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Kennedy Hands Trump a Final Win

Supreme Court Justice Anthony Kennedy announced his retirement on Wednesday, which is good news for President Donald Trump. No matter how many porn stars Trump pays or longstanding allies and trading partners he needlessly alienates or essential institutions he seeks to undermine, his die-hard defenders can always make the strong argument to pre-Trump conservatives such as ourselves that we’re better of with him making Supreme Court picks rather than that awful Hillary Clinton woman.
Trump got his first chance to pick a Justice because Republican Senate majority leader Sen. Mitch McConnell — now widely reviled by the Trump-ian party as a squishy establishment type — ruthlessly held the seat open through the last year of President Barack Obama’s second term following the death of reliably conservative Justice Antonin Scalia, and Trump’s choice of the equally rock-ribbed Justice Neil Gorsuch further endeared him to his loyal supporters and earned begrudging praise from his party’s last skeptics. Kennedy’s retirement gives Trump an opportunity to replace him with someone even more rock-ribbedly conservative, and although we’re sure he’d appoint his abortion-loving appellate judge sister or idiot-sin-law to the seat if he thought he could get away with it, we’re also sure he’s shrewd enough that he’ll once again let the Heritage Foundation choose someone the fans will love and the conservative skeptics will begrudgingly respect and the Democrats can’t come up with any persuasive beyond-the-pale arguments about.
Kennedy was appointed to the court by President Ronald Reagan and confirmed with unanimous Republican support and several Democratic votes in the Senate, and he was not a judicial activist type who thought that whatever the consensus of liberal opinion believed was constitutional, but neither was he a reliably conservative vote in controversial cases. He acquired a reputation as the rare “swing vote” on the Supreme Court, and for whatever idiosyncratic reasons he frequently wound up on the winning side of many five-to-four decisions that wound up outraging the left some of the time and the right some of the time. In his final session he provided Trump with some much-needed five-to-four wins on the travel ban and a California case involving the free speech rights of anti-abortion advocates and another matter about the power of public unions, but his replacement will likely provide both the Trump-ian and pre-Trump conservatives with even more five-to-four wins over the coming decades.
There’s already concern on the left that the Supreme Court might even undo the 1973 Roe v. Wade decision that found a right somewhere in the penumbra of the Constitution for abortion in the first trimester and exceedingly complicated cases afterwards, which is well past the panic by point even by the left’s panicky standards, but they don’t have much power to stop it. They’ll put up a good fight in the Senate confirmation process, and do whatever they can with the filibuster rules the Republicans used to rely on in their days on the political desert, and make a not-quite-convincig argument that because Obama’s appointment had to await the next presidential election Trump’s pick should await the next mid-term election, but they’ll wind up with Trump winning a more conservative Supreme Court for a long while.
As much as we hate to see it redound to Trump’s political benefit, that’s fine with us. We’ve always believed the Constitution says what the words written in it say, and not whatever the current consensus of liberal opinion is, and we have to admit we do shudder to think of the nominees that awful Clinton woman would have chosen. If Trump’s picks prove the strict constructionists the Heritage Foundation claims they are they’ll probably uphold a special counsel subpoena of the president, and even if the Court does undo Roe v. Wade it will just set off 50 state legislative battles and countless street brawls which the rather recent and obviously insincere pro-life convert Trump will mostly lose.
No matter how stellar a pick the Heritage Foundation comes up with, however, we’ll still be infuriated by almost everything else Trump is doing.

— Bud Norman

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Justice Antonin Scalia, RIP

There is supposed to be no such thing as an irreplaceable man in a constitutional republic, where the rule of law and the God-given rights of the people are supposed to persist through the passing of the generations, but the death of Supreme Court Justice Antonin Scalia on Saturday at the too-young age of 79 will sorely test that dubious proposition.
One of the greatest jurists in American history, Scalia’s long career was devoted to defending the rule of law and the God-given rights of the people by insisting on the plain language and clear meaning of the Constitution. He did so when the Constitution favored liberal interests, he did so when the law and the Constitution favored conservative interests, and he most notably did it even went it against the prevailing tides of fickle public opinion that the Constitution was always intended to thwart. More importantly, he did it with a rare steadfastness and even rarer brilliance that in crucial moments that enabled his originalist theory of the Constitution to prevail over the idea that a mere five black-robed justices should be able to impose their beliefs on the other 300 million or so of the country no matter what the framers wrote or the states ratified or the people have long understood was the binding agreement.
Scalia was not only a decisive vote but also the the author of the very persuasive decision in Heller v. District of Columbia, which found that the Second Amendment’s guarantee of a right to keep and bear arms does indeed mean just that, even for the average schmuck who might need to defend his home and not just for a “well-regulated militia” that the left would happily regulate out of existence. He was a key voice in that Citizens United decision that all the Democrats and even some of the dimmer Republicans are still noisily insisting be overturned, and he wrote the far more persuasive concurring opinion, and all those soft-headed Bernie Sanders fans who share his indignation about it should know that its plain-meaning reading of the First Amendment basically said the government doesn’t have the right to exercise prior restraint of speech critical of Hillary Clinton or any other candidate of either party or any ideological persuasion, and that none of us would have a meaningful First Amendment without it. On every other occasion he was a reliable vote for whatever law had been passed by the people’s legislature and signed and by their duly-elected president which was not clearly in violation of the basic individual rights defined by the plain language of the Constitution, even if it was some dumb-ass law he and another four wised-up and black-robed jurists would have never voted for.
Even on those all-too-often occasion’s when Scalia insistence on the rule of law and the God-given rights of the people did not prevail, he wrote such brilliantly dissenting opinions that he will no doubt be quoted in some inevitable upcoming challenge, so he might yet prevail posthumously. His dissent in the Obergfel v. Hodges decision that legalized same-sex marriage will no doubt be cited in the countless forthcoming sentences against any bakers and photographers and churches who don’t want to participate in a same-sex wedding ceremony, so there’s hope that Scalia’s legacy will persist. There were enough times when Scalia thwarted George W. Bush and there’s some residual bipartisan spirits that obliges the likes of President Barack Obama and House Minority Leader Nancy Pelosi to pay him some lip service, and the press is being strangely respectful, and Scalia has earned his moment of national respect.
The petty politics immediately intrude, though, and there’s the legally-required matter of how to replace such an irreplaceable man. While we hate to presume what such a more learned jurist as Scalia might opine, our reading of the plain language in the Constitution suggests that Obama has every constitutional right to name an appointee at a time of his choosing, the Senate has every constitutional right to ignore it at its own leisure, and our guess is that Scalia wouldn’t mind a bit if the inevitably messy fight stretched out noisily into the next presidency. If the next president is Sanders or the soon-to-be-constitutionally-protected-from-criticism Clinton, a lot of those 5-4 decisions from the good old days of the plain meaning the Constitution will suddenly mean that the the First Amendment doesn’t allow criticism of public officials and the Second Amendment doesn’t guarantee a right to keep and bear arms, and the rest of the Constitution will mean whatever five black-robed jurists and fickle pubic opinion think it ought to mean. At the moment the the front-runner for the Republican nomination has mentioned his sister, who authored a soon-to-be-overturned opinion finding a right to late-term abortion, would make a “phenomenal” Supreme Court Justice, and who joined in a ridiculous politically-correct outcry that Scalia was racist for questioning the effect that affirmative action admission policies at universities have on its supposed beneficiaries, and although the rest of the field are making more reasonable suggestions their party doesn’t have a good track record of lately finding jurists such as the Reagan-appointed Scalia. Our guess is that the even the most weak-kneed Republicans won’t dare allow a lame duck appointment, and after a respectful moment or two the Democrats will revert to screaming about censoring anti-Democrat speech and compelling same-sex-wedding-cake-baking laws, and that there’s no guessing how that might come out. So far even the squishiest Republicans are digging in their heels, Obama has backed off a recess appointment, and we don’t think there’s much sentiment in of the recently outraged parties for a new Supreme Court Justice to ban anti-Hillary Clinton speech and repeal gun rights and whatever else five black-robed justices might come up with, so we’ll hold out hope.
Such petty politics aside, we’ll also take a moment to note that by all accounts Scalia was a good man. He was a devoted husband for 56 years, beloved father to nine children, and was such a remarkably genial gentleman that he even maintained a famously affectionate relationship with his constant nemesis Justice Ruth Bader Ginsburg. He once spoke at the high school graduation ceremony of one of his many grandchildren, and we think he spoke best for himself when he urged them “not just to be zealous in in the pursuit of your ideals, but to be sure that your ideals are the right ones. That is perhaps the hardest part of being a good human being. Good intentions are not enough. Being a good person begins with being a wise person. Then, when you follow your conscience, you will be headed in the right direction.”
We pray that Justice Scalia’s wisdom has led him in the direction to eternal peace, after so many years of toil on this troublesome earth, and that somehow the rule of the law and the God-given rights of the people it is meant to protect will persist through the passing of the generations.

— Bud Norman

Honesty, Courtesy, and Political Correctness

There’s much talk these days of “political correctness,” and although everyone seems to agree that it’s a problem no one seems to agree on it what it means. We first heard the term way back in the mid-’70s, when the exceedingly well-educated and exquisitely bien pensant College Hill kids that we were hanging out with on the local high school debate circuit used it to chide one another for any opinions that were a wee bit too doctrinaire even for their tastes, but apparently it was previously used in less jocular ways by Mao’s Red Guards and even earlier by Leon Trotsky. By now it’s generally understood to mean to any attempt to enforce respectable opinion by means of public shaming, but these days respectable opinion is ever harder to define.
Some of Donald Trump’s supporters will defend his mocking of a reporter’s physical handicap on the grounds that he’s bravely defying the stultifying constraints of political correctness, but even some Trump supporters acknowledge that it’s more a breach of common decency. Most of the entertainment industry still prides itself on a similarly courageous stance as it sinks ever further into the depths of depravity, but the only price they pay is in glowing reviews and Academy Awards and big bucks contracts. Only the likes of Supreme Court Justice Antonin Scalia seem truly sympathetic victims of the problem, and they tend to get the least attention.
In case you were distracted by Trump’s latest “tweet” or the news about Leonardo DiCaprio being raped by a bear in a soon-to-be-released Hollywood blockbuster, Scalia brought down the wrath of the respectable press by a couple of questions he asked during oral arguments in the case of Fisher v. University of Texas-Austin. It’s yet another affirmative action case, which we first heard of way back in the mid-’70s when we were messengers at at the Supreme Court as it deliberated the the Bakke v. University of Texas-Austin case, so some sort of racial imbroglio was inevitable. Scalia dared to ask one of the defendant’s lawyers about “mismatch,” which is what several notable social scientists call the phenomenon of minority students being admitted to universities despite having lower grades and test scores that are reliably predictive of academic performance, and the sad result of those students faring less well than they likely would have at other schools with more similarly prepared student bodies. Scalia was careless enough to pose the question of if “it does not benefit African-Americans into the University of Texas, where they do not well, as opposed to having them go to a less-advanced school, a less — a lower-track school where they do well.” This formulation allowed the Huffington Post to report that “Justice Scalia thinks black students belong in ‘slower-track’ schools,” and The Hill to sniff “Scalia: Maybe black students belong at ‘less-advanced’ schools,” and Yahoo to write that “Scalia suggested that black students benefit from a ‘slower track’ at less prestigious universities.”
Of course Scalia had nothing to say against those many black students who would qualify for entry at even the most advanced and fast-track and prestigious universities by any color-blind standard, such as Dr. Ben Carson or Justice Clarence Thomas, but not necessarily President Barack Obama, and his genuine concern for the black students ill-served by defendant’s condescending and ill-considered policies is apparent, but the pull-out quotes are sufficient to tar him as a stone-cold racist. Support for affirmative action policies is “politically correct” by any definition, and even the most reasonable and well-intentioned questions that might be asked about it is therefore proof of some anti-black animus, even if blacks wind up worse off as a result of those unquestionable policies. The same boundaries of polite discussion are enforced in the related matter of the “Black Lives Matter Movement,” which is mainly concerned with the matter of black lives lost to police enforcement and not the far greater number of black lives lost to a lack of police enforcement, and which will not allow any discussion of how the undeniably higher rates of crime in inner-black black neighborhoods are at the root of all of it.
The public discourse is also constrained by political correctness on the pressing issues of radical Islamic terrorism, which even the most politically correct politicians and press organs are trying to come up with a more polite term to describe, and the related issue of unfettered immigration from the Third World to the west, with all its worries that the unwashed know-nothing nativists of west will selfishly insist on their way of life, and we suppose that even in this age of transgendered triumphalism that are still one or relics of Victorian morality that impede a frank discussion about something or another. These boundaries must always be challenged, and the campus crusades against free speech and the Senate Democrats’ proposed changes to the First Amendment and all that open talk about criminal charges against anyone who has doubts about all that global warming nonsense should be resisted by all means, but we’d like to think some things are still beyond the pale.
Once upon a time campus crusades against free speech and officially introduced changes to the First Amendment and open talk about criminal charges against skeptical scientists on a disputed scientific issue would have been proscribed by public opinion, and so would a presidential candidate’s mocking of reporter’s handicap or a rival’s face, and so would have been a self-described socialist, and we think that by and large the debates were better resolved. Times like these call for frankness, even bluntness, and an unflinching acknowledgement of harsh realities, but we think it will also benefit from some civility and common courtesy and a sense of what matters most.

— Bud Norman