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For Kavanaugh, Because Why Not?

President Donald Trump has nominated federal appellate judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court, which is a quite fine pick as far we’re concerned. That’s just our opinion, though, and we expect the rest of the country’s hearted arguments about it will last long after his inevitable confirmation.
Anyone that Trump or even a more normal Republican president might have nominated would have met outraged opposition from the left, of course, but in these strange days a certain portion of the right is also disappointed by the choice. Kavanaugh has a long record on the federal bench of deciding cases based on the objective facts and the most plain reading of the constitution that conservatives such as ourselves have always insisted on, but he only got the chance because he appointed to the federal bench by Republican President George W. Bush after exemplary service in the Bush Justice Department, and these days that certain majority portion of the Republican right has as much disdain for the Republican party prior to Trump that they have for the Democratic left.
There were reportedly even more provocative potential Supreme Court nominees among the semi-finalists and finalists in the reality-show roll-out of Kavanaugh’s appointment, but the left will surely still muster its full outrage about the appointment. The left has good reason to fear the Roe v. Wade decision legalizing will be overturned, the Obergefell v. Hodges decision legalizing same-sex marriage will be undermined by conscience exemptions for Christian baker and wedding photographers, and that the District of Columbia v. Heller decision affirming an individual’s right to keep and bear arms will be bolstered, and that Citizens United and Gore v. Bush and all the other decisions that so outraged leftist sensibilities will never be overturned.
None of which bothers us much. We rather like that Kavanaugh has a Bush pedigree, as we much preferred that era of the Republican party, and even the most “burn it down” sort of conservatives have to admit that any Supreme Court appointee  with any credible credentials that Trump might choose got his or her shot because of that hated pre-Trump Republican establishment. As for all those complaints from the left, we’d offer the same rebuttals on behalf of Trump’s nominee as we would for any old nominee any old Republican president might have picked.
Harvard’s notoriously contrarian Law Professor Alan Dershowitz hA lately a Trump apologist about the “Russia thing” but is now alarmed that the Supreme Court will find a constitutional right to life at the moment of conception and thus ban all abortions, as that is indeed the logical conclusion of right-to-life absolutism, and although much of the left is sounding the same alarms we think it’s overwrought. The far more likely outcome is that the Supreme Court will overturn Roe v. Wade, and thus return America to the day before’s law that each of the 50 states could regulate abortion as they chose, and although that that promises and insufferable debate and poses a damned complicated moral issue it’s a clear-cut political victory for the left.
The occasional same-sex marriage will likely continue to happen even with Kavanaugh on the Supreme Court, and with Kavanaugh on the Supreme Court ourt it will be more likely that the occasional bakers and photographers and others will decline to participate, but in both cases we can live with that. We somehow have a rather fancy handgun hidden somewhere in our home, and our plain reading of the Second Amemdment’s not-all-clear language assures us we have every right to do so, but our liberal friends can be reassured we have no intention to shoot them. As far as our ink-stained First Amendment sensibilities are concerned the Citizens United case was about the government’ attempts at prior restraint of a documentary critical of that awful Hillary Clinton woman, and even if there was corporate money involved we thought it a sound decision. That Gore v. Bush decision seemed sound to us at the time and still does, no matter how the current Republican party might hate anything with the word “Bush” in it, but by now even our most bitter liberal friends are largely over it and even pining for the good of days of Bush.
Long before Trump signed on with the Republican party we’d assured our liberal friends that a strict adherence to the Constitution doesn’t threaten liberal values, as the Constitution is still, even by modern standards, a radically liberal document. We like to to point the example of Justice Hugo Black, the ex-Ku Klux Klan leader that iconic Democratic President Franklin Roosevelt appointed in order to appease the white southern racists who were then a key component of the Democratic coalition, and who went on to be a hero of the Supreme Court’s civil rights revolution because yeah, that 14th amendment’s plain language made clear that even separate-but-equal discrimination wasn’t constitutionally permissible, even if the unrepentant racist still thought that it was a damned fool idea.
Even so, we don’t trust anybody these days. We note that Kavanaugh was first appointed by a Bush, and was long opposed by the left, and is now likely elevated to the Supreme Court by the newly reconfigured Trump Republican party, and we have to admit that until the last few days we’d never heard of Brett Kavanaugh. On the whole, though, we’ll pays our money and takes our chances on the guy.
Maybe it’s the impressive Ivy League academic records or the prestigious Bush-era appointments or the impeccable streak of rulings based on the the facts and the law, but Kavanaugh strikes us as the kind of guy who’d be reluctant to overturn that long-ago United States v. Nixon decision that compelled a president to cooperate with a investigation into his various alleged wrongdoings. During his acceptance speech on live television Kavanaugh had some embarrassingly fulsome praise for Trump’a deep and abiding respect for the judiciary — even prior highly-praised-by-the-right appointment Justice Neil Gorsuch admitted he was embarrassed by Trump’s frequent “tweeted” attacks on the judiciary — but once he no longer has to go along to get along we hold out hope a Justice Kavanaugh will confront Trump’s inevitable upcoming legal battles strictly according to the facts and a plain reading of the Constitution.

— Bud Norman

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The Strange Case of the Gay Wedding Cake

On Tuesday the United States Supreme Court heard oral arguments in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, which makes for an interesting argument.
The Masterpiece Cakeshop in Denver  has a reputation for baking and decorating excellent cakes for most occasions, but despite that and the business’s slightly gay-sounding name the sole proprietor and master baker Jack C. Phillips holds to some unfashionably old-fashioned Biblical opinions about homosexuality and other controversial matters. When a homosexual couple asked Phillips to bake and decorate a cake in celebration of their upcoming nuptials, which have been blessed by a decision of the United States Supreme Court, Phillips politely declined the request based on his religious convictions, and thus he wound up afoul of the Colorado Civil Rights Commission and after years of expensive litigation stands before the Supreme Court.
We won’t pretend to understand all the legal concepts involved, especially in the wake of that confounding Obergfell v. Hodges decision giving the Supreme Court’s blessing on same sex-marriages for arguable social justice reasons but with no apparent basis in any plain reading of the Constitution or common law or the past millennia of western civilization, but we more viscerally understand the issue on a personal basis. It’s complicated, of course, but we’re hoping that Phillips and his slightly gay-sounding Masterpiece Cakeshop prevail in the case.
Which is not to say we don’t understand the complicated issues involved in this gay-sounding case. We’re not only old-fashioned Christians but old-fashioned Republicans and strict constitutionalists as well, yet we’re also big fans of poetry and Broadway musicals and genteel manners who have somehow wound up with a suspicious number of homosexual friends over the years, and we have a few lesbians on our block who have proved excellent neighbors, and so far we’ve managed very cvil relations. This gives us hope the Supreme Court will arrive at something as sensible.
A couple of the young women we took an avuncular interest in when they were born have turned out to be lesbians, and one of them has married another woman with the blessings of the United States Supreme Court and her President Donald Trump-loving father, and we have longstanding friendships with a couple of men who have long considered themselves married without the Supreme Court’s blessings, and we’ve also seen quite a few of our friends’ homosexual relationships that didn’t last any longer than any of our heterosexual relationships, and by now we lean on the scriptures about judge not lest ye be judged,  and we wish all our loved ones well. Nor do we judge that artistic baker in Denver who objects to homosexual marriage, though, and we hope the Supreme Court will take a similarly forgiving attitude.
By all accounts, which by now have been long attested to under oath, the baker doesn’t withhold his usual services from homosexual customers. If you’d walked into his shop and declared yourself a homosexual customer wanting to buy a birthday cake for a homosexual friend he would have happily taken the order, and regardless of whether you’re straight or gay he’d have declined a request to bake a Halloween cake on religious grounds. Nothing in our old-fashioned Christian and Republican souls objects to trick-or-treating on Halloween, but both our Christian and libertarian instincts tell us he should have the right.
Those got-durned liberal fashion designers who decline to design dresses for President Donald Trump’s third First Lady deserve the same right, and so does any black baker who declines to decorate a cake with a confederate flag, and so does any homosexual baker who declines the Westboro Baptist Church’s request for a “God hate fags” cake. Outside of the legal arguments and here on the personal level, there’s no way of restricting one person’s liberty without eventually restricting the liberty of someone on the other side of political or cultural divide.
Several of our homosexual friends are close enough that we’ve discussed these issues with them frankly, and they’ve all said that if they wanted to get married with the federal government’s blessing they’d just find another bakery rather than take the case all the way to the Supreme Court. Wichita’s a big enough city they could surely find another baker, as is Denver, and like us they’re not the sorts to make an unnecessary fuss. They have a heightened awareness that a certain level of tolerance for a wide variety  of longstanding views about things is necessary to maintain a civil society, or even a personal relationship with old friends, s9 maybe the Supreme Court will prove just as wise.

— Bud Norman

Moore Is Less in Alabama

Alabama’s special Senatorial election was already crazy enough, but it got even crazier on Thursday with a Washington Post report that Republican nominee Roy Moore is accused of molesting  a 14-year-old girl when he was a 32-year-old prosecutor and pursuing relationships with three other girls aged 15 and 16 around the same time. Given that Moore is running on his long-cultivated reputation as a champion of Christian values, it’s especially incendiary stuff.
Moore unequivocally denies the allegations, and is as entitled to a presumption of innocence as any citizen, but the four now middle-aged women who are publicly making the charges are just as entitled to the benefit of the doubt, and the rules that prevail in the court of public are very different from the ones imposed in a court of law. Most of the callers to the talk radio shows and the commenters on the conservative web sites seem to have instinctively reached their verdicts immediately upon hearing the widely-disseminated news, the late night comics and all but one of the cable news channels and everyone of the leftward side of media did the same, and as if it weren’t crazy enough America’s politics went crazier yet.
If you haven’t been following this classic Southern Gothic novel from the beginning, the Alabama special Senatorial election has been weird from the get-go. In the first place they’re holding an election in December on an odd-numbered year because longtime Sen. Jeff Sessions had vacated his seat to become President Donald Trump’s Attorney General, which has since spun into too many fascinating sub-plots in the broader political reality show to recount here. Sessions was temporarily replaced by a fellow named Luther Strange, who as appointed to the position by Republican Gov. Robert Bentley, who a short time later was forced to resign after pleading guilty to lying about an extramarital affair.
Alabama Republicans were appalled by Bentley’s betrayal of his wife and the Christian values he had campaigned on, so of course they held it against Strange. Strange voted consistently with the Republican caucus, just as Sessions had done, but he won the endorsement of the Senate majority, so Alabama Republicans further resented him for being an establishment sell-out. A crowded field of primary challengers included an unabashed low-tax and lean-government conservative named Mo Brooks that all the talk radio show hosts and what’s left of the “tea party” loved, but Trump disappointed them all by endorsing Strange, and then Trump disappointed Strange when his big rally speech turned out to be all about Trump with a few tepid mentions thrown in, and a solid plurality of Alabama Republicans wound choosing Moore and his full-throated and defiant campaign for Christian values.
Moore was once removed from Alabama’s Supreme Court for defying a federal court order to move a Ten Commandments monument he’d installed on public grounds, and a second time for defying the Supreme Court’s decision legalizing same-sex marriages, and the Republicans in the state largely loved him for that. Moore is also on the record that homosexuality should be illegal, and he’s never ruled out the possibility of the death penalty, and he’s by far the most out-the-closet theocrat we can ever recall being a likely Senator of the United States, but most Alabama Republicans seem comfortable with that as well. He was also found to have been taking a sizable salary and other filthily lucrative benefits from the Foundation for Moral Law that he’d claimed to have been selflessly serving without compensation, but his poll numbers survived that.
Allegations of 32-year-old prosecutor molesting a 14-year-old girl are surely another matter for any God-fearing Alabama Republican, but so far most of them seem to be sticking to their man. They don’t believe anything they might from hear from what all the talk radio shows call “The Washington Compost,” even if the socialist rag does have four named women on the record and another named woman and some 20 other unnamed women who will verify that their accounts match what they were told by the accusers at the time, because they do believe that all sorts of nefarious folks are out to get such God-fearing Republicans as Moore and themselves,
That’s not entirely untrue, of course and alas, but from our seat on the bench in the pox-on-both-their-houses sidelines of today’s politics there’s something about the Washington Post’s accounts that rings true. Far too many of the paper’s “fake news” stories have been later verified by sworn testimony and other incontrovertible evidence to summarily dismiss its reports, and the one about Moore strikes our veteran eyes as especially well-sourced. The story about Moore later luring the 14-year-old to his rural home and removing her outer clothing begins with him approaching the girl and her mother outside a domestic court room where the mother was about to testify in a divorce hearing, then offering to keep watch out for the girl rather than have her hear the likely hurtful testimony, and the paper has the documentation of the event and the fact that Moore was a 32-year-old prosecutor working in the building at the time.
Pretty much everything that can be corroborated about the other three women’s accounts of Moore’s advances also checks out, including the more than two dozen women who vividly recall hearing same story all those years ago, but there’s no way to corroborate what can’t be checked and Moore is denying it all and is entitled as any other citizen to a presumption of innocence in a court of law. In the court of public opinion we’re all entitled to reach our own conclusions about anyone’s character, and so far a lot of Republicans are sticking with their man and sticking it to any Republicans who might have doubts about it.
So far we’re hearing from the talk radio callers and the internet commentators that The Washington Compost probably made these women up, and that if even if they do exist they’re probably some hairy-legged feminists out to get Trump and Moore and other God-fearing Republicans such as themselves, but by now countless media have confirmed these women’s existence and at least three of these seemingly very typical Alabama girls are telling them they’re still supporters of Trump. Some God-fearing Alabama Republicans and self-described conservatives elsewhere are already taking the fallback position that it was a long time ago and nobody’s alleging that anybody went all the way and that the 16-year-old was at least at the age of consent in Alabama, and some have even reached for absurd Biblical excuses. Unless you fully believe Moore’s categorical denial the alleged behavior, and are willing to categorically dismiss the claims four of middle-aged Alabama women who are staking their reputation among the Alabama Republicans they live with and love, and have no apparent reason to risk those reputations on a lie, any other excuse will will be hard to square with Moore’s image as a champion of Christian values.
As much as we believe in the Ten Commandments on a spiritual level, and as much as we despise that Supreme Court decision about same-sex marriage on strict constitutionalist grounds, we always found Moore’s defiant stand on both issues more self-aggrandizing than self-sacrificng. We have Old Testament beliefs about sexual morality but New Testament notions about hating the sing but loving the sinner and it’s brought an abundance of homosexual friends, so we also never went along with that “lock ’em up” stuff can’t imagine anyone throwing the first stone. Something about the guy reminded of of the scripture’s warnings about “the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others,” and the other parts about rendering unto Caesar and obeying civil authorities, and given that Jesus Himself assured Pilate that He had not come to establish His kingdom on Earth we found Moore’s claims that he could pull it off to be a bit both blow-hardy and blasphemous.
What’s left of Alabama’s Democratic Party went and nominated itself a white guy who’s got the career resume you’d expect of Senate candidate and is clean-cut and never claimed to a champion of Christian values even if you did come up with some long-ago dirt on him, but he’s also an abortion rights absolutist right up to the minutes before birth. This is yet another matter for a God-fearing Alabama Republican, and since none of the sex acts that Moore stands accused of were potentially procreative that might carry him to the Senate. At this point there’s little chance of replacing Moore as the Republican nominee on the ballot, and even if he bowed out of the chances of winning a write-in campaign for the hated Strange or the third-place challenger Brooks or any Republican alternative would be iffy even in Alabama.
If the Republicans do win in Alabama it could it hurt it chances elsewhere. Ever since the Reagan days Democrats have run scare ads about the Christian right imposing a theocracy that stones homosexuals and denies abortion even in life-of-the-mother situations, and for the first time they’ll have an elected Republican Senator to make it sound undeniably plausible. Several high-ranking congressional suggested that Moore should pull out of the race if the allegations were true, and within minutes the talk show lines and internet message boards were lit up about the damned establishment bailing betraying the one true faith once again, which seems to suggest that much of the Republican party doesn’t much care even if the allegations are true.
We’re giving those four former Alabama girls who are now middle-aged Alabama women the benefit of the doubt, even as we presume Moore’s innocence, and will leave the rest of to all those Alabama Republicans and Democrats to sort it all out. We don’t see it ending well, though, for Alabamans or any of the rest of us.
— Bud Norman

The Not-So-Quite Grand Old Party

These should be the best of times for the Republican party, what with complete control of the federal government and most of the states, but Tuesday seemed more like the worst of times. The party’s latest effort to repeal and replace Obama proved as futile as the previous ones, the Senate candidate backed by both the party establishment and the anti-established President Donald Trump lost to a full-throated theocrat in an special Alabama primary, and another shoo-in incumbent moderate decided not to make another run for Congress, along with all the other assorted bad news.
No one was surprised by the party’s latest failure in its seven year crusade to repeal and replace Obamacare, which went down without a vote for the same reasons it did on the previous tries. The GOP’s majority is in the Senate is too slim to lose even three votes, there are moderates who don’t like any of the offered health care bills because they’re too austere, conservatives who don’t like any of them because they’re too profligate, and every attempt to modify the bills to appease one faction inevitably offended the other. Each of the bills had something for everyone to dislike, all the opinion polls they were even more unpopular than the hated Obamacare law, and no one in the party could muster much of a sales pitch.
That conspicuous lack of a sales pitch was partly because the Republicans were in too much of a hurry to make one, for no good reason we can discern, but it’s also due to a lack of salesmanship in the party. The Republicans did spend seven years making a strong case against Obamacare, to the point that all the opinion polls showed it was widely hated, and steep insurance premium rate hikes in most markets made it all the easier, but they had less luck pitching the alternatives. They couldn’t talk the public out of liking the provision that insured coverage people with pre-existing conditions or the subsidies that allowed many millions of Americans to get some sort of policy, and since those were the market-distorting features that resulted in those sky high premium rate hikes that made Obamacare so unpopular it was hard to come up with an alternative, much less sell it to a wary electorate.
Neither the moderates nor the conservatives in the party were up to the task, and despite his reputation for salesmanship Trump couldn’t offer any help. During his presidential campaign Trump had promised coverage for every American at greatly reduced price and care that would be so great your head would spin, but he clearly didn’t have a plan that would have accomplished that, and of course no Democrat or Republican or independent knew how to do it, so he was never an enthusiastic supporter of what was on offer. He threw a beer party for the Republicans in the House of Representatives after they passed a repeal and replace bill on a second try, but the later “tweeted” that the bill was “mean,” and except for one little-seen speech on a weekday afternoon his efforts were mostly limited to trying to bully reluctant Republicans into voting for anything he might get on his to sign.
Trump’s salesmanship also fell short in Alabama, where a clear majority of Republican voters chose the state’s former Supreme Court Justice Roy Moore over Trump-backed incumbent Luther Strange in a race that reveals all sorts of internecine Republican squabbles. Strange was the incumbent because he’d been appointed to the seat after longtime Sen. Jeff Sessions was appointed to be Trump’s Attorney General, which has turned to be a complicated matter, and had been a loyal ally to Republican majority leader Sen. Mitch McConnell, whose political action committee donated generously to Strange’s campaign, yet despite these impeccable establishment credentials he was also endorsed during an open primary round of voting by the same Trump who was blaming McConnell and the establishment for all the party’s recent failures. The open primary featured a fellow named Mo Brooks who was so severely conservative that all the talk show hosts and numerous other Trump apologists were touting him, all of whom come right out and griped about Trump’s endorsement, and when Strange and Moore wound up in the run-off they all sided with Moore. The final days of the campaign saw former Trump “chief strategist” Steve Bannon and former Alaska Gov. Sarah Palin, both of whom had proved their populist credentials back when Trump was contributing to Hillary Clinton’s Senate campaign, giving fulsome speeches on behalf of Moore.
Trump’s efforts on behalf of Strange, meanwhile, were less enthusiastic. He tried to convince Alabamans that Strange hardly knew McConnell and was a true fellow disestablishmentarian, but no one was buying that. By now too many rank-and-file Republicans in Alabama and elsewhere loathe McConnell and the Republican establishment even more than they love Trump, and Trump seems to sense this with his usual keen political instincts. He showed up for a 57 minute speech at a raucous campaign rally for Strange last week, but he spent most of it bragging about his popularity and blasting Republican Sen. John McCain and starting a feud with the National Football League that took up most of the news cycle, and in one of the few mentions of Strange he admitted that “I might have made a mistake in endorsing the guy.” He also promised to campaign for Moore if that’s how the election turned out, and although we’re sure he’ll keep that promise it remains to be seen how it will work out for the Republicans.
Moore is the favorite in his special general election against Democratic candidate and former U.S. attorney Doug Jones, if not as heavy a favorite as Strange would have been, but we doubt he’ll play as well as a Republican standard-bear in the other 49 states. In the recent Republican past we have proudly supported the party’s stand that the Judeo-Christian traditions which have done so much to create our enviable western civilization should continue to inform our decisions into the future, and steadfastly insisted that such time-tested principles enhance rather than threaten our freedom and democracy, but we have to admit Moore really is the theocratic Republican that Democrats have always caricatured. He was twice removed from Supreme Court seat, once for defying a federal order to remove a Ten Commandments sculpture from public grounds and the second time for ordering lower Alabama courts to ignore a Supreme Court decision to issue marriage licenses for same-sex couples, and in both cases he made clear that God’s law should supersede civil law, which is pretty much the dictionary definition of theocracy.
We’re the church-going sorts of Republican Kansans who think it ridiculous that anyone would object to the Ten Commandments taking up some small space in the public square, and we had our old-fashioned constitutional originalist reasons for disagreeing with that Supreme Court decision that found a previously hidden right to a same-sex marriage license, and we still don’t think the government should compel anyone to baking a wedding cake, yet we’re not entirely comfortable with Moore. If fate should ever compel us to choose between following either God’s law or man’s law we hope we’ll opt for the former, and we give thanks that hasn’t to us happened yet, but there’s God’s law according to Moore and God’s law according to us and God’s law according to the rest of you, and we’re left here on Earth to sort it out. Our version of God’s law includes verses about rendering unto Caesar that which is Caesar’s, and obeying civil authority, and a Savior who came not to establish His heaven and not on earth, and as crazy as that sounds we invite everyone to share our faith but won’t try to compel anyone to do so.
Maybe Trump will muster more enthusiasm for it. He’s a thrice-married and six-times-bankrupt casino-and strip club mogul who has bragged about all the married babes he’s bagged and said at a religious gathering he’s never felt the need to ask God’s forgiveness for anything, and talked fulsomely about the lesbian and gay and bisexual and transexual communities at the Republican convention, of all places, but he’s somehow big with a lot of the Christians in Alabama and elsewhere and has a keen political instinct. How that will play with the rest of America, of course, also remains to be seen.
Tuesday also brought the news that Tennessee’s Sen. Bob Corker was bowing out of the Senate. He’d had a long and admirably unnoticed career holding off the crazier Democratic ideas and letting down the party on its crazier ideas, and was regarded as one of the party’s wise old hands on foreign policy matters, so naturally he was a frequent target of Trump’s “tweets.” His departure provides an opportunity for a more Moore-like or Trump-friendly candidate to win the Republican nomination, and be a slightly-less-favored front-runner for the seat, but it’s hard to say that would play elsewhere.
There’s still a chance for the party to make the best of it. Surely there’s something better than Obamacare that the Republicans can come up with, and even if it doesn’t cover everyone at lower prices and is so great it makes your head spin a regular order of hearings and deliberation and compromise and public protests to match what the Democrats have been staging could prevail. Those time-tested Judeo-Christian principles will surely survive Moore’s attempts to impose them on a wary populace. There’s speculation that Corker is bowing out to set up a primary challenge to Trump, and that will prove interesting.

— Bud Norman

Summer and the Supremes

Way, way back in our wide-eyed youth we had a swell summer job as messengers for the Supreme Court of the United States, and although most of it was spent lazily in the court’s summer adjournment we got to be there for the big day when it announced its final decisions of the session at the end of June. At this point we can’t recall what any of the cases were about, and are too lazy to look it up, but we well remember how very historic it seemed to our young and hayseed sensibilities at the time.
The latest version of the Supreme Court headed off to its summer vacation by issuing three notable decisions, and we took a livelier interest in that. One had to do with President Donald Trump’s executive order that either restricts or limits or bans travel from six Muslim-majority countries, depending on what you want to call it, and two others that concerned the religious liberty of the dwindling minority of traditional Christians in America. For the most part we were pleased with the results, but noticed enough wiggle room in the majority opinions to suggest that none of these issues have been definitively settled. Most Supreme Court opinions are like that, as we’ve noticed over the past many decades of avid court-watching.
Trump probably isn’t bored with winning yet, but he can claim at least a partial victory in the case of Trump v. International Refugee Assistance Project.
As for the facts of the case, the plaintiff had challenged the defendant’s constitutional authority to impose restrictive new rules regarding travel from the aforementioned six Muslim majority countries. Each of those countries contains a troublesome number of potential radical Islamist terrorists, and the Constitution’s plain language grants the chief executive broad powers to restrict entry to the United States for almost any old reason he chooses, but the underlying statutory authority also mentions some prohibitions on religious discrimination, and the First Amendment has been broadly interpreted to back that up. The plaintiffs argued that Trump’s loudly and clearly stated campaign promises to ban all Muslims from entering the United States for any reason demonstrated the discriminatory intent of the new rules, the defendant’s counsel argued that the rules didn’t amount to a ban at all, but rather were reasonable restrictions and limitations, the defendant himself then “tweeted” that, no, it darned sure was a travel ban, and all the lower courts in all the liberal jurisdictions had found for the plaintiffs.
The highest court found by a surprising unanimous decision that pretty much any old president does indeed enjoy broad powers granted by the plain language of the constitution to restrict entry to the country for any old reason he might choose, and for the most part it lifted the stays that had been imposed by the lower courts. Even when the president is Trump this pleases our originalist Republican souls, and although we don’t doubt he he does have an Islamophobic bias the restrictions on those specific locations seemed reasonable even to the rather Islamophilic administration of President Barack Obama.
Some limits remained on the president’s broad powers to restrict entry to the country, however, and the court conspicuously decided not to weigh in on that matter of whether Trump’s campaign promises proved an intention of religious discrimination, and whether that matters or not, and it seems clear that the first executive order Trump issued would have fared far worse than what he called the “watered-down politically version” that the court eventually ruled on. The first one arbitrarily revoked already-issued green cards even to such well-vetted entry-seekers as translators for the American military who were fleeing for their lives, and was a political as well as a legal disaster, and even Trump was careful not to use the word “ban” when crowing about his victory, which resulted in a better and less controversial policy than the one he wanted.
The high court has put off until next fall any consideration of whether the crazy things Trump sometimes says about his arguably reasonable policies should have any legal bearing, and that will be a decision to watch for. An astute writer for the Venerable National Review compellingly argues that it would be unprecedented for the court to consider a president’s rhetoric in assessing his actions, but we’re sure other astute writers at that publication will admit Trump’s rhetoric is also unprecedented, and there’s no telling how even the most hidebound Republican originalist jurist might come down on the decisions that are no doubt looming during the Trump presidency. That travel ban was supposed to be for the 120 days Trump needed to impose “extreme vetting” on travelers from those countries, and he claims that they’re now in place, although no one can explain what they are, so we can well imagine the court might just leave those unresolved until something more relevant comes along.
There was the same sort of ambiguity in the case of Trinity Lutheran Church v. Comer, although it was also mostly a win for the good guys as far we’re concerned. The plaintiffs, who operated a religiously-affiliated children’s school in Missouri, alleged that the defendant, a bureaucrat in the state’s educational bureaucracy, had violated their First Amendment rights by declining to pay for some safety-enhancing improvements to its playground. By another surprising margin of seven to two the court found that religious schools providing a good education to tax-paying citizens who also paid for the public schools are entitled to the same taxpayer support as the public schools that are generally providing a lesser education. The decision included some of the same legal weasel room and also deferred broader questions to another date, but it had the effect of doing away with a long discredited but still on-the-books anti-Catholic law, and got two of the more liberal Catholics on the court on board with the Lutherans, so we count it as a win.
In the other big decision the Supreme Court merely decided that come sometime after next fall they will consider the case of Masterpiece Bakeshop v. Colorado Civil Rights Commission. The plaintiffs allege the defendants fined them in the violation of their First Amendment for declining to bake the cake for a same-sex wedding, so that should be a big story sometime next fall. We have friends who are married to people of the same sex, and we have friends who choose for reasons of conscience not to participate in that, so far as we can tell they are all peacefully coexisting, in some cases quite convivially, so we hope the Supreme Court will choose to not interfere with this mostly happy state of affairs, but these days, when even the Republican president is chiding the Republican convention for its reluctance to embrace Gay-Lesbian-Bi-Transgender-and-Questioning causes, there’s no telling.
Another big hubbub on the final day of the Supreme Court’s session was about the possible impending retirement of Justice Anthony Kennedy, who’s currently the last of the swing votes that decide those five to four decisions, and at least one of those reliably liberal justices surely can’t hold out much longer, so Trump seems likely to influence future decisions. We liked Trump’s first pick, who voted for the defendant in that Trump v. International Refugee Assistance Project case, expect he’ll be obliged to appoint similarly originalist justices in the future, and hope they’ll put the constitutional brakes on his craziest rhetoric at some point in the future.
It all starts up again on the first Monday in October, as we still remember from the tours we led as part of our Supreme Court messenger duties, and in the meantime we’ll follow baseball and wait to see how it all turns out.

— Bud Norman

Popular Culture and Politics and Same-Sex Restrooms

Due to our upcoming brief appearance on the local amateur stage, the rehearsals for which have been taking up way too much of our time, we’ve lately been in contact with younger people. Worse yet, we’ve been in contact with their music, which is as awful as any more seasoned music-listener would expect, and also the similarly suspect political views that go along with it.
We’ve still found enough time to in the day to note a recent spate of stories on the internet about the alleged rights of self-identified transgendered people to choose the public restrooms of their choice and how people who object to same-sex marriages don’t have any right to decline to participate in same-sex wedding ceremonies, and we’ve noted how what’s left of the popular culture has responded. Big time rock stars are canceling gigs in states that refuse to toe the currently acceptable line on such matters, including some that pre-date even our aging selves, and we glumly acknowledge the culture has been declining for a while now. Our musical heroes and heroines from the good old days never had to confront such questions, and who knows where the likes of Little Richard of Chuck Berry might have weighed in if he’d been asked, but we still fondly recall an era where none of this even came up.
The cultural rot has been occurring so long now that even we recognize most of the names. Bruce Springsteen was a big deal back when we graduated from high school, and we still like that “Born to Run” song about the highways jammed with broken heroes on a last-chance power drive, but we can only roll our eyes at the news that the well-heeled one-percenter is declining a gig in North Carolina because he doesn’t like the state’s rule that prohibits people from penises from using a women’s public restroom in the state. We’re also old enough to remember the 15 minutes of fame that someone named Byian Adams had, and to note that he’s canceling a gig in Mississippi to make sure that some Baptist baker there is coerced into catering a same-sex wedding. Even Ringo Starr, one of The Beatles, who date from our early childhood and who actually were pretty damned good, is eschewing dates in North Carolina for its refusal to force those damned Baptist bakers to bake that same-sex wedding cake.
One of our old and non-rock-star-or-theatrical friends recently had some dinner and drinks with us, and he commented that most of his homosexual friends seemed to be faring well enough and that he didn’t know any transgendered people who were having any problems with the local accommodations, and that he couldn’t understand what all the fuss was about. We also don’t know any transgendered people who are having problems with the local restroom accommodations, and although our friend has a son we know some fine people with daughters that would rather not have them encountering some guy who claims to be transgendered in the public accommodations, and it seems danged strange we have to be even considering the question.
The young and relatively young people we’ve been running into lately seem a reasonable lot, though, by and large, and we think we can reach some reasonable agreement on these matters, no matter how egregious their musical tastes might seem.

— Bud Norman

Another One of Those Off-Years

Several off-year elections were held around the country on Tuesday, and on the whole they went well enough for the Republican party that the respectable press is fretting for the Democrats. The Associated Press gamely tried to claim that the results offer “Warning Signs for Both Parties,” but The Washington Post glumly conceded that “From coast to coast, conservatives gain big victories,” and the once venerable Atlantic Monthly went so far as to worry that “Liberals are Losing the Culture Wars.”
The AP’s assessment is easily refuted by the Post’s more factual post, which notes that Republican Matt Bevin won a poll-defying victory in Kentucky’s gubernatorial race, Democrats failed to pick up a seat in Virginia’s Senate, a legalized marijuana initiative in Ohio and an “equal rights” referendum in Houston associated with the Democratic party both failed, and even in the far-left Democratic stronghold of San Francisco the Sheriff who had steadfastly defended the city’s “sanctuary” status was voted out. The Atlantic Monthly’s dire warning might prove premature, but Republicans have reason to be hopeful.
Bevin’s unforeseen-by-the-pollsters victory in Kentucky came in spite of his figurative and photographed literal embrace of the County Clerk who created a national contretemps by refusing to issue same-sex-marriage licenses, and perhaps even because of it, and we don’t doubt that there’s still some resistance to the Democrats’ enthusiasm for the brave new homosexual world. That Ohio initiative to legalize marijuana involved a convoluted crony capitalism deal that would have granted a monopoly to a group of wealthy investors who were backing the measure, and we’re certain that a large number of potheads who would have supported a more straightforward legalization effort wound up voting against it as a result, but surely some anti-pot sentiment still lingering from the days of Jack Webb’s rants on “Dragnet” was also part of the landslide opposition.
The Houston Equal Rights Ordinance, so named for the resulting “HERO” acronym, seems to have gone down to defeat because the finer print allowed any man claiming to be a woman to hang around women’s restrooms, and the overwhelmingly black and Latino and otherwise reliably Democratic voters within the city limits decided they weren’t all that wedded to such an abstract notions of human rights. That Sheriff in San Francisco reportedly had some unsurprising ethical issues that also contributed to his defeat, but we’d like to think that even in his hippy-dippy jurisdiction there’s some resistance to the idea that career criminals should be able to continue their careers just because they’re also in the country illegally, and that in more sensible parts of the country the Democrats are on the unpopular side of that whole issue.
Still, the Associated Press can plausibly go on about demographics and the Democrats’ continuing domination of those densely populated blue spots on the electoral map, and the turnout in those off-year elections is not what you’ll see in a presidential year when even the most uninformed voters have some misinformation that will send them to the voting booth. We can read nothing from such off-year tea leaves, and can only hope that it indicates the coalition of libertine white liberals with the more socially conservative and far more numerous black and Latino Democrats is proving hard to sustain. All the people who vote in off-year elections can be counted on to vote in presidential elections, and perhaps the the next one will add some of those uninformed voters, so one can be hopeful.

— Bud Norman

The Strange Matter of the Rent Boy Investigation

At the risk of sounding not only straight but also square we will admit that we had never heard of Rentboy.com until the Department of Homeland Security raided its offices and arrested its chief executive and several other employees on charges of prostitution. According to the ensuing news reports Rentboy.com is a nearly twenty-year-old web site where homosexual “escorts” advertise their services, which made the news of legal difficulties seem peculiar.
Although we’re in favor of strict enforcement of any laws against prostitution, whether of the heterosexual or homosexual or variety, or some other variety we’re not yet aware of, it’s hard for us to see why this is a matter of concern to the Department of Homeland Security rather than the police in the alleged perpetrator’s jurisdiction. A spokesman for the Immigration and Customs Enforcement Agency, which was also somehow involved the arrests, explained that “As the investigative arm of the Department of Homeland Security, ICE is responsible for the enforcement of laws that promote the legitimate movement of people, goods and currency in domestic and foreign transactions,” but he didn’t explain why a prostitution ring is not a matter better left to the local or state authorities. The charged company is apparently located in a prime part of New York City, in a state and locality that probably have more pressing problems for their law enforcement agencies to deal with than a web site advertising the services of homosexual “escorts,” and given the political influence that homosexuals have in those areas it’s all the more unlikely that the cops would ever get around to raiding the joint, but this only raises the question of whether this is really something that threatens the homeland’s security.
What seems most peculiar, though, is that the federal government, of all people, have apparently picked a fight with the homosexual portion of the country. We guess that most of our homosexual friends share our distaste for prostitution, but an organized segment of the homosexual rights movement seems to believe that the right to rent a boy, or at least a boyish young man, is surely embedded somewhere in all those penumbras of the Constitution, and lately the federal government and the culture at large has been inclined to go along with whatever such organized segments of the homosexual rights movement insist upon. Same-sex marriage has not only been legally enshroud but rigorously imposed on even the most recalcitrant County Clerks and old-fashioned bakers and wedding photographers, the surgical mutilation of human genitals is celebrated on magazine covers and sports network shows, and the White House has been bathed in the pastel colors of the rainbow flag. An odd time, then, for the same federal government to crack down on a web site that facilitates consensual homosexual activity.
These days an observant news-reader will naturally go in search of some political explanation for what the federal government is doing, but in this case there doesn’t seem to be one, which is also peculiar. Given that heterosexual men on the whole are every bit as libidinously irresponsible as homosexual men we assume there are numerous similar web sites advertising the services of female “escorts,” and they still have a broader potential audience than a similar homosexual site, so of all the possible targets it’s hard to see why the feds would want to pick on Rentboy.com. Every time some bureaucrat does something we assume that it’s so he can proclaim that he is, indeed, doing something, but we can’t think of any reason that an executive branch bureaucrat ultimately responsible to President Barack Obama and his Democratic Party would be annoying libidinously irresponsible homosexuals.

The folks at Rentboy.com are arguing in the press that they only advertised their clients’ “time,” and not anything that might reasonably construed as sexual, and this might or might not prove a persuasive argument in a court of law, so we’ll keep on an eye on the outcome. Our interest in homosexual escorts is nil, but we can’t quell our curiosity about why the federal government is taking such an interest in the matter.

— Bud Norman

The Conventional Wisdom and Its Pitfalls

One should always be skeptical of the conventional wisdom, or at least occasionally reconsider it. Not so long ago it was hard to find a poll or pundit best-selling non-fiction publication that didn’t proclaim the Republican party’s opposition to unrestrained illegal immigration and discomfort with ethnic identity politics in general and certain queasiness about abortion and noticeable reluctance to embrace same-sex marriage would lead to its demise, what with the changing demographics and the hip young voters and the arc of history bending toward liberalism and all, but for the moment all of these issues seem to be working against the Democrats.
One day after the Republicans in Congress held hearings featuring the heartbreaking testimony of several Americans whose beloved family members have been killed by illegal immigrants, President Barack Obama expanded his executive actions to exempt an estimated 80 percent of the nation’s illegal immigrants from the threat of deportation. The president’s actions were explained in the usual terms of compassion, of course, but the lack of compassion for those murdered and rape and robbed by the more unsavory of those illegal immigrants has not gone unnoticed. Certainly not in Texas, where the Department of Public Safety has counted 611,234 crimes, including 2,993 murders, committed by illegal aliens since Obama took office, dreary enough numbers that are understated because they only include those illegal aliens who were previously fingerprinted by state and federal authorities. Among the national total of people killed by illegal immigrants is the young Kate Steinle, who was shot and killed while walking in the “sanctuary city” of San Francisco by an illegal immigrant with multiple felony convictions, and although no one in the administration has even spoken her name, except for a Department of Homeland Security official who mispronounced it, the president has announced his intention to veto a bill that would withhold federal funds from the “sanctuary cities” that protect the likes of her murderer. The polls and pundits and best-selling non-fiction publications will be hard-pressed to explain how the Democrats derive any advantage from this.
So far the main beneficiary seems to be Republican contender Donald Trump, the real estate mogul and reality-show star and noxious blowhard, whose outspoken and wildly overstated insistence that every illegal immigrant has murderous and rapine intent has drawn all the media attention and thus propelled him to the top of all those questionable polls in the Republican nomination race, but we expect that some other candidate with similar but more carefully spoken views will eventually prevail and enjoy the same political benefits. Throw in the effect that illegal immigration is almost certainly having on the wages of low-skilled and unskilled workers, the added strain on an already overwhelmed social welfare system, and the inevitable consequences of modern liberalism’s insistence that the broader society assimilate to the new arrivals rather than the other way around, and the Democrats, who have lately been talking a lot about the wages of unskilled workers and the need for a more generous welfare system and communitarian values, seem to have chosen the weakest of all possible positions on the issue.
There’s always the race issue to be played, of course, but that’s also lately become more complicated. Those low-skilled and unskilled laborers whose wages are depressed by illegal immigration are inordinately black, and several of the families who gave those heartbreaking testimonies about their loved ones who were murdered by illegal immigrants were also black, and the lily-white contenders for the Democratic nomination are already having a hard time dealing with a “Black Lives Matter” movement that will boo a candidate off a stage for suggesting that other lives matter at all, and given the temporary racial make-up of the country it’s hard to see how the Democratic Party’s attempts to divide the country will add up to an electoral majority. Throw in the Democrats’ staunch defense of affirmative action policies that punish Asian-Americans for their education efforts, along with the economic and quality-of-life effects their policies have on native-born Hispanics and blacks as well as whites, and Donald Trump won’t be the only the Republican contender savvy enough to question the conventional wisdom.
Meanwhile, the country remains as divided as ever on the question of abortion, and the hidden-camera accounts of Planned Parenthood officials sipping wine and supping at fine restaurants as they negotiate the price of aborted fetuses can only push public opinion in the Republicans’ direction, and the rest of those social issues that were supposed spell the Republicans’ demise are also working out contrary to the conventional wisdom. Three separate polls taken since the Supreme Court’s decree that same-sex marriage was somehow intended by the 18th Century ratifiers of the Constitution, just like the right to a first trimester abortion, all show a decline in support for the decision as well as a marked increase in support for the right of businesses to refuse participate in same-sex nuptials. The Democrats can claim the cause of tolerance, but until they’re willing to tolerate any dissent on these issues the claim will be unconvincing.
The Republicans can still easily lose the advantage, especially if they nominate a real estate mogul and reality-show star and obvious buffoon such as Trump, but it won’t be because they’ve stuck to principles more timeless than the conventional wisdom.

— Bud Norman

The Verdict is Already In

The headline writers at The Washington Post are worried that “President Obama’s legacy is increasingly in legal jeopardy,” but we’re worried that they’re wrong. Our faith in the judicial system has never recovered from that awful Obamacare decision, and we can’t imagine anything it might do to further tarnish the president’s sorry legacy.
Still, there’s some fun in watching the president and his media allies fret that the courts will impose some restraints on his ever-expanding powers. There’s no guarantee that they will, given that four of the Supreme Court justices seem predisposed to agree with Richard Nixon’s infamous argument that “If the president does it, that means it’s not illegal,” at least in the case of this particular president, and there’s always at least one Republican appointee who is prone to go wobbly, but on several fronts the legal logic against the president is so compelling that it will at least be amusing to read the rebuttals.
The latest legal imbroglio concerns Obama’s executive orders on illegal immigration, which even he repeatedly insisted he has no constitutional authority to write until his re-election was won and he suddenly decided he did after all. Now the former adjunct professor of constitutional law’s lawyers are arguing that prosecutorial discretion allows him to stop enforcing immigration law, but two judges on the Fifth Circuit Court of Appeals out-voted a dim-witted third member of a panel to deny an earlier stay of injunction against the executive orders, and offered a convincing decision that “prosecutorial discretion is broad but not unfettered,” and that the orders are “more than non-enforcement: It is the affirmative act of conferring ‘lawful presence’ on unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.” Such reasoning won’t sway those four Justices inclined to side with Obama when it inevitably winds up in the Supreme Court, probably around election time, but we hope it might have some stiffening effect on one of those potentially wobbly Republican appointees.
There’s also a chance, at least according to those worried media allies of the president, that the Supreme Court will strike a blow against Obama’s big domestic triumph in the already embarrassing King v. Burwell case. That’s the one challenging the subsidies for Obamacare being offered through federally-run health insurance exchanges, on the grounds that the law clearly states that the subsidies are only available to to those enrolled through state-run systems, and because 36 of the states reasonably chose to have nothing to do with the Obamacare monstrosity the decision will have significant consequences. The former adjunct professor constitutional law’s lawyers are arguing that to insist a law be enacted as written is picky-picky-picky, and that no one should expect a 2,000-plus page bill to be free of significantly consequential errors, and never mind those statements by the bill’s “architect” that the language was clearly intended to coerce states to go along, and that, c’m’on, it’s Obama. This will probably prove persuasive to at least one of those wobbly Republican appointees, although we can hope that Chief Justice John Roberts might seize the opportunity to repent for his vote in that awful decision on the general constitutionality of Obamacare, and in any case there will be some black comedy in the arguments and a cautionary tale about passing 2,000-plus page bills that fundamentally transform a sixth of the economy and don’t promise to be free of errors with significant consequences.
The Washington Post is also worried that the Supreme Court might interfere with Obama’s noble attempts to halt the rise of the oceans and heal the earth through Environmental Protection Agency regulations on coal-fired power plants’ mercury emissions, and that they might conclude the authors of the constitution and the Republic that ratified it didn’t intend a right to same-sex marriage, but these seem rather inconsequential to the president’s all-important legacy. The combined powers of the EPA and Obama’s messianic charisma can’t stop China from frying the climate, even if you believe all that global warming alarmism, and Obama was so late to the same-sex wedding fad that he won’t be able to take any credit even if the Supreme Court does decide that it was exactly what James Madison and the rest of those dead white males had in mind all along.
Those Washington Post headline writers should take some comfort in the Supreme Court’s recently acquiescent history, but they shouldn’t hold out any hope for Obama’s legacy. The best-case scenario for Obama is that he’ll forever be remembered for inviting a wave of unskilled third-world immigrants that further overwhelmed an exhausted social welfare system, as the eponym of a law that raised health care costs and reduced health care quality, as a narcissist who thought he could turn back the tide, a latecomer to the same-sex marriage fad, and the man who won the argument that it’s not illegal if a president does it.

— Bud Norman