America • Democrats • Donald Trump • Neil Gorsuch • Post • The Constitution • The Courts • The Media

Here’s Why Hardiman Would Be Best for the Court

President Trump reportedly has narrowed his list for the vacant Supreme Court seat to four sitting circuit court judges: Amy Coney Barrett, Thomas Hardiman, Brett Kavanaugh, and Raymond Kethledge.

Barrett, who has strong support among old-line conservative polemicists, is a member of an ecumenical group called People of Praise.

Many Catholics, including me, believe things that go beyond the deposit of faith and are based in private devotion. The rosary, saints, apparitions, there are many. Choosing a personal route to holiness is one of the interesting things about being Catholic.

Barrett’s private religious life is no doubt an expression of sincere piety and an admirable manifestation of religious autonomy. This is not a criticism. But there is a political point that needs to be made.

People of Praise emphasize something called “male headship.” Is it a good idea, politically, to try to reverse Roe v. Wade with the vote of a woman who can be credibly portrayed as doing what the men in her life tell her?

Maybe, if she were the only viable candidate. But she’s not.

The giddy support for Barrett is because her selection would make the other side go crazy. Trump has shown the effectiveness of political trolling in the social media age. But Trump is about trolling to win, not trolling for its own sake.

If ordinary people think the easily triggered have a point, the tactic backfires. Committing yourself to obey an ecumenical group’s male pastorship is not a mainstream Catholic thing to do. Many decent and even faithful people will say, “OK, that’s a little out there.”

Why even take that risk? The 50-year drive to change the composition of the Supreme Court is on the one-yard line and about to score. It is not the time for a pass play.

Some of those pushing Judge Barrett’s cause invite their own suspicions. Past-their-expiration-date Washington “conservatives” become relevant again in an all-out culture war. That is the one thing that will get them back on the Sunday shows.

National Review’s Ramesh Ponnuru was the first to write a ringing endorsement of Judge Barrett, in a piece for Bloomberg. NeverTrumper Mona Charen has perused People of Praise’s website and has declared the group to be okeydokey.

David French, William Kristol’s choice as a third-party candidate to oppose Trump way back in ’16, wrote an article for National Review titled “Progressives Deploy Religious Ignorance and Bigotry to Stop Amy Coney Barrett.”

True, Senate Democrats were offensive in their ham-handed attempts to thwart Barrett’s ascension to the 7th U.S. Circuit Court of Appeals last year. They stupidly questioned her Catholicism. People were rightly outraged.

The senators did not know about her membership in People of Praise because she did not have an obligation to cite it on her disclosure form. They know now and will not be so transparently bigoted this time.

The hearings would focus on People of Praise. Senators will present the testimony of its critics. The words “Catholic” and “dogma” will not cross their lips.

If you want a preview, check out “Not Reliable Guides” by Adrian J. Reimers and read about his time in the group, complete with anecdotes that will be retrofitted into uncomfortable questions.

Then imagine Senator Feinstein quoting the following passages from that critique to Judge Barrett and asking her to comment:

“It is the capital sin of pride not to reveal all your thoughts and opinions to your head for correction,” taught Sharon Rose, a community handmaid or leader of women, at a women’s retreat.

And this one:

Likewise in the People of Praise the emotions—especially women’s emotions—are distrusted, and among the women there is a frequent appeal to ‘where you are in your cycle’ in addressing “pastoral problems.”

Maybe she still squeaks by the Senate. Maybe, though, it gives red state Democrats political cover when voting against her: “I wanted to support Trump on that one, I did, but I just couldn’t get over the handmaid stuff.”

Which is not to say Barrett should be rejected in favor of an unreliable candidate. The vetting process is extremely important here. Barrett would almost certainly be reliable, which is a reason to support her even with this baggage.

But there is at least one other unquestionably reliable candidate. Thomas Hardiman—the runner-up for the Gorsuch appointment—is a former practicing attorney from Pittsburgh, where I also practice, who checks all the boxes. A former cab driver, he is emblematic of the Rust Belt voter who put Trump in office.

The dogma is strong in Judge Hardiman, too, although you would hardly know it because it remains a virtue among ordinary Catholics to not let the left hand know what the right hand is doing when it comes to that. He would cruise to confirmation. If this is about winning—and with Trump it usually is—then Hardiman should get the nod.

Bigwigs in Washington want Kavanaugh, but they are the same people who gave us Rod Rosenstein, which seems a little risky. Judge Raymond Kethledge is certainly intriguing, but very much an unknown.

This is not to advocate for or against any candidate, all of whom seem strong for their own reasons. It is just to say that gaining one yard to finally score here should not be as hard as the wrong choice would make it.

2016 Election • America • American Conservatism • Center for American Greatness • Conservatives • Donald Trump • Greatness Agenda • Neil Gorsuch • Post • The Courts • Trump White House

Kennedy’s Departure Diminishes Supreme Court … And That’s a Good Thing

Since the Earl Warren era, the Supreme Court has assumed enormous power over our politics, and this has become a significant obstacle to the constitutional design of Americans living as a self-governing people.  

Far more worrisome than “Russian interference,” which at most partially influenced the views of voters with many other sources of information, the Supreme Court routinely has interfered with American self-government, either undoing or forcing results at various levels of government in accordance with its idiosyncratic and elitist views.

The Court, of course, issues prolix opinions that obscure what it is actually doing, but consider its recent track record.

The Supreme Court’s Self-Appointed Role as Super Legislature

The Court undid California’s referendum on gay marriage after having earlier reversed Colorado’s referendum preventing gays from being added to the long list of “protected classes” in employment laws. Using the broad and vague mandates of “substantive due process” and “equal protection,” the Court simply decided the people were wrong and “irrational,” and Justice Kennedy authored opinions that accorded with the views of his friends and neighbors in Washington, D.C. In the process, the Court forbade the people of California and Colorado from undertaking the most quintessentially self-governing act for which the Constitution was designed: passing laws on controversial matters through a referendum.

This is merely an example. The Supreme Court has also second-guessed how wars are conducted, how schools are run, has allowed legislatures to enshrine the Ten Commandments while forbidding state courts from doing so, has created new rights while ignoring those enshrined in the Constitution itself, and generally assumed the role of “super legislature.”

In addressing salient social issues, the Supreme Court has functioned as something of a Delphic Oracle, divining hidden mysteries in the otherwise prosaic constitutional text that disallows historically permitted practices on immigration, the treatment of enemy prisoners, abortion, and much else where the Constitution’s text is either silent or agnostic.

While preempting legislative supremacy and the broad powers of the executive, the Court is, in fact, unrepresentative in all meaningful ways. It is not, of course, supposed to be a representative institution. It is supposed to be a technical and intellectual job, devoted to the analysis of laws in light of other laws and our general law in the form of the Constitution. But it hasn’t been that since the 1930s.

So, in that milieu, it should be, if not representative, at least faithful to and sympathetic with the American people. But far from being sympathetic, its progressivism has been hostile to the mass of people and their views, labeling them irrational and bigoted when they deviate from the very narrow consensus formed among the almost exclusively Ivy League pedigreed justices. The retiring Justice Kennedy mostly embraced this snobbish and busy-body ethos.

One might say this is mere sour grapes; that liberals like a more liberal Supreme Court that lets them do what they want to do, and that conservatives like the same thing in reverse. But the conservative judicial philosophy does not call for the Court to do very much. It is respectful of the states, of the Congress, of the Presidency, and, above all, the text of the Constitution itself. Such a philosophy deliberately renders the Court less important and less powerful than it is under the dominant, “progressive” philosophy of legal realism. The American design calls for an embrace of a jurisprudence, above all, of judicial minimalism, where the Supreme Court shows more reticence to reverse plebiscites than mere precedent.

What the Constitution Does (and What it Doesn’t)

There are, of course, limited aspects of the Constitution that address substantive matters. Free speech is protected, as are the rights of the criminally accused, the right to bear arms, and the right to be free from enslavement. But much is unsaid, and that is deliberate. As we ought to learn in high school civics, we have elections, and the elected legislature is supposed to make the laws and the elected executive branch is supposed to enforce them. Times and circumstances are always changing, so the laws should sometimes change with them, and whether representative, senator, or president, the people have the ultimate and final say.

The judiciary is given the limited and mostly technical task of interpreting these decisions by others in particular cases. Through the combination of judicial review (a controversial, but long settled function) and legal realism (a not-so-well-established and toxic development), the Supreme Court has, instead, arrogated to itself the task of pushing society in the right direction as defined by the consensus views of elites like themselves.  

This push had a certain amount of moral weight behind it when it was applied to civil rights. After all, the governing structures of the Deep South could not register the concerns and interests of blacks, because of their effective disenfranchisement. These states’ decisions, thus, were not particularly representative of “the people,” insofar as a great many were deliberately excluded from power. In addition, the federal government was authorized explicitly in the 13th and 14th Amendments to protect the rights of freed slaves and their descendants.

But even here, the Court’s impatience and self-regard was less effective and had less legitimacy than later legislative enactments like the Civil Rights and Voting Rights Acts enacted in the mid-1960s. Legislative reforms had the benefit of emerging from a political process, that is, by being an expression of the sovereignty and evolving views of “The People.” Progressive or otherwise, electoral outcomes at the very least can, unlike wayward Supreme Court decisions, be undone, corrected, or improved by an aroused electorate.  

Justice Kennedy’s Self-Empowering Role in the Middle Ground

Justice Kennedy, like Justice O’Connor, was something of what today is called a moderate. In other words, occasionally he reached the right conclusions, but more often, he was just the deciding vote. This gave him a great deal of personal power in a divided Court.  

As such, he was central to the developing “gay marriage” jurisprudence, which short-circuited the development of such rules (and limits) through legislatures. The left is probably right that this (and other anti-majoritarian rulings) shaped public opinion and pulled it beyond what might have happened using legislative means by themselves. But, at the same time, this approach generated significant backlash and resentment. These types of decisions have also made presidential elections, which should be about governance, instead into potential proxy fights on every social issue under the sun, when such issues otherwise could be resolved organically and diversely through political processes among the various states.

The Resistance, which cared little for the political will expressed by his election, is calling for bipartisanship and civility, now that President Trump is getting a second Supreme Court nomination. Sorry guys, you’ve had two years to show your bona fides and blew it, not least in the thorough-going contempt you’ve shown for the people who elected Trump.

The Court Thwarts America’s Conservative, Nationalist, and Populist Tendencies

Even prior to Trump, the elite has been frightened. Left to their own devices, the American people, especially away from the coasts, evince an outlook significantly more conservative, nationalist, and law-and-order-oriented than that toward which we are supposedly progressing. While Democrats and Republicans won and lost the presidency since Reagan for various reasons, this entire time, significantly more conservative Republican politicians dominated state legislatures and have tried to restrict abortion, gay marriage, expand gun rights, and push back against affirmative action. At the same time, the increasingly agitated electorate has called for changes to trade and affirmative action policy that both parties, particularly in Washington, D.C., have resisted through a bipartisan consensus.  

In response to this discontent, the left has responded derisively. It has doubled down on importing more left-leaning immigrants from the Third World to cancel out the persistent right-leaning instincts of the interior. It has instituted a thorough-going propaganda campaign in the schools, and now also in corporate America, to suppress these ideas and to render them declasse and, in more extreme cases, economic suicide. But, most of all, it has used the courts as the ace up its sleeve, striking down myriad laws that express the least hint of nationalism, social conservatism, or that they may be otherwise out of step with the views of the elite.

In spite of all this resistance, Trump won. This has made a great many people—including putative conservatives like George Will and Bill Kristol—demonstrate their bipartisan commitment to preventing Middle America from governing itself. While #NeverTrump is mostly an ideology of think-tank hacks and other denizens of the Swamp, it did make Trump’s victory more difficult, as he faced a two front war. Even so, he and these views prevailed. His mandate, above all, was to empower the forgotten people who do not benefit from, do not support, and never agreed to the various pretensions, prejudices, and platitudes that constitute elite opinion, which are expressed most dramatically by the Supreme Court.

To do this, Trump promised to control the borders and to prevent Americans from having their rights and powers as citizens debased by a deliberate policy of demographic reengineering. This is one area where legacy conservatism is flawed. It counsels a nearly religious high regard for the Constitution. And, while the Constitution undoubtedly is a valuable and worthy document, it is, with few exceptions, agnostic about political philosophy on the face of it. It is chiefly a set of procedures, similar to corporate governance documents, condominium declarations, and other charters by which people organize their affairs. It says who does what and when and how, but not very much about the substance of what is done. It presupposes a preexisting society, values, mores, and language—that is, a people. This is why who is and who isn’t allowed to be part of the country’s citizenry is critical, because the Constitution is neither a necessary, nor sufficient basis for good government. No one plucking it up and placing it somewhere else should expect, thereby, to witness the creation of a nation of  Madisons, Hamiltons, and Jays.

Second only to his promises on immigration, Trump emphasized the importance of the Supreme Court. Trump, undoubtedly, is not a constitutional scholar. But like most right of center people, he knows that the Court has obnoxiously substituted its own will for that of the people regarding important matters best resolved by the political process. He promised to appoint justices who are “pro life,” who “respect the Second Amendment,” and who respect the Constitution. The ascendency of these views—majority views—has been suppressed by the Supreme Court for over 40 years.

Consider this banner week at the Court. It upheld the (elected) President’s policy on banning immigrants from certain terror-prone countries, it upheld the rights of the government’s (elected) officials to control unelected bureaucrats, and it upheld the right of (elected) officials to determine electoral districts. Among its decisions that opposed elected bodies, they chiefly involved core First Amendment rights, including the Masterpiece Cakeshop decision. With the addition of Trump-appointee Neil Gorsuch, the Supreme Court has begun to restore the rights of the people in general to govern themselves. Another Supreme Court appointment (or two) would solidify this historically well-grounded American balance of the power of majorities and the rights of individuals.

Donald Trump’s presidency is, above all, about restoring the dignity due to the ordinary American. By diminishing the Supreme Court’s activist power and replacing Justice Kennedy with someone more akin to Justice Gorsuch, he will accomplish exactly that.   

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Administrative State • Congress • Deep State • Neil Gorsuch • Post • The Constitution • The Courts • The Left • The Leviathian State • The Resistance (Snicker)

NeverTrump is Now NeverSCOTUS

As Democrats have (another) collective meltdown over this week’s Supreme Court rulings and the impending retirement of Justice Anthony Kennedy, President Trump’s supporters are venting their own rage at another target: NeverTrump Republicans.

Minutes after Kennedy announced he would step down later this year, Washington D.C. talk-radio host Larry O’Connor tweeted that NeverTrumpers “should be spending the day explaining their decision” not to vote for Donald Trump.

Fox News Channel’s Laura Ingraham reminded folks that none of the recent Supreme Court decisions “would have been possible if the #NeverTrumpers had their way.” Her colleague, Sean Hannity, roasted NeverTrumpers in his opening monologue Wednesday night: “For all of you NeverTrumpers, if you would have had your way . . . Hillary Rodham Clinton would have been making now a second appointment.”

And an Investor’s Business Daily editorial posed the question: “Conservatives are celebrating a number of important victories at the Supreme Court, as well as the chance to replace moderate Justice Anthony Kennedy. But none of these wins would have been possible if the Never-Trump crowd had its way. How about a mea culpa?”

I’ll go a step further: If NeverTrumpers had their way, we would now be contemplating the possibility of Associate Justice Barack (or Michelle!) Obama.

They Just Can’t Deal
Whenever President Trump has a good week, or the importance of the Supreme Court again comes into clear view, Trump supporters—even reluctant ones—ruefully (and justifiably) blast the small but vocal group of anti-Trump “conservative” antagonists for their entrenched opposition to the president. These so-called Republicans not only opposed Trump’s candidacy during the 2016 primaries, but also refused to vote for him in the general election (some admitted voting for Hillary Clinton) and have since joined forces with Democrats to trash the president every chance they get.

For many Republicans, NeverTrump is the wound from the 2016 election that will not heal. While several conservatives who contributed to the January 2016 National Review “Against Trump” issue that launched the NeverTrump movement have since converted into fair arbiters of the president and his policies (some are even among Trump’s biggest supporters), others remain steadfastly encamped with the most shrill, and now violent, voices on the Left to condemn everything Trump does and says—even when it conforms to their previously-held political views.

Hannity would not name names on Wednesday night, but I will mention a few: Bill Kristol, Jennifer Rubin, Tom Nichols, David Frum, George Will, Rick Wilson, and Steve Schmidt are just a few. Armed with online columns and cable news gigs, NeverTrumpers have earned newfound fame and thousands of anti-Trump Twitter followers by ridiculing the president, his administration, his family, his voters, and Republicans in Congress.

This group repeatedly mocks Republicans who voted for Trump primarily, if not solely, based on which candidate would sway the precarious balance of the nation’s highest court: “But Gorsuch” is a common snipe directed at Trump supporters from NeverTrumpers whenever the president offers up an inchoate remark or a clumsy policy proposal.

The catchphrase implies that preventing a progressive takeover of the Supreme Court with disastrous consequences for at least a generation was not a good enough reason for people to have voted for Donald Trump. Tom Nichols, an author and college professor who is one of NeverTrump’s biggest drama queens, is a “But Gorsuch” broken record. Earlier this month, he insisted the retort “will be on our collective tombstone.” Wilson, an alleged GOP strategist, claims he has an entire chapter titled “But Gorsuch” in his upcoming book about Trump.

So Very Clueless . . . 
Keep in mind, these Trump-hating harpies routinely boast about being traditional conservatives, strict adherents to the rule of law and constitutional norms. Yet they are willing to cede what is arguably the only remaining bulwark between individual liberty and creeping, Leftist totalitarianism because they despise Donald Trump—not to mention that they are capitalizing professionally from their dissent. It is not just a selfish and wholly dishonest stance for anyone who calls himself a conservative; in this political climate, it is downright dangerous.

But instead of begrudgingly acknowledging that, yes, the composition of the Supreme Court is critical and, yes, Trump’s choice of Gorsuch and his pledge to nominate another justice of the same caliber to replace Kennedy are highly-consequential decisions worthy of commendation, NeverTrump has amped up their disdain and contempt for Trump and his supporters. Publicly they are encouraging Americans to vote for Democrats in the midterm election, which would ensure a legislative blockade of any future Supreme Court nominees. (Kristol is now laughably suggesting the process should be delayed.)

In a Washington Post column last week, George Will argued that Trump’s “family-shredding policy along the southern border” compels voters to ensure Republican control of Congress “must be substantially reduced.” Will claims electing Democrats would somehow “affirm the nation’s honor.”

Bill Kristol is rooting openly for Democrats to regain control of the House and Senate in November. Ditto for Jennifer Rubin: Not only does she want Democrats to win this fall, she is now advising them how to block Trump’s pick—”a right-wing justice who will eradicate decades of jurisprudence”—before the midterm elections. Rubin’s brilliant strategy to achieve this would involve senators vacating their seats to halt a vote and Democratic activists organizing boycotts.

Steve Schmidt, a failed Republican consultant who managed John McCain’s losing 2008 election, is now a regular MSNBC contributor and just renounced his membership in the GOP. (Buh bye.) Schmidt accused Republicans of “stealing” a Supreme Court seat from the Democrats and implored Democrats to do everything in their power to stop the Senate from approving Trump’s next nominee.

Malice Without Limits
Think about what this means. Once-credible Republicans now advocate civil unrest and underhanded partisan tactics to ensure a perilous leftward shift on the Supreme Court, where four justices this week affirmed their allegiance to compelled speech and identity politics rather than rigorous constitutional boundaries. Laws regulating immigration, gun rights, abortion, private property, and other critical areas of our lives would become the arbitrary playthings of Leftist judicial elites. Electing more Democrats would empower a chaotic and increasingly violent party intent on obliterating every principle the NeverTrumpers once professed to cherish. A Democratic majority would result in more turmoil and seriously jeopardize the presidency since many Democrats pledge to impeach Trump if they win back the majority.

Of course, that is exactly what NeverTrump wants. Their malice has no limits, and their outrageous attempt to hand off the Supreme Court to the Left should never be forgotten or forgiven.

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America • American Conservatism • Americanism • Conservatives • Cultural Marxism • Donald Trump • Greatness Agenda • Neil Gorsuch • Post • Religion and Society • separation of powers • statesmanship • The Courts • the Presidency • Trump White House

Anthony Kennedy Got Tired of All the Winning

For the longest time, NeverTrump “conservatives” have insisted that the only good thing Donald Trump has done as president is to appoint Neil Gorsuch to the U.S. Supreme Court; and even then, they often claimed this was not enough to save his presidency in their minds, thus giving rise their oft-repeated mocking mantra for Trump supporters: “But Gorsuch!” Well, you’re damn right, “But Gorsuch!” Now, those eternal skeptics and pessimists are eating their own words faster than Kim Jong-un could eat his first-ever McDonald’s Happy Meal.

There has not been a Supreme Court decision season stacked with more victories for the Right than this one. Eight different rulings  this term pushed back against the onward march of the Left and proved just how strong a bulwark for freedom the Supreme Court can be.

The first and most high-profile decision, of course, was the Masterpiece Cakeshop case, where it was ruled that Colorado baker Jack Phillips had the right to refuse baking a wedding cake for a gay wedding due to his religious beliefs. This decision was reached by the court’s four conservative justices along with swing vote, Anthony Kennedy.

Then came a handful of cases that all dealt serious electoral blows to Democrats in three different states. In two different gerrymandering cases, the court ultimately ruled that Democrats in Wisconsin had no standing to sue for what they claimed were districts unfairly drawn in favor of the state GOP. They similarly ruled in another, later case that Democrats in Texas could not sufficiently prove that most of the state’s districts were drawn in a way that deliberately undermined minority voters and gave more power to the GOP. In addition, the court ruled that Ohio was legally allowed to continue its practice of purging inactive voters from the state’s voter rolls if they have not voted in two years, thus further reducing the possibility of voter fraud from fake, illegal, or deceased voters.

In another significant case, a victory was handed down by a much more unusual majority: The court’s four liberal justices, along with Chief Justice John Roberts, ultimately ruled that police must obtain a warrant in order to acquire an individual’s location information from their cell phones. Although the court’s three other conservative justices and Kennedy dissented, this case nevertheless was a win for Fourth Amendment privacy rights.

Then came a case with several different implications beyond the initial ruling, when the court’s four conservative justices and Justice Kennedy ultimately ruled that pro-life “crisis pregnancy centers” in California could continue operating without being forced explicitly to promote abortion as an option for its clients.

Not only was this a significant victory for the pro-life movement, it also overturned both a state law in California requiring such centers to promote abortion as an alternative, as well as a Ninth Circuit ruling upholding it. Such a ruling could potentially mark the first of many instances where the Supreme Court begins directly to take on, and defeat, the far-left government of California on its own turf, overturning such laws that violate Constitutional rights, and are sometimes passed just for the sake of spiting President Trump and his supporters. The shadow of this ruling, undoubtedly, will loom long over the highly-anticipated federal lawsuit concerning California’s “sanctuary state” law.

Then, in the most personal victory for President Trump thus far, the court upheld his executive order implementing a travel ban on several unstable Middle Eastern nations, as well as the Communist nations of Venezuela and North Korea. Not only was this a bucket of ice water over the Left’s narrative that this ban was an example of “Islamophobia,” but the majority opinion by Chief Justice Roberts directly reaffirmed that the president has “considerable authority over immigration,” as well as a “responsibility for keeping the nation safe.” This potentially could set a precedent for more sweeping executive action on the broader immigration front going forward, especially as Congress continues to drag its feet on the issue.

Perhaps the biggest ruling, in terms of overturning the long-standing status quo, was when the majority ruled that public-sector employees can no longer be coerced into paying union membership dues when they are not a member of said union. Although this does not encompass private-sector unions, it nevertheless sets a tone. Moreover, employees of such occupations as the federal government or public education no longer have to pay fees to organizations that overwhelmingly espouse left-wing talking points.

With all of these monumental cases and repeated setbacks for the Left, the only other possible victory in relation to the Supreme Court would be the announcement of a justice retiring and opening up a seat to potentially be filled with a right-wing judge . . . which is exactly what happened.

Kennedy, who has been the swing vote in many crucial decisions since he was first appointed by Ronald Reagan in 1988, announced his intention to retire on July 31. In response, President Trump declared that the process to replace him would begin “immediately,” and that his successor would come from the same list from which he chose Gorsuch, which was compiled by the Federalist Society and the Heritage Foundation.

As the battle for Congress in November rapidly approaches, this development instantly has become the top priority for the Trump Administration, coming off the failure of Congress’s latest efforts to reform the American immigration system. It will undoubtedly be an issue that rallies both party bases, and the eventual end result ultimately could determine the fate of the Senate.

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America • Americanism • civic culture/friendship • Cultural Marxism • First Amendment • Free Speech • Identity Politics • Neil Gorsuch • Post • Religion and Society • The Constitution • The Courts • The Culture • The Left • The Resistance (Snicker)

Having Your Cake and Eating It, Too

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, decided by the U.S. Supreme Court on Monday, was the most closely watched case of the 2017-2018 term. And for good reason.

In a classic culture war match-up, a devout Christian baker, Jack Phillips, was pitted against a same-sex couple, who were incensed that Phillips refused—on religious grounds—to create for them a custom wedding cake to celebrate their union. When the Colorado Civil Rights Commission ruled against Phillips, at about the same time that wedding photographers, florists, cake bakers, and other vendors faced similar claims of discrimination against gay couples in other states, the coercive implications of “marriage equality” provoked popular outrage.

Phillips represented the opposition many Americans feel to progressive bureaucrats and judges, who have aggressively promoted what might be summed up as “the LGBT agenda”—including the 2015 Obergefell decision which “discovered” a constitutional right to same-sex marriage—running roughshod over the sincere moral convictions held by a majority of voters in most states. Prior to Obergefell, same-sex marriage advocates contended that gays simply wanted to enjoy the same legal rights as heterosexual couples. Kumbaya and all that. Many decent, kind-hearted citizens—taking the LGBT rhetoric at face-value, were sympathetic. Cases like Masterpiece Cakeshop, however, seemed to represent a treacherous bait-and-switch; as soon as the campaign for “marriage equality” had been won, mean-spirited proponents of SSM began to insist—using all the coercive power of the state—that the public not only recognize gay marriage but approve of it—even celebrate it.

Dissenters, it became clear, would be punished. In flyover country—where being held in open contempt by coastal elites is par for the course—overreach of this kind provoked a populist backlash, resulting in the election of President Trump in 2016. Judicial rulings like Obergefell understandably left people feeling they had been suckered—once again, played for dupes by the liberal establishment. They were furious.

The actual scenario in Masterpiece Cakeshop was slightly more nuanced than that: the case arose prior to Obergefell, and involved a Colorado “public accommodations” statute prohibiting discrimination by businesses on the basis of sexual orientation. Moreover, Phillips was not a stand-in for the average business-owner with qualms about SSM; the facts of the case were highly particular and focused on the “expressive” nature of his custom cakes. Phillips’ defense did not consist of simple moral opposition—let alone the inherent right to refuse service to whomever he wished—but the much-narrower claim that being forced to bake a custom cake would violate his First Amendment rights. Nevertheless, the case became a potent symbol of the resistance of the nation’s “silent majority” to the liberal judicial activism that produced Obergefell.

This created an awkward situation for the Supreme Court, for two reasons. Normally, the black-robed mandarins who issue Delphic rulings “interpreting” the Constitution from their marble temple in Washington, D.C. do so with the same anonymity as the imposter behind the curtain in the Wizard of Oz. Cowed observers are usually so taken with the trappings of SCOTUS’s grandeur—like the belching smoke and fire in the 1939 movie—that they do not question its pronouncements. But this time, the natives—those pesky Deplorables—were restless. And, even worse, they were paying close attention.

The second reason is Justice Anthony Kennedy’s vanity. As he completes three decades on the Court, as President Reagan’s third choice for the seat vacated by the retirement of Lewis F. Powell in 1987 (Kennedy was nominated only after Robert Bork was shamefully denied confirmation and Douglas Ginsberg was forced to withdraw over reports of past marijuana use), the 81-year-old Kennedy is very concerned with his “legacy.” Whether he will hang on, as the “Notorious RBG” has, or depart while a Republican president is in office (enabling President Trump to nominate his successor), Kennedy is nearing the end of his judicial career.

Kennedy’s proudest achievement on the Court is his tireless promotion of gay rights, doggedly conjuring them from a Constitution silent on the topic, invoking treacly sentiment—bordering on the spiritual—to divine constitutional protections from “the mystery of human life” and similar folderol. I have previously described Kennedy’s leading role in the Court’s evolving recognition of gay rights, including authoring Obergefell, and will not repeat that discussion here. Suffice it to say that Kennedy knows his eventual obituary will lead with a reference to Obergefell, and like all vain mortals, he wants the context to be favorable.

Kennedy’s dilemma with Masterpiece Cakeshop is that the case was a lightning rod for criticism of his cherished life-work. He couldn’t stand to retire—if not at the end of this term, then soon—on the discordant note of ruling against the sympathetic cake baker, Jack Phillips. That would have cast doubt on the bona fides of the crusade Kennedy has been leading since 1996, when he wrote the decision in Romer v. Evans, the first step down the slippery slope leading to Obergefell. The solution? Rather than picking a winner in the divisive culture war that he himself had created, Kennedy found a technical basis for avoiding a lasting, substantive resolution. Masterpiece Cakeshop is not the landmark precedent some observers were expecting.

As has been widely-reported (this case being the subject of the nation’s undivided attention, after all), Kennedy did not reach the merits of the case and in effect disqualified the Colorado Civil Rights Commission—which had ruled against Phillips—due to derogatory, anti-religious statements made by some commissioners in the course of their ruling. Among other things, some commissioners called Phillips’ religious objections “despicable.” Kennedy made a fuss about these same statements during oral argument in December, prompting my prior article for American Greatness,  “Justice Kennedy’s Too-Late Lament for Tolerance.” As I remarked on the AG blog, “Justice Kennedy would make a lousy poker player. He revealed his hand during oral argument on December 5. He and some of the other Obergefell majority (Kagan and Breyer) were embarrassed by the blatant anti-religious bias of the Colorado agency, so they ruled in favor of the baker, Jack Phillips, to disassociate themselves from such intolerance.” 

Thus, the title of this article: “Having Your Cake and Eating It, Too.” Kennedy and some of the other activists who joined the 5-to-4 decision in Obergefell (namely, Justices Elena Kagan and Stephen Breyer) wanted to bask in the spotlight of “enlightened” elite opinion that applauds the invention of made-up constitutional protection of gay rights, without having to face the opprobrium that would have ensued if the Court ruled against Jack Phillips, the symbolic Everyman. (The Wall Street Journal gets a runner-up award for best title, with “The Supreme Court’s Half-Baked Cake.”)

Although Kennedy’s opinion for a 7-to-2 Court in Masterpiece Cakeshop is being reported as a “victory” for religious objectors such as Phillips (and in a technical sense it is), the decision does not back away from the Court’s unprincipled LGBT jurisprudence one iota. Here is how Kennedy begins the analysis section of his decision:

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.

You get the drift. Blah, blah, blah. The can got kicked down the road, so a future Court—perhaps without Kennedy, and with a less sympathetic plaintiff than the perfectly-cast Jack Phillips—can explain why a made-up constitutional right compels the obedience of objecting citizens. In the meantime, Kennedy’s opinion, like Powell’s in Regents of the University of California v. Bakke (1978), the landmark affirmative action case, provides plenty of sotto voce instruction for future bureaucrats—how to reach the same result without being so blatant.  

What else can we learn from Masterpiece Cakeshop? Here are a few takeaways. The anti-religious sentiment decried in Masterpiece Cakeshop, while notable for its overtness, is remarkably candid and indicative of what most progressives think about moral objections to homosexuality. Regulators and litigants are now on notice to conceal their actual motives. The dissenting opinion by Justices Ruth Bader Ginsburg and Sonia “The Wise Latina” Sotomayor indicates how extremely partisan they are—to the Left. They would have ruled against Philips, regardless of the commissioners’ anti-religious comments, simply for refusing to make a wedding cake for the same-sex couple. To them, as die-hard ideologues, defying the conventions of political correctness is a strict liability offense.

Reading further into the tea leaves, the fact that Chief Justice John Roberts declined to join the concurring opinions of the conservative bloc of justices (Clarence Thomas, Samuel Alito, and Neil Gorsuch)—who wrote separately to defend Phillips’ First Amendment rights on the merits—may indicate either that Roberts is equivocal on the issue (which bodes poorly for future cases) or that he made some type of “deal” with Kennedy to get his vote in the travel-ban case (yet to be decided). The “animus of the decisionmaker” rationale of Masterpiece Cakeshop, while helpful in that case, may prove disadvantageous if applied to the pre-election comments of candidate Donald Trump. Kennedy’s opinion seemed to anticipate such comments, when it stated:

[T]he Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion…. In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case. (Emphasis added.)

This distinction—between mere comments made by a lawmaker and those of an adjudicatory body—could become very important in the travel ban case.

Masterpiece Cakeshop is not a masterpiece. Several important decisions remain to be issued this month. Stay tuned.

Photo credit:  Joe Amon/The Denver Post via Getty Images

America • Government Reform • Immigration • Law and Order • Neil Gorsuch • Post • The Constitution • The Courts • The Media

Crimes of Violence and Vagueness

What’s an immigrant got to do these days to get deported?  How about commit first-degree burglary? Twice!

Nah! It’s not like first-degree burglary is a “crime of violence” or anything like that.

At least, not according to the Supreme Court.

The recent Sessions v. Dimaya court decision was eye-opening. And not just because the newest justice―Trump appointee, Neil Gorsuch―sided with the Clinton-Obama leftist wing of the court.

No, this case is revealing because it sheds some light on the infamous 1965 Immigration and Nationality Act, a really terrible deal surpassed in its dreadfulness only by the Iran deal. The 1965 act was the baby of Senator Ted Kennedy. Kennedy, of course, is better known as the guy who drove Mary Jo Kopechne off the Chappaquiddick bridge.

The 1965 Immigration and Nationality Act set the stage for immigrants to inundate the country in unprecedented numbers. Over the following 30 years, more than 18 million immigrants entered the United States legally. That’s three times the total number admitted in the 30 years prior to 1965.

Understanding that there are always some bad apples in the bunch, the Immigration and Nationality Act established guidelines for deportation. Very sensibly, the law stipulated that an immigrant could be sent packing after committing a “crime of violence.”

What Happens in Vagueness . . .
Normal people would think first-degree burglary qualifies as a crime of violence. But just as President Clinton wasn’t sure what the meaning of the word “is” is, the court wasn’t sure what the meaning of “crime of violence” is.

Neil Gorsuch joined the majority by not answering the question. He contended that “crime of violence” is a vague term. So vague, in fact, that we have no way of knowing whether first-degree burglary is a crime of violence. According to this reasons, if we don’t know, we can’t deport the perpetrator.

“Vague laws invite arbitrary power,” Gorsuch wrote in his concurring opinion, “leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.”

No one on the receiving end of a first-degree burglary is confused about whether it feels like a crime of violence. But Gorsuch is right about one thing: “Vague” is bad when it comes to making laws.

Vaguely written laws are the lifeblood of the swamp. They give career bureaucrats carte blanche to interpret the vagaries as they please. It’s these deep state civil servants who end up crafting the laws they want, not the ones presented to the American people by their elected representatives.

Still, there’s one thing we learned about this immigration bill that is not vague at all. A  violent crime―whatever that is―can get you deported. But a lesser crime will be overlooked. You can stay right here, safe and sound on these shores.

That means someone can ransack a private home, snatch a woman’s purse, or steal a car, and it’s all good. No violence to see here. Move along. You’re good to stay.

It seems that immigration issues are loaded with such vagaries. And it’s these vague terms that are preventing the government from deporting anyone.

Vague About Migration
We’re all familiar with “No Fault of Their Own.” It’s conveniently vague. No one knows what it means. It means whatever you want it to mean. That’s what makes it such an effective rallying cry for illegal DACA-type immigrants.

Currently, the “Blame it on Honduras” caravan of “migrants” is front and center in the news. We’re told they must be allowed into this country and granted asylum because they are fleeing the oppression of their native country. Exactly what kind of oppression? Hard to say. It’s a bit vague.

Among the troubles they’ve seen is a contentious presidential election that has created much violence and instability. So naturally, the United States is the place to go to get away from all that. No contentious elections here . . .

Even a killer of an innocent young woman can’t get deported. Yes, Garcia Zarate did kill Kate Steinle, but the circumstances were vague. After all, he didn’t mean it. He was only shooting up the pavement. How was he to know that the bullet would ricochet 80 feet or so and penetrate Kate Steinle’s back and kill her?

It’s hard to imagine, but years ago―before they were against it―Democrats were all for deporting immigrants. Back then, an immigrant, even without committing a crime, could be sent back by a Democratic president.

This was true even when that immigrant was here through no fault of his own. After all, it doesn’t get more “No Fault” than having your mother stuff you into a small boat and take you on a 10-hour tour to the Florida coast; a journey which she and several others did not survive..

Even when that immigrant is escaping a totalitarian regime―one with a president-for-life that subjugates its citizens, uses repressive tactics to curb dissent, and arbitrarily arrests human rights defenders—Democrats seem unconcerned.

The Dreamer a Democrat Deported
For none of this bothered Bill Clinton in 2002. The plight of this illegal immigrant had garnered a lot of international attention, and Clinton knew what he had to do.

But it’s not easy to remove people against their will. Accidents happen. He had only to consult with his attorney general, Janet Reno, who reminded him of how she managed to incinerate scores of innocent people―men, women, and children, all American citizens―while carrying out a botched raid.

Clinton wasn’t going to have any of that this time. So he sent for the big guns―literally―to do it right. In a pre-dawn raid, operating stealthily, heavily-armed federal agents stormed a small Miami home.

Back then, when smartphones were not yet ubiquitous, someone still managed to snap a good photo, commemorating the occasion.

Mission accomplished.

Bill Clinton got his man. Actually, it was just a small boy, Elian Gonzalez, the most notorious Cuban in America since Ricky Ricardo.

After providing an EZ Pass to millions of immigrants, the Immigration and Nationality Act―and a Democratic president―somehow couldn’t give any shelter to a Cuban refugee.

Now, this just may be Cuban folklore, but they say Fidel Castro loved the picture of the raid, and hung it up in his living room. Each night, while sipping a nice Cuban rum, he’d gaze at it, and he’d smile.

Mission accomplished indeed.

Photo credit: iStock/Getty Images

America • American Conservatism • Congress • Immigration • Libertarians • Neil Gorsuch • Post • The Constitution • The Courts • The Left

Has Gorsuch ‘Gone Wobbly’ Already?

A Supreme Court decision on immigration that was not expected to be controversial instead attracted wide attention upon its release last week. The reason: Justice Neil Gorsuch, the much-heralded successor to the legendary Antonin Scalia, joined with the High Court’s four liberals to overturn an immigration statute on the grounds that it was “void for vagueness,” over the strenuous dissent of the court’s conservative bloc: Justices Clarence Thomas, Samuel Alito, and Anthony Kennedy, and Chief Justice John Roberts.

The majority in Sessions v. Dimaya held that the catch-all (or “residual clause”) definition of the term “crime of violence”—any felony other than enumerated offenses involving “a substantial risk that physical force against the person or property of another” may be used—was too vague to be enforced. Hence, by a 5-4 vote, the court halted the deportation of a noncitizen serial felon twice convicted of first-degree burglary.

The press corps generally reacted with a “man bites dog” lede, focusing on Gorsuch’s defection from the conservative bloc. Many news reports mentioned how the majority relied on a 2015 decision written by Scalia (decided by an 8-1 vote, with only Alito dissenting), Johnson v. United Stateswhich held that a criminal statute authorizing enhanced prison sentences for the commission of a “violent felony” was void for vagueness.

Surprisingly, many legal scholars—even those on the Right—have applauded Gorsuch’s decision in Dimaya. I disagree. Even though I am a Gorsuch fan (e.g., here and here), I believe the dissenters in Dimaya were correct. Confusingly, the justices issued four separate opinions—the majority opinion by Justice Elena Kagan, a concurring opinion by Gorsuch, and lengthy dissents penned by Roberts and Thomas—totaling 96 pages.

That’s a lot to unpack in a short space. As a policy matter, legislators should write statutes as clearly as possible, so that those subject to the law have fair notice of its commands. This principle is especially important in penal statutes, when imprisonment is a possibility.  

What the Constitution Says About “Vagueness”
The problem, however, is the Constitution does not necessarily dictate the “ideal” result from a policy standpoint. “Originalism,” which the court’s conservatives purport to follow, means that the Constitution should be interpreted in accordance with its original meaning, not based on the justices’ personal policy preferences.

The Constitution—itself full of imprecise terms such as “unreasonable searches and seizures”—does not address the subject of “vagueness.” The court’s “void for vagueness” case law (of which Johnson is an example) is based on the due process clause of the Fifth Amendment, but the most straightforward view is that the Framers understood “due process” to require only procedural fairness (such as an impartial hearing). A poorly drafted statute will rarely result in a denial of procedural due process, as Justice Alito explained in his dissent in Johnson. Johnson is not dispositive in any event.

Unlike Johnson, Dimaya was an immigration case, not a criminal case. The statute in question, Section 16(b) of the Immigration and Nationality Act (INA), authorizes the deportation of foreign nationals who are convicted of specified violent crimes. Deportation—a civil matter—is not the same as imprisonment, and foreign nationals do not enjoy the same constitutional rights as citizens. Even if Johnson was correctly decided (and I think Alito’s dissent makes the far stronger case), it does not support—let alone compel—the result in Dimaya. A noncitizen facing deportation from the United States for committing aggravated felonies (as defined in the INA) is not entitled to the same “due process” as a citizen charged with a felony, facing either imprisonment or an enhanced prison sentence.

As the dissenters in Dimaya painstakingly explained, Johnson simply does not support the holding in Dimaya. Kagan’s decision, which Thomas’s dissent deemed “triply flawed,” is an activist travesty.

Daniel Horowitz, author of the 2016 book Stolen Sovereignty, convincingly argues that courts should—and traditionally have—deferred to the political branches in cases involving immigration and foreign relations. The Framers (and the court itself, in precedents going back to the 19th century) understood deportation to be an extension of national sovereignty, warranting no due process. The executive was properly thought to have “plenary power” to deport (or, in the parlance of the INA, “remove”) foreign nationals on specified grounds.

Gorsuch conceded in his concurring opinion that “the Executive enjoys considerable constitutional authority” in these areas, but could not resist the temptation unnecessarily to meddle in deportation proceedings. In a disturbing footnote, Gorsuch suggests that aliens are entitled to due process in deportation proceedings—a radical (and potentially disastrous) holding.

Misplaced Praise for Gorsuch
is a not a hard case, as the alignment of the sometimes-fickle Justice Kennedy with the court’s reliable conservatives plainly demonstrates. Why, then, did so many right-of-center scholars praise Gorsuch’s erroneous decision? (E.g., here, here, here, here, here, and here.) At the risk of stepping on some toes, I’ll offer several theories, in no particular order of primacy.

Libertarians, who greatly outnumber traditional conservatives in the legal academy, place little importance on maintaining national sovereignty; indeed, the leading libertarian think tank, the Cato Institute, unabashedly advocates open borders. Libertarians at Cato and elsewhere also support an aggressive judicial role in overseeing the political branches (sometimes called “judicial engagement”).  Result-oriented scholars tend to cheerlead for judges doing their bidding, and Beltway pundits and think tanks serve as the cheerleading squad.

Moreover, the current generation of right-of-center legal scholars (even the small number of conservatives and classical liberals) have largely abandoned the “judicial restraint” advanced by Robert Bork and Lino Graglia in favor of a “new originalism” that critics contend is just a disguised version of the Left’s “living Constitution,” allowing inventive constitutional law theorists to devise pseudo-historical arguments justifying policy outcomes they find congenial. Skeptics sometimes deride this as “law office history.”

Sadly, the faculties at elite law schools are so overwhelmingly leftist that the beleaguered minority of center-right scholars, in an apparent display of the Stockholm Syndrome, begin to mimic the attitudes and beliefs of the dominant cohort—shifting the intellectual playing field ever leftward.

And, to be fair, some well-intentioned opponents of the administrative state sincerely view Gorsuch’s aggressive approach as a useful weapon in the overdue battle to rein in the federal Leviathan and restore some semblance of the separation of powers envisioned by the Framers. The ends will justify the means, they naively hope. In the past, however, activist judges have created far more problems (and more Big Government) than they have solved.

The question remains: Why would Gorsuch, still a rookie on the Court, abandon his veteran colleagues (especially Thomas and Alito, both unflinching stalwarts) to join with the court’s liberals? The answer may lie in the Sirens’ song of admiring right-of-center pundits, who have been wooing Gorsuch with adulatory coverage during his short tenure on the High Court. Gorsuch’s adoring fans have portrayed him as the intrepid jurist who will slay “Chevron deference” (the bête noir of administrative law critics) and restore the rule of law. Gorsuch may have let this over-the-top flattery go to his head. Unfortunately, few commentators (Mark Levin and Daniel Horowitz excepted) have criticized Gorsuch’s perfidy in Dimaya.

In the past, when conservative justices such as Anthony Kennedy softened their views to win the praise of New York Times reporter Linda Greenhouse, the phenomenon was dubbed “the Greenhouse Effect.”  Perhaps Gorsuch’s opinion in Dimaya is an example of “the Cato Effect.” Frankly, I hope Gorsuch snaps out of it and regains his bearings, lest he replace Kennedy as the court’s unpredictable flip-flopper. Like Ulysses in Homer’s Odyssey, Gorsuch may need to lash himself to the mast of judicial restraint to avoid such temptations in the future.

Photo credit: Eric Thayer/Getty Images

2016 Election • American Conservatism • Center for American Greatness • Conservatives • Donald Trump • GOPe • Neil Gorsuch • Post • Republicans • The Media • The Resistance (Snicker)

Abandoning the NeverTrump Ship

With 2017 safely behind us and a new year beginning, the NeverTrump faction continues to offer opinions on President Trump that range from thoughtful and surprisingly honest to ill-considered and seething with resentment.

Among the more thoughtful examples was an end-of-the-year column by Tim Carney, the more-or-less NeverTrump commentary editor at The Washington Examiner. Every year, Carney owns up to his biggest political miscalculation over the previous 365 days.

For 2017, his most glaring mistake was predicting Trump “wouldn’t appoint a restrained, conservative judge to the Supreme Court.” Contrary to Carney’s grave doubts, Trump “gave us a superbly qualified, brilliant, conservative justice in Neil Gorsuch.” Although it’s early yet, Gorsuch already looks like a very able successor to former Justice Antonin Scalia, a man he greatly admired for his judicial mind, character, and integrity.

Carney harbors major reservations on what he considers the president’s many character flaws (he argues these helped lose “winnable” races in Virginia and Alabama and risks the GOP alienating young voters). Nevertheless, he thinks it’s “possible that Trump will prove himself obviously better than Clinton. And that’s not what I expected.”

What about Evan McMullin, the candidate Carney voted for in 2016? He writes:

These days, I find myself regularly wishing I could make McMullin go away. Like almost every McMullin voter I know, I’m embarrassed by his post-election behavior. Most conservatives who voted for McMullin maintain a critical and skeptical stance towards Trump. McMullin, though, has joined the performative #Resistance, blasting as counterrevolutionaries anyone who doesn’t go far enough in castigating every action of the president, even the harmless and salutary ones.


This tracks with the results of an unscientific Twitter poll Sean Davis of The Federalist recently conducted, in which 90 percent of more than 2,300 participants said they regret voting for McMullin.

NeverTrump Pretzel Logic
Other commentators weren’t as thoughtful as Carney. Jonah Goldberg twisted himself into a logical pretzel in his final National Review column of 2017.

Trying to get around the problem that has plagued the likes of Jennifer Rubin and David Frum—rejecting policy positions they formerly held simply because Trump holds them—Goldberg adopts another noxious form of post hoc rationalization.

He admits Trump has had a bevy of policy successes—from “a record number of judicial appointments, including a Supreme Court justice” to “the defeat of [the] Islamic State”—but argues the president had little or nothing to do with these victories.

“Tax reform was carried across the finish line by the GOP congressional leadership,” he writes. “Net neutrality was repealed by independent Republicans at the Federal Communications Commission.”

While technically correct, Goldberg’s statements are literal to the point of absurdity. It’s akin to saying since Ulysses S. Grant didn’t personally fight in every battle as commander of the Union armies in the waning days of the Civil War, he didn’t deserve credit for those final victories. The only reason for tax reform and Net Neutrality repeal—to say nothing of a host of other regulatory reforms—is that Trump rather than Hillary Clinton won the election.

Further, the conceit that presidents get credit only if they oversee every minute detail of policy assumes the correctness of the modern view of the presidency. Only with more recent presidents such as Franklin D. Roosevelt has the executive branch shifted from executing the law to meddling in every area of policy imaginable.

What Goldberg considers to be Trump’s executive diffidence is instead one of his chief strengths. Trump has governed more like presidents in the mold of Washington or Cleveland—chief executives who did not intrude upon the powers the Constitution delegates exclusively to the legislature.

Goldberg evidently considers Trump’s respect for the separation of powers to be a foible. And though he might champion many of Trump’s policy victories, he still maintains that Trump and Clinton were equally terrible choices. Goldberg may have conceded that “NeverTrump” is over, but he sure doesn’t write that way.

The Intellectual Bankruptcy of NeverTrumpism
By far the silliest NeverTrump end-of-the-year column came from the New York Times’ housetrained “conservative,” Bret Stephens. Although he agrees with Goldberg on the myriad successful policy decisions Trump has overseen, he still wishes Hillary won in 2016. Why?

Because of the alleged “shortcomings” in Trump’s character: “lying, narcissism, bullying, bigotry, crassness, name calling, ignorance, paranoia, incompetence and pettiness.” Fact is, most voters didn’t vote for Trump because of his vices, real or imagined, but in spite of them.

But look: if you’re going to argue, on the one hand, that “character does count and virtue does matter,” and on the other hand confess you still wish Hillary Clinton were president, you don’t get to be taken seriously ever again.

The Clintons obliterated the importance of character for public officeholders in the 1990s. Democrats fell over themselves to defend Bill Clinton’s personal failings and almost matter-of-fact corruption. Hillary Clinton has demonstrated every character defect imaginable in her public life. From Americans getting killed abroad to enriching herself in the pay-to-play scheme known as the Clinton Foundation, her vices clearly trumped Trump’s. And it’s not even close.

Stephens also blames Trump for not kowtowing to our sainted press, not holding useless townhalls that are barely disguised political rallies (Trump drops the pretense and instead just has the real thing, crowds and all), having a sense of humor (“we have a president who fantasizes on Twitter about physically assaulting CNN”), not giving in to the ongoing coup attempt by our intelligence community, and other voluminous violations of the holy establishment catechism.

Obviously irritated that Max Boot beat him by a couple of days to a self-flagellating column acknowledging his “white privilege,” Stephens writes that Trump’s “white-identity politics” is the greatest threat to America’s stability.

Since when did pointing out that low-skill Americans who happen to be white and have had their job prospects and wages reduced by the one-two punch of illegal immigration and “free trade” become a grave evil? Stephens would rather indulge in the musings of critical race theory than actually help Americans who have suffered the brunt of the disastrous political decisions for which he and his peers have been strong advocates.

Although a hardened group of radical NeverTrumpers remains, most former fellow-travelers have moderated their stances and are at least willing to consider Trump on his merits. From R.R. Reno to Mollie Hemingway, former or more moderate critics of Trump are now undertaking important work in helping to smash the ruling class oligarchy.

As Trump’s successes continue to pile up in the New Year, the remaining few passengers on the sinking NeverTrump ship should ask themselves an important question: Does their hatred of one man matter more than the good of their country?

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2016 Election • America • Big Media • Donald Trump • Government Reform • Immigration • Israel • Neil Gorsuch • Political Parties • Post • The Left • The Media • the Presidency • Trump White House

Trump Hastens Media Meltdown

Few things are better than watching the media weep in despair as President Trump continues to deliver on his promises. One of those things, however, is watching as the intellectually honest among them are forced to admit that he is winning.

And that is exactly what has been happening in recent weeks. Two of the largest and most biased media outlets, marching through vales of tears, admitted that President Trump, arguably, has kept more of his promises than any President in modern history.

The first of these delicious offerings is CNN’s “Donald Trump — Keeper of Promises.” Then, like an early Christmas present, came the second piece in the Huffington Post: “Sadly, Trump is Winning.”

Both articles highlight all of Trump’s major accomplishments and track how closely they line up to his promises on the campaign trail. And both delineate his accomplishments as occasion for lamentations which, of course, cannot ring as anything other than delightful music in the ears of Trump supporters.

CNN talks about how Trump has made good on his word to withdraw from the Trans Pacific Partnership (TPP) and the Paris Agreement, while also swiftly moving to renegotiate the North American Free Trade Agreement (NAFTA) and de-certify the Iran Deal. These were all bad deals for our country that Trump promised supporters he would renegotiate, and he is doing that. After fighting the courts for months, his travel ban has finally been fully implemented. Most recently, of course, he made the bold move of declaring Jerusalem to be the capital of Israel, much to the chagrin of the globalist elite and Islamists around the world. GDP growth has been soaring at levels of 3 percent or higher for the last several quarters, and the stock market continues to reach for the sky, with its latest milestone being 24,000.

The Huffington Post piece makes clear, even in the title, that Trump’s success is an occasion for their mourning; yet even they can no longer deny that by Trump’s metrics, he is winning. HuffPo focuses on how Trump recently succeeded in having his OMB Director, Mick Mulvaney, take over the controversial, Obama-era Consumer Financial Protection Bureau (CFPB), after its former director Richard Cordray resigned. Mulvaney quickly acted and removed many of the Obama-appointed CFPB personnel. Trump himself continues to fill up judicial vacancies with judges who, on average, are rather young and very conservative, from the same mold as Supreme Court Justice Neil Gorsuch. Most recently, the GOP’s tax cut bill advanced through the Senate, and now faces the last few hurdles in the conference committee as it appears fairly likely to head over to President Trump’s desk.

This turn of events—two of Trump’s biggest media rivals admitting to his success—is about as predictable as as a swarm of laser-sharks attacking Hawaii…which means that, naturally, Scott Adams had already predicted it quite a while ago.

But then again, maybe this turn of the wheel isn’t so surprising after a week of monumentally disastrous mainstream media errors and self-corrections. This list includes, but is not limited to: claims that Secretary of State Rex Tillerson was about to be fired; the humiliation of both ABC’s Brian Ross and “The View’s” Joy Behar over a false report on General Michael Flynn; the debunked claims that Robert Mueller’s investigation had subpoenaed President Trump’s account with Deutsche Bank; and an erroneous CNN story claiming that Donald Trump, Jr. had contact with WikiLeaks prior to that website releasing thousands of DNC emails, when that contact actually came about after the leak.

And again, all of this was within the span of just one week. This isn’t the first such week since Donald Trump was sworn in to be the 45th President of the United States. He has always and continues to give the media the vapors.

Former Yale professor Walter Russell Mead addressed this on Twitter. Comparing the current era to a similar media-centric period during the Watergate scandal, Mead recalled: “I don’t remember anything like this level of journalistic carelessness back then.” He also accurately noted: “The constant stream of ‘bombshells’ that turn into duds is doing much more to damage the media than anything Trump could manage.” Fox News’ Brit Hume, who was a reporter during the Watergate era, agreed.

And of course, what better way to address these controversies than deflection to complete non-stories? That’s what Slate did with a recent article taking on what must be considered as truly the most scandalous, the most revolting thing that Donald Trump has ever done in his entire life: “Trump Reportedly Drinks 12 Diet Cokes, Watches Up to 8 Hours of TV Per Day.” The horror.

Scott Adams, once again, said it best: “Slate ran out of ammo.”

And of course, it wasn’t long before CNN also bravely tackled this most consequential  story, and made the genius decision to crowd out coverage of this week’s attempted terrorist attack in New York City in order to make sure the American people got to the bottom of Donald Trump’s terrible aspartame and caffeine fueled presidency.

Two illustrations will make my point for me. First:

And second:

These truly are pictures worthy of their own full-length comedy film. They present a mainstream media unable to come to terms with a president they so despise and predicted a series of disasters would follow, actually succeeding; thus, they turn to creating one fake “bombshell” after another, only to be forced to admit to their errors, before then turning to the most mundane and pathetic “attacks” imaginable.

The only thing left is the conclusion: will the media finally concede and admit to its bias, and attempt a genuine shift to a more neutral, non-partisan coverage of our president? Not likely.

Will the mainstream media finally lose its monopoly on information in the modern day, and at last be successfully overrun by alternative media? Ideal, but there’s still a long way to go.

Or does the media continue to double down on stupid, in the hope that their pickaxes will finally strike some molecule of gold, instead of hacking off their own feet? Again, this is unlikely. So, grab the popcorn, and enjoy the ongoing picture produced by an anti-Trump media setting itself on fire.

2016 Election • America • Congress • Conservatives • Deep State • Democrats • Donald Trump • Foreign Policy • Government Reform • Greatness Agenda • Healthcare • Neil Gorsuch • Obama • Obamacare • Republicans • self-government • separation of powers • The Media • The Resistance (Snicker)

Polls Don’t Tell the Tale—Trump’s Support is Deep. Here’s Why…

As a conservative Republican, I harbored concerns when I voted last November for Donald Trump to be my president. I knew that I had to vote for him, given the unacceptable alternative of an incompetent liar who had placed me in a basket of “Deplorables”; had destroyed 33,000 emails that she covertly maintained on her bathroom server while telling me that the emails all concerned yoga classes and wedding dresses; had lied to me and the families of those who fell in Benghazi about what had really happened there on another 9/11; and really had nothing to show for decades of public activity but a résumé of failure from HillaryCare, Whitewater, and Travelgate to a mediocre tenure in the State Department.

Her “Russian reset” had been a disaster. She had met many dozens of world figures, logged many thousands of miles of air travel, and had eaten well at many state banquets, but she had nothing of lasting substance to show for it all. During her State Department tenure, the “Arab Spring” devolved into a nightmarish winter. ISIS grew from a junior varsity to the major leagues of barbarism and terror. And she even had found the opportunity to scream on the phone at the Prime Minister of Israel, while denying the Jewish right to build without restriction in Jerusalem.

So I voted unhesitatingly for Trump. But, again, I had concerns.

Although I recoiled from the Republicans-in-Name-Only and “Never Trumpers,” I did share some of their bemusement. Would he be a true conservative, or was he really a liberal and a conservative hybrid at once, a man bereft of grounded ideology who simply tilted with the direction of the day’s breeze, capable of being turned by the last voice to compliment him?

Would he truly appoint conservative federal judges and Supreme Court justices, or would his judicial legacy be another Republican flop like the Nixon liberal appointments after Clement Haynsworth and G. Harrold Carswell, or like George H. W. Bush’s disastrous appointment of David Souter? Would he keep his promises? Would he have a clue?

That was then. Now, six months into Trump’s first term, I could not be more pleased with the president we elected. He is better than I ever imagined, and he is the real thing. That is the reason that voter surveys continue to show that President Trump has not lost any support among the base who elected him, and that he does as well now as before in the counties throughout the country that he carried as his base.

So What? Who Cares?
I do not care a whit about the “Russia stuff.” That is what I call it: the “Russia stuff.” Whether it is about Russian “collusion” or deals that Jared Kushner did or did not negotiate, or whom Attorney General Jeff Sessions met when he was a U.S. senator, or where former Trump campaign chief Paul Manafort did business, or the telephone contacts of Michael Flynn—the moment that I see the word “Russia” in a headline about  the White House, I skip the story. Although I am a “news junkie,” I simply do not care. For me, the subject has as much relevance as a soccer game: Yawn.

I even have stopped watching almost all of Fox News, even though Tucker Carlson’s solid conservatism is an improvement over Bill O’Reilly’s softer version, and the network is so much stronger without Megyn Kelly and Greta Van Susteren. I simply have no more interest in wasting my time with “fair and balanced debate,” to sit and listen to some liberal hack named Tarlov or Roginsky recite memorized talking points, or a fool named Marie Harf who used her State Department platform to explain that ISIS beheadings stemmed from a lack of job opportunities. (Remember: #JobsForISIS?)

For my news I have moved to the Fox Business channel, and I treat myself to Stuart Varney, Melissa Francis, Lou Dobbs and insightful conservative guests who do not waste my time. And, although I once was a Johnny Carson and Jay Leno regular, I no longer watch those late night talk shows. Instead, I choose between Ken Burns documentaries, MLB.TV’s “Quick Pitch,” and studying the Talmud. Same for “Saturday Night Live.” The moment the Washington Post began reporting every Monday on that show’s latest political slams against the Trump White House, I decided to turn elsewhere for my Saturday night entertainment. Besides, that show stopped being funny decades ago.

But what about all of Trump’s tweeting? Is Trump a nut? And what about the time he devotes to tweeting and to watching “Fox & Friends” and “Morning Joe”?

I don’t know. Maybe he is a nut. Yet, as an Orthodox rabbi who has counseled hundreds of people over 35 years, and as a high-stakes litigation attorney who has counseled and represented hundreds more, I will share a secret that is not protected by any professional rule of privilege: most people are nuts. (For verification, just ask their spouses, their parents-in-law, and their grown kids.) And most people have side hobbies that “waste time.” I wasted time these past four months watching the Mets. How many hours did President Kennedy waste running after Judith Exner, Marilyn Monroe, and others whom I do not know—and keeping it all secret from his wife? How many hours did President Nixon waste dealing with the Watergate cover-up? How many hours did President Ford need to devote lovingly to his wife as she battled bravely to overcome certain private challenges? How many hours did President Clinton set aside for Paula Corbin Jones, Kathleen Willey, Monica Lewinsky, and dealing with the subsequent fallout emanating from them and from Juanita Broaddrick?

It would seem that the only president who initially wasted no time but devoted every moment’s focus to every detail of government was Jimmy Carter. How did that work out? In the end, he was consumed by the Iran hostage crisis, and we were consumed by him.

Does Twitter take more time away from the work day than those distractions? How long does it take to type 140 characters, even in five or six strings?

What Really Matters
We conservatives do not care about these side stories and Democrat smokescreens that aim to divert this president and us from the agenda to make America great again. Rather, here is what we have come to know these six months since Trump took office:

Republicans have won every seriously contested Congressional election since President Trump was elected. It is absurd to think that, when push comes to shove, Republican voters in 2018 would allow Red State Democrats to sweep the U.S. Senate merely because Chuck Schumer and Elizabeth Warren engage in screeds, while in the House, Maxine Waters calls for the president to be impeached or exiled, or both.

We do not mind that the president fired FBI Director James Comey. This is a man who we now know leaked secret internal information to the New York Times. Notwithstanding that Comey did not trust the president, it was just as reasonable for the president to determine that he could not trust Comey—just as the Democrats long before could not trust Comey and also wanted him fired. Comey interfered with the election process more than Vladimir Putin ever did, arrogated to himself the authority to absolve Hillary Clinton despite his own recognition that she had committed serious federal crimes, and never dealt with the Deep State within his department.

President Trump somehow has managed to lead for six months, despite the most hostile media gangland in a century and more, and he has gained important governing experience along the way, just as the neophyte Obama learned his way around after arriving at the White House with little more than a background in community organizing, a pair of Greek or Roman columns, and a paperback copy of Saul Alinsky’s Rules for Radicals.

President Trump has appointed an extraordinary team of cabinet secretaries, and they are a better and more reliably conservative team than Ronald Reagan ever assembled. While President Reagan not only named Antonin Scalia to the Supreme Court but also Sandra Day O’Connor and Anthony Kennedy, President Trump has named Neil Gorsuch, and the future names in waiting are likely equally impressive. For all the “Resistance” tactics that the Democrats deployed during the Gorsuch battle, the president did not give ground, and he leveraged Harry Reid’s blunder of ending the filibuster rule for federal judicial appointments to get the nomination through. The president’s team now is working to fill the 129 other open federal judicial seats awaiting judges. As he proceeds, we will see balance return to the federal district courts that conduct trials and the federal appellate courts that ultimately settle most of America’s laws, and his own immediate experiences in seeing his entry ban navigate through the courts has taught him that federal judges matter on all levels.

On the energy front, we no longer awake each morning to learn of new Obama-era regulations aimed at strangling American energy independence. Instead, the Keystone XL pipeline was approved, as promised. Obama executive orders have been reversed at dizzying speed. Although a new era has changed the place of “King Coal” in the energy spectrum, the “War on Coal” is ended, as promised, and America is back on the path to end its partial dependency on the dirty oil produced by dictators and thugs from Venezuela to Saudi Arabia—oil drilled and extracted in tyrannies where environmental concerns are a joke—and we now even are inducing allies like Poland in Europe to consider moving their own energy contracts away from Russia and towards the United States.

Trump promised action on immigration, and he has begun the process of inviting bidders to compete for federal contracts to build that wall. Truth is, most of us do not care ultimately who pays for it; we separate his bluster from his substance. That substance already has driven down illegal immigration markedly. And the “bad dudes” really are being hunted by ICE and are being deported or locked up, not merely released on their own recognizance with a promise maybe someday to show up for an immigration hearing, perhaps.

The Underlying Challenge: Congress
We know that the reality of democracy is complicated, and that our Founding Fathers crafted an elegant system of checks and balances for a reason.

Yes, the Republicans now control the House, the Senate, the White House, and the Supreme Court—for which we all thank Barack Obama daily—but the sophisticates among us also recognize that 52 Republican Senators is too razor-thin a margin for a bold Trump agenda to flourish.

For example, Susan Collins represents Blue Maine, and she simply cannot be a Tea Party senator. We need another half-dozen Red State Republican senators, and contrary to the common wisdom, help may be on the way.

Meanwhile, we know that President Trump has done his best to corral the team to reverse the tragedy of Obamacare, but he has been disrupted meanwhile by a crazy filibuster voting rule, an even crazier series of rules regarding “reconciliation,” a liberal Democrat stationed as the Senate’s “Parliamentarian,” and an utterly incoherent and incomprehensible rule regarding the Congressional Budget Office whose projections repeatedly have proven false and imaginary in health care and everything else. If people are told that they no longer will be penalized and coerced to buy health insurance they do not want, of course millions will drop the plans foisted on them. That is not properly termed “millions losing insurance”; that is “millions choosing of their own free will not to pay for something they do not want and do not value.”

We know this president and this Congress will pass a major tax cut before the 2018 elections because Trump wants it, his economic team has it mapped out, and the House and Senate would not dare go to the voters next year without a tax cut. Watch for Red State Democrats, facing electoral elimination, to be passionate supporters of a Republican tax bill. It will happen, and this president will sign it. Of that we have no doubt.

Cut Through the Noise These Next 18 Months
So we have a very strong determination to stand by this president, to give him more Senators in 18 months, and to give him another four years in Washington before Maxine Waters exiles him.

We do not care that Europeans and their leaders like America less now than they did when Obama was president. Most children like their grandparents more than they like their parents because Gramps and Granny have no rules, feed them candy, and let them stay up all night, while the parents make the kids do their homework, brush their teeth, and clean their rooms. Obama was cheered by throngs in Berlin, giggled with Hugo Chavez, and salsaed in Cuba in front of Castro. Sure they loved him—they even gave him a Nobel Peace Prize, just as they previously had given one to Yasser Arafat, before he did anything.

We want a president who goes to Europe, tells them to pay the bills they promised to pay NATO, and gets results. We want him extricating us from climate pacts and trade agreements that do not serve our interests. Along the way, our allies from Japan to Israel to England know they now have a reliable leader in the White House, not a team of kibbitzers who send James Taylor to Paris to sing “You’ve Got a Friend” as an American response to the Charlie Hebdo massacre in France.

Americans want jobs, and this president now is forward on rebuilding the nation’s long-neglected infrastructure, while emphasizing the importance of “Buying American” and restoring America’s historical role in manufacturing. We want lower taxes and an America where we pay only for the health coverage options we want. We do not want to pay for Sandra Fluke’s birth control pills or Planned Parenthood’s abortions, although many of us are copacetic with their family planning and social counseling. We want trade agreements that protect American jobs and that recognize that international polluters like China and India and the misogynistic Arab oil sheikhdoms need to catch up with our clean-environment practices before we continue marching like lemmings over industrial cliffs while the mass polluters scoop up our forfeited interests.

As the president now begins his next six months in office, we among his supporters have learned to tune out the nonsense that defines the lazy legislators in the Washington Beltway who prefer to mull over Mueller than to craft landmark health legislation that passes.

Yes, we have seen the president mature in office. He has made some important pinpointed staff changes. He is moving away from abiding the daily media circus. For those Democrats who warned with alarm and portents of peril that Donald Trump could not be trusted with the nuclear codes, we have seen that he has assembled a remarkable defense team, that he has authorized a surgical MOAB strike in Afghanistan and the dispatch of 59 cruise missiles to bombard clearly designated Syrian targets without embroiling us in a Middle East war that America should avoid. He has acted with care and delicacy in confronting the serious problem in North Korea, giving the lie to those who argued that he would be hot-headed and unable to lead.

For those of us who voted for Donald Trump last November—many of us with some concern—we support him even more today than we did then. Though we occasionally recoil from the more outlandish, we have come to prefer reading his tweets more than we did reading about Clinton’s sexual harassment scandals. And we have learned to disregard the “Russian stuff” like so much “white noise” that rivals the sound of a tree falling in the middle of a forest for irrelevance.


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The Nightmares and the Realities of Never Trump

Rarely in the last half-century have so many elite conservatives and intellectuals been so estranged both from a Republican administration and from those who voted for it—neither have they become so animated in their antipathy and disgust for a sitting president.

During the 2016 election, and the current Trump presidency, there have appeared four implicit tenets to the conservative “Never Trump” position that, we are supposed to understand, justified not voting for him, actively opposing him, or voting for Hillary Clinton:

1) The character flaws of the inexperienced and uncouth Trump would eventually nullify any positive agenda that he might enact; not opposing such a boorish character undermines one’s reputation as an empirical and fair-minded conservative;

2) Trump is a liberal wolf in conservative sheep’s clothing; at any given moment he will break his campaign promises and revert to his 1980s New York Democratic self. Or, Trump has no ideology and is an empty vessel willing to embrace almost any ideology he finds efficacious to his ambitions of the moment. Either way, he will do the conservative cause real damage;

3) Trump’s base supporters, while not irredeemables and deplorables, are prone to nationalist extremism and embrace certain prejudices that are antithetical to conservative values;

4) Clinton’s progressive agendas would not do as much damage to the nation as would Trump’s uncouth character. Thus the defeat of the Republicans in 2016, or the failure of an ensuing Trump presidency, would be cathartic. Only a Trump implosion would teach Republicans never again to allow such an untried and dangerous populist nationalist without political experience to highjack their party, while cleansing the movement of some odious figures and unpalatable ideas that have no business in it—or both.

How true have these nightmares so far played out?

#1 Character is Armageddon?

Trump, the president, certainly has continued his erratic and mercurial behavior in the manner of Trump, the candidate. His tweets are often incoherent (and yet also prescient in odd ways) and pursue the trivial. His habits—largely living alone in the White House, short on sleep, tweeting in the early hours—add to his irascibility. The White House operations reflect Trump’s own impulsiveness.

But all that said, Trump’s character defects have not so far derailed his conservative agenda, in some part because many of those who hate him—the media, academics, and the progressives—have acted so unhinged that they themselves have lost all credibility and now seem to belong in the pages of the National Enquirer.

Never Trump cadres rightfully object to the invocation of the classical logical fallacy of tu quoque. While liberal hypocrisy does not excuse evaluating Trump on his merits, in a world of flawed politicians, the media and critics nonetheless focus rarely on Trump’s accomplishments and almost always on Trump’s sins. And they do so in such an unbalanced manner that similar treatment of Obama (daily focusing on Rev. Wright, Tony Rezko, and Bill Ayers; late night comedy about presidential ignorance that the Maldives were in the South Atlantic, or that corpsmen was pronounced with a hard p; daily emphases on serial untruth from the Benghazi disaster to the ACA to the Iran Deal, while mired in scandals that tarnished the VA, IRS, NSA, and Justice Department) would have caused hysteria.

While liberal hypocrisy does not excuse evaluating Trump on his merits, in a world of flawed politicians, the media and critics nonetheless focus rarely on Trump’s accomplishments and almost always on Trump’s sins.

Trump, it is rightly said, is his own worst enemy. The Never Trump mantra that “character is destiny,” and thus Trump in Nixonian style is doomed, may one day prove true. But for now the media is reduced to obsessions with Trump’s daily portions of ice cream (two scoops instead of one?) or peddles fake news that his wife was once an escort or that Trump frolicked in sick sexual antics in Moscow, and on and on. In the grand scheme of things these obsessions are far less important than the resumption of the Keystone and Dakota pipelines, a 70 percent drop in illegal immigration, and the appointment of Neil Gorsuch to the Supreme Court.

In the case of Never Trump, a week of relative Trump quiet and good economic or foreign affairs news earns either a minute of quiet, or a begrudging nod, while a media frenzy over another Trump crudity brings out the inevitable “I was right all along.” More glee arises from an unsourced Washington Post rumor than news of new energy development or ongoing restoration of deterrence abroad. All this begs the question of whether the Never Trump group ever remembered why and how such a polarizing figure won the election and the presidency instead of another sober John McCain or judicious Mitt Romney, or what would be the consequences of a failed agenda for the country at large?

Introspection is not advice to withhold criticism when Trump exhibits his character flaws, but a call to at least appreciate the tragic situation that half the country finds itself in: a flawed character has a better chance of enacting key conservative correctives than did his occasionally moral superiors—a paradox to be explored by reasoned conservative audit rather than through hysteria or self-referential snark.

#2 Backsliding Conservative?

Assumption #2 is mostly already refuted.

True, Trump is a volatile figure and without a long conservative pedigree, but so far he has kept to his word in nominating conservative and highly competent judges to the federal courts. His executive orders on deregulation, energy production, and illegal immigration are likely more conservative than those of any Republican president since Ronald Reagan.

The ongoing effort to repeal the Affordable Care Act and scheduled tax reform are antithetical to the entire Obama-Clinton agenda. Trump has assembled the most impressive and capable national security team (James Mattis, H.R. McMaster, John Kelly, Mike Pompeo, Nikki Haley, etc.) since the Truman and Eisenhower administrations. Other appointments like Tom Price, Scott Pruitt, Jeff Sessions, and Ryan Zinke are the sorts whom Republican presidents of the past might nevertheless have passed on as unnecessarily polarizing in their true-blue conservatism.

The pre-presidential fears about a populist nationalist rather than conservative Trump (e.g., that he would erect punitive tariffs, dry up global trade, start an unnecessary war, or crash the economy) have not materialized. Very preliminary statistics concerning economic growth, labor participation, energy production, the stock market, and business and consumer confidence are all positive. In just three months, Wall Street has concluded that Trump is most interested in growing GDP and with it good-paying jobs.

Illegal immigration is reportedly down some 70 percent while executives in the steel, coal, and manufacturing industries report a new confidence not seen in years. While it is possible that in the future a volatile and unpredictable Trump will become frustrated with an ossified Republican congress and turn to Democrats, as yet there is simply no evidence that Trump is not following a conservative agenda.

The pre-presidential fears about a populist nationalist rather than conservative Trump (e.g., that he would erect punitive tariffs, dry up global trade, start an unnecessary war, or crash the economy) have not materialized. Very preliminary statistics concerning economic growth, labor participation, energy production, the stock market, and business and consumer confidence are all positive.

There may well be widening fissures ahead in the conservative/Trump divide, as establishment Republicans find no need for a wall on the southern border. They may worry about Trump’s jawboning of private companies that have a right to outsource/offshore as they please. Trump’s tax cuts and refusal to address entitlement spending will acerbate already swollen deficits and debt. Yet, these are still not existential differences—at least not yet. So far Trump’s first 100 days are more conservative than the policies that both John McCain and Mitt Romney ran on.

#3 Nuts, Bigots, and Assorted Unhinged Populists?

The third worry of Never Trumpers about the dark strains and elements within the Trump movement has also proved so far groundless. The smears against the Make America Great Again crowd were more media-generated narratives that spun and exaggerated Trump’s campaign rhetoric.

So far Trump’s working class, populist supporters have been behaved and focused on the Trump energy and jobs agenda, as well as his refreshing lack of political correctness. Trump has made no racist or anti-Semitic appeal to gin up enthusiasm, but rather has gone out of his way to try to win over minorities and women with promises of economic growth.

So far all the political violence associated with the election of Trump, from Inauguration to the latest campus rioting, has been on the Left. No pro-Trump crowds don masks, break windows or shut down traffic. The crudity in contemporary politics—from the constant sick jokes referring to First Family incest, smears against the First Lady, low attacks on the Trump children, boycotts of the Inauguration, talk and dreams of killing the president—is on the liberal/progressive side.

Even Trump’s poorly prepared first immigration order did not target Muslims per se, but instead echoed Obama’s earlier apprehensions about unvetted refugees from seven volatile Middle Eastern nations (a small fraction of the world’s Muslims). Its subsequent and improved version (that did not target green-card holders, for example) will eventually pass Supreme Court muster.

So far all the political violence associated with the election of Trump, from Inauguration to the latest campus rioting, has been on the Left. No pro-Trump crowds don masks, break windows or shut down traffic. The crudity in contemporary politics—from the constant sick jokes referring to First Family incest, smears against the First Lady, low attacks on the Trump children, boycotts of the Inauguration, talk and dreams of killing the president—is on the liberal/progressive side. The entertainment industry’s obscenity and coarseness have been picked up by mainstream Democratic officials, who now routinely resort to profanities like s–t and f–k to attack the president. Almost every ethical code—television journalists do not report on air private conservations with their guests during breaks, opposition congressional representatives do attend the Inauguration, Senators do not use obscenities—have been abandoned in efforts to delegitimize Trump.

When Hillary Clinton assumed the mantle of the “Resistance,” she was deliberately using a metaphor to convey the idea that she is analogous to a French patriot under occupation and Trump is a veritable foreign Nazi belligerent.

#4 A Preferable Clinton Agenda?

From the opposition to Trump’s first 100 days, we can sense where the Clinton agenda was headed: a Supreme Court pick further to the left than Merrick Garland; expanded race/class/gender themes across cabinet offices; a likely single-payer health system; higher taxes and more regulations, a radical climate change menu, and increased identity politics.

Any presidential election is a zero-sum game; a Republican staying home was a vote for Clinton in the fashion of a Sanders supporter sitting out 2016 was a vote for Trump. Far from a Clinton victory being a catharsis, it would have green lighted more illegal immigration, expanded the themes of the Eric Holder/Loretta Lynch Justice Department, and lost the Supreme Court for 20 years.

As far as a catharsis, it has already occurred though perhaps in ways not anticipated. A reported 92 percent of Republicans voted for Donald Trump, even if in some cases on the low-bar assumption that 51 percent of something was better than the alternative.

Like it or not, a Rubio or Cruz nominee likely would have not won these swing voters and thus likely would have lost the election, and with it ensured at least 12 and likely 16 years of a hard progressive government.

A Never Trump movement, I think it is fair to say, had absolutely no influence on the 2016 election. In theory, elites may have convinced a few key Republican voters in swing states to stay home or to vote for Hillary Clinton; but in reality they were far outnumbered by huge numbers of new Republican voters who saw in Trump hope that they did not in far more experienced and sober men of character.

Like it or not, a Rubio or Cruz nominee likely would have not won these swing voters and thus likely would have lost the election, and with it ensured at least 12 and likely 16 years of a hard progressive government.

Finally, there was something deeply wrong in the Republican Party that at some point required a Trump to excise it. The Republican Party and conservative movement had created a hierarchy that mirror-imaged its liberal antithesis, and suggested to middle class voters between the coasts that the commonalities in income, professional trajectories, and cultural values of elites trumped their own political differences. How a billionaire real estate developer appeared, saw that paradox, and became more empathetic to the plight of middle-class Americans than the array of Republican political pundits is one of the most alarming stories of our age.

Trump was not so much a reflection of red-state Americans’ political ignorance, as their weariness with those of both parties who ridicule, ignore, or patronize them—and now seek to overturn the verdict of the election.

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Plain Talk about Law School Rot

The legal academy is a strange place.

It differs from other intellectual disciplines in that legal scholarship is published mainly in student-edited law reviews, not peer-reviewed journals. Most faculty members at elite law schools have never practiced law, or have done so only briefly and usually without professional distinction. The curricula at many of the nation’s law schools are larded with trendy courses devoted to identity politics and social issues du jour. Elite law schools eschew the teaching of “nuts and bolts” fundamentals, deriding such practical instruction as resembling a “trade school.”

Law professors are the courtiers to the imperial judiciary, and “constitutional theory” is the vehicle for counter-majoritarian social change.

Even the most widely-followed ranking of American law schools (one compiled by U.S. News & World Report) relies mainly on “peer assessment” (that is, ratings by other law schools) so that it is something akin to a popularity contest. Nevermind graduates’ placement rates, bar exam passage, average starting salaries, and other objective metrics that might correlate with the tangible value of the legal education provided.

Legal academia is an inbred ivory tower with little intellectual diversity, inhabited by would-be mandarins, separated from the “real world” by a wide moat brimming with abstract concepts, abstruse theories, and an overweening sense of self-regard. Law professors are the courtiers to the imperial judiciary, and “constitutional theory” is the vehicle for counter-majoritarian social change.

This peculiar confluence yields two distinctive (but somewhat related) phenomena: First, law school faculties are much more liberal than the already leftward-skewed higher education establishment as a whole; and, second, “constitutional theory” is the most popular subject of legal scholarship, even though few students will ever have occasion to apply it upon graduation. Topics like family law, contracts, real estate, personal injury law, and other “mundane” areas of legal education are shunned by most academics.

What explains this turn of events? Simple: Constitutional law has become the primary tool used by the post-modern cadre of elite intellectuals to supplant representative self-government with rule by the legal professoriate. Since the 1960s, we essentially have been governed by the federal courts (and an out of control bureaucracy) instead of by our elected representatives.


Legal scholarship is used by the elites to justify activist judicial decisions that thwart popularly-enacted laws or depart from the original meaning of the Constitution. Much of it is theoretical mumbo-jumbo designed to obfuscate its true aim: putting the elites in charge. The mandarins are convinced that their policy choices should prevail over those of the uninformed masses, because the mandarins believe they are wiser and more enlightened. The republican form of government is regarded as backward and outmoded, especially if it stands in the way of the currently-fashionable policy goals and “settled science” desired and advocated by the professoriate.

Activist judges, enabled and encouraged by the legal academy, frequently override the effects of elections and legislation with which the “chattering classes” disagree, effectively allowing a privileged clique to govern the nation by judicial fiat. For decades, gloomy prognosticators such as the late Robert Bork and University of Texas law professor Lino Graglia (sometimes joined by the departed Justice Antonin Scalia in his witty dissents) have darkly warned that in the guise of “constitutional interpretation” a cultural elite seeks to wrest control of public policymaking from the American public, whose bourgeois values and beliefs they openly disdain. Although Bork and Graglia were sometimes dismissed as modern day Jeremiahs their dire predictions have proven to be uncannily accurate.

In recent decades, academics have constructed many different theoretical justifications for a more expansive judicial role. Graglia has described contemporary legal scholarship as a “cottage industry… in the production of ever more esoteric theories of constitutional interpretation.” Graglia also notes that most constitutional litigation involves just four words, “due process” and “equal protection,” leading him to conclude that “The 14th Amendment has to a large extent become a second constitution, replacing the original.” As Northwestern University law professor John McGinnis has written, “Sometimes there seem be as many theories of the [14th Amendment] as there are theorists.” New theories are spawned every day, straying further and further from the original meaning of the Constitution and even from that particular amendment.

Writing for both academic and lay audiences, Bork was a tireless proponent of the view that judicial decisions purporting to interpret the Constitution must—in order to be legitimate—comport with the original understanding of the Framers. After all, that understanding is the only understanding to which the people have had an opportunity to give their consent. Bork’s unrelenting criticism of “noninterpretive” theories of constitutional law in the 1970s and ’80s paved the way to the modern embrace of “originalism” as the dominant mode of constitutional decision-making by principled conservatives.

As Bork famously observed, “The truth is that the judge who looks outside the Constitution always looks inside himself, and nowhere else.” This was anathema to the legal establishment’s social engineers, who had devised elaborate theories justifying the “discovery” of new rights in the “living Constitution.” Judicial restraint would clip the wings of the narcissistic legal professoriate, and with it the New Class they serve.

Heresy has a price. In 1987, when President Reagan nominated Bork for the U.S. Supreme Court, he was shamefully denied Senate confirmation—but not filibustered—in retaliation for his unfashionable advocacy of judicial restraint. Graglia was dealt a similar fate, when his nomination to the Fifth Circuit was derailed in the face of fierce opposition by the American Bar Association.

In the ensuing 30 years, as the courts have increasingly asserted themselves as the final arbiters of national policy, confirmation battles have—predictably—become even more politicized. The recent Senate battle to confirm President Trump’s nominee to the Supreme Court, Neil Gorsuch, requiring elimination of the filibuster, will seem like a chorus of “Kumbaya” when the pivotal seats now held by Justice Anthony Kennedy or Justice Ruth Bader Ginsburg become vacant.

The mandarin class in the legal academy cannot resist the urge for power, and as our culture becomes ever more polarized, the legal professoriate grows ever more estranged from the rest of society—Hillary’s “deplorables.” This is not necessarily a partisan phenomenon. On the left and the right, constitutional theorists—sometimes claiming the mantle of originalism—busily concoct elaborate rationales for disregarding the electoral majority’s wishes regarding traditional marriage, immigration, border security, capital punishment, and a host of other issues, in lieu of the theorists’ own policy agenda.

The real irony, however, is that few voices in today’s legal academy advocate judicial restraint, even among so-called “originalists.” Although it still holds sway among conservative political scientists such as Georgetown’s George W. Carey (author of In Defense of the Constitution), the once-influential Bork/Graglia position has seemingly—and inexplicably—fallen out of favor in the law schools. I am old enough to remember when constitutional theory could be divided into two camps: originalism (restraint) and non-originalism (activism). Restraint is no longer “cool”; it leaves power in the hands of the detested proles.

Now, in Baskin-Robbins fashion, there are at least 31 different flavors of originalism, some of which—like the libertarian theory of “judicial engagement”—would grant to courts more discretion to review laws than the most extravagant “living Constitution” theories. Federalist Society co-founder and Northwestern University law professor Steven Calabresi has apparently had a mid-life libertarian epiphany and now—purporting to apply originalist techniques—concludes that the Constitution protects same-sex marriage. Creative “originalism” can also be stretched to reach free-market outcomes Ayn Rand would applaud. George Mason University law school professor Michael Greve has archly referred to libertarian scholars who presume to “read the Constitution as a municipal code for Dagny Taggart’s valley.”

This is not necessarily a partisan phenomenon. On the left and the right, constitutional theorists—sometimes claiming the mantle of originalism—busily concoct elaborate rationales for disregarding the electoral majority’s wishes regarding traditional marriage, immigration, border security, capital punishment, and a host of other issues, in lieu of the theorists’ own policy agenda.

It is no coincidence that some self-styled “originalists,” such as libertarian Georgetown University law professor Randy Barnett, dismiss Bork and Graglia as “old school” proponents of a view that “used to be the dominant strain in conservative circles,” in “years past.” Barnett crows that Bork and Graglia used to “rule the roost,” but that “Times have changed.” Is judicial restraint really passé? Barnett contends that “as originalism has assumed an increasingly powerful hold on the legal culture … one must either reject judicial restraint, or attempt to redefine it so it is compatible with originalism.” (Barnett has gone so far as to claim that appeals for judicial restraint are a form of conservative “living constitutionalism,” inverting the very terminology that launched the originalism debate!)

The “originalism” Barnett speaks of is not the originalism espoused by Bork or Attorney General Ed Meese. Barnett has in mind a fashionable new variant of originalism that would empower judges to evaluate the necessity and efficacy of laws to determine if they infringe “unenumerated” (that is, unwritten) rights purportedly lurking in the Constitution. Any sound “originalist” conception of the Constitution must accept that judges should confine themselves to enforcing the express provisions of the Constitution. No matter how exotic the theoretical justification, judicial review does not authorize courts to divine invisible rights or serve as Delphic Oracles pronouncing judgment on the wisdom of laws.

Shifting intellectual fashions do not alter the original meaning of the laws, or the role of judges. Trend-setting law professors may think that government by judiciary is de rigueur, but most Americans properly view it as lawless usurpation.


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How Trump’s First Three Months Point the Way to Three Percent Growth

The great nineteenth-century man of letters William Dean Howells once made a remark that I have long cherished as a sort of personal motto: “The problem for a critic,” Howells said, “is not making enemies, but keeping them.”

A critic who does not make enemies is unlikely to be doing his job, inasmuch as criticism is the application of discrimination to human activities and such activities, by definition, will fall short of the ideal. A critic who does not make and keep enemies is likely to be a critic who fails to speak the truth.

An honest politician has to have a place in his heart for that enemy-keeping imperative if he is to merit the adjective “honest.” But a politician’s road is harder than a critic’s. A critic must be unwavering in his service to the truth of his own experience. But beyond that he needn’t worry much about making himself likable, only interesting.

An honest politician, worse luck, has to remain broadly true to his promises while also endeavoring to remain popular with voters, the people who put him into office.

Like so many activities in this sublunary world, achieving that it is a balancing act, a tapestry of compromises and negotiations—“deals,” to use a word that Donald Trump has elevated to a conspicuous place in the political lexicon.

Cynics may wonder whether, at the end of the day, there is any real difference between compromise and capitulation, negotiation and selling out to the highest bidder. Realists will know that there is a difference. The modern habit of assuming that a reliable index of someone’s wisdom is the extent of his disillusionment is as superficial as it is philistine. It’s important, in assessing a politician’s success, to keep an eye on his deeds as well as his declarations. But the tendency to cast every political statement in the worst possible light brings us closer not to the truth but merely our own cynicism.

It is with this in mind, I believe, that the oft-quoted idea that Trump’s detractors take him literally, but not seriously, while his defenders take him seriously, not literally must be understood. As we approach Trump’s hundredth day in office—the clock just turned on 91 days as I write this—it is worth stepping back and posing on Trump’s behalf the question Mayor Ed Koch made famous: “How’m I doing?”

Cynics may wonder whether, at the end of the day, there is any real difference between compromise and capitulation, negotiation and selling out to the highest bidder. Realists will know that there is a difference. The modern habit of assuming that a reliable index of someone’s wisdom is the extent of his disillusionment is as superficial as it is philistine.

It would be difficult, I suspect, for readers who get their news primarily from outlets as the New York Times, the Washington Post, MSNBC, or CNN to have any sense of Trump’s stupendous accomplishments these past three months.

For some of us, it can almost go without saying, the fact that Hillary Clinton is not president, that her political career, in fact, is over is by itself an accomplishment of history-making proportions.

“Precautions are always blamed,” Benjamin Jowett once observed, “because when successful they are deemed to have been unnecessary.” Pundits now have the luxury of speculating what a Clinton presidency would have been like. I can tell them. American would have evolved even further toward its status as a one-party state ruled by an elite, progressive oligarchy. The war that Obama inaugurated on religious freedom, on the First and Second Amendments, on enforcing America’s immigration laws, on our energy independence and status as the world’s premier military and economic power—all would have been prosecuted vigorously by a President Clinton. The ideological weaponization of government’s administrative alphabet soup—the IRS, the EPA, the DOJ, etc.—would have continued apace as conservative groups were targeted and discriminated against for the tort of dissenting from the progressive orthodoxy on any contentious issue.

Thus it is that the fact that Donald Trump, not Hillary Clinton, is president is already, just by itself, an accomplishment of the first water. And it’s not just a matter of what Hillary Clinton would have done. At issue was also who she was: a Clinton. I leave to one side the breathtaking corruption that she conspired with through her connections with the Clinton Foundation and its various pay-to-play schemes. I leave to one side also her callous and mendacious incompetence in handling the terrorist attacks on our consulate at Benghazi, her scandalous and routine mishandling of classified material and deployment of a home-brew email server. Leave that to one side and think just of the precedent she would have set had she become president: no, I am not talking about her anatomical status as female, but rather her dynastic status as a Clinton. Had she won, the presidency of the United States for the last twenty years would have shuffled between three families. That alone would have set an ominous precedent and upsetting that counts as a large bullet dodged.

But what else has Trump wrought in his 91 days as president? To listen to the legacy media, the answer is: not much. Many near-top-tier jobs have gone unfilled. The much ballyhooed repeal of Obamacare failed on its first go around. Tax cuts haven’t happened. The progressive Jared Kushner-Ivanka wing of Trump’s advisors seems to have gained ascendancy (at least according to the Sanhedrin of the MSM) over the Steve-Bannon populist wing. In short, it’s a shambles all around.

That, anyway, is the gospel according to the progressive megaphones.

The message is far different on the ground. Quite apart from the permanent rustication of Hillary Clinton, Trump has moved with blinding speed to start fulfilling many of his major campaign promises.

  • Immigration. Illegal border crossings are down by more than 90 percent. Immigration and Customs Enforcement (ICE) is once again enforcing the nation’s immigration laws. Deportations are down because there are fewer illegal penetrations of US borders. In other words, Trump’s policy is shaping up to be a major success.
  • Sanctuary cities, i.e., cities where federal immigration laws are essentially suspended. Trump promised to end them. Attorney General Jeff Sessions is working overtime to make that happen. Earlier today, he wrote at least eight jurisdictions warning them that they may be failing to comply with immigration laws and that they were therefore in jeopardy of losing federal grants. Some cities, notably in California and New York, have blustered that they will continue to resist abiding by the law, but I predict they will change their tune once the spigot of federal funds is turned off.
  • Energy. The Keystone and Dakota access pipelines. Need I say more? Yes? How about “coal”: that should settle the question.
  • Foreign affairs. Under Obama, you had the unenforced red lines of a pink politician. Under Trump, you have 59 Tomahawk missiles directed at a Syrian air force base that carried out a Sarin gas attack, followed a few days later by the destruction of an ISIS tunnel complex in Afghanistan with one 21,000-pound super bomb. You also have successful face-to-face diplomatic meetings with President Xi Jinping of China, Prime Minister Theresa May, and even Chancellor Angela Merkel. Earlier today, Prime Minister Benjamin Netanyahu of Israel publicly told Secretary of Defense James Mattis that he welcomes the “strategic change of American leadership and American policy.” The Russians are stamping their feet but Trump continues his course. Meanwhile, the Chinese seem to have been enlisted to help with the problem of the Kim Jong-Un, the cartoon-like dictator of North Korea. In Seoul a couple of days ago, Vice President Pence echoed Secretary of State Rex Tillerson’s warning that America’s “strategic patience” with North Korea’s minatory antics was at an end. Trump underscored that partly by parading a lot of military hardware in and around the Korean peninsula, partly by tweeting that “North Korea is looking for trouble. If China decides to help, that would be great. If not, we will solve the problem without them!”
  • The Supreme Court. Neil Gorsuch. Also, Neil Gorsuch. And may I add, Neil Gorsuch? Thanks to the Federalist Society for preparing that list of twenty-odd names from which Trump plucked his first Supreme Court nominee. Trump will likely have to avail himself of at least two more justices and who knows how many federal judges “very much in the mold of Justice Scalia.”
  • Regulation. First there’s the two for one rule: want a new regulation? Get rid of two others first. And then there is the spate of executive orders aimed and reducing onerous and inefficient regulation. It’s early days yet, but so far it seems to be working.

Two big question marks hover over the issues of health care and tax cuts. Despite the many confident prognostications from the punditocracy, I think it is impossible to say when or what is going to happen on either issue. We’re ninety days into a new administration now. Come back at day 360.

There is also the large issue of economic growth. The stock market, which is up about 2,500 points since Donald Trump was elected, clearly is bullish on his policies. Will that enthusiasm be translated into 3 percent or better growth? If so, the pathetic pink-hatted females can jump up and down all they like, the Black Lives Matter protesters can continue their policy of violent racial redress, disappointed commentators, who had pinned their hopes for advancement on a Clinton presidency, can continue to sulk and reassure one another that Donald Trump is “not their president.” It won’t matter. If Donald Trump reaches and sustains that magic number of 3 percent growth for the major part of his first term, he can count upon a second term as well. I fully expect him to maintain plenty of enemies, just as William Dean Howells advised, but they’ll be off caterwauling in the wilderness, as irrelevant to the process then as they were to the election last fall.

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What Plagues Gorsuch’s Critics is Ignorance, Not Originalism

Ken Levy, an associate professor of law at Louisiana State University, recently took to the pages of the New York Times to lend his voice to the fevered, en vogue, and media-driven fusillades against Supreme Court nominee Judge Neil Gorsuch and his judicial philosophy: originalism. He also echoed Senator Diane Feinstein who, last week, smeared Gorsuch’s originalism as a “really troubling” judicial philosophy.

The first mistake Levy makes is in not understanding the originalism he sets out to criticize, and he proves this ignorance when he says that originalism is about “genuinely following the Founders’ intent.” This is not what serious originalists understand originalism to be—just ask Georgetown law professor Randy Barnett. What it’s really about is determining the original public meaning of constitutional language and provisions, i.e., what the words meant when they were written.

But Levy goes on to one-up that first display of ignorance by smearing Judge Gorsuch, associating him and his method of constitutional interpretation with one of the most foul and incorrect Supreme Court decisions ever penned—Plessy v. Ferguson (1896)—and then implying that originalism lacks the justificatory intellectual resources to have prevented Plessy and will therefore also permit or even hasten into being future ghastly decisions of that very sort.

Here is the substance of his claim: If the Court in Brown v. Board of Education (1954) had followed “the text of the equal protection clause as it was understood by the ratifiers (the 39th Congress) it would have had little choice but to affirm Plessy.” Set aside for a moment that this characterization of originalism is a straw man that has been ably taken apart by Barnett and many others and focus instead on the substance of his claim: that originalism requires—or is it at least wholly unable to prevent—vile decisions like Plessy; worse, it cannot give us good decisions like Brown. (We may as well go for the trifecta and say it probably had something to do with Dred Scott, too.)

But this is rubbish. The 14th Amendment absolutely is designed to prevent exactly the sort of “separate but equal” nonsense-cum-wickedness given to us by the non-originalist Plessy Court.

Immediately after it confers citizenship on “[a]ll persons born or naturalized in the United States,” the 14th Amendment cabins state action—“No state shall make or enforce any law …”—pursuant to protecting said citizens’ (1) privileges and immunities, (2) right to life, liberty, and property, and (3) right to be equally protected by the laws. At issue in Plessy is a Louisiana railway car law which mandated separate railway cars for whites and blacks. This is a blindingly clear case of state-mandated discrimination, and a plain reading of the text of the amendment makes it equally obvious that such state-sanctioned discrimination is inimical to the purpose of the 14th Amendment (to say nothing of the private discrimination Congress attempted to stamp out with the passage of the Civil Rights Act of 1875). And yet the Court ruled in Plessy that “separate but equal” facilities established by law were constitutional. How can this be?

It’s simple, really. The outcome and logic in Plessy were unfaithful to any reasonable construal of originalism vis-à-vis the 14th Amendment. In addition to referencing Justice John Marshall Harlan’s powerful and compelling dissent in the Plessy case, we know this because of a case that was decided before the ratification of the 14th Amendment—a case which revealed Congress’ intended scope for the amendment and its goals for Reconstruction: Railroad Company v. Brown (1873).

In that case, the Court found that the practice that the Alexandria and Washington Railroad Company had of segregating its cars based on race (in direct defiance of Congress’ 1863 directive, a directive that proscribed any person’s being “excluded from the cars on account of color,” and in precisely the same manner as the Louisiana law at issue in Plessy would later mandate) was nothing more than “an ingenious attempt to evade a compliance with the obvious meaning of the requirement” and that the “temper of Congress at the time” made it obvious that this type of discrimination was “unjust” and therefore unconstitutional.

Congress placed that restriction on the railroad company in 1863, five years before the ratification of the 14th Amendment. To suggest that the 14th Amendment would not have come to embody a logic similar to this 1863 directive and entail a similar outcome is a difficult, if not impossible, circle to square.

Moreover, the question of whether railway cars could be segregated based on race without violating the 14th Amendment also arose in debates over an 1870 school desegregation bill advanced by Massachusetts Senator Charles Sumner, a bill that postdated the ratification of the 14th Amendment.

Senator Joshua Hill of Georgia, an exponent of segregation, explicitly argued that railroads should be permitted to segregate their passengers by race “provided all the comfort and security be furnished to passengers alike.” Proponents of the bill, however, found Sen. Hill’s position risible. They asserted that the notion that color and race could be reasons for distinctions among citizens was “a slave doctrine.”

Evidence that antedates and postdates the existence of the 14th Amendment makes it clear that it was obviously intended to nullify laws like Louisiana’s and, by extension, rulings like Plessy.

Levy’s laying Plessy and all manner of other judicial sins at the feet of Gorsuch and his originalism is grossly irresponsible, brings dishonor to the legal academy, and indicates that when he and his ilk attack Judge Gorsuch they are engaged more in wishful thinking than they are in reasoned argument.

After all, it’s much easier to casually tar one’s forebears—especially when they represent a political party that is positively despised in your professional community—as disgusting bigots than it is to be intellectually honest. I have no idea if Levy is a progressive, leftist, or member of the Democratic Party. But he certainly seems to share the Left’s inability to debate without resorting to flinging loaded rhetorical slurs.

The Court, as it so often does when it seeks to be a “super legislature” or a supremacist institution, just got it wrong in Plessy—as Justice Harlan in his superb dissent in that case made clear. Indeed, Plessy—and Dred Scott before it—are great examples of the ways in which the Court can err. The Court is not the final word on the Constitution as so many today on the Left seem to think it is when it is advancing the cause of Progressivism. Bad precedent can and should be overturned. The Senate should confirm Gorsuch immediately and ignore Prof. Levy’s anachronistic, incorrect, anti-GOP, and anti-originalist shrieks. Gorsuch’s originalism is all that stands between We the People and another disaster like Plessy.


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In Feinstein vs. Gorsuch, Originalism Wins

Neil Gorsuch is no Robert Bork—to the great chagrin of the Senate Democrats who are trying to block his confirmation to the U.S. Supreme Court.

Thirty years ago, Senate Democrats derailed Bork’s nomination, claiming the judge’s judicial philosophy of “judicial restraint” was well beyond the mainstream. Today, Democrats are looking for any reason at all to oppose the 10th U.S. Circuit Court judge’s nomination to fill the late Antonin Scalia’s seat.

True, many of our progressives are still bellyaching over Merrick Garland, the D.C. Circuit judge who had the misfortune of being named to the high court in the final year of a lame-duck presidency. That’s politics, friends. The Constitution says the Senate may “advise and consent,” not simply “nod and approve.”

Apart from the sour grapes over Garland, the case against confirming Gorsuch seems to boil down to a sharp difference of opinion about what the Supreme Court is supposed to do.

The best that Democrats on the Senate Judiciary Committee could do is accuse Gorsuch of being a constitutional “originalist.”

Well, yes. Yes, he is. So what?

California’s own senior senator, Dianne Feinstein, illustrated brilliantly this week why the “charge” of originalism is hardly a condemnation, and certainly not a reason to keep Gorsuch off the court.

Read the rest at the Sacramento Bee.
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Shootout Over Natural Law at Gorsuch Gulch?

Supreme Court justices sometimes devise overly clever “tests” in their opinions to determine the constitutionality of a law or government action.

Here’s my one-pronged (and multi-part) Supreme Court minimal competency test, derived from Abraham Lincoln’s critique of Chief Justice Taney’s opinion in Dred Scot:

Was Lincoln right in making the Declaration of Independence the basis of constitutional government? Was he correct in objecting to Senator Stephen Douglas’s assertion that all who question the correctness of the Court in Dred Scott are “offering violent resistance to it”?

When does the Court go too far? What is the role of the Declaration in its decisions? Was the venerable Justice Holmes, beloved on the Left and Right alike, wrong when he declared, “If my fellow citizens want to go to Hell I will help them. It’s my job”?

The alternative to Holmes’s nihilism, his mockery of democracy, is the Declaration of Independence with its natural rights philosophy. But of course, both Holmes and his fellow Progressive Woodrow Wilson had nothing but contempt for natural law and the Declaration. And they taught that contempt to generations of scholars and lawyers. Today those lawyers populate Congress, in a bipartisan plague.

These long suppressed struggles over natural law became prominent again in 1987 when then-Senator Joseph Biden (D-Del.) attacked Robert Bork for scoffing at natural law and affirming the power of majorities. Then, switching gears, in 1991, Biden ridiculed Clarence Thomas for appealing to natural law for limiting the power of majorities. Thomas’s interest in natural law was spurred by his interest in advancing anti-slavery arguments like those of Lincoln.

More recently, in 2010, Senator Tom Coburn (R-Okla.) showed that Elena Kagan would not acknowledge the Declaration of Independence as the basis for the Constitution:

KAGAN: Senator Coburn, to be honest with you, I don’t have a view of what are natural rights, independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and other laws of the United States.

COBURN: So you wouldn’t embrace what the Declaration of Independence says, that we have certain inalienable and God-given rights that aren’t given in the Constitution, that are ours, ours alone, and that the government doesn’t give those to us.

KAGAN: Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights preexisting the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.

COBURN: I understand that. I’m not talking about as a justice, I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?”

We may see in this week’s Gorsuch hearings yet another twist of natural law. Gorsuch studied under “new natural law” scholar John Finnis and produced a remarkable 320-page treatise, The Future of Assisted Suicide and Euthanasia. The book is part of a series edited by America’s preeminent new natural law scholar, Princeton’s Robert George, who is likewise a student of Finnis.

Before proceeding, I should add here that I knew Gorsuch in 2006 when he was deputy associate attorney general at the Justice Department, where I was a speechwriter. Like his other colleagues, I was impressed with his intellect and collegiality and I strongly support his nomination to the Court. As will be seen I have some reservations about “new natural law,” which, however, do not diminish my support for Gorsuch for a seat on the Court.

My hesitation about “new natural law” amounts to this:  Why does the world need a “new natural law”? What’s wrong with the old one, going back to Aristotle, Cicero, Thomas Aquinas, and Thomas Jefferson? Finnis’s Natural Law and Natural Rights made the case for the new natural law, which would appear to many scholars as an outgrowth of British analytic philosophy, with all its strengths, shortcomings, and dryness.

Advocates of the old natural law pounced on this break from tradition. Paleo-conservative legal scholar Bruce Frohnen complains, “What is lost in the process of reducing natural law reasoning to the derivation of rules of conduct from logical premises is historically grounded prudence.”

In fact, the new natural law may be more clearly understood by contrasting it with the old. The old was rooted in a teleological conception of human nature: man is understood by his purpose. Man was intended (by nature and/or creation) for a final purpose. Toward that end, our lives must hone certain human excellences or virtues, moral and intellectual. Duties rather than rights characterize human existence, which is by nature social and political, not radically autonomous. The common good struggles for recognition, urged on by visions of the best regime.

By contrast, the comparatively apolitical new natural law features a list of “basic goods” or “values,” which are essential for human life—knowledge, play, aesthetic experience, sociability, practical reasonableness, and “religion.” Such goods cannot be reduced to utilitarian instruments. Nor do they exist in a hierarchy, and “practical reasonableness” determines how they should be realized in particular circumstances.

The prudence of old natural law statesmanship is thereby downplayed. Contrast Gorsuch’s use of the Declaration of Independence with that of Clarence Thomas. While Gorsuch would use the Declaration to question termination of life issues, Thomas might well use it to attack the legitimacy of the administrative state. Gorsuch’s moderation should comfort critics of the older natural law, such as then-Senator Biden or other ill-informed critics of originalism such as Senator Dianne Feinstein (D-Calif.).

Natural law scholar Samuel Gregg is correct, however, to point out that “what matters is that [new natural law theory’s] understanding of the political common good underscores the necessity of limited and therefore constitutional government.” New natural law theory would limit judicial power, along with government power in general.

Gorsuch applies some of Finnis’s argument in chapter nine of his book where he offers reflections on the meaning of life as a “basic good.” Much of his argument can be found in article form in the Harvard Journal of Law and Public Policy, which encapsulates his book. By applying practical reasonableness in unpacking the meaning of life as a basic good, Gorsuch questions the shaky moral assumptions behind state-sanctioned assisted suicide and euthanasia. He brings the sagacity and the compassion of a Leon Kass to the bar. (Gorsuch never mentions Kass or Hans Jonas in his book.)

He does turn aside the sophisms of Judge Richard Posner and libertarian hero (and Biden villain) Richard Epstein on these issues. Against Epstein’s somewhat qualified defense of assisted suicide and euthanasia, Gorsuch responds: “[I]f laws absolutely proscribing slavery contracts and dueling can be defended as consistent with the libertarian ideal, why not also laws banning all forms of assisted suicide and euthanasia?”

One should add that this is also a remarkably courageous book, beginning as it does with a critique of the much-ridiculed sweet “mystery of life” passage in the abortion rights case, Planned Parenthood v. Casey (1992):

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

This passage is said to have been authored by Justice Kennedy, for whom Gorsuch once clerked. Gorsuch’s book contrasts this formless due process clause meandering with the relative discipline of equal protection and shows how human dignity can be protected by a rich understanding of equal lives being protected even in the most trying conditions.

In any event, the hopes of George Will and others to the contrary, it is a circuitous route from the old natural law of Jefferson and John Marshall to Gorsuch’s new natural law—to extent that he chooses to advance it. This qualification is crucial, since Gorsuch’s jurisprudence, for example, his critique of the administrative state, relies far more on the construction in his cases than in any application of natural law.

A robust jurisprudence of natural law, however, requires that Thomas Aquinas and Thomas Jefferson meet and discover themselves in each other, as Harry V. Jaffa argues:

There is no patronage here of the notion, popular today, that the pursuit of happiness means “doing your own thing,” no matter what that “thing” is. Finally, we see Washington asserting that the boundaries of national policy, the actions of citizens and statesmen, whether private or public, must conform to “the eternal rules of order and right.” Wherein does this differ from Thomas Aquinas’s concept of the natural law, as the rational creature’s participation in the eternal law? This, freed from the obscurantism of historicism, relativism, and nihilism, is our true inheritance.

Jaffa portrays the power of the natural law as conceived by the twin Thomas’s. By contrast, scholar Gorsuch—while humanizing debate over the fundamental right to life, as applied to termination of life issues—does not require or even sanction old or new natural law standards directly intervening in American jurisprudence. In doing so, he displays the new natural law “basic good” of practical reasonableness, a much-needed virtue in a Supreme Court justice.

Whatever the great differences between old and new natural law, Lincoln bridged the difference in denying that courts could not use them to subjectively overturn settled statutory law.

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The President Versus the Judges

“Judges as persons, or courts, as institutions, are entitled to no greater immunity from criticism than other persons or institutions. There have sometimes been martinets upon the bench … who have used the paraphernalia of power in support of what they called their dignity. Therefore, judges must be kept mindful of their limitations, and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor, however blunt.” We should not “protect the court as a mystical entity, or the judges … as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed.”

Who said this? a) Donald Trump; b) Steve Bannon; c) George Wallace; d) Felix Frankfurter; e) Hitler.

If you know how questions like this work, you may have correctly guessed that the answer is “d.” But based upon the acute consternation of the liberal and legal establishments this week over President Trump’s “assault on judicial independence,” it would be understandable if you’d chosen a or b, or even c or e.

This latest fit of high dudgeon about Trump has been provoked by his tweets about the “so-called judge” who stayed his executive order temporarily suspending travel and immigration from seven countries, and his criticism of the appellate panel reviewing that stay. His language was classic unrefined Trump: the judge’s decision was “ridiculous” and “put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”

And in a speech to police chiefs he vented his exasperation that “a bad high school student would understand” the seemingly plain language of one of the relevant immigration statutes, which on its face appears to give him the power to issue the executive order, but the “political” judges hearing the appeal of the case talked in legal mumbo-jumbo that had “nothing to do with” the statute.

To the head of the American Bar Association these statements were not merely coarse and perhaps simplistic, but “attacks on our Constitution” that threatened “the rule of law.” Another commentator branded them a “bone-chilling” attempt to “delegitimize the judiciary” by undermining its independence and the constitutional separation of powers. Even Trump’s Supreme Court nominee Neil Gorsuch, in a private conversation with U.S. Sen. Richard Blumenthal (D-Conn.) that the lawmaker immediately made public, termed the president’s remarks “demoralizing” and “disheartening.” (If this was an attempt by Gorsuch to mollify Blumenthal and other Democrats it wasn’t successful: Blumenthal still blasted him for failing to condemn Trump publicly, and a spokesman for Senate Minority Leader Chuck Schumer dismissed Gorsuch’s private criticism of the President as “milquetoast.”)

The dispute recalls similar controversies where liberal and bar groups accused former New York City mayors Rudy Giuliani and Ed Koch of threatening judicial independence by criticizing judges who issued lenient criminal justice rulings. Koch, an avowed “liberal with common sense,” used language strikingly similar to Trump’s, denouncing court decisions as “bizarre” and “ridiculous.”

The outrage at Koch and Giuliani was unjustified, as is the outrage at Trump now. While Trump’s language (like Koch’s) may not be to the taste of appellate lawyers, there is nothing illegitimate about it. In fact, as the quotation from Justice Frankfurter above suggests, the courts have held that even harsh and distasteful attacks on judges are a valid and important exercise of first amendment rights.

While some Trump critics like New York Mayor Bill de Blasio accuse him of “defying” the courts with his tweets and bluster, he has done no such thing. He has not proclaimed, in the infamous but apocryphal words attributed to Andrew Jackson, that the judge “has made his decision, now let him enforce it.” Rather, he has obeyed the judge’s order suspending the travel moratorium, and the appellate ruling upholding that order—as he must unless and until it is reversed or lifted. This is what separation of powers and judicial independence demand, but it is all that they demand.

Many liberals and lawyers go to the other unconstitutional extreme from defiance, encroaching on free speech rather than separation of powers, when they suggest that respect for judicial independence requires silence as well as obedience, and that it is inappropriate for members of the other branches, or ordinary citizens, to criticize judges. But judges are no more above the law than are presidents, and just as presidents are subject to constitutional restraints on their powers, so must judges be subject to the bedrock constitutional right of dissent.

The courts themselves have actually agreed—including the famously liberal Ninth Circuit that Trump criticized and that upheld the stay of his executive order. In the leading 1941 case of Bridges v. California, the Supreme Court reversed contempt convictions of a labor leader and a newspaper for critical comments about pending cases. The opinion by Justice Hugo Black squarely rejected the notion that criticism of judges, even when not in “perfect good taste,” delegitimizes the judiciary, and that this concern trumps the public interest in robust free speech:

The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”

The quote from Justice Frankfurter at the top comes from his dissenting opinion in Bridges, which, while disagreeing on the particulars of the case, stated this principle even more forcefully. A half century later the Ninth Circuit, in an opinion by the respected Judge Alex Kozinski, quoted Bridges in reversing the suspension of a lawyer who had called a judge a dishonest, ignorant, anti-Semitic buffoon who drank on the bench.

It has become all the more crucial since Bridges to allow even the most intemperate speech criticizing judges, as the judiciary has assumed so much power over many of the most important and contentious social and political issues. At the same time, the legal and judicial communities have moved sharply to the left on these issues, often reaching decisions that seem to ordinary citizens to be, as Koch put it, “bizarre,” arrived at by a legalistic hocus-pocus that seems, as Trump put it, to have “nothing to do with” the actual law.

Trump, like Koch before him, is rightly giving voice (in the same blunt outer-borough style) to the public dismay with this.

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With Gorsuch, Trump Picked the One Man Who Would Check His Power

The day after a Supreme Court nomination announcement is like Christmas morning for court watchers. It’s even more special, really, because we only get a Supreme Court nomination every five years or so. We spend the day analyzing the nominee from every imaginable perspective—contemplating what his academic credentials, legal experience, judicial record, or even biographical information can tell us about the jurisprudence the nominee is likely to display on the High Court.

We also while away the hours asking silly questions like: What can we tell from the fact that President Trump’s pick to replace the late Antonin Scalia, Neil Gorsuch, clerked for Justice Anthony Kennedy back in the 1980s? Does that mean the 10th Circuit judge also favors a constitutional right to same-sex marriage? How about the fact that Gorsuch has a British wife? Is he therefore in favor of unrestricted immigration? And he is an Episcopalian. Does that mean he will take a middle-ground position between precedent and text?

While that can be a fun way to spend the day, asking such questions is largely a futile endeavor. Nominees change once they’re safely on the court. The issues change, too, pushing justices in directions that even they could not have foreseen.

For example, when President Reagan nominated Kennedy in 1987 and the Senate confirmed him in 1988, no one would have expected that he would become the court’s leading voice on gay rights issues. That was something that became part of Kennedy’s legacy as a result of a unique confluence of his own evolving views on government authority and sexual identity.

That said, when something really sticks out in a nominee’s record, there is reason to be more confident that this issue will become a major part of the nominee’s legacy if appointed to the Supreme Court. With Scalia, it was his commitment to originalism that defined his legacy. Indeed, Scalia’s views on many issues evolved during his 30-year tenure, but throughout that time he was consistently the most outspoken and committed originalist on the court.

What is likely to be the issue for Gorsuch? What sticks out most in his record is his willingness to reconsider the Chevron doctrine—the 1984 Supreme Court decision calling for extreme deference to administrative agency discretion, thus opening the path for virtually unlimited executive authority. Yesterday, I compared the doctrine to the Hydra of Lerna and mentioned how Gorsuch, more than any other federal judge to my knowledge, has demonstrated an eagerness to lop off a few of the heads on that judicial doctrine he once described as a “behemoth.”

This part of Gorsuch’s record will no doubt be picked up by the mainstream media, but I can guarantee what will not be picked up—and that is what this says about President Trump. Of the 22 candidates Trump considered, Gorsuch is unmistakably the most hostile toward executive discretion and overreach. No one would mistake Trump for a constitutional scholar, but it is clear that the president was acutely aware that skepticism of agency power is central to Gorsuch’s judicial philosophy. Put more starkly: Trump chose the one judge most likely to limit his executive authority.

That is remarkable. Past presidents have selected nominees, primarily, for the purpose of advancing their particular agendas. There is indeed substantial evidence that President George W. Bush passed over many highly qualified jurists because they seemed insufficiently deferential to his view of the commander-in-chief authority as it applied to the War on Terrorism. Likewise, President Obama clearly selected Elena Kagan in part because of her outspoken support of gay rights at Harvard and Sonia Sotomayor for her commitment to racial justice, an issue that has been at the core of her jurisprudence on the Supreme Court.

So what does Gorsuch tell us about President Trump? This chief executive whom scholars and pundits deride as a “fascist” and “tyrant” appears committed to choosing a jurist who will limit executive discretion, which suggests that Trump’s call to “drain the swamp” will be a critical part of his Supreme Court legacy. It may behoove some of us today to spend less time thinking about what trivial details from Gorsuch’s personal life can tell us about Gorsuch, and more time considering what Gorsuch can tell us about Trump.

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Gorsuch May Be in the ‘Scalia Mold,’ But He’s No Scalia Clone

President Trump kept his promise in choosing a Supreme Court nominee “in the mold of Justice Antonin Scalia.” Now, as hard as it is to predict the twists and turns of any Supreme Court nomination, here’s an easy prognostication: progressives will disparage any Republican nominee as a mere “Scalia clone.” That happened with Chief Justice John Roberts. It happened even more intensely with Scalia’s fellow Italian-American, Samuel Alito, leading progressives to give him a highly offensive nickname “Scalito.” And now the same is happening with President Trump’s pick to replace Scalia, Neil Gorsuch.

Progressives do this because Antonin Scalia was the Left’s judicial hobgoblin, just as Trump quickly became their presidential bogeyman. The truth, of course, is that Justice Scalia was not all that conservative on many issues. And despite his outspoken fidelity to the original meaning of the Constitution, the late jurist was willing to depart from text and history to honor the high court’s precedents, whether they represented the left or the right side of the judicial ideological spectrum.

Putting aside Scalia’s legacy, however, it should be clear that comparing Scalia to Gorsuch is a largely useless endeavor. Gorsuch is an independent and accomplished thinker in his own right, born more than 30 years after Scalia, and likely to deal with entirely different constitutional issues.

While the Supreme Court controversies of Scalia’s generation were largely about the constitutional status of various questions relating to sexual privacy (such as contraception, abortion, and homosexuality), these issues do not have the same currency in 21st century America, including among Republican voters, who have shown they are more concerned with the larger and more fundamental questions surrounding sovereignty and national identity than these old culture war divisions.

How will Gorsuch be on the constitutional issues on the horizon? Predicting how nominees will act once on the High Court is a fool’s errand, fraught with uncertainty. This is particularly true with emerging legal issues, such as the current controversies over immigration and the Constitution’s application abroad. Those are legal matters that have not yet been stabilized through judicial precedent.

And this precaution should be especially high when dealing with Republican nominees. Let’s face it, the record is not great. More than half of the 12 Republican nominees over the last 45 years have moved substantially leftward once they’ve arrived at the court. For example, President Gerald Ford nominated John Paul Stevens as a conservative Midwesterner. Stevens retired nearly 35 years later, a hair to the right of Fidel Castro.

A helpful insight into a justice’s future jurisprudence can be his personal background. On this point, Gorsuch, the Western outdoorsman, is unlike any other justice currently on the High Court. Indeed, in many ways one could have learned more about Justice Sonia Sotomayor from her “wise Latina” comment than from any of her Second Circuit opinions. Although the Gorsuch nomination continues the regrettable Yale-Harvard high court cartel, if confirmed he would add some geographic and religious diversity to the court, becoming only the second justice not to hail from one of the coasts (Gorsuch is from Colorado) and the only justice to be neither Catholic nor Jewish (Gorsuch is Episcopalian).

While we cannot predict anything about Gorsuch with certainty, there are four defining characteristics of his judicial philosophy and style—two that mesh well with his predecessor and two that clearly distinguish him.

The similarities: First, Gorsuch is a clear, provocative, and compelling writer—in this way, he is indeed like Justice Scalia, but certainly more genteel, lacking Scalia’s acerbic and pugnacious wit.

Second, Gorsuch, like Scalia, joined the ultimate authority on legal writing and reasoning, Brian Garner, in writing a book—Gorsuch’s book is on stare decisis (the doctrine of judicial precedent), and it has quickly become the leading treatise on the subject. That certainly bodes well for Gorsuch’s commitment to the rule of law.

The differences: First, Gorsuch is committed to religious liberty, as seen most prominently in his interpretations of the Religious Freedom Restoration Act to protect corporations and organizations from the Affordable Care Act contraception mandate. (Gorsuch was famously involved in the Hobby Lobby and Little Sisters cases on the Tenth Circuit. He ruled in favor of religious liberty in both cases.) In this way, Gorsuch differs substantially from Justice Scalia, who notoriously adopted a very narrow view of religious liberty.

Second, Gorsuch is much more skeptical of federal power, particularly the massive delegation of power to the federal agencies through ambiguous mandates, leading to a bureaucratic Hydra of Lerna, roaming the land and sea in pursuit of ever more regulatory authority, accountable to no one.

On this issue, it is worth quoting from Gorsuch, to let his prose and style shine on its own: “There’s an elephant in the room with us today,” he wrote in a concurrence. “We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”

Maybe it is indeed time for the Supreme Court to face the behemoth, with Gorsuch leading the charge. For that to happen, however, Gorsuch will need to be confirmed, which may be no small feat with Senate Democrats out for revenge. On this point, it is worth mentioning one more thing Scalia and Gorsuch have in common: Both were confirmed unanimously—Scalia when nominated to the Supreme Court in 1986, and Gorsuch when nominated 20 years later to the 10th Circuit. But this is a different Senate, and these are different times.

As I said, predicting nominations is a fool’s errand, but I will reluctantly play the fool and predict three things. There will be massive resistance to Gorsuch, having nothing to do with Gorsuch’s character, judicial record, or intelligence. After an unprecedented Senate showdown, Gorsuch will be confirmed. And Justice Gorsuch will carve out a legacy completely distinct from that of Justice Scalia, but one that is just as admired for its commitment to the rule of law.

2016 Election • America • Cultural Marxism • Democrats • Donald Trump • Neil Gorsuch • Pro-Life • Republicans • The Constitution • The Courts • The Left • The Resistance (Snicker) • Trump White House

Neil Gorsuch is Just Round One in the Fight for the Supreme Court

President Trump’s nomination of 10th U.S. Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court will be met by fierce resistance by Democrats in the Senate and unrelenting demagoguery from left-wing groups and media outlets. About that there can be no doubt. (American Greatness readers may recall a reference to Gorsuch in my December 22 article, “The Trump Court: SCOTUS Could Stand Some Disruption.”)

The opposition is unwarranted. Gorsuch is an excellent choice, and he should be confirmed by the Senate easily and without unnecessary delay. The 49-year old Colorado native, a Harvard Law graduate and former Supreme Court clerk, was so non-controversial when President George W. Bush appointed him to the 10th Circuit in 2006 that the Senate confirmed him unanimously on a voice vote.

That was then. Gorsuch’s impressive academic achievements (including a Marshall Scholarship to Oxford University, where he obtained a Doctor of Philosophy in Law), professional experience (both in private practice and with the Department of Justice in the George W. Bush administration), and a decade of prior judicial experience will likely not deter Senate Minority Leader Chuck Schumer (D-N.Y.) from now claiming that Gorsuch is “unqualified” and “outside the mainstream.”

Some of his colleagues have already begun

Their arguments against Gorsuch are baseless and phony. The truth is, Trump’s opponents would have reacted the same way no matter who the president chose.

Senate Republican leadership, and especially Senate Judiciary Chairman Chuck Grassley (R-Iowa), will have to overcome massive feigned hysteria by the Left in order to secure Gorsuch’s confirmation. Liberal pressure groups such as Alliance for Justice will probably blanket the airwaves with ads attacking Gorsuch. Senate Majority Leader Mitch McConnell (R-Ky.) should be prepared to exercise the so-called “nuclear option”—eliminating the filibuster for Supreme Court nominees—if necessary to prevail.

Why are the Democrats behaving this way? There are several reasons.

First, Senate Democrats were enraged with Grassley’s and McConnell’s refusal to consider Judge Merrick Garland, lame duck President Obama’s nominee to fill the vacancy left last year by Justice Antonin Scalia’s death. Of course, it would have been extraordinary to consider changing the balance of power on the High Court in an election year. The Republicans had sound reasons to stonewall the Garland nomination, but Senate Democrats have been waiting for the opportunity to even the score. Moreover, with four reliable liberal Justices already on the court (Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor), Democrats realize that they’ve been denied a liberal majority for decades to come. They are furious.

Second, the Democratic Party and its various constituencies have adopted an obvious strategy of massive resistance to Trump’s election: protest everything, organize noisy and visible demonstrations, and object, object, object. This serves the dual purpose of throwing a collective tantrum in disappointment over Hillary Clinton’s defeat, and attempting to de-legitimize Trump’s presidency with orchestrated discord. Trump’s SCOTUS nominee, no matter how qualified, is an excuse for a choreographed conniption. The public is learning to disregard such petulant behavior, just as one would ignore a whining child.

Third, ever since Senate Democrats (led by Ted Kennedy and Joe Biden) succeeded in smearing Robert Bork when President Reagan nominated him to replace moderate Justice Lewis Powell in 1987 (ultimately defeating Bork’s nomination by a 58-42 vote), liberals have recognized their ability to politicize the Supreme Court confirmation process and demonize principled nominees.

Bork, a former Yale law professor, author of influential legal texts, former solicitor general of the United States, and sitting judge on the D.C. Circuit—second only to SCOTUS in importance and prestige—was arguably the most qualified candidate ever to be nominated to the Supreme Court. Yet, through false and inflammatory rhetoric, Kennedy and Biden were able to portray Bork as an unqualified “extremist,” in the process coining a new verb: “borking.”  The Left will try to “bork” Gorsuch. That’s just what they do.

Despite the Democrats’ consistent bad faith opposition to numerous Republican judicial nominees since 1987—including the vicious attacks on Clarence Thomas in 1991 and the attempted filibuster of Samuel Alito in 2006—Senate Republicans have failed to reciprocate against a Democratic president’s nominees. For example, when President Bill Clinton nominated Ruth Bader Ginsburg to the High Court in 1993, the Senate confirmed her by a 96-3 vote—despite her record of radical advocacy, including prior service as general counsel to the American Civil Liberties Union. This is yet another example of Republicans following the Marquess of Queensberry rules, even when the Democrats routinely use brass knuckles and hit below the belt.

Fourth, and finally, the Left is firmly in control of legal academia and the organized bar, allowing it arbitrarily to declare what the “mainstream” of legal scholarship is, and to pronounce which candidates espouse views that are “acceptable” to the liberal establishment. In the past, the American Bar Association has played an ignominious role in tarring conservative nominees as “unqualified” or “lacking judicial temperament.”

The foregoing considerations aside, Democrats should be delighted with Gorsuch’s nomination. Unlike the combative and outspoken Bill Pryor, also on Trump’s High Court short list, Gorsuch is not on record criticizing Roe v. Wade (1973). Moreover, Gorsuch clerked for Justice Byron White, a moderate who was appointed by President John F. Kennedy. When White retired, Gorsuch also assisted Justice Anthony Kennedy, the most liberal Republican appointee currently on the Court. The most notable feature of Gorsuch’s judicial decisions is that they are well-written and display a laudable respect for religious expression—hardly blemishes in the eyes of American voters.

And, it must be remembered that the vacancy Trump is filling belonged to Scalia, a stalwart originalist jurist who personified constitutional conservatism. Critics will pore over Gorsuch’s rulings on the 10th Circuit for clues about his judicial philosophy. No matter what they find—and the search will likely yield few meaningful insights, since a court of appeals judge is bound to follow Supreme Court precedents—Gorsuch is not realistically going to shift the Court to the right. At most, Gorsuch will preserve the balance on the Court as it existed prior to Scalia’s demise. Gorsuch also has the benefit of looking like a judge from Central Casting, exuding poise and grace.

For these reasons, Senate Democrats would be foolish to attempt a filibuster, which could prompt McConnell to eliminate that tool, completing the process that Sen. Harry Reid (D-Nev.) began in 2013 when the Democrats controlled the Senate. Schumer should be thinking ahead to the next vacancy. The real fight will come later, if and when one of the liberal Justices (Ginsburg, for example), or the swing-voting Kennedy, departs the Court through death or retirement and creates another vacancy. At that point, when the ideological balance of the Court could tilt decisively rightward, the Democrats will really pull out the stops.

In the meantime, consider the liberal opposition to Gorsuch a dress rehearsal for the ugly battle yet to come.