so become the basis of our laws, which all additional laws must integrate with. If you ignore that, or disregard that, then you devalue and disregard Individual Rights as such, let alone the defense of them.
We don’t need to make an exhaustive examination of Judge Garlands judicial opinions, when a brief inspection shows them to be at odds with the understanding of the ‘conservative’ majority in the senate (just don’t play coy when such dismissals comes back to bite us in the future). For instance, in the New York Times,
“If Judge Garland is confirmed, he could tip the ideological balance to create the most liberal Supreme Court in 50 years. Measures of ideology by four political scientists show where the justices stand in relation to one another. Judge Garland’s score is based on the score of his appointing president, Bill Clinton. This methodology is considered to be a “reasonably good predictor of voting on the Supreme Court,” says Prof. Lee Epstein of Washington University.”
, a position that places him far to the left on the court, nestled snugly between Justice Ginsberg and Justice Kagan, and despite the NYT’s seeing that as bringing a ‘new perspective’ to the court, it’s a new seating chart that I’m not all that comfortable with, and there’s no constitutional reason why a conservative majority should approve of that.
This is not, and should not be about jockeying for political power, but about how the law is to be interpreted and applied, and the effect that will have on our liberty. The fact is, that Judge Garland’s opinions and rulings consistently show that he sees that the purpose of the court to be to uphold the interests of the state, over the interests and individual rights of the citizens, and demonstrates insufficient interest in keeping the power of the state securely within the boundaries set out for it by our Constitution, and it is for that reason, that I say his rulings, especially if elevated to the SCOTUS, would pose a grave threat to the safety and integrity of our individual rights.
For instance, this is from a SCOTUS Blog entry in 2010, that was intended to portray him in a favorable light,
“Judge Garland has strong views favoring deference to agency decisionmakers. In a dozen close cases in which the court divided, he sided with the agency every time. .”
That’s a problem.
Numerous times he’s voted on the side of the National Labor Relations Board, against the interests of both the employers, and the employees, in favor of the NLRB and of Labor. He’s voted with the Dept Labor, with the EPA, with the FCC, the SEC, the Army, FED, Commerce Dept, and in opposition to the Freedom Of Information Act (FOIA) – and those are just the cases mentioned in an article that was written in glowing approval of his judgment, aiming to show how moderate he is.
This is what we’re supposed to see as ‘Moderation’? An attacker who moderates between between using the left hand and the right hand to punch you in the face with, is not being moderate? Such moderation is of no benefit to the person – We The People – who’s being punched. Such ‘moderates’ aim only to appeal to the powerful of both the left and right, which is no virtue, it is only a progressive grinding down, of our rights, favoring giving those in power, even more power over us – that is no virtue,
In the the case of ‘NRA v. Reno’ in 2000, Garland refused to require President Clinton’s DOJ to follow federal law and destroy the records of legally purchased firearms, intruding upon and arguably seeking to aid in the abridging of the Second Amendment’s defense of the right of citizens to keep and bear arms. His lengthy defense of the attorney general’s policy of retaining the records of firearms purchases for six months, despite the law saying that they must be destroyed, amounted to, as the dissenting Justice Tatel ably characterized as the protests of petulant children:
“…In no case has a court held that power has been granted to a federal agency by Congress’s failure to enact a limitation to a directly contradictory statutory command. Congress said, “destroy all records.” Congress said, do not “require that any record ․ be recorded.” Brady Act § 103(i), 107 Stat. at 1542. The Attorney General asserts, “Congress did not say that I have to destroy the records immediately. Therefore I am empowered to retain the records.” The Attorney General’s position strikes me as reminiscent of a petulant child pulling her sister’s hair. Her mother tells her, “Don’t pull the baby’s hair.” The child says, “All right, Mama,” but again pulls the infant’s hair. Her defense is, “Mama, you didn’t say I had to stop right now.”
I do not think that the parent’s command to the child is ambiguous, nor that of Congress to the Attorney General. I do not find the child’s response reasonable; nor is that of the Attorney General.”
IOW, he went to a great deal of effort to rationalize giving govt the power to do what its functionaries desired to do with that power, despite what the law told them to do, at our expense, pecking away at our liberty, violating not only the letter of those laws, but the spirit of the 2nd Amendment and arguably the 4th amendment as well.
He also voted to retry the Heller Case,
“…But Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalia’s most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.
Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one’s own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the “[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights” in a previous case. Had Garland and Tatel won that vote, there’s a good chance that the Supreme Court wouldn’t have had a chance to protect the individual right to bear arms for several more years….”
Thankfully, in the Heller case, Justices Scalia and Thomas’ opinions prevailed (BTW, in the opinion of myself and others far more suited to such opinions, Justice Thomas’ opinion was the better opinion), reaffirmed the rights of the people to keep and bear arms. Justice Garland opposed, and opposes that view.
That doesn’t make him a bad man, or any less the scholar and gentleman that he was before, but it does make him someone whose ideas are in direct opposition to the principles of the Declaration of Independence and the Constitution – which ‘conservatives’ supposedly want to conserve – it makes him someone who prefers the Pro-Regressive view that administrative ‘experts’ in government should hold power over the choices, rights and lives of We The People, for the greater good – as they define it, rather than as we choose to live our own lives by. That doesn’t make him a bad man either, but it does make him unfit to hold a judicial chair with such great power over the laws that are supposed to uphold and protect our Individual Rights.
Our Bill of Rights were amended to the constitution, because We The People
“,,,expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added,,,”
in order to prevent the federal government from infringing upon our rights and liberty, and in too many ways, Judge Garland has supported, aided and abetted, the government in encroaching upon at least three of them:
- 2nd Amendment (to keep and bear arms),
- 4th Amendment (secure in your possessions and privacy),
- 5th Amendment (due process and takings),
, and that’s only what I came up with after only a couple hours of digging. For that reason alone he is unfit to serve on the Supreme Court, and is cause enough for the U.S. Senate to issue a statement such as I noted above.
And the failure of our Senators to make such a statement, and to list the reasons for it, is, IMHO, negligent, cowardly and despicable.
Regarding President Obama’s nomination of D.C. Circuit Judge Merrick Garland to the Supreme Court. I know the Senate has wussed out and said that they won’t consider any nominations to the Supreme Court of the United States of America, until after the election (I ranted against the Right gone Wrong here), but it’d be nice if they would give this nomination the consideration it’s due – two, maybe even three hours – and then simply issue a statement, such as:
“After a brief review, it is obvious that Judge Garland has a preference for ruling in favor of regulatory agencies exercising their power over, and against, the interests and rights of the American people. He has shown a questionable lack of respect for the individual rights that are protected by the 4th & 5th amendments, and a clear hostility towards the protections of the 2nd Amendment. We therefore see no need for further consideration of this judge potentially having a seat on the Supreme Court of the United States of American, where his views could further endanger the individual rights of our citizens.
Our consent is denied, and our advice to the President, is to fuhgedaboudit.
Sincerely,
The United States Senate. “
Alas, our Senate lacks the intestinal fortitude for such a statement, so we’ll have to settle for the (hiding beneath the) blanket rejection which they’ve re-affirmed.
Note to my Conservative friends: I’m not saying that the Senate must vote on a nominee – ignoring a nominee is not only constitutional, but a feature, several nominees have received no consideration, let alone a vote, in the past, as the Democrats know full well, having pushed it themselves, and more than once. What I’m saying is that the GOP’s position to oppose ‘any nomination‘ to the SCOTUS, even before a nominee is made known, doesn’t look to me like an example of taking a ‘firm stand’, it looks more like a cowardly retreat, it looks like someone seeking to flee from not just confrontation, but the fear of stating their reasoning and positions for all to see. I see it as a dereliction of, if not their constitutional duty, then at the very least as a dereliction of their moral responsibility to advise the nation of the substandard, harmful, candidates for the Supreme Court of the United States of America, which the President of the United States of America, is nominating to sit in judgment over our beleagured liberties.
Note to my Pro-Regressive friends: this is not about me disagreeing with a nomination simply because it was President Obama that made it, or about the ‘impeccable reputation’ which Judge Garland enjoys – he does seem to be quite a scholar and a gentlemen.
What this is about, is whether or not the ideas and judgment of the nominee, and of the President, demonstrate a respect for, and an understanding of our Constitution and of the Individual Rights it was designed to uphold and protect. And as it is my judgment, based upon the evidence of their opinions and actions of record, that they have no such respect or understanding of either, and that they have instead demonstrated a desire to disregard both in pursuit of their shared pro-regressive ideals, which are explicitly in opposition to both a written constitution and to Individual Rights as such. Nominees such as these, pose real threats to the preservation of our liberty, and to our ability to enjoy the pursuit of happiness under a sound, limited, constitutional representative form of government, securely bound down through the Rule of Law.
To say that Judge Merrick Garland, fine person though he undoubtedly is, has an undoubtedly fine legal mind, is as frustratingly uninformative about how he uses that mind, as it is to say that someone is a fine sharpshooter and leaving it at that, while withholding the knowledge of whether he is a soldier or an underworld assassin – a person should not be called a paragon of fine legal reasoning, without first knowing the purposes and principles, if any, which his reasoning skills are aimed at serving. Do those aims comport with the Constitution? IMHO, no.
Judge Garland’s fine legal mind is not aimed at legal reasoning, but at legalism. He supports the idea that laws, in and of themselves, are the sufficient basis for, and justification of, other laws (what I’ve called the Doppelganger’s Rule of Rules to rule the people by).
Legal Reasoning, on the other hand, is only achieved by proceeding from an understanding that no law is a valid law, which violates Reason, and that in respecting the reality of the nature of being human, the necessity and importance of our individual Rights become self evident, making it necessary
“… to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”
, and so become the basis of our laws, which all additional laws must integrate with. If you ignore that, or disregard that, then you devalue and disregard Individual Rights as such, let alone the defense of them.
We don’t need to make an exhaustive examination of Judge Garlands judicial opinions, when a brief inspection shows them to be at odds with the understanding of the ‘conservative’ majority in the senate (just don’t play coy when such dismissals comes back to bite us in the future). For instance, in the New York Times,
“If Judge Garland is confirmed, he could tip the ideological balance to create the most liberal Supreme Court in 50 years. Measures of ideology by four political scientists show where the justices stand in relation to one another. Judge Garland’s score is based on the score of his appointing president, Bill Clinton. This methodology is considered to be a “reasonably good predictor of voting on the Supreme Court,” says Prof. Lee Epstein of Washington University.”
, a position that places him far to the left on the court, nestled snugly between Justice Ginsberg and Justice Kagan, and despite the NYT’s seeing that as bringing a ‘new perspective’ to the court, it’s a new seating chart that I’m not all that comfortable with, and there’s no constitutional reason why a conservative majority should approve of that.
This is not, and should not be about jockeying for political power, but about how the law is to be interpreted and applied, and the effect that will have on our liberty. The fact is, that Judge Garland’s opinions and rulings consistently show that he sees that the purpose of the court to be to uphold the interests of the state, over the interests and individual rights of the citizens, and demonstrates insufficient interest in keeping the power of the state securely within the boundaries set out for it by our Constitution, and it is for that reason, that I say his rulings, especially if elevated to the SCOTUS, would pose a grave threat to the safety and integrity of our individual rights.
For instance, this is from a SCOTUS Blog entry in 2010, that was intended to portray him in a favorable light,
“Judge Garland has strong views favoring deference to agency decisionmakers. In a dozen close cases in which the court divided, he sided with the agency every time. .”
That’s a problem.
Numerous times he’s voted on the side of the National Labor Relations Board, against the interests of both the employers, and the employees, in favor of the NLRB and of Labor. He’s voted with the Dept Labor, with the EPA, with the FCC, the SEC, the Army, FED, Commerce Dept, and in opposition to the Freedom Of Information Act (FOIA) – and those are just the cases mentioned in an article that was written in glowing approval of his judgment, aiming to show how moderate he is.
This is what we’re supposed to see as ‘Moderation’? An attacker who moderates between between using the left hand and the right hand to punch you in the face with, is not being moderate. Such moderation is of no benefit to the person – We The People – who’s being punched. Such ‘moderates’ aim only to appeal to the powerful of both the left and right, which is no virtue, it is only a progressive grinding down, of our rights, favoring giving those in power, even more power over us – that is no virtue,
In the the case of ‘NRA v. Reno’ in 2000, Garland refused to require President Clinton’s DOJ to follow federal law and destroy the records of legally purchased firearms, intruding upon and arguably seeking to aid in the abridging of the Second Amendment’s defense of the right of citizens to keep and bear arms. His lengthy defense of the attorney general’s policy of retaining the records of firearms purchases for six months, despite the law saying that they must be destroyed, amounted to, as the dissenting Justice Tatel ably characterized as the protests of petulant children:
“…In no case has a court held that power has been granted to a federal agency by Congress’s failure to enact a limitation to a directly contradictory statutory command. Congress said, “destroy all records.” Congress said, do not “require that any record ․ be recorded.” Brady Act § 103(i), 107 Stat. at 1542. The Attorney General asserts, “Congress did not say that I have to destroy the records immediately. Therefore I am empowered to retain the records.” The Attorney General’s position strikes me as reminiscent of a petulant child pulling her sister’s hair. Her mother tells her, “Don’t pull the baby’s hair.” The child says, “All right, Mama,” but again pulls the infant’s hair. Her defense is, “Mama, you didn’t say I had to stop right now.”
I do not think that the parent’s command to the child is ambiguous, nor that of Congress to the Attorney General. I do not find the child’s response reasonable; nor is that of the Attorney General.”
IOW, he went to a great deal of effort to rationalize giving govt the power to do what its functionaries desired to do with that power, despite what the law told them to do, at our expense, pecking away at our liberty, violating not only the letter of those laws, but the spirit of the 2nd Amendment and arguably the 4th amendment as well.
He also voted to retry the Heller Case,
“…But Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalia’s most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.
Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one’s own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the “[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights” in a previous case. Had Garland and Tatel won that vote, there’s a good chance that the Supreme Court wouldn’t have had a chance to protect the individual right to bear arms for several more years….”
Thankfully, in the Heller case, Justices Scalia and Thomas’ opinions prevailed (BTW, in the opinion of myself and others far more suited to such opinions, Justice Thomas’ opinion was the better opinion), reaffirmed the rights of the people to keep and bear arms. Justice Garland opposed, and opposes that view.
That doesn’t make him a bad man, or any less the scholar and gentleman that he was before, but it does make him someone whose ideas are in direct opposition to the principles of the Declaration of Independence and the Constitution – which ‘conservatives’ supposedly want to conserve – it makes him someone who prefers the Pro-Regressive view that administrative ‘experts’ in government should hold power over the choices, rights and lives of We The People, for the greater good – as they define it, rather than as we choose to live our own lives by. That doesn’t make him a bad man either, but it does make him unfit to hold a judicial chair with such great power over the laws that are supposed to uphold and protect our Individual Rights.
Our Bill of Rights were amended to the constitution, because We The People
“,,,expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added,,,”
in order to prevent the federal government from infringing upon our rights and liberty, and in too many ways, Judge Garland has supported, aided and abetted, the government in encroaching upon at least three of them:
- 2nd Amendment (to keep and bear arms),
- 4th Amendment (secure in your possessions and privacy),
- 5th Amendment (due process and takings),
, and that’s only what I came up with after only a couple hours of digging. For that reason alone he is unfit to serve on the Supreme Court, and is cause enough for the U.S. Senate to issue a statement such as I noted above.
And the failure of our Senators to make such a statement, and to list the reasons for it, is, IMHO, negligent, cowardly and despicable.
With condolences, sympathy and appreciation to his family, Justice Scalia’s passing couldn’t have come at a worse time for the nation, or for the interests of the conservative Right. If you have even a small understanding of the Constitution, and of how close recent opinions of the Supreme Court have come to overturning or even eviscerating numerous constitutional protections of our rights, then the potential of President Obama placing yet another justice on the Supreme Court… is chilling, even blood curdling.
But.
I can tell you right now, that if the current President was a Conservative, and facing a similar sudden vacancy on the court, I guarantee you that if he even publicly entertained the possibility of foregoing his power to nominate a replacement because it was his last year in office, I assure you that I’d be first in line calling for his head on a platter… or at least the immediate resignation of his office.
Now of course, if you’d like to urge the President to ‘play fair’ and leave this next appointment to the incoming POTUS, by all means, feel free to do so, I wish you luck. I get it. Seriously. But to call for the Senate to misuse its power of ‘advice and consent‘, to deliberately delay and block an appointment – any appointment – ‘for the greater good‘… get thee behind me and begone!
This has nothing to do with any interest I have in ‘fairness’, and even less to do about “If the tables were reversed the Left would be doing everything it could to delay and block!“. Given the fact that the Pro-Regressive Left despises our Constitution and the very concepts of Individual Rights and the Rule of Law, I’ve no doubt that they would do just that! In fact, they have sought to do just that, as Sen. Schumer did in 2007, as did other leftists before him.
Explain to me again how that puts this in a better light, for wishing to behave just as the leftists would? Oh… Sen. McConnell is calling to block a nominee that has yet to even be named? I see… and you have a long history of deeply respecting Sen. McConnell’s judgement, do you?
Do you?!
How does a person claim to have respect and allegiance for the Constitution, and a reverence for the Rule of Law, while deliberately setting out to misuse, twist and thwart the stated language and intent of the Constitution, for blatantly political purposes?
By all means, oppose a bad nominee, absolutely – knock down, drag out, tooth and nail; but any nominee? On what basis, and with what lawful power, do you propose to invalidate and revoke constitutional powers from the office of the President? Under what authority? According to what Law?
The Constitution does not say that the Senate should only offer advice and consent on the President’s nominee, if that nominee is likely to be of the right sort, but… otherwise it should just go ahead and nullify the Presidents powers for the greater good, does it?
Well Sen. Cruz seemingly thinks it does:
“This should be a decision for the people,” Cruz said. “Let the election decide. If the Democrats want to replace this nominee, they need to win the election. But I don’t think the American people want a court that will strip our religious liberties. I don’t think the American people want a court that will mandate unlimited abortions on demand, partial birth abortion with taxpayer funding and no parental notification and I don’t think the American people want a court that will write the Second Amendment out of the Constitution.”
Believe you me, I get it, I thoroughly understand and sympathize with the desire to delay, postpone, block, what any new appointment by this President is likely to be. To date I’ve found his judgment to be repulsive and his taste in nominees even worse. But I do not know how you go about finding the warrant to oppose an elected President of the United States of America from carrying out his constitutional powers and duties, as granted to him through the Constitution, because you don’t think the people would like his choice, and so propose misusing the Senate’s obligation to give ‘advice and consent’ to him, in order to do what you think would be best for them.
Elections do have consequences, and sometimes they are terrible ones. Teddy Roosevelt. Woodrow Wilson. FDR. Jimmy Carter. Bill Clinton. But our ends don’t justify the means either, not even if we’re really sure that we know best and that we reeeally want them to.
I feel your pain. But travelling in this direction, is only going to intensify it.
I hasten to repeat, that if President Obama nominates someone unworthy of the highest court in the land – someone of the likes of Elana Kagan or Sonja Sotomayor for instance – then by all means, dig out their records and evidence of previous unworthy or even anti-American and anti-constitutional statements and activism, and hold them and President Obama’s judgment accountable, hold them up to ridicule and vitriol and torpedo their nominations in a fully justified rendering of that base new practice of ‘Borking’, which then Sen. Biden, led against Reagan’s nomination of Judge Bork.
That would be all well and good and proper and in accordance with giving the President “Advice and Consent” upon his nomination.
But to state your intent to block any nominee, without even knowing who, to declare your intent to oppose the provisions of the Constitution on the basis of your own political sympathies…THAT is the siren song of doom, not only for this coming election, but in the precedent that it will set for every President elected from here on out, where Congress will set limits on executive power based upon it’s current comfort levels on the coming election.
The Constitution was ratified by We The People, not We The Right or We the Conservatives or We the GOP – just who in the hell do you think you are?! And if that is your declared intent, then what is there in you that I should have any respect for?
That entire train of thought, by the way, that same willingness to forego proper constitutional regard and judgment in order to save political appearances, is exactly why Kagan and Sotomayor are on the court today. Craven cowardice on the part of political hacks, seeking political advantage at the expense of right and proper constitutional responsibility. Such behavior is not even up to the sub-par level of political correctness, it’s more like pure political squeamishness.
Not to mention the fact that any such talk today, will only call into question and disrepute any real, and justified questions that there are very well likely to be with the next nominee, tomorrow, empowering the entire media heavy pro-regressive left to carry the tide of public opinion up and over your every valid protest to come.
Then what will you do? What will be your cry then? Will you dare claim to stand for the Rule of Law, for respect for every clause of the Constitution? Will you really have the standing to call any action or effort of the Left ‘unconstitutional’? Seriously?
/rant
With condolences, sympathy and appreciation to his family, Justice Scalia’s passing couldn’t have come at a worse time for the nation, or for the interests of the conservative Right. If you have even a small understanding of the Constitution, and of how close recent opinions of the Supreme Court have come to overturning or even eviscerating numerous constitutional protections of our rights, then the potential of President Obama placing yet another justice on the Supreme Court… is chilling, even blood curdling.
But.
I can tell you right now, that if the current President was a Conservative, and facing a similar sudden vacancy on the court, I guarantee you that if he even publicly entertained the possibility of foregoing his power to nominate a replacement because it was his last year in office, I assure you that I’d be first in line calling for his head on a platter… or at least the immediate resignation of his office.
Now of course, if you’d like to urge the President to ‘play fair’ and leave this next appointment to the incoming POTUS, by all means, feel free to do so, I wish you luck. I get it. Seriously. But to call for the Senate to misuse its power of ‘advice and consent‘, to deliberately delay and block an appointment – any appointment – ‘for the greater good‘… get thee behind me and begone!
This has nothing to do with any interest I have in ‘fairness’, and even less to do about “If the tables were reversed the Left would be doing everything it could to delay and block!“. Given the fact that the Pro-Regressive Left despises our Constitution and the very concepts of Individual Rights and the Rule of Law, I’ve no doubt that they would do just that! In fact, they have sought to do just that, as Sen. Schumer did in 2007, as did other leftists before him.
Explain to me again how that puts this in a better light, for wishing to behave just as the leftists would? Oh… Sen. McConnell is calling to block a nominee that has yet to even be named? I see… and you have a long history of deeply respecting Sen. McConnell’s judgement, do you?
Do you?!
How does a person claim to have respect and allegiance for the Constitution, and a reverence for the Rule of Law, while deliberately setting out to misuse, twist and thwart the stated language and intent of the Constitution, for blatantly political purposes?
By all means, oppose a bad nominee, absolutely – knock down, drag out, tooth and nail; but any nominee? On what basis, and with what lawful power, do you propose to invalidate and revoke constitutional powers from the office of the President? Under what authority? According to what Law?
The Constitution does not say that the Senate should only offer advice and consent on the President’s nominee, if that nominee is likely to be of the right sort, but… otherwise it should just go ahead and nullify the Presidents powers for the greater good, does it?
Well Sen. Cruz seemingly thinks it does:
“This should be a decision for the people,” Cruz said. “Let the election decide. If the Democrats want to replace this nominee, they need to win the election. But I don’t think the American people want a court that will strip our religious liberties. I don’t think the American people want a court that will mandate unlimited abortions on demand, partial birth abortion with taxpayer funding and no parental notification and I don’t think the American people want a court that will write the Second Amendment out of the Constitution.”
Believe you me, I get it, I thoroughly understand and sympathize with the desire to delay, postpone, block, what any new appointment by this President is likely to be. To date I’ve found his judgment to be repulsive and his taste in nominees even worse. But I do not know how you go about finding the warrant to oppose an elected President of the United States of America from carrying out his constitutional powers and duties, as granted to him through the Constitution, because you don’t think the people would like his choice, and so propose misusing the Senate’s obligation to give ‘advice and consent’ to him, in order to do what you think would be best for them.
Elections do have consequences, and sometimes they are terrible ones. Teddy Roosevelt. Woodrow Wilson. FDR. Jimmy Carter. Bill Clinton. But our ends don’t justify the means either, not even if we’re really sure that we know best and that we reeeally want them to.
I feel your pain. But travelling in this direction, is only going to intensify it.
I hasten to repeat, that if President Obama nominates someone unworthy of the highest court in the land – someone of the likes of Elana Kagan or Sonja Sotomayor for instance – then by all means, dig out their records and evidence of previous unworthy or even anti-American and anti-constitutional statements and activism, and hold them and President Obama’s judgment accountable, hold them up to ridicule and vitriol and torpedo their nominations in a fully justified rendering of that base new practice of ‘Borking’, which then Sen. Biden, led against Reagan’s nomination of Judge Bork.
That would be all well and good and proper and in accordance with giving the President “Advice and Consent” upon his nomination.
But to state your intent to block any nominee, without even knowing who, to declare your intent to oppose the provisions of the Constitution on the basis of your own political sympathies…THAT is the siren song of doom, not only for this coming election, but in the precedent that it will set for every President elected from here on out, where Congress will set limits on executive power based upon it’s current comfort levels on the coming election.
The Constitution was ratified by We The People, not We The Right or We the Conservatives or We the GOP – just who in the hell do you think you are?! And if that is your declared intent, then what is there in you that I should have any respect for?
That entire train of thought, by the way, that same willingness to forego proper constitutional regard and judgment in order to save political appearances, is exactly why Kagan and Sotomayor are on the court today. Craven cowardice on the part of political hacks, seeking political advantage at the expense of right and proper constitutional responsibility. Such behavior is not even up to the sub-par level of political correctness, it’s more like pure political squeamishness.
Not to mention the fact that any such talk today, will only call into question and disrepute any real, and justified questions that there are very well likely to be with the next nominee, tomorrow, empowering the entire media heavy pro-regressive left to carry the tide of public opinion up and over your every valid protest to come.
Then what will you do? What will be your cry then? Will you dare claim to stand for the Rule of Law, for respect for every clause of the Constitution? Will you really have the standing to call any action or effort of the Left ‘unconstitutional’? Seriously?
/rant
Original Post: Trump’s Immigration Fans Need to Read Wong Kim Ark.
It’s sad that Donald Trump has inspired so many good conservatives to lie about the 14th Amendment. Mark Levin, Rush Limbaugh, and Laura Ingraham are too smart to be wrong. They are willfully lying to you. Lying. The Supreme Court addressed the issue of birthright citizenship directly, and Mark Levin and Laura Ingram know it….
The post Trump’s Immigration Fans Need to Read Wong Kim Ark appeared first on Hennessy’s View.