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Masterpiece Cakeshop v. Modernity

The Supreme Court of the United States has ruled that a Colorado man named Jack Phillips does not have to bake a cake for a same-sex wedding. Justice Anthony Kennedy’s seven-to-two majority decision is so carefully and narrowly worded that it’s not entirely clear if everyone else is similarly at liberty, but we’ll chalk it up as a win for religious freedom and freedom in general.
Although Phillips’ does not routinely refuse the services of his Masterpiece Cakeshop to homosexual customers, he did politely decline a homosexual couple’s request for a wedding cake because of his Christian belief that marriage is a union of one man and one woman. Until recently that definition of marriage had been largely unquestioned in western civilization for more than two millennia, and until a relative blink of an eye ago even the likes of President Barack Obama had the same opinion, even now there are still a very large number of people who hold that view, and a fair-minded observer would admit that the social consequences of such changes being so hard to predict there’s still a chance it will ultimately prove wise.
Even if Phillips is wrong, we figure that’s his right. If the Colorado Human Rights Commission can compel him to bake a cake in violation of his religious beliefs, we shudder to think what else an American citizen might be compelled to do. In his decision Kennedy rightly noted that the CHRC seemed to regard the past two millennia of mainstream Christian belief as rank bigotry akin to the Ku Klux Klan’s racist terrorism, and rightly regarded that as an obvious assault on religious freedom, but in doing so he left open the possibility that other human rights commissions could persecute other traditionalists if they do so more politely. Modernity’s assault on the Judeo-Christian foundations of western civilization will surely continue, but for now only two members of the Supreme Court are on record saying that a Christian baker has to bake a gay wedding cake.
That homosexual couple has a right to get married, according to a Supreme Court decision penned by the same Kennedy, and it naturally follows they have a right to buy a cake to celebrate the occasion, but we don’t see why they have any right to force Phillips to bake it. They live in a populous part of Colorado that surely has plenty of bakeries happy to accept their business, and they seem to have turned Phillips into the CHRC in order to punish him for his beliefs and lifestyle, and the CHRC sure did seem to intent on criminalizing those still widely-held beliefs and that common lifestyle. We wish that homosexual couple a happy marriage, but we expect that in the long run they’ll be better off if the government doesn’t get back in the messy business of punishing unfashionable beliefs and alternative lifestyles.
There’s a nutcase cult up in Topeka’s that’s notorious for anti-homosexual protests at funerals and other private occasions, and if they ask some homosexual baker in that town full of desperate-for-business bakers to decorate a cake with their infamous “God Hates Fags” slogan we think that baker has every right to decline the offer. For now the culture wouldn’t tolerate it, and the forces of modernity have even dragged a Christian baker before the Supreme Court and found two Justices who would compel the poor fellow to a bake a cake, but not so long ago in our lifetimes even the New York City cops were raiding gay bars and the consensus of the American Psychiatric Association was that homosexuality was a mental illness. These things can change in the relative blink of an eye, we’ve noticed, and at this point we think it best that tolerance prevails.
We have a lot of Christian and quite a few homosexual friends here in Wichita, and naturally there’s some overlapping on the Venn diagram of our social circle, and of course they all have their own particular opinions about all of this. Happily, they all somehow coexist. Most of our Christians friends have jobs that don’t involve same-sex marriages, and if they did many of them probably decline the work, but none of them are waving any “God Hates Fags” signs at the few same-sex weddings around here and they try their best to be unfailingly polite to everyone they meet in the course of their jobs. Some of our homosexual friends are pretty outspoken about it, but even the most political of them have been bullied and wised-up and worn out enough they would much rather find another bakery rather than drag some pre-modern Christian neighbor all the way to the Supreme Court.
At this point we’re all living an alternative lifestyle,from somebody’s perspective,  and none of our beliefs can possibly keep up with the ever-sharpening blade of the cutting edge of bien pensant opinion, so we figure we’ll just go about business and hope that as usual most people do the same. We hope that Phillips fellow returns to a thriving business at his Masterpiece Bakeshop, and that the homosexual couple has a happy marriage and realizes how lucky they are everyone involved was able to go about their business.

–Bud Norman

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Placing a Bet on Sports Gambling

The sports pages offered no refuge from politics on Monday, as the big story of the day was a Supreme Court decision overturning the 1992 Professional and Amateur Sports Protection Act, a federal law that prohibited states other than Nevada from legalizing and regulating and benefitting from betting on athletic contests. All the sports scribes expect it will have a significant effect on their beats, and we’d wager they’re right.
The Supreme Court’s decision is sound, at least from our political and jurisprudential perspective. Dealing with sports betting strikes us as one of those powers not delegated to the United States by the Constitution, and the tenth amendment specifically “reserves those powers to the states respectively, or to the people.” This has long proved wise, as these sorts of things are generally better handled by the states, or better yet by the people.
Still, we hope that most of the states will refrain from legalizing and regulating and cashing in  on the sports bookmaking racket. So far the only state already set to do so is New Jersey, which brought the lawsuit to the courts, but Delaware, Mississippi, New York, Pennsylvania and West Virginia are expected to soon follow, and there are bound to be a lot more later on. It’s going to take a lot of lobbying to make it happen here in Kansas, which long resisted the few small Indian casinos that have recently popped up outside the most populous cities, but it could happen eventually.
Opposed to New Jersey in its protracted lawsuit were the National Collegiate Athletic Association, the National Football League, the National Basketball Association, the National Hockey League and Major League Baseball, all of whom regard sports gambling as a threat to their businesses. Although the friendly side bet between fans probably enhances interest in their offerings, and all those office pools have made the NCAA’s annual basketball championship tournaments something of a national mania every March, the sports moguls rightly worry that with bigger bucks on the seedier elements on the sporting scene’s fringes will have an incentive to pay off players and fix the games. Except for Vince McMahon’s pro wrestling freak show all the big-time sports depend on a perception that their games are fair contests between teams trying their best to win, and the occasional point-shaving and game-fixing scandals that have afflicted all of them at one time or another have always found it bad for business.
Which is not the only way we’ve noticed that betting takes some of the fun out of sports. Many’s the time we’ve seen a die-hard fan watch his beloved team win a big game, but instead of exulting in the victory he fumes that they only won by 19 points and didn’t cover the 20-point spread. Their teams are less beloved when on a losing streak, too, and they seem not to notice the aesthetic beauty of a winning streak. Sport is supposed to be a a welcome break from serious matters, and it inevitably loses that appeal when your baby’s new pair of shoes are on the line.
Gambling is one of the few vices we’ve never been susceptible to, so we’ll not cast the first stone against anyone who puts a few bucks down on the hometown heroes, but its increasing ubiquity does seem to contribute our general cultural rot. It’s a sucker’s game in the long run, like so much of our increasingly coarse culture, and it holds out the same impossible promise of something for nothing that permeates our increasingly corrupt politics. We’re willing to let the people decide for themselves how to deal with sports betting, but we’re always uncomfortable with governments getting involved.
Governments are established as a monopoly on the protection racket, after all, and that should suffice to fund their many good works, so we can’t see why they should move in on the gambling rackets. There’s a strong short term argument that some people are going to gamble in any event, what with human beings being such suckers, and that the money should be going to the government’s many good works rather than your local bookie and kneecapping collector, but in the longer run gamblers always lose. Some people are going patronize prostitutes in any case, and ingest all sorts of dangerous drugs in any case, and indulge in all sorts of other socially unhealthy behavior in any case, and there’s same short term argument to be made in every case that the government’s good works might as well get their cut of the action.
In the longer term, governments tend to be just as as greedy as your local bookmaker and as ruthless as his kneecapping collector, or your neighbor pimp or dangerous drug dealer or newfangled cult leader, but they still somehow have the ability to give not only the imprimatur of respectability but well-funded advertising campaigns to activities that previous generations of democracy considered socially unhealthy, and the odds are always against that working out. A few decades ago the state of New Jersey laid down a huge bet on now-President Donald Trump’s now-defunct garish casinos and strip clubs, and it proved as prescient as a bet on Trump’s now-defunct New Jersey Generals of the United States Football League, which was not a party to the recent Supreme Court-settled lawsuit because it is also now-defunct. If the feds or the states or any government tries to hone in on the prostitution and drug and other assorted rackets, they’ll eventually wind up with the same problems.
Still, we think the Supreme Court was wise to decide that according to the Constitution the states and the people are free to make their own mistakes about these matters, and we only hope that most of the states and most of the people choose as wisely.
If you do place a sports bet at your local state-funding bookmaker, though, we’d advise that you don’t bet on college kids, take the spread on the pro underdog that’s facing a heavy favorite at the end of a long road trip, and by all means take the spread on an any underdog that’s still fighting for a playoff spot against a team that’s already clinched a high seed. Over many years we’ve taken a purely intellectual interest in the sports lines, and have long noticed that we could have made a fortune on these insights.
By the way, the Boston Red Sox lost by a mere run to the plucky Oakland Athletics on Monday, putting our beloved New York Yankees temporarily in sole possession of the American League East lead and baseball’s record by half-a-game. That should have been the biggest sports story of the day, and we didn’t even have any money riding on it.

— Bud Norman

In Praise of America’s Least-Popular Man

The news has slowed down in the frigid holiday air, as it always does and always should, so we’ll seize the opportunity to say a few kind words about Kentucky’s Republican Senate majority leader Mitch McConnell. He’s probably the most hated politician in America, which makes our contrarian selves all the more warm to him, and we’re sure he could use some holiday cheer.
All the Democrats hate him, of course, because he’s not only a Republican but also the party’s Senate majority leader and thus bears the most blame for everything the Republicans did to thwart President Barack Obama during the eight years he was in office. Most Republicans also hate him, though, because all the talk radio hosts and the opinion journalists on Fox News have convinced them that McConnell and the rest of the dat-gummed Republican establishment didn’t do nearly enough thwarting. All the independents have a healthy suspicion of anyone from either party, so they also don’t bolster his horrid poll numbers.
We take a more pragmatic measure of man’s public service, on the other hand, and by our accounting McConnell’s done about as well as can be expected.
All those Democrats should be grateful for McConnell’s restraints on the Obama administration. For the first two Obama years there were big Democratic majorities in the House and Senate, and there wasn’t much McConnell could do about it when they went for such big moves as Obamacare and that trillion-dollar “stimulus package” and various other budget-buusting do-goodery, which of course led to the not only a Republican majority in the House but a “tea party” majority at that. With the Democrats’ whittled-down Senate majority vulnerable to shrewd filibustering that soon led to half-trillion budget deficits of the George W. Bush administration, and although the Democrats lost the Senate and a lot of governorships and statehouse and county commission seats we suspect it would have been worst if the Democrats had been able to finish their to-do list.
All those Republicans, especially the Trump-loving ones who get their news exclusively from Fox and talk radio, should also give McConnell his due. There wasn’t much McConnell could do to stave off Obamacare and the “stimulus package” in those darks days of the Obama-Reid-Pelosi regime, but he somehow managed to convince the notoriously individualistic Republicans to stand together to deny those abominations a single Senate vote of bipartisan support. Even when the Republicans won a Senate majority to go along with a House majority there wasn’t much McConnell could do about Obama signing executive orders, but McConnell did play a key role in preventing hard-to-undo legislation and forcing Obama to sign executive orders that could just as easily be undone by any old future Republican president, and he did take a lot of heat for cooling a seat on the Supreme Court until any old future Republican president could make the appointment.
Those Trump-loving sorts of Republicans like to boast about all the Obama-era executive orders Trump has undone and that great Supreme Court pick he made, but they’re also the first to spit and cuss at the mention of McConnell’s name. They seem convinced that only Trump would have done what any old Republican president would have done, and that up until Trump the Grand Old Party was q quisling.
All those independents with their healthy of suspicion of anyone from either party should also acknowledge some gratitude to McConnell. He was a restraint on the excesses of the Democratic party during the Obama years, and in subtle but significant ways he’s also been a restraint on the worst excesses of the Trump years. He somehow managed to to herd all the Republican cats in the Senate to get on the big tax cut bill Trump wanted, which is probably going to bust the budget but maybe not to Obama-Reid-Pelosi levels, and he’s put all but Trump’s most egregious judicial nominees on a quick approval process, but he’s also had a more centrist influence. So far the Senate hasn’t authorized anything more than symbolic sums for Trump’s fantasy of a great translucent wall across the the Mexican border, the body remains committed to finding the truth about the “Russia thing,” and whatever quibbles you might have about his policies McConnell you will have to admit McConnell has carried them out in a quite gentlemanly way without any unnecessarily insulting “tweets.”
These days our healthy suspicion of anyone from either party is such that we find ourselves rooting for the effete establishments of both. We’re rooting for those Democrats who won’t go whole hog for Bernie Sanders-style socialism, rooting against the Trumpist Republicans, and hoping that the likes of Mitch McConnell and the rest of the gat-dummed establishment will stick around a while.

— 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

A Brief 100 Days Passes By

Tempus fugit, as the Romans used to say, and these days tempus seems to fugit faster than ever. All the papers are noting that this weekend will mark 100 days of the President Donald Trump, but to us it seems just yesterday that he was taking the oath of office and delivering his inauguration speech about how all the “American carnage” was ending “right here, right now.”
So far as we can tell there is still some American carnage going on out there, but it quite arguably would have been a whole lot worse after 100 days of President Hillary Clinton, and in all honesty we can’t boast that we’ve gotten much done in that suddenly very short time span. Ever since President Franklin Roosevelt’s momentous first 100 days that point in every presidency has been marked by retrospective columns, however, and although we’d rather be writing about this week’s centennial of the birth of the late, great songstress Ella Fitzgerald there’s no getting around the obligation.
Trump has already preemptively “tweeted” that “No matter how much I accomplish during the ridiculous standard of the first 100 days, & it has been a lot (including S.C.), media will kill!,” and he certainly has a point somewhere in that hard-to-parse word salad of a sentence. The first 100 days is indeed a ridiculous standard to judge a presidency, as the first 100 days of the depth-of-the-Depression Roosevelt administration isn’t analogous to any point since, no matter how bleak you or Trump might think things are now, and if you judge it less by the number of bills passed and orders signed than by the damage that orgy of governmental expansion did over the long run and is still doing today even FDR’s first hundred days doesn’t look all that great. Trump was also correct, of course, in presuming that much of the mainstream media would be availing themselves of a news peg to hang another round of Trump-bashing on.
Trump did make a lot of campaign promises to be kept within that ridiculous 100 day standard, though, and there’s no denying that so few of them have kept he’d rather you didn’t notice. He made some last minute threats to build a border wall with Mexico and end the North American Free Trade Agreement, then flinched on both after a the Republican Congress objected and the stock markets started to tank, and retreated to establishment Republican positions on China’s currency manipulation and the relevance of the North Atlantic Treaty Organization and the usefulness of the Export-Import Bank, all of which is encouraging to establishment Republicans such as ourselves but not in keeping with any of the 100-day promises to the more populist sorts of voters. We quite like the Supreme Court pick, which is what Trump meant by “S.C.,” in case you thought he’d done something great for South Carolina, but we mostly credit that to establishment Republicans who kept the seat open during the last of the President Barack Obama administration, and of course much of the mainstream press will criticize Trump and the Republican establishment and us for the pick.
Trump’s critics on both the left and right will have plenty more to criticize, too, and so will many of his disappointed supporters. They’ll all have plenty of arguments that can’t be reputed in the compressed characters of a “tweet,” and we expect that weekend’s news cycle will be brutal. After that it should be just the unusual unfavorable press, though, with people either believing it or disbelieving it according to their preferences, and Trump will have hundreds of hundreds day left to make America so great again that your head will spin.
He might even pull it off, or convince another electoral majority that he did, and we’ll keep our fingers crossed. These past 100 days quite arguably would have been worse with a President Clinton, after all. In the meantime, we’ll try to accomplish more with our own next 100 days.

— Bud Norman

Going Nuclear, and Why Not?

At this point it seems certain the Republicans in the Senate are going to employ the “nuclear option.” That’s not nearly so bad as it sounds, as it doesn’t involve any literal mass destruction or lingering radiation, but it’s nonetheless a sorry state of affairs for everybody.
If you’re not hip to the political lingo, the “nuclear option” means they’ll confirm Judge Neil Gorsuch’s appointment to the Supreme Court with a mere majority rather than the 60 votes required to end a filibuster. The Republicans currently hold more than a majority of votes, with all of them ready to confirm Gorsuch, but the Democrats have more than the 40 votes need to sustain a filibuster, with all of them seemingly ready to keep it up until hell freezes over or whatever else might follow the administration of President Donald Trump, so it seems a natural outcome. All the Republicans used to consider the filibuster rule sacrosanct back when a Democratic president was making Supreme Court picks and they held a filibustering plurality in the Senate, and at that point all the Democrats considered it a silly and not even constitutionally-mandated rule that needed to be “nuked” on behalf of whatever Democratic nominee happened to be up for consideration, so as usual both parties are a bunch of hypocrites. There’s still something to be said for that old rule about a super-majority being needed for such weighty matters, even from an old-fashioned Republican’s traditionalist perspective, but but parties have brought us to such a sorry state of affairs that it such niceties are no longer sustainable.
The Democrats are understandably miffed that the Supreme Court seat in question became vacant during the administration of Democratic President Barack Obama, yet his nominee — whose name was either Merrick Garland or Garland Merrick, we keep forgetting — never even got a hearing from a Republican-controlled Senate, but there was plenty of historical precedent and a very persuasive case for the Republicans’ obstruction of a lame duck president’s appointment. Nothing against Garland or Merrick or whatever his name was, who struck us as yet another disastrous post-constitutional Democratic appointment but about as good as you could hope for from an Obama administration that knew it couldn’t press its luck by that point, but the Republicans did have historical precedent and a persuasive case as well unbearable pressure from every last Republican voter in the country including ourselves. The Republican establishment thus forwarded the pick to Trump, who had ironically run on the argument that the Republicans needed to burn down the establishment that rolled over for everything Obama wanted to, and he chose the impeccably constitutionalist Gorsuch, which relieved even such still-skeptical-of-Trump Republicans as ourselves and of course outraged the Democrats.
All the nasty hearings in the Senate’s committees and sub-committees and friendly press appearances haven’t come up with any compromising information about Gorsuch’s character, and his constitution-means-what-it-says judicial philosophy isn’t all that controversial and has usually wound up on the majority of his lower-circuit opinions, and from a Democratic perspective he’s about as good as you could hope for from any old Republican much less a Trump administration prone to pressing its luck, but these days there’s an extra amount of Democratic Party pressure being brought to bear against anything Trump. We’re not so crazy about Trump our own Republican selves, as regular readers are well aware, but this seems a political miscalculation. If Gorsuch is rejected by a Democratic minority under the old rules they once defended they’ll be obliged to reject the next candidate, and the next one after that, and so on for at least four years of an eight-member Supreme Court, and at some point the Democrats will start polling even worse than Trump on the issue. With Gorsuch replacing the late and great-to-us-Republicans Justice Antonin Scalia his confirmation won’t change any decisions, and the Democrats can hope for more favorable conditions when the next Democratic seat inevitably opens, so we figure their best bet is to cede a battle and save that filibuster rule for a moment in the future when it will surely come in handy, and in the meantime let Trump continue to hog all the headlines.
Over the long term the best bet for the Republicans might be to retain that old filibuster rule they once relied on, but at the moment it doesn’t make any sense at all. Employing a merely figurative “nuclear option” isn’t going get much notice, and anyone who is paying attention but hasn’t already chosen sides will probably conclude that the Democrats are just dead-set against Trump even if he turns out to be right about something. The next vacancy on the Supreme Court will probably be one of those post-constitutitionalist Democrats, which raises the stakes, but the betting death-pool odds have the Republicans still holding on to Senate Majorities and even the White House when that happens, and there’s a shot that the Republican establishment will still be around for that, and the Democrats aren’t going to be any bi-partisan mood soon, so now’s as good a time to go “nuclear” as any.
There’s still something to be said for gaining enough bi-partisan support for something as a Supreme Court Justice, and it pains our traditionalist Republican souls to let it pass, but these are partisan times and any establishment has gotta do what its gotta do. We just hope there’s enough establishment left when the next seat comes up that there will be another Gorsuch.

— Bud Norman

Gorsuch and Nonesuch

So far President Donald Trump’s travel ban is still being held up in court, his repeal-and-replace plan for health care seems lacking some crucial Republican votes, the budget proposals are widely opposed and the “tweeted” accusations of treason are getting much ridicule and little support, but at least the nomination of Judge Neil Gorsuch to the Supreme Court is going well.
The Democrats and the rest of the left are doing their best to stop it, as tradition requires the opposition party to do, but they don’t seem to be having much luck. They’ve objected to the fact that Gorsuch is an admitted “originalist” in his judicial philosophy, but that basically means he believes the Constitution says whatever a plain reading of it written words say, and ever since Franklin Roosevelt tried to pack the court the Democrats have had a hard time time selling the idea it should say whatever they want it to say at any given moment. There have been no revelations of financial entanglements or college dope-smoking incidents or any of the other assorted scandals that have sunk past nominees, his long history of voting with majority and unanimous decisions during a long tenure as a circuit court judge makes it hard to cast him as any sort of scary extremist, and his performance in the confirmation hearings has been as flawlessly careful and noncommittal and yet exceedingly charming as any we can remember. The Democrats have been frustrated that Gorsuch wouldn’t pre-judge any hypothetical cases for them, just as the Republicans were when they grilled past Democratic nominees, but we don’t expect that the general public will mind that Gorsuch has been answering all the questions exactly as Supreme Court nominees are supposed to do.
The Washington Post’s Dana Milbank was reduced to complaining that Gorsuch seemed all too reasonable and downright personable during the hearings, and was sure that such “archaic phrases” as “goodness” and “since I was a tot” and “give a whit” would only be used an Eddie Haskell sort, who was a smarmy character on “Leave It to Beaver” that only the most archaic pop culture commentators remember. The late-night comedy program “The Daily Show” and its African host sneered that such expressions showed how very white Gorsuch is, but we doubt that most Americans would find that a disqualifying quality in a Supreme Court nominee and we’re quite sure that Trump’s most loyal supporters would find it endearing. Of the thousands of cases Gorsuch have heard the Democrats seized on one where he voted against a truck driver who had violated company policy and wound up frozen as a result and then sued over being fired, but of course the case was complicated and not the sort of thing that be easily conflated into a coming reign of judicial terror.
All the late night comics and the rest of the Democrats have had a far easier time scaring people about the rest of what Trump is to, but they inadvertently allowed Gorsuch to reassure the public about that. He’d already been quoted by anonymous sources as telling Senators that he was “disheartened” by Trump’s attacks on a “so-called judge” and the authority of the judiciary, but reiterated the sentiment under oath, carefully declined to answer any questions about how he might rule in a hypothetical case involving Trump and the Emoluments Clause of the Constitution or any of the other many things that might very well come up in the next four years, and somehow left a clear impression that Trump won’t be able to count on him if the facts and the law of a case favor the other side.
That willingness to defy Trump, along with all the aw-shucks demeanor and apparent reasonableness, have convinced some of Trump’s supporters that he’s picked another one of those squishy Supreme Court Justices that more establishment sort of Republicans have been picking for decades, and they’re still holding out for someone more snarling, but we doubt they’ll derail the nomination. Meanwhile all the Democrats are still made that President Barack Obama’s pick for the post, whose name was Merrick Garland or Garland Merrick or something, didn’t get a confirmation hearing at all, because it was blocked the Republican congressional leadership that all of Trump’s most avid fans hated for caving into everything Obama wanted, so it would be fun for almost everyone if a Supreme Court Justice Gorsuch did wind up ruling against some Trump overreach.
All the big press outlets seem resigned to Gorsuch’s nomination, and mostly unwilling to expend any of their diminishing capital of credibility on trying to portray him as a scary sort of extremist who’s going to bring back Jim Crow and back-alley abortions and all the stuff they once threw at Judge Robert Bork, whose last name is now a verb for such character assassination, so we expect this will be a win for Trump. That’s fine by us, and if it leads a few losses for Trump down the road that will also be fine.

— Bud Norman

The Supreme Court and the Resulting Squabbles

So far as we can tell from the initial news reports, President Donald Trump’s Supreme Court nominee Neil Gorsuch seems like our kind of guy. By all accounts, including those of The Washington Post and The New York Times and other unenthused media, federal appeals judge Gorsuch is a staunch originalist who insists on a plain sense reading of the Constitution and has a personal reputation that has thus far been unblemished by decades in public life, which is basically what we’re looking for in a Supreme Court Justice. We expect that the Democrats will come up with something, and that quite a fuss about it will ensue in the confirmation process, but at this point we are cautiously hopeful that he will take his seat on the court and do a fine job there.
It will be interesting to see what the Democrats will come up with. The initial reports from even the most unenthused media are for now scandal-free, they all acknowledge his very diplomatic stye of adjudicating and exquisitely careful use of the English language, and he’s a rather handsome and reasonable seeming fellow who doesn’t sport that creepy facial hair or menacing scowl that made President Reagan’s unconfirmed nominee Judge Robert Bork so easy to “bork.” The opposition will therefore probably focus on his staunch originalism and its crazy notions about interpreting the Constitution according to a plain sense of reading of its text, rather than finding some convoluted reason that the Constitution insists on whatever the left’s favored position of the moment might be, but after the last election they’re hard pressed to make the argument.
For longer than Gorsuch has been in public life we’ve tried to reassure our liberal friends that a truly conservative Supreme Court Justice should not trouble them, as he is by definition committed to upholding both the letter and spirt of a radically liberal Constitution. We like to cite the example of the great Justice Hugo Black, the former Ku Klux Klan bigwig appointed by President Franklin Roosevelt to appease the substantial southern redneck portion of the New Deal Coalition, who went on to be one of the heroes of the Supreme Court’s 1950’s civil rights revolution. In our teenaged years we worked at the Supreme Court with some savvy veteran black messengers who had daily dealings with Black and assured us he never did get over his Klan days when it came to dealing with black people, but the old cracker’s hidebound adherence to a plain sense reading of the 14th amendment compelled to him vote with the Warren Court on most of the big civil rights, even if he did think that America did a damned fool thing in ratifying it, and to write that common sense concurring opinion to Brown v. Topeka Board of Education that is so much more convincing than the wimpy social-science majority opinion.
A truly conservative Supreme Court would uphold the right of a citizens group to air an anti-Hillary Clinton movie even it did get some money from the evil Koch Brothers, as the Supreme Court did in the still hotly-debated Citizens United Case, but by now it would also let Lenny Bruce or any other foul-mouthed comedian, no matter how Democratic, get away with it, so for now we cautiously entrust the First Amendment to the Republicans. The Republicans are at least as staunch on the Second Amendment as on the First, which will surely enrage the Democrats further, but they’ve lately been losing in the courts on that and will have a harder time in the court of gun-owning public opinion> For the past 40 years or so the right has been skeptical about those penumbras and legalistic whatnots that yielded a constitutional right to abortion, which enrages the Democrats further yet, but a truly conservative Supreme Court would overturn a fundamental right to abortion without asserting a fetal right to life and send it all back to the states where such measures were once decided, and if the Democrats really have a winning issue it would work out to their benefit, and although there would be a lot of fuss involved it’s not as if Roe v. Wade ever ended the issue. A truly conservative Supreme Court wouldn’t impose a liberal agenda by judicial fiat, but it wouldn’t stop the people from doing such foolish things through the constitutional process.
By the end of it the Democrats will probably be opposing Gorsuch simply because he’s Trump’s nominee, and we have to admit that’s somewhat compelling. We don’t trust Trump any further than we would toss his fat orange ass, as the local saying goes, but we always figured that he could never back out of those promises he made regarding the Supreme Court. The most persuasive argument Trump’s campaign offered to reluctant Republicans was that his Supreme Court nominees would at least be better than what Democratic rival Hillary Clinton would offer, which was pretty much indisputable, and we figured he was savvy to realize that although he could indeed shoot someone on Fifth Avenue and not lose any supporters that betraying the Supreme Court promise would have been politically disastrous. For all our misgivings about Trump we like the pick based on what we know so far, and cautiously hope Gorsuch will go on to overturn that awful Kelo decision that Trump once tried to use to evict an elderly widow and draw a line on executive actions by either party’s president and otherwise uphold our radically liberal Constitution according to truly conservative principles.

— Bud Norman

An Balance of Power and an Imbalance of Everything Else

For some reason or another a few of the votes cast in this crazy presidential election year are still being counted, but by now it seems certain that Democratic nominee Hillary Clinton will win the popular vote by a comfortable margin. This doesn’t change the more salient fact that Republican nominee Donald Trump won by a similarly comfortable margin in the electoral vote and is thus the president-elect, nor should it, but the final tally of votes cast across the country is still a fact worth pondering.
This crazy election year has resulted in a slight Republican majority in the Senate and a more sizable majority in the House of Representatives, a recent Republican of unproven Republicanism in the White House, a good shot at a Republican majority in the Supreme Court for another generation, and a number of Republican governors and state legislatures and county commissions and small town councils and school boards not seen since the days of Calvin Coolidge. At such a moment of seeming political triumphalism as this, unseen since the eight short years ago when Democratic nominee Barack Obama became president with a more impressive electoral majority and the Democrats had a bigger edge in the House and a filibuster-proof advantage in the Senate and another generation of the Supreme Court suddenly within reach, something in our instinctively gloomy conservative soul is struck by the unavoidable truth that the GOP has now lost six of the past seven presidential popular votes.
Take a look at an electoral map of any of the past several presidential election years, not just this crazy one, and you’ll immediately notice that the Republican red portions take up far more space than the Democratic blue portions. That long swath of blue running down the west coast and the blue patch in the southwest and those usual blue suspects in the northeast have as many people packed into them as that vast red splotch, however, and although they’re now narrowly missing a couple of those rust-belt states along the Great Lakes it would be foolish to assume the Democrats and their popular vote plurality are a vanquished foe. The recent Republican of questionable Republicanism who is now the president-elect has often seemed eager to please that portion of the popularity market, and some of the more longstanding Republicans who won more votes in their states are already set to clash with their newly-fledged party leaders on a variety of issues, and there’s no telling what strange bed-fellowships might spare us from or lead us into the worst of it. It’s bound to be contentious, and as the president-elect might say, that we can tell you, believe us, OK?
We’ll hold out faint hope that the same crazy constitutional system that somehow resulted in this crazy election year will once again withstand such craziness. Surely the founding fathers didn’t intend the election of Donald Trump to the presidency, any more than they would have desired the election of Hillary Clinton to that office, but from our perspective in the middle of the country we think they were wise to devise a system that prevented those small but densely populated blue dots from imposing their will on those vast yet sparsely populated red splotches, and made it hard for either one to ultimately vanquish the other. California and New York can do any constitutional yet crazy thing they want to so long as we hayseed Kansans and our mere six electoral votes are free to pursue whatever craziness we might choose, as far as we’re concerned, and we still think that’s the best arrangement for 50 very different states striving to form a more perfect union. Our liberal friends here in Kansas won’t like it, and we’ve got a rock-ribbedly Republican brother stuck in California who’s just as disgruntled, and there’s no guarantee that anyone will like how those matters of unavoidably national interest are settled, but it might just turn out to be at least tolerable to everyone.

— Bud Norman

Trudging to the Polls on a Chilly Election Day

At some point this afternoon we’ll take that familiar stroll through our picturesque old neighborhood to the lovely Gloria Dei Lutheran Church on the scenic west bank of the Little Arkansas River, where we’ll stand in line and flash our photo identification to a friendly volunteer poll worker and exercise our constitutional right to cast our votes for a variety of offices. It’s a longstanding Election Day ritual we’ve always found quite cathartic, no matter how things turned out at the end of the day, but in this crazy election year it will seem a desultory chore.
There’s an old-fashioned Republican congressman in our district who we’ll be mostly pleased to support, and a slightly less rock-ribbed Republican senator we don’t mind voting for, and we’ll also cast a hopeful vote for whatever Republican is running against that left-wing Democrat who represents our anomalously liberal district in the Kansas House of Representatives. We’ll unenthusiastically vote the conservative “no” position on those five controversial state Supreme Court justices who are up for review, and a straight GOP line down to those little-known offices at the bottom of the ballot, but for the first time in our lives we won’t be voting for the Republican at the top of the ticket.
In this crazy election year the Grand Old Party’s nominee is a thrice-married and six-times bankrupt real-estate-and-gambling-and-strip-club-and-beauty-pageant-and-professional-wrestling-and-reality-show-and-scam-university mogul, who boasts about the married women he’s slept with and the politicians he’s bribed, mocks the handicapped and disparages prisoners of war and impugns the motives of anyone with a contrary opinion, routinely pays his creditors less than promised and leaves his investors and employees short while somehow making money off his numerous failed businesses, and brags that he can grab women by the wherever and get away with it because he’s a “star.” Throughout a long, long campaign he’s proved himself thin-skinned and easily provoked, every bit as petty and vindictive as he claimed to be in his stupid but best-selling books, as exclusively self-interested as he’d always been in the 69 years before he entered politics, completely unable to restrain whatever idiotic thought pops into his head and then inclined to lie that he never said any such thing even though it’s on tape, and he’s crude and vulgar and ridiculously coiffed to boot.
His ever-shifting positions on the issues are perhaps even worse, at least from our old-fashioned Republican perspective. He’s peddling a protectionist trade policy that won’t protect his gullible supporters from the inevitable changes in a technological economy and will more likely provoke a trade war that is ruinous to the entire world. His promises to erase the nation’s debt by negotiating better trade deals is preposterous, his previous suggestions that he’d simply pay less than promised just as his he’s always done in his oft-bankrupt business life would be catastrophic, his Obama-style infrastructure spending certainly won’t reduce the debt, and his claims that he can micromanage the entire American economy the way he does his oft-bankrupt businesses does not reassure our free market selves. He takes a harsh rhetorical line against the recently decline rate of illegal immigration, but that pointless wall he’s building won’t prevent visa overstays, he’s all over the place about deporting those who are already here, as recently as the last presidential election he was criticizing the Republican nominee’s more sensible enforcement plans, and Mexico won’t be paying for that wall and the harshness of the nominee’s rhetoric has only made border enforcement more widely unpopular. His talk about turning the alliances that won the Cold War into protection rackets and allowing nuclear arms races in east Asia and the Middle East is what the diplomats call “crazy talk,” and we have no reason to trust his secret plan to crush the Islamic State and don’t like the way he’s criticized the recent and largely successful efforts to do just that.
None of our Republican friends can persuasively refute any of this, and few even try, but many have nonetheless urged us to vote for the party’s nominee rather than let a Democratic president pick any of the Supreme Court justices. It’s a plausible argument, given how very bad any Democrat’s appointees would inarguably be, but the Republican nominee has effusively praised the Kelo decision that allows governments to seize other people’s property on behalf of real estate moguls such as himself, seems to have no problem with that Obergefell decision that re-defined a millennia-old definition of marriage, agrees with the individual mandate that was the key matter in the Obamacare decision, disregards the rulings against the stop-and-search policies he advocates, has vowed to jail political opponents that he’s already found guilty, and promises to overturn the more longstanding Sullivan decision that allows the press to freely criticize him, so we hardly look to him as a protector of the Constitution. His frequent praise for dictators who have similarly punished their opponents, along all the extra-constitutional steps he’s vowed to take and the rest of his strongman posturing, only adds to our unease.
Of course there’s no way that we could bring ourselves to vote that Democratic nominee, either. She’s the Democratic nominee, for one thing, and thus portends all the collectivist and modernist and post-modernist tax-and-spend craziness that necessarily entails. The self-described socialist who almost won the Democratic nomination pushed the eventual nominee into a protectionist stance that is only better than the Republican nominee’s to the extent that she probably doesn’t really mean it, she’s just as determined as the Republican to ignore the looming debt crisis, her claims to be able to micromanage the economy are no more plausible than her opponent’s, and her y’all-come-in immigration policies make that pointless border wall seem a sound idea. Her foreign policy record has already undermined our allies’ faith in America, and effectively acquiesced to an Iranian bomb that will set off a Middle East nuclear arms anyway, and her own extra-Constitutional and authoritarian tendencies are also apparent.
The Democratic nominee’s much-touted resume reveals her own disqualifying character issues, too. As First Lady of Arkansas and then The United States she spent most of her time enriching herself with highly improbable cattle futures deals and firing honest White House employees to replace them with her Hollywood friends’ businesses and impugning the reputations of the women that her husband had voluntary and involuntary tawdry sex scandals with, her short time in the Senate proved profitable to herself but produced nothing for the public, and her disastrous four years of ill-thought interventions and even-more-ill-thought non-interventions as Secretary of State left every part of the world worse off but added many millions to her family’s phony-baloney foundation. She also habitually tells outrageous lies even about things that she should know can be easily refuted with a few keystrokes and a couple of mouse clicks, and of course there’s that whole e-mail thing that probably should have resulted in charges of mishandling classified information and a proper trial.
Which makes that walk to the polling place a desultory chore, no matter how pleasant the fall weather on a short stroll though such a picturesque neighborhood to such a lovely church and temporary altar of a hopefully durable democracy. Once we get there we’ll write-in a vote for that quixotic Mormon fellow who’s done hazardous duty in the Central Intelligence Agency and the financial sector and even on Capitol Hill, and has become a favorite of some of the erstwhile Republican intelligentsia who prefer the austere old-time GOP religion to the Republican nominee’s new prosperity gospel version, mainly because we can’t bring ourselves not to vote in a presidential election. As we trade along the sidewalks of Riverside toward our destination we’ll console ourselves that the gesture might do some infinitesimal good, as it keeps both of those awful major party nominees at least one vote short of that 51 percent they could call a mandate, and signals at least one more vote for that stubborn segment of the erstwhile Republican party that still stands athwart history shouting “stop,” as the late and great William F. Buckley would surely have put it. At least the record will reflect that someone took a stand at scenic spot on the Little River Arkansas against this crazy election year, and we’ll hold out faint hope that will do some good.

— Bud Norman