America • Conservatives • political philosophy • Post • Pro-Life • The Constitution • The Courts • The Culture • The Left

John Roberts Will Be the New Anthony Kennedy

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

John Roberts will be the new Anthony Kennedy. He stopped short of admitting as much in his recent rejoinder to President Trump, claiming there are no “Obama judges” or other politically motivated federal judges—a statement untrue on its face. But the implication was clear. He has already had a trial run as the swing vote—in the Obamacare case, in which Roberts deserted his fellow Republicans and joined the liberals with a tangled decision that redefined the health insurance law’s individual mandate as “a tax.”

Roberts also was joined by the newest Justice, Brett Kavanaugh (so much for the liberal women clawing at the doors of the court chamber) in a decision supported by the four liberal members of the court. It declined to hear an appeal in a case denying conservative states the authority to defund Planned Parenthood in Medicaid services.

But then, why wouldn’t Roberts want to be the swing vote? It would make him the most powerful man in American government, able single-handedly to change American social, cultural, or political life in historic new directions, as Kennedy did with the same-sex marriage decision.

Roberts would wield his power from an unassailable position: a lifetime term never vulnerable to public vote. Only dictators enjoy such legislative powers. Kennedy could not resist the temptation to power that came with being the swing vote, and Roberts won’t either.

Roberts was a George W. Bush nominee, but Republicans have a long history of Supreme Court appointments who went spectacularly sour for them, including some of the most liberal activist judges in history—Earl Warren and David Souter.

Harry Blackmun, a Richard Nixon appointee, was the architect of Roe v Wade. Sandra Day O’Connor, a Ronald Reagan appointee and the first woman on the court, was supposed to be an Arizona conservative. She ended up voting with the liberal bloc. Souter, about as far left as you could go in liberal activism, was nominated by the George H. W. Bush. Anthony Kennedy was another Reagan appointee, but he saved Roe, and cast the deciding vote in granting same-sex marriage rights. In doing so, he created the 4-1-4 configuration of the court, with himself in the middle on many issues.

This put Kennedy in the position of being the wise man, the compassionate sage, above the fray where he could exercise a higher spirituality, expressed in such gobbledygook sentences as this one: “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.”

The power may be irresistible, but how did it come to be? Anyone who reads Article III of the Constitution can see that it is not there at all: no judicial review, no authority to overrule Congress or the states, no legislative powers, no superiority over the other branches of the federal government. In fact, quite the opposite.

The three branches of government are not separate but equal as so many commentators insist. They were meant to be separate, but not equal. Congress was far and away the great power, followed by the president, with the courts in a weak third place. They were “the weakest of the three departments of power,” wrote Alexander Hamilton in Federalist 78. They were “the weakest because weakest in capacity,” he wrote, adding a quote from Montesquieu, an architect of tripartite government, “of the three powers above mentioned, the Judiciary is next to nothing.” Hamilton also made it clear that “there is no liberty, if the power of judging be not separated from the legislative…”

At the 1787 Philadelphia Convention, the framers twice voted down a veto power over congressional law by the courts. They did grant such a veto to the president, but added a check and balance by making it possible for Congress to override a presidential veto. Had they granted a veto to the courts, there surely would have been a check and balance. Yet today the courts enjoy an unchecked veto power not only over Congress but over anything and everything.

The Supreme Court today essentially is a judicial dictatorship which can amend the Constitution the easy way, by a 5-4 vote. (The hard way is the path everyone else has to follow—a two-thirds majority in both houses of Congress and approval by three-quarters of the states).

Historically, this extraordinary judicial-legislative power comes from the unilateral seizure of it by Chief Justice John Marshall in the famous Marbury v. Madison case of 1803. The case was of minimal importance, but the implication for the future was ominous. This illegal power wouldn’t be used again until the disastrous pro-slavery Dred Scott decision of 1857, which helped bring on the Civil War by overruling Congress on its hard-earned extension of slavery laws.

Abraham Lincoln brilliantly explained the limits of the Dred Scott decision, but no president since has had the courage to defy the courts when it comes to the use of “judicial review,” the mechanism by which courts nullify laws of the people, write new laws of their own, and impose them on the entire nation. John Roberts will be the new pilot of these flights of judicial review. Count on it.

Photo credit: Tom Williams/CQ Roll Call

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Administrative State • Democrats • Donald Trump • Law and Order • Post • The Constitution • The Courts • The Left

In the Case of Trump vs. Roberts, the President Prevails

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

Who gets it right, President Donald Trump or Chief Justice John Roberts? The president earlier this week attacked “Obama judges,” whom he believes are erroneously interpreting the law and the Constitution to frustrate his administration’s policy initiatives. The chief justice told the Associated Press on Wednesday there is no such partisan thing. All federal judges, Roberts explained, essentially are noble public servants striving selflessly to apply a neutral rule of law.

The president, of course, is  correct—though we can wish that the chief justice were, too.

Say this for John Roberts: he probably really does believe that the members of the Supreme Court, at least, strive together to reach the right result. When he claimed at his 2005 confirmation hearings that justices are simply “umpires,” neutrally applying pre-existing rules, he likely was being sincere.

The chief justice, like his great predecessor John Marshall, wants his court to be above politics. Remaining above the political fray would help explain his unfathomable opinion in NFIB v. Sibelius, where he wrote for a majority consisting of himself and the four liberals then on the court and invoked a dubious theory involving Congress’s power to tax, which he used to uphold the clearly unconstitutional and falsely labelled Patient Protection and Affordable Care Act (“Obamacare”). In that way, one suspects, Roberts thought he could avoid plunging the court into another maelstrom like the one it encountered with Bush v. Gore, when so many Americans wrongly concluded the court was simply favoring a Republican over a Democrat.

Perhaps Roberts believes that in rebutting the president’s attack on judges who are using politics rather than the law to make decisions, he will protect the judiciary from the charge that it is partisan, and thus help to preserve the noble American ideal that ours is a government of laws, not men. Preserving that noble ideal is indeed worthy, and perhaps it is even true that most judges, at most times, are not simply political actors.

But it is the president, not the chief justice, who is most faithful to our tradition in this case.

Dueling Theories of Jurisprudence
The judges on the Ninth Circuit and in other jurisdictions who spin spurious theories to deny the president the authority clearly given by legislation and the Constitution—authority that other presidents have exercised without comment or rebuke—are misguided and should be corrected.

We are at an extraordinary period in history when one of our political parties, the Democrats, has become committed to a jurisprudential theory at odds with our tradition, while the other, the Republicans, exemplified by the president, and, oddly enough, the chief justice (most of the time, anyway) still embodies that original understanding.

The notion is now completely dominant in our law schools, in the media, and on one side of the aisle in Congress, that it is the job of judges to refashion the law and the Constitution along progressive ends, to mold our jurisprudence, as the Warren Court did, to meet what they perceive to be the needs of the times.

Somehow, however, others (including the president) recognize that many judges appointed by Democrats, when they engage in legislating new rules, are betraying our constitutional scheme, where lawmaking is supposed to be for the legislature, not for the judiciary. For judges to make law, to depart from precedent and from original understanding—in other words, to ignore the strictures of the Constitution and our statutes—is to deprive us of self-government. Paradoxically, then, for these appointees of Democratic presidents to frustrate the acts of the president, is to betray the very democracy they claim to represent.

Resisting Judge-Made Law
For almost a generation, a group of law students and lawyers, banded together as the Federalist Society for Law and Social Policy, have been seeking to spread the understanding that this now dominant “living Constitution,” or progressive judicial theory, is misguided and dangerous to our ideals of separation of powers and dual state and federal sovereignty. President Trump’s nominees to the Supreme Court, Neil Gorsuch and Brett Kavanaugh, came from a list of suggested names who embrace Federalist Society beliefs.

The president probably also understands that he owes his election to a feeling on the part of much of the American electorate that for too long social policy has been formulated and implemented not by the people’s representatives, but by judges.

Indeed, the president and the Federalist Society probably both grasp that the current deep divisions in the country have been caused partly by a federal judiciary and a federal leviathan exercising power that, to paraphrase the 10th Amendment, properly belongs to the states and to the American people themselves.

The progressives’ judiciary acted from seemingly laudable motives, seeking to promote equality and other favored causes among all Americans, but in depriving their fellow citizens of the right to determine how to live their own lives, the judges struck at the purpose of the rule of law itself. Taking back their own government is what motivated much if not all of President Trump’s support, something the Left still finds it difficult to understand.

I suspect that Chief Justice Roberts’s statement on the judicial role was not meant as a rebuke of the president so much as a simple affirmation that we seek to be governed by our laws and Constitution, and not by the whims of particular jurists. The Federalist Society, President Trump’s nominees to the court, and even Justice Roberts, understand that conservatives do not seek to impose their own views on the polity, but simply to follow the pre-existing rules.

Sadly, it will fall to Roberts’s court ultimately to administer the needed rebuke to the errant judges whom the president has properly excoriated.

Photo Credit: Jim Watson/AFP/Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

America • Americanism • Center for American Greatness • civic culture/friendship • Donald Trump • Identity Politics • Immigration • Post • The Constitution • The Courts • The Culture

Originalism and Birthright Citizenship

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

Republicans have long proclaimed their belief in constitutional originalism. Like low taxes, it’s become a mantra, but one wonders how serious they are. Originalism has consequences, and if embraced, a large part would involve undoing court-created rights that have restrained the political branches, particularly the states. Another large part would require scaling back the federal welfare state, which goes far beyond the boundaries of regulating interstate commerce. Contrary to critics, originalism would also allow ending the accidentally created right of birthright citizenship under the 14th Amendment.

Trump Is Serious About Originalism

Donald Trump, for all the claims that he is undoing historical limits on the presidency, is in fact an unironic originalist operating well within the constitutional mainstream. While not an attorney, he is old enough to remember when things were not the way they are now. Trump’s nostalgia for the “great” America of the past forms his lodestar, which stands out sharply from the general undoing of America’s norms since the social revolution of the 1960s and ’70s.

His appointments to the Supreme Court—Neil Gorsuch and Brett Kavanaugh—conformed to his promise to name justices in the mold of Antonin Scalia, and have muted the criticism he was a closeted Democrat unserious about traditional Republican concerns. Further, his expression of a robust, tangible American national identity—including the right to control the country’s borders and to say who may and may not be admitted to citizenship—addresses the most pressing threat to our national unity and the health of our political institutions.

Proving he is ever the master of the news cycle, Trump displaced the suspiciously timed pipe bomber and the maniac Pittsburgh synagogue shooter from the news by proposing he was prepared to issue executive orders ending birthright citizenship. This became the story.. The media, as one would expect, were apoplectic, and suddenly every 3.0 GPA telecommunications major became a constitutional scholar. This order would be unconstitutional and the end of the republic, we were told. Apparently, legions of illegal immigrants and a robust birth tourism industry have become central to American life.

Trump’s critics, however, were not only to be found on the left. Outgoing House Speaker Paul Ryan (R-Wis.) said, “You cannot end birthright citizenship with an executive order. . . . We didn’t like it when Obama tried changing immigration laws via executive action, and obviously as conservatives we believe in the Constitution.”

Indeed, we do.

The 14th Amendment Does Not Mandate Birthright Citizenship

Well established precedent, the debate on the 14th Amendment, and common sense all weigh in favor of President Trump’s proposed executive order, as I have written previously. Chapman University constitutional lawyer John Eastman has also argued that birthright citizenship is not the most natural or originalist reading of the post-Civil War-era 14th Amendment, which was designed to secure civil rights and citizenship to the newly freed slaves. The relevant text is straightforward: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Some conservatives, including now-Judge James Ho, have argued that the use of the phrase “subject to the jurisdiction thereof” should be given its ordinary broad meaning as including anyone under the authority of the government and obliged to follow its laws. Jurisdiction is a familiar concept in the law, no doubt, but this does not appear the best reading of the phrase in context, as near contemporaneous precedents suggest.

While some have dismissed the 1884 precedent of Elk v. Wilkins as sui generis because it addressed the citizenship of Indians—who were at the time treated as quasi-foreign nations whose rights were controlled by treaties and not like ordinary American citizens and aliens—the language of the decision is instructive. In Elk, the petitioner was an American Indian who had moved to Omaha, Nebraska, and assimilated among American citizens, although he did not formally apply for U.S. citizenship. There is no doubt while living in Omaha he was obliged to follow the laws of the United States and was subject to its jurisdiction, in the same manner as a foreign tourist or green card holder today. Nevertheless, his claim of citizenship—premised on having been born in the United States and otherwise observing its jurisdiction—did not justify his claim of citizenship.

As the court held, “[t]hough the plaintiff alleges that he ‘had fully and completely surrendered himself to the jurisdiction of the United States,’ he does not allege that the United States accepted his surrender or that he has ever been naturalized, or taxed, or in any way recognized or treated as a citizen by the State or by the United States.”

In the debates over the 14th Amendment, Senator Jacob Howard of Michigan acknowledged that the amendment recognized the existing law of citizenship, and “[t]his will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons.”

A common originalist interpretation of the 14th Amendment is that it was designed to protect the Civil Rights Act of 1866 from an adverse court ruling. Congress wrote the 1866 law to prevent newly freed slaves from being reduced to second class status by recalcitrant southern legislatures. The Elk decision noted that the Civil Rights Act of 1866 declared protection for “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” In other words, “subject to the jurisdiction” and “not subject to any foreign power” were treated as synonymous concepts at the time of the 14th Amendment’s ratification.

Even the famous case of Wong Kim Ark, from which birthright citizenship proponents gain much of their confidence, noted that the other branches had failed to weigh in on the matter, and thus the Supreme Court was required to rely upon common law principles to resolve the question of birthright citizenship. Notably, too, the petitioner in that case was born in the United States to legal aliens who were subjects of China.

Democrats Used to Know the President Has Substantial Authority Over Immigration

Trump’s proposed executive orders are controversial, but they should not be as a constitutional matter. Does anyone remember Elian Gonzalez? His capture by armed federal agents and repatriation to Cuba was a major controversy in 2000. Janet Reno, Bill Clinton’s attorney general, argued in favor of nearly unreviewable discretion by the executive to determine Gonzalez’s status.

Making Trump’s claims of executive authority appear weak in comparison, the government’s brief in the Gonzalez case is full of gems. Janet Reno’s Department of Justice argued that “judicial deference to the Executive Branch is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations.’“The brief stated further, “[t]he Supreme Court’s recognition of immigration law as occupying a unique status for purposes of judicial review dates back more than a hundred years” and that “[o]ur cases ‘have recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’“ . Finally the Justice Department quoted again from the court’s 1999 ruling in INS v. Aguirre-Aguirre: “The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.”

In short, while there are limits to executive orders, ample precedent exists for substantial executive control over immigration, particularly when the precedent is mixed, interwoven with unnecessary dicta, and contrary to the original intent of the Congress, as revealed in its ratification debates over the 14th Amendment.

One wonders if the supposed originalists have ever noticed the Constitution grants Congress the authority to “establish an uniform Rule of Naturalization . . .. ” Do they worry about Supreme Court precedents that deviate greatly from our historical understanding of “equal protection” to the point of requiring the government to provide “equal benefits” such as Medicare and public schooling to illegal aliens? Even if there may be some debate on the propriety of an executive order on birthright citizenship, the Constitution contemplates that the various gray areas of citizenship, naturalization, and special cases, like birth in the United States to temporary visitors who owe no allegiance to the United States, can and should be resolved by the political branches, ideally through legislation.

Immigration Laws Should Evolve With the Times
A nation’s circumstances and priorities change. While we do not have a living Constitution, we do have a living set of laws. The Constitution contemplates that laws and enforcement priorities will vary substantially from time to time. Far from being a prism through which the right policy answer can be found for any controversy, the Constitution is silent on a great many subjects, and the political branches—the legislature and the executive—are commissioned with divining good policy and reconciling such policies with public sentiment.

The right level and quality of immigration is a quintessentially political question. When America had a frontier and a need for large numbers of unskilled laborers, immigration was less burdensome and arguably more necessary. But even then, it was a matter rightly decided politically. A court-created “birthright” citizenship removes an important political issue from political control and the input of concerned citizens.

Illegal immigration is amplified by birthright citizenship, which allows the children of immigrants to become citizens and then, in turn, to sponsor their parents and relatives under the ill-advised provisions of U.S. law allowing for family reunification. These are the so-called “anchor babies.” While family reunification should be a low priority, this is a statutory matter.

On the other hand, the initial provision of citizenship to the children of illegal aliens—the first link in the chain that is “chain migration”—is not called for by statute or the language of the 14th Amendment, properly understood.

As the Supreme Court observed in Elk, legality and consent of the governed loom large in the question of when and how immigrants may become citizens of the United States: “[A]n emigrant from any foreign State cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required by law.”

Unlawful immigration (particularly with foreign flags waving proudly) does not imply any such renunciation. More important, without formal naturalization by the United States, illegal aliens are mere trespassers and interlopers, whose disrespect for our laws and institutions bodes ill for good citizenship more generally.

If someone marched into your home and squatted, he would not become your family member entitled to an inheritance. Our greatest inheritance as Americans is our country, its resources, its Constitution, and its people. This inheritance, too, should be preserved jealously, and Trump’s efforts to do so deserve our applause.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Administrative State • Congress • Cultural Marxism • Democrats • Post • The Constitution • The Left

The Left Trashes the Constitution: Sacking the Senate

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

The Democrats’ trashing of the Constitution did not end with the Kavanaugh confirmation battle but now rambles on with their denunciations of the fundamental institutions of American republican government. They will continue their attack on the electoral process with their disparagement of the Electoral College. Next up, we hear rumblings about the supposed “undemocratic” nature of the Senate.

Can anyone imagine the winner of the World Series being determined by which team scored the most runs in seven games, and not who won the most games? Then it would no longer be baseball. Scrapping the Electoral College would have the same effect—it would transform not just the election but also campaigns and the conception of the voter and citizen—all for the worse.

Spawned by the now familiar cries of outrage about the Electoral College is this year’s attack on the Senate. The Left now would like to sack the Senate because it gives too much power to smaller and, as they see it, “unimportant” states. Forget flyover states! All power to New York and California! But why stop with the Senate?  Why not give “people of color” extra votes, to compensate for past discrimination?

All this dwelling on the sheer power of numbers as the measure of justice reminds us why ancient philosophers—up to and including our own American founders—regarded pure democracy as a corrupt form of governance. Yet here we are. Once demagoguery—as in what passes as reporting in most mainstream news outlets—became regarded as just another form of communication, there was no reason for many observers to stigmatize direct democracy.

All this acrimony boils down to opposition to the Constitution—not just the 1787 Constitution as amended but the very idea of a Constitution as a set of rules beyond the latest social trends. After all, the argument goes, why remain captive of a document allegedly created by dead, slaveholding, rich white men designed purely for their own interests? This reprises the Marxist critique of America in the Progressive Era, pitting the old, oligarchic Constitution against the revolutionary (and allegedly egalitarian) Declaration of Independence. This is sheer nonsense, of course—Lincoln had nothing like this in mind when he revived a political awareness of the centrality of the Declaration to our politics in the 1850s. Lincoln’s concern, as should be ours, is the question of sovereignty.

Even the Progressive model of “reform,” the 17th amendment which provided for direct election of senators from each State, at least kept the institution, though severing the state legislators from election of the nationalizing upper house and weakening the refining properties the founders had in mind for it. There’s a difference between bad amendments, however, and the latest attacks from the Left on the heart of the Constitution. They have gone leaps beyond their progressive forbears in their contempt for our founding modes and orders

In fact it’s not only the leftist mob but, I’ve found, thoughtful conservatives are surprised to be informed that the Constitution itself declares two clauses that are unamendable. There is a limit to amendments, as Article V on amending the Constitution specifies.

Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The Constitution demands that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” (The first restriction on amendment power specified 1808 as the year Congress could first end American importation of slaves via the international slave trade.)  Equal representation in the Senate is the political pillar of federalism—the distinction, however disputable, between the powers of the national government and those of state governments. While it is an exaggeration to say the states created the Union, there can be no United States of America without the states and institutions such as the electoral college.

The founders created a new, republican government that mitigates the evils of democracy and strengthens its virtues. The senators would be chosen by state legislatures, not voters, thus tying the election of local representatives to the Senate. This refinement prevents citizens from defining the common good solely in terms of majorities of voters.

Moreover, by giving senators the longest terms (six years), while limiting their turnover to a third of the body each two-year election cycle the Constitution provides stability in at least this one governmental body. Yet the distinctiveness of the states within the Union is diluted by having two senators from each state, not one. So a state’s two senators might disagree or, as now, belong to opposing political parties.

Starting with only 26 members and the vice president, the Senate could develop a collegiality that would guide its practices through today. The filibuster is one example of such a practice which was readily abused. But whatever particular policies come out of the Senate, from senators of small or large states, the equal representation of states cannot be altered. The principle that having numbers of people is not the only criterion of justice leads to practices of civility and deliberation about how to make just laws.

Today, with Congress having delegated many of its powers to the bureaucracy and its intellectual mentors (a.k.a., the administrative state) and the direct election of senators, the Senate reflects the ills of society more than it transcends them. The mobs disrupting the Kavanaugh Senate confirmation hearings were a noisier version of the Left’s assault on the very notion of a Senate of constrained powers reflecting the true diversity of the nation in the plurality of the states—that’s what the motto of America, e pluribus unum, “from many one,” is supposed to be about.

As the Kavanaugh hearings showed, the bold enemies now inside the gates are on both sides of the confirmation hearing dais—senators and members of the mob. The nation founded in a revolution for preserving fundamental rights and the “safety and happiness” of the people is now betrayed by those obligated to defend these principles. Neither respects the abiding constitutional principle at the heart of the Senate—nor any other beyond what advances their own immediate interests.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

Photo Credit: Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Administrative State • Congress • Deep State • Democrats • feminists • Identity Politics • Law and Order • Post • The Constitution • The Courts • The Culture • The Left • The Resistance (Snicker)

Did the Deep State Recruit Christine Blasey Ford?

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

The revelation that Christine Blasey Ford’s high school friend and onetime adult roommate, Monica McLean, happens to be a former FBI agent may have raised so few eyebrows because we’ve grown accustomed to finding the FBI lurking in the background of major news stories.

First of two parts.


The father of Parkland High School student David Hogg, the media’s go-to expert on gun control, is a retired special agent. The 2016 Pulse nightclub mass murderer’s father was a long-time FBI informant. In 2015, an FBI agent was photographing two ISIS-affiliated men just before an off-duty cop moonlighting as a security guard narrowly prevented them from turning a Garland, Texas “Draw Mohammed” contest into a massacre. Going back a bit further, it turned out that two of the 9/11 hijackers were actually rooming with an FBI informant.

The latter case, like the others involving Islamic terrorism, can be chalked up either to the agency’s bad luck or incompetence at preventing the attacks rather than to any sinister malfeasance on the part of its employees. David Hogg’s FBI connection, on the other hand, is surely just coincidental, and it’s natural to be inclined to say the same of Ford’s relationship to McLean. The FBI does, after all, employ over 35,000 people, so such coincidences are bound to happen.

Further, McLean, a high-school classmate of Ford’s who is also a lawyer, first became part of the story when an ex-boyfriend of Ford’s released a letter identifying her as Ford’s “life-long best friend”—a description neither woman has denied. He went on to claim that when he was dating Ford sometime in the 1990s, Ford coached her then-roommate on how to take a polygraph while McLean was looking for jobs with the FBI and the U.S. Attorney’s office.

So when the ex-federal agent’s name first appeared, there was no reason at all to suspect that she had any involvement in Ford’s present-day attempt to block Brett Kavanaugh’s nomination to the Supreme Court, (which, regardless of whether Ford is acting in good faith, is what she attempted) and, hence, no reason to think that McLean’s FBI background was in any way relevant.

Recently, however, we found out that Ford’s longtime close friend—who resigned in 2016 after 24 years with the Bureau—is involved in another part of the story. And this time, her role can’t be described as merely background or coincidental.

According to the Wall Street Journal, Leland Keyser, one of the four witnesses Ford named who has no memory of the events she claims happened who denies even knowing Brett Kavanaugh, told Senate investigators that McLean had pressured her into making her statement less unfavorable to Ford.

As much as some of Judge Kavanaugh’s supporters would like to suggest it, it’s very doubtful the actions described by the Wall Street Journal rise to the level of witness tampering. If the Journal’s report is accurate, however, it shows that McLean took an active present-day role in Ford’s effort to block Kavanaugh’s nomination.

More Coincidences?
Thanks to some top-notch sleuthing by someone calling himself Sundance at the website Conservative Treehouse, we now know more about McLean’s background that ought to raise plenty of eyebrows.

For example, in a 2009 press release, Monica McLean is identified as an FBI public information officer working alongside then-U.S. Attorney for the Southern District of New York, Preet Bharara.

If that name sounds familiar, it’s probably because Bharara raised a big stink last year after being fired by incoming Attorney General Jeff Sessions. Bharara implied corrupt motives were behind his dismissal, though there was nothing surprising or unusual about the move. New administrations commonly replace U.S. attorneys brought in by their predecessors. In fact, that’s how Bharara got the job from Barack Obama, after spending four years as chief counsel to Senate Minority Leader Chuck Schumer (D-N.Y.), the man who recommended him to the former president. If you’re wondering what Bharara has been doing since he lost his job, New York did a profile in October 2017 headlined, “Preet Bharara is now in the Trump-opposition business.”

Moreover, the FBI press release which tells us that McLean worked with this leading figure in the so-called resistance against President Trump, identifies one Jim Margolin as working alongside her in the public information office. Margolin’s LinkedIn page says that in 2013 he switched jobs and started working directly under Bharara as his chief public information officer. Unlike Monica McLean, Margolin didn’t resign when Trump took office, nor was he fired like Bharara. And, since the U.S. Attorney’s Southern District, New York office is prosecuting Trump’s onetime lawyer Michael Cohen, you’ll find Monica McLean’s ex-partner’s name in any number of stories explaining the details of Cohen’s legal travails.

So, if the relationship between Christine Blasey Ford and Monica McLean is mere coincidence, it runs much deeper than McLean’s past work for the FBI. The lifelong friend of the woman at the center of the Democrats’ attempt to block President Trump’s most recent Supreme Court pick spent years working closely with someone who was Chuck Schumer’s right-hand man until Barack Obama made him U.S. attorney in one of the nation’s most high-profile divisions and is now a leading figure in the “resistance” against Trump. During much of that time, Ford’s schoolmate and former adult roommate was partnered with another man who is now intimately involved in Independent Counsel Robert Mueller’s attempt to pressure Michael Cohen into providing him with something that can be used against the president.

Besides discovering links between McLean and some of Trump’s prominent enemies formerly and currently collecting a federal paycheck, Sundance turned up other evidence that strongly suggests, in addition to pressuring Leland Keyser to change her statement, McLean played yet another even more active role in Ford’s attempt to block Kavanaugh.   

In her testimony to the Senate Judiciary Committee, Ford said that she flew to Rehoboth, Delaware on July 26, composing her famous letter to Senator Dianne Feinstein accusing Kavanaugh of sexual misconduct on July 30 while still there. It turns out that Rehoboth is McLean’s current hometown. Sundance used one of those people-finder websites to discover McLean’s domicile, and her page on the California Bar Association’s website tells the same story.

Sundance, however, is a little too quick to conclude that Ford and McLean were “together for the four days leading up to the actual writing of the letter.” In her testimony, Ford also said she was in Rehoboth on a yearly visit to her parents, who, according to the website Delaware Online, have a “vacation home they’ve owned in southern Delaware for at least 20 years.” So contrary to what the anonymous sleuth seems to be assuming, Ford’s traveling all the way to Rehoboth from her home in Palo Alto can be explained without supposing she was there to get McLean’s help in composing her crucial letter to Feinstein.

Though her parents’ Delaware vacation home amply explains Ford’s presence in Rehoboth, it doesn’t explain why she chose to write the pivotal letter describing her allegations against Kavanaugh there. And, there are good reasons to think that her dear friend Monica McLean’s proximity likely played a role in that decision.

Mr. and Mrs. Blasey’s Startling Lack of Support
Apart from pressuring Ford’s other high school friend, Leland Keyser, to amend her statement, Monica McLean also played another less active role in the story. She’s one of the 24 women from Ford’s high school graduating class who signed a letter supporting Ford. Keyser’s name, however, is absent from the letter, and it turns out that McLean also did more than Ford’s own immediate family were willing to do.

Ford’s parents have been surprisingly unsupportive of their daughter; and likewise, for her two brothers. None of Ford’s immediate family even signed the letter of support from “members of Christine Blasey Ford’s family” that the Senate Judiciary Committee received; indeed, no blood relatives’ names appear on it. Every single one of the 12 signatories is related to Ford only through her husband, Russell Ford. Moreover, the letter of support itself is so weak that it’s hard to understand what objections Ford’s biological kin could have had if they believed her accusations against Kavanaugh were made in good faith.

The first two paragraphs attribute various commendable character traits to Ford, and the next describes her professional competence. And, it’s only in the fourth paragraph that her husband’s blood relations say anything at all relevant to Ford’s allegations against Kavanaugh. In that final paragraph, they attest to her “honesty” being “above reproach,” and say they “believe that Chrissy has acted bravely in voicing her experiences from the past.”

In short, insofar as the letter gives any indication that its signers believe Kavanaugh to be guilty, it goes no further than the Republican members of the Senate Judiciary Committee did in their praise of Blasey Ford! So the unwillingness of Blasey Ford’s parents to sign a letter that Chuck Grassley and Lindsey Graham could have written indicates a significant lack of support, at the very least. Perhaps that’s why, in her testimony, Ford described making crucial decisions about how to proceed with her allegations against Kavanaugh while in Rehoboth, “sitting in the car in the driveway” (presumably of her parents’ home) and “in the Walgreens parking lot.”

Moreover, a couple days after Ford and Kavanaugh’s testimony, the Washington Post ran a story headlined, “Christine Blasey Ford’s family has been nearly silent amid outpouring of support,” in which they report having briefly by phone managed to contact her father. The expression of confidence in his daughter that the Post managed to squeeze out of the elder Blasey was so lukewarm that it inspired the following paragraph in New York Magazine:

It chilled me to read what her father, Ralph Blasey, wrung from himself to offer the Washington Post, in the conditional tense: “I think all of the Blasey family would support her. I think her record stands for itself. Her schooling, her jobs, and so on.” Then he hung up. A second call yielded this hypothetical: “I think any father would have love for his daughter.”

That same Washington Post story quotes Ford’s husband:

She didn’t always get along with her parents because of differing political views,” Russell Ford said. “It was a very male-dominated environment. Everyone was interested in what’s going on with the men, and the women are sidelined, and she didn’t get the attention or respect she felt she deserved.”

But, while Russell Ford’s comment may explain his in-laws’ unwillingness to sign a letter of support that contained nothing that wasn’t echoed by the GOP members of the Senate Judiciary Committee and the extraordinarily ambivalent remarks her own father made to the Post, it goes no way towards explaining why his wife would choose to compose the pivotal letter to her California congresswoman on her trip to such an unsupportive environment; where it appears she felt compelled to make many crucial decisions from the confines of whoever’s car she was using.

So it would make a lot of sense if Ford only wrote the letter while visiting her parents because her old friend and roommate Monica McLean was in Rehoboth to help.

Indeed, even if Ford hadn’t been in McLean’s hometown when she composed the letter, it would still be strange if McLean didn’t give her some advice on it. Besides being a close friend since at least high school and their history as roommates, Monica McLean is, after all, also an attorney who worked as an FBI agent and spokesperson. Just as it would be odd if McLean didn’t consult her roommate’s psychological expertise a few decades back, when she was looking for jobs requiring a polygraph exam.

When we add that Ford chose to write the letter while visiting her unsupportive parents with whom, according to her husband, she has a troubled history, and that she also happened to be in McLean’s hometown, it becomes very hard to believe that McLean’s presence had nothing to do with her decision to write the pivotal letter while visiting Rehoboth.

Two Photos, One Woman
But there’s even more reason to think Monica McLean was involved in writing Ford’s letter. Sundance also managed to find a photo from an April 2016 Delaware Cape Gazette, in which someone identified as Monica McLean is pictured enjoying herself at a Rehoboth wine tasting. As you can see from the caption, she’s the woman to the far left with the large pink handbag.

Enjoying the tastes are In back (l-r) Kelly Devine and Nuh Tekmen. In front, Monica McLean, Karen Sposato, Catherine Hester, Sen. Ernie Lopez, R-Lewes, and Jennifer Burton. BY DENY HOWETH

And, besides providing further confirmation that McLean does indeed reside at her legal address in Rehoboth, the photograph, along with another unearthed by Sundance, also reveals yet another role McLean played in her best friend’s failed attempt to block Judge Kavanaugh’s nomination. For, someone who surely must be the very same woman pictured at the 2016 Rehoboth wine tasting can be seen literally lurking behind Christine Blasey Ford in the video of her testimony to the Senate Judiciary Committee. The image below is a screenshot of the 28-second mark of a C-SPAN video of the event.

Given that (i) McLean tried to get one of Ford’s witnesses to soften her damning testimony and (ii) accompanied Ford to the hearing; together with (iii) McLean’s investigative, legal, and public relations professional expertise and (iv) likely proximity to Ford while the crucial letter to Feinstein was being composed in (v) the home of parents with whom she has a troubled history and who supported her story even less than her enemies on the Senate Judiciary Committee, it beggars belief that her (vi) longtime close friend and onetime roommate, who an ex-boyfriend has described as her “lifelong best friend,” didn’t play yet another role in the story by helping Ford compose the crucial letter that ended up in Dianne Feinstein’s hands.

But, believe it or not, we aren’t quite finished. Blasey Ford’s testimony to the Senate Judiciary Committee suggests that Monica McLean played yet another very important and direct role. Moreover, McLean’s likely fourth role in Ford’s project also reveals further connections to highly-placed federal employees belonging to the anti-Trump “resistance,” some of whose names will be quite familiar.

Two Lawyers, One Party
In response to questioning from Rachel Mitchell, the prosecutor GOP members of the Judiciary Committee brought in, Ford testified that, during her stay in Rehoboth, “[v]arious people referred me to lawyers they knew in the Washington, D.C. area,” and that she wound up interviewing and retaining legal counsel while there.

And, of course, their longtime close friendship and McLean’s accompanying Ford to the Senate hearing alone make it overwhelmingly likely that Monica McLean was one of the friends who referred Ford to her attorney. But, since Ford was also in her friend’s hometown, it’s all but certain that she’s one of the people from whom Ford testified to getting recommendations. All the more so, since her family’s evident unwillingness to sign a letter of support that merely lauded her honesty and bravery, makes the utility of any advice they might have given doubtful.

Hence, in addition to signing the letter of support from her high school classmates, helping Ford write the crucial accusatory letter, and accompanying her to the hearing, it’s hard also not to believe that Monica McLean played a fourth role by referring Ford to her attorney.

Ford, however, was flanked by two Washington-based attorneys when she appeared before the Senate Judiciary committee, Debra Katz and Michael Bromwich. And, when Mitchell later asked if anyone else besides the previously mentioned folks in Rehoboth had recommended any lawyers, Ford responded that Dianne Feinstein’s office recommended Katz but, in response to further questioning, said they weren’t responsible for suggesting anyone else. This would imply that Bromwich was recommended by one of her previously mentioned advisors from Rehoboth. And, indeed, given Bromwich’s stature in Washington, someone with connections to an important political figure like Preet Bharara must have given Ford an introduction.

Bromwich has a very long history of working for the federal government in Democratic administrations and projects, going all the way back to the 1980s when he assisted Independent Counsel Lawrence Walsh in his investigation of the Reagan Administration’s involvement in the Iran-Contra affair. In fact, Bromwich was part of the three-person team that successfully prosecuted Oliver North, only to have his conviction overturned on appeal. The man destined to become Christine Blasey Ford’s lawyer later became the Justice Department’s Inspector General under Bill Clinton, and President Obama’s pick as the first director of his newly created Bureau of Ocean Energy Management.

Before joining Ford’s legal team, Bromwich worked for the anti-Trump resistance on the sidelines, as is amply demonstrated by his Twitter feed. In one post, he reprehensibly suggested that Rudy Giuliani’s criticism of Mueller arose from senility and, to reinforce his libel, posted a New York Times article with a picture of Giuliani that makes the ex-New York City mayor look like he got lost after wandering away from an assisted-living facility to attend the funeral of a friend who died 10 years ago.

Needless to say, no one calling on the phone gets to chat with an important man like Bromwich absent contacts in very high places. So some person must have referred Ford to him, and McLean’s years spent working alongside Preet Bharara, a big player himself, who was once Chuck Schumer’s right-hand man, could have provided the necessary opening. All the more so, given that Ford’s allegations had the potential to derail Trump’s bid to place Brett Kavanaugh on the Supreme Court.

Here it’s worth noting that along with Ford, Bromwich also represents that other would-be wrench in the Trump Administration’s machine, disgraced and fired former deputy director of the FBI, Andrew McCabe, whose name seems to pop up whenever some deep state plot against Trump is uncovered. Perhaps the fact that Bromwich was already representing McCabe was the reason his law firm asked him to resign when he added Ford to his legal purview, figuring that things were getting a little too obvious.

Of course, when she first appeared on the public stage as someone Ford may have once coached to pass a lie detector test, Monica McLean needed an attorney of her own, and she . . . well, we can’t say “hired” since there’s no reason to think she’s paying him, given that Ford isn’t paying Bromwich. So, let’s say that McLean acquired, David Laufman as her lawyer. And, though Laufman isn’t as well-known as Andrew McCabe, he is another entry in the long list of FBI agents and high-level Justice officials who’ve either resigned, retired, been demoted, or, like McCabe, fired since Trump moved into the White House. Laufman resigned from the Justice Department in February.

Moreover, Laufman’s relative anonymity when compared to McCabe looks like it might be undeserved. According to a source of Hugh Hewitt’s, Laufman’s position as, (take a deep breath if you’re reading aloud) chief of the counterintelligence and export control section in the National Security Division at the U.S. Department of Justice, means he “would have had a hand in the approval of” the FISA application to spy on Trump’s hapless campaign advisor, Carter Page.

And Hewitt’s source is supported by some of the infamous text messages between two other entries on the list of high-ranking federal employees who’ve had career trouble since Trump took office: onetime FBI lawyer Lisa Page and her married boyfriend, disgraced FBI counterespionage chief Peter Stzrok. The relevant text messages are discussed by independent journalist Sara Carter in an article headlined, “New Documents Show Obama Officials, FBI Coordinated in Anti-Trump Probe.” And, McLean’s lawyer, David Laufman, is one of the Obama officials to which the headline refers.

According to the Washington Post, Laufman’s decision to start seriously enforcing the Foreign Agents Registration Act (FARA), a 1938 law enacted to combat Nazi propaganda, also played an important role in the eventual prosecution of both Paul Manafort and General Michael Flynn. According to the Post, the Justice Department’s FARA unit, led by the man who would later become Monica McLean’s attorney, pushed Manafort belatedly to register his consulting work on behalf of a pro-Kremlin political party in Ukraine, resulting in two of the charges in Robert Mueller’s indictment: being an unregistered agent of a foreign principal and issuing false and misleading FARA statements.

General Flynn avoided an indictment by accepting a plea agreement from Mueller, but the special counsel wrote in a court filing that Flynn had “made materially false statements and omissions” in his FARA registration. And, independent journalist Mike Cernovich claims that sources in the FBI told him that the man who Monica McLean managed to snag as her lawyer was responsible for leaking information about Flynn to the press.

But it gets better. Laufman also ran the investigation into Hillary’s Clinton’s private email server. Indeed, Laufman even interviewed Clinton herself together with, wait for it, Peter Stzrok! And, the two also teamed up to interview Cheryl Mills, Huma Abedin, and even two other lesser-known Clinton aides.

And, for some reason, most media accounts of Laufman’s resignation fail to mention that it occurred exactly one day after the Senate Homeland Security and Governmental Affairs Committee issued a less than flattering report on the investigation of Clinton’s private email server he led. The committee concluded that “a number of actions by high-level FBI officials have legitimately called . . . into question” the FBI’s “integrity and impartiality.”

Though Laufman isn’t nearly as well-known as McCabe, Stzrok, Page, or Bruce Ohr, it seems like maybe he should be. Monica McLean’s attorney was a busy man when he worked for the Justice Department and seems to have played a prominent role in the failed efforts to make sure Hillary Clinton and not Donald Trump succeeded Barack Obama in the White House. And, Christine Ford’s good friend Monica McLean must be even more well connected than her time working with Preet Bharara suggests to even get a few minutes of Laufman’s time, let alone to score such a huge player as her legal counsel.

Among the many puzzles emerging from Christine Blasey Ford’s testimony to the Senate Judiciary Committee is how she could have had the presence of mind to take all the necessary steps in her quest to stop Kavanaugh from taking a seat on the Supreme Court. Ford seemed sincerely ignorant of even the most basic details about her relationship to her lawyers and claimed to not even realize the obvious necessity of obtaining legal counsel until others pointed it out. For example, it’s impossible to imagine the woman we saw testifying, who claims she couldn’t figure out how to contact the Senate, having the presence of mind to scrub her high school yearbook and social media profile from the internet before going public with her accusations. Yet someone did, just as someone must have arranged and kept track of her relations to her legal counsel.

Unless she was putting on a virtuoso performance, “Chrissy,” as her husband’s relatives call her in their letter of support, must have had someone who arranged all the necessary details. She must have had what I believe her ex-FBI agent and longtime close friend, Monica McLean would call a “handler.”

Unless Christine Blasey Ford is a phenomenal actress, she would have needed one even if her accusations against Kavanaugh were made in good faith. But, despite the Republican members of the Judiciary Committee’s attempt to walk the fine line of believing Kavanaugh and Ford are both victims, the idea is preposterous. One of them must be lying, and a careful look at her testimony shows that it’s obviously Christine Blasey Ford.

Photo credit: Michael Reynolds-Pool/Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Big Media • Congress • Democrats • Elections • Post • Progressivism • The Constitution • The Left • The Media • The Resistance (Snicker)

Don’t Blame Avenatti

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

With the dust finally settling after the nasty, protracted fight to forestall Judge Brett Kavanaugh from becoming Justice Kavanaugh, Democrats now see they have made a potentially catastrophic mistake. They managed to anger, nay infuriate, Trump supporters, NeverTrump “conservatives,” independents, and even some Democrats unwilling to see a man destroyed by an unsubstantiated, uncorroborated accusation. Kavanaugh’s impassioned defense, Lindsey Graham’s fiery denunciation, and Susan Collins’ quiet censure channeled what most of us were feeling. The “enthusiasm gap” favoring Democrats is gone, and they themselves eliminated it.

And now they need someone to blame. If they can point fingers somewhere else, they can then attempt to say “we didn’t do it,” and hope to dull the hostility that Democrats will otherwise face come November 6. So they have picked an easy target: Michael Avenatti.

It’s not that Avenatti is less than deserving. He brought Julie Swetnick’s accusations to the fore. He encouraged partisans in the Capitol and in the media to take seriously the likelihood that a college-age woman attended parties thrown by high school students, witnessed the gang rapes of multiple drugged girls, and rather than reporting this activity, simply went to more parties to see more of the same. When Kavanaugh said “the Swetnick thing is a joke, that is a farce,” this was no exaggeration.

There’s just one problem with the attempt to scapegoat Avenatti: he is not a member of the Senate, and thus could not sully the upper chamber of the United States Congress with ostensibly grave, deliberate consideration of this patently bizarre accusation.

Admittedly, pointing to Avenatti is an injustice that is not nearly on par with the moral travesty perpetrated against Kavanaugh, but it is still wrong.

It was not Michael Avenatti, but Senate Minority Leader Chuck Schumer (D-N.Y.), who called upon Kavanaugh to withdraw as soon as Swetnick’s story became public—referring to “multiple, corroborated allegations” that simply did not exist. It was Senator Cory Booker (D-N.J.) who declared “there must be a full investigation of these allegations of criminal behavior, and Judge Kavanaugh’s nomination must be withdrawn,” placing the verdict before the trial.

Avenatti could not bring Swetnick’s tale into the Senate Judiciary Committee; that dishonor fell to Senator Dianne Feinstein, the ranking minority member. She, too, clearly equated Christine Blasey Ford’s seemingly sincere and painful account of a sexual assault with Swetnick’s salacious sickness, beginning her questioning of the nominee with: “Judge Kavanaugh, it’s my understanding that you have denied the allegations by Dr. Ford, Miss Ramirez, and Miss Swetnick. Is that correct?”

Every Democratic member of the Senate Judiciary Committee signed a letter calling upon the FBI seriously to investigate Swetnick’s claims. Not one Democratic senator, neither in committee nor on the floor, was willing to say what all Americans already knew: that this accusation, as obviously baseless as it was obscene, had no place in the Senate. They could not bring themselves publicly to acknowledge that its very mention had disgraced that body. It was senators on the Democratic side, and not Avenatti, who prompted Senator Susan Collins (R-Maine) to liken Kavanaugh’s confirmation process to “a caricature of a gutter-level political campaign” than “a solemn occasion.”

Avenatti responded to Democrats’ newfound negative evaluations of his contribution in a predictable fashion.

“It is outrageous,” he told CNN, “that these so-called Democrats would attack a sexual assault victim from coming forward. I guess their position is that she should have shut her mouth and remained silent? It is disgusting that these cowards blame my client and the other accusers from coming forward.”

Equating concern for facts and verification with disregard for victims—precisely the argument used for the past three weeks to smear Republicans.

The “failed leadership” of the Democratic Party was displayed not by their post-facto rejection of Swetnick’s charge, but by their earlier endorsement of it. They are not wrong to claim that Republicans used this ridiculous allegation to say that this was an “orchestrated smear campaign”—because this was true, and Democratic backing of the Swetnick charge provided overt, palpable evidence to anyone not crippled by partisan bias. The testimony was not provided by Avenatti when he brought it up, but by the Senators who carried it forward. The fact that Ford says she has no interest in pursuing her claims merely provides further proof.

To a degree that even the most ardent right-wing partisan could not have previously imagined, Senate Democrats ran to embrace the very standards of belief and proof that got Mike Nifong removed, disbarred and imprisoned in the wake of the Duke Lacrosse scandal. To Kill a Mockingbird will need to be removed from the curriculum—as it is not merely a clarion call against racial injustice, but a chilling description of the iniquity that can result when a single, uncorroborated account is given undue credence.

According to the new Democratic norm, there was no need for Rolling Stone to retract its article about Jackie Coakley’s account of rape at the Phi Kappa Psi fraternity at the University of Virginia, much less for the magazine to pay $5 million or more to settle libel claims by an associate dean, the fraternity, and several of its members. Gregory Counts and VanDyke Perry should still be in jail, not cleared 26 years later for a rape they did not commit.

If the standard is to “believe all women,” there can be no exceptions.

The Democratic Party has incorporated an ethically vacuous hatred of men into its political platform. Come November 6, those who believe in the burden of proof, moral values and common decency—not only men, but their mothers, spouses, and daughters—will have the opportunity to express their opinion of the new Democratic position. And Michael Avenatti will not be to blame.

Photo credit: David McNew/Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

America • Democrats • Donald Trump • Elections • History • Post • The Constitution • The Left

Bring on More Kavanaughs!

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

During Brett Kavanaugh’s emotional and difficult final hearing before the Senate Judiciary Committee on September 27, Senator Lindsey Graham (R-S.C.) denounced the Democrats’ orchestrated smear campaign and made a dire prediction: “This is going to destroy the ability of good people to come forward because of this crap.”

Graham was expressing the fear, echoed by many, that the attacks on Kavanaugh would discourage many qualified individuals from accepting future government nominations. Kavanaugh himself alluded to this in his own statement, noting that the smears and attacks he had experienced over the prior two weeks would dissuade good and decent people with talent and brains from agreeing to work in government.

Those fears seem quite reasonable. No man or woman—let alone their children—should be forced to endure the slanders that Brett Kavanaugh and his family experienced in the past three weeks.

If good and decent people of talent and brains now decide to run and hide in fear of a similar onslaught, it  would be disastrous for the United States and for our future. Surrender to that onslaught, giving a victory to the bullies and McCarthyites of the Left who want to end all opposition and dissent, and have been working most intensely for the past decade to undo the Constitution and the Bill of Rights is unthinkable. They cannot be allowed to cement their hold on power.

No, now is not the time to hide. Now is not the time for Americans who believe in the Constitution, in freedom, in the rule of law, in the presumption of innocence, of freedom of speech, of limited government, of due process, of the right to bear arms (rights all delineated clearly in the Bill of Rights) to shirk their responsibilities and hide from the assault of the smear machine of the Left.

Now is the time to stand strong, as Brett Kavanaugh did when faced with smears and slanders based on absurdly unsubstantiated charges that would be laughed out of any court of law.

Now is the time to fight, as Donald Trump has done for the past two years. Faced with a hostile bureaucracy that refuses to recognize he is the legally and duly elected president, and by law has the right and power to reshape that bureaucracy, within the constraints of the laws and budgets that Congress has passed, Trump does not back down.

Now is the time to look these bullies in the eyes, and tell them that we will not be intimidated, that we will stand for what we believe, and we will not bow to their smears and slanders and screaming protesters who know nothing of us, care nothing for us, and are increasingly willing to harm us and our children because we reject their oppressive and overbearing demands.

We are living in perilous times. For the first time in the history of our country a sizeable percentage of the American population has publicly and shamelessly abandoned the principles outlined in the Declaration of Independence and the Constitution. This faction no longer believes in the presumption of innocence, the concept of freedom of speech, or due process of law.

Instead, they believe that those who disagree with them are evil, must be silenced, and prevented from living their lives freely in a free country. They believe that people like us who stand firm against their ideology deserve no civility and must be hounded, their families threatened, their careers destroyed, and their rights denied.

And what if you are a Democrat who still believes in the Constitution and the Bill of Rights but who also advocates a reasonable use of the government to achieve a just society? Does this mean you look the other way when protesters and elected officials (with whom you share policy preferences) use violence and intimidation to promote your agenda?

If you do, you are complicit in that violence and intimidation, and you demonstrate that your so-called support for the U.S. Constitution and the Bill of Rights is a lie.

You should be appalled by the leadership of your party that has advocated this smear campaign, by the protesters screaming and yelling at Republican legislators, by the mobs of violent protesters that have repeatedly attacked men, women, even old people and children, merely because they happen to be wearing a cap or carrying a sign that indicates their support of President Trump or other Republicans.

Your cause is being hijacked by the worst sort of jack-booted, black-masked thugs, and if you do not stand up to them yourselves, you join them, and none of your political goals will be realized. Instead, this country will descend into a hellhole of violence, factional war, and oppression for everyone except for the tiny few who manage to obtain and wield power.

Perhaps Thomas Paine said it best:

These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not be highly rated.

He wrote those words on December 23, 1776, at what has been considered the darkest hour of the American Revolution, with most of the last half of 1776 involving a continuous retreat of the Continental Army under the command of George Washington, and a steady expansion of American territory under British control.

Yet the next day Washington crossed the Delaware with a small army and executed a surprise victory against the British at Trenton. That single victory changed everything. As historian Sir George Otto Trevelyan noted, never had “so small a number of men ever employed so short a space of time with greater and more lasting effects upon the history of the world.”

Today is no different. Paine’s words demand of us to have the same courage as Washington and his army at Trenton. For a free people to remain free, we must willingly stand up to those who would use force to oppress us.

In the 1770s, Paine’s call for courage led eventually to victory and independence from Great Britain.

We are faced today with the same call. As in 1776, the time has come for each American to stand tall, and to look these bullies in the eyes and tell them they do not frighten us.

As at Trenton, it won’t take many with courage to turn the tide. However, if all Americans shirk this duty and run away, as Graham and Kavanaugh fear they might, then America and the American dream will die. And it will be no one’s fault but our own.

Photo Credit: Emanuel Gottlieb Leutze/Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

America • Big Media • Center for American Greatness • Democrats • Elections • First Amendment • Free Speech • Identity Politics • Post • The Constitution • The Courts • The Culture • The Left • The Resistance (Snicker)

The Phantom Pain of the Left

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

As the president of the Senate called for a sufficient second to move to a vote on Judge Brett Kavanaugh, a . . . noise . . . erupted from the Senate gallery.

It was as though the gates of Hell had been opened and a demonic voice shrieked, “Where is my representation?” As the sergeant-at-arms restored order in the gallery, the voice cried out “I do not consent! Where is my representation?” The scream continued as the protester was dragged out by Capitol police.

Her voice reverberated through the halls of the Capitol as she was removed from the chamber, eerily calling to mind the sounds that might emerge from a torture room in a Soviet prison.

Can we blame her? She had been told for months that Judge Brett Kavanaugh was evil incarnate. For weeks she had heard how he tried to rape a 15-year-old in high school. That he indecently exposed himself at a college party. That he repeatedly drugged young women and raped them. That if he were appointed to the Supreme Court, Roe v. Wade would be overturned and women across the country would not be able to get abortions. That he would reinstate racial segregation. That he was a shill for corporate America. That he hated homosexuals, women, and minorities.

If we had watched only CNN and MSNBC for the past two years (you know, to get both objective news and commentary), we would believe that a Russian puppet had nominated a rapist to the Supreme Court and that a Senate wholly owned by Big Business was about to approve him to the highest court in the land. Was about to approve him to make law and be the ultimate arbiter of right and wrong. We would believe this is not normal and that any action or force was appropriate to ensure that tyranny did not govern and to abate fascism.

If we read only the New York Times, we would view President Trump as a deranged narcissist, determined to start World War III. We would view his business prowess as the product of shady and corrupt business practices mixed generously with outright lies and falsehoods. His presidency and cabinet as a Frankensteinian hodgepodge of what happens when capitalist greed mixes with idiotic governance. His domestic and foreign policy as an ad hoc collection of lunacy with the sole purpose of enriching Trump’s own bank account.

If we only consumed mainstream media, we would know that civil war was imminent. That the only solution was violence writ large on a national scale. That violence was necessary to abate the rise of racism, xenophobia, totalitarianism, and treason.

We would believe all of this at the same time that national unemployment hit its lowest point since the Vietnam War. At the same time that obsolete and harmful trade deals were being renegotiated. At the same time that order was being restored to our country and our deeply flawed and unfair immigration system was being slowly, but surely, repaired, even without a wall.

We must have compassion for the poor souls enraptured by the constant sirens’ scream of leftist media and apocalyptic rhetoric. We must understand that many of our fellow citizens don’t understand just how good things are. We must understand that a large cohort of our country has been hijacked by absent-minded nihilism, moral relativism, and cultural Marxism. We must minister to the lost and harrowed souls of the Left.

We must forgive them, for they know not what they do.

When presented with a patient in abject pain, a doctor should not simply drug her with morphine. The first question he should ask is, “Where does it hurt?” He should try to determine the cause of the agony and treat the cause, not the symptom.

Our politics needs a doctor right now. A doctor who will empathetically, but rationally, treat the cause of the torment that afflicts so many of the members of our society. We must be firm—after all, surgery and treatment can be painful, but we must not let the constant screams deter us from removing the tumor that corrupts the minds of so many. The medicine may be bitter; but we must administer it faithfully to help the agonized souls in our midst.

We, as a country, must win. But we, as a country, must not leave the many who currently feel abject misery in the dust. We must be strong and try to explain to those beguiled by the enchantments of leftism exactly why the world is the way it is and why we must work with reality, and not against it.

Take a moment. Talk to a liberal friend. Try to explain why the current administration is making this country great again. In the face of hatred, we must show firm love. That is our civic duty.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

Photo credit: Yana Paskova/Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

America • Big Media • Congress • Conservatives • Democrats • feminists • First Amendment • Identity Politics • Post • Republicans • The Constitution • The Courts • The Culture

Democrat Bloodlust Has Energized Republicans

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

Over and over again I have heard from people outside of politics and the media, but all over the political spectrum, about their extreme distaste for the Democrats’ bloodlust. They see it for what it is: there is no search for truth, it’s not about justice. It’s a well-orchestrated political hit-job designed to destroy a good man and accomplished judge because he represents an end to Leftist control of the Supreme Court which they have used since the 1930s as a super-legislature to force their radical, dehumanizing agenda on the country over the objections of the American people. At least they know what’s at stake. When looking back on the 1930s and Britain’s failure to rearm or oppose Hitler when it would have been easy, Churchill described the nation as having been ‘lost in a pacifist daydream.’ The same could be said for some Republican Senators who seem not to know that the new politics is, sadly, one of no holds barred political warfare. They need not engage in the immoral tactics of the Democrats, but they must at least recognize what they’re up against.

This will have an impact on the upcoming midterm elections—but not the way Democrats will hope. They envision their pussy-hat wearing legions descending on the polls and sweeping into power a host of Alexandria Ocasio-Cortez clones and their “male allies.” “This is it comrades,” you can hear them say, “today we overthrow the patriarchy!” But no. They have done, once again, for Republicans what Republicans could not do for themselves: energize the base.

Read the rest at Spectator USA.

Photo credit: Zach Gibson/Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

America • civic culture/friendship • Congress • Conservatives • Cultural Marxism • Post • The Constitution • The Courts • The Culture • The Resistance (Snicker)

Cowardly Republicans Grant a False Premise

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

The logic of a premise will drag you to its conclusion. When Senate Republicans accepted the premise that Christine Blasey Ford’s accusation of sexual assault against Brett Kavanaugh was a legitimate personal complaint rather than a political maneuver orchestrated by the Democratic Party, they placed themselves in the grips of a logic leading them through bargaining about how to accommodate her as he was dogged by a nationwide campaign of personal and political vilification.

The logic’s next step is likely to come Thursday, when Ford does not show at the Judiciary Committee hearing amidst renewed Democratic and media accusations of a litany of sins by now all too familiar.

Republicans will be left with the same option they had when the Democrats first brought up their last-minute landmine—to press ahead with confirmation. But by accepting a premise they knew was false, they energized the Democrats’ constituencies and dispirited their own.

They embarrassed themselves by volunteering to be played for suckers, as well as  looking callous toward  victims of sexual assault. Brilliant.

The substance, the manner, and the circumstances of Ford’s accusation shouted that it is a hoax—that the Democrats had conjured a political bludgeon of last resort, and never intended for Ford to testify. But the Republicans, being pusillanimous, refused to acknowledge the reality of what they were getting into.

The accusation’s substance advertised its unseriousness. The total lack of specifics about the time and place of the alleged assault, of anything that might be an investigation’s staring place, was red flag enough. But the contradiction between the original report to a therapist about four men in the room—and nothing about Kavanaugh—and the subsequent account of two, Kavanaugh and Mark Judge, was as obvious to the Democrats making the charge as to the Republicans. When Judge denied any knowledge of the alleged party, followed by all others who Ford named as having knowledge of it, the Republicans had no reason to refrain from labeling the accusations the very definition of slander. No reason except cowardice.

The accusation’s manner was just as telling. Ford and her lawyers have been careful never to make the charge in a way that would subject them to prosecution for perjury. When Ford and lawyers refused to take part in the Judiciary Committee staff’s initial inquiry into the charge, instead making ever-changing demands about an eventual hearing’s procedure while also demanding postponements, Republicans had no reason to shy from demanding a statement under penalty of perjury. None except cowardice.

The circumstances of Ford’s accusation—formulated by a Democratic activist, held in pectore by the chief Democratic strategist on the nomination until all other ploys had failed to yield the desired result, and used to achieve delay along with mobilization of Democratic constituencies were as obvious to Republicans as to Democrats. There was no reason for Republicans to pretend otherwise—except cowardice.

But turning your back to the attack dogs only means you can’t defend yourself, and that they will bite you in the rear. The Republicans’ cowardice led them to this act of stupidity.

Incredibly, the Republicans hoped that Ford would take part in a hearing focused on facts. Fat chance! If Ford testified, even the mildest cross examination would underline not only that there is zero basis for believing the charges, but that the charges themselves are internally inconsistent and self-discrediting. Why would the Democrats allow that, putting her and her lawyers at risk of prosecution for perjury?

For Democrats, the only possible value added from a hearing would be yet another chance to paint the Republicans as vicious to women—which they’ve already done, in spades. The most dramatic way would be for Ford to react to cross examination by bursting into tears. That can be very effective—but only if carried out just right, which is very hard to do. Fake tears are totally discrediting. Why risk that? In front of Republican senators, maybe. But not in front of the country ahead of a midterm election.

By now, the accusations against Kavanaugh have achieved all that can be expected of them. No need for Democrats to risk their gains. They have not delayed the Senate floor vote past the November elections. They may or may not have moved one or two Republican senators, or solidified three Democratic ones. Surely, they have given Republican senators yet another chance to show their contemptible weakness. Certainly, they have further energized their own voters—but at the cost of projecting a scary image of themselves to the rest of the country. How many non-Leftist voters they have energized to do what remains to be seen on election day.

If the voters elect Republicans in November 2018, hoping to protect themselves against the new model Democratic Party, it will represent the triumph of hope over experience.

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Administrative State • American Conservatism • Big Media • Center for American Greatness • Conservatives • Deep State • Democrats • political philosophy • Post • self-government • The Constitution • The Courts • The Culture

The Suicidal Sanctimony of Phony Conservatives

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

Christine Blasey Ford made scurrilous accusations against Brett Kavanaugh for actions she claims occurred nearly 35 years ago when they were both minors. Both Judge Kavanaugh and Mark Judge, who Ford also claims was present have vehemently and categorically denied her claims. The people who know Kavanaugh, as well as decades of evidence of a life lived with dignity and propriety, support him.

Even one of the people Ford claims was a witness denies her claims. Ford says that Leland Keyser was a friend of hers and was at the party in 1982. But Keyser says she has no recollection of the party. Not only that, she denies knowing or ever being in a social situation with Kavanaugh. Keyser’s statement calls into question whether the party occurred at all, which would make Ford’s claims against Kavanaugh entirely false.

Predictably, however, Ford has been joined by Stormy Daniels’ execrable mouthpiece, Michael Avenatti. Now a Yale classmate is making claims about some nudity at a dorm party, which have been questioned or denied by people who were allegedly there. So why are some self-described conservatives signing up to help this circus along?

What’s Different Now
False accusations and smear campaigns against upstanding Supreme Court nominees are nothing new. Democrats destroyed Robert Bork’s reputation in 1987 with a campaign of lies. Republicans said never again. So when Democrats tried it again on Clarence Thomas in 1991, that effort failed.

Today, however, so-called conservatives are helping Democrats destroy Kavanaugh as they seem to miss the point: Democrats aren’t acting in good faith. There is no search for truth—the campaign to derail Kavanaugh’s nomination is just brass-knuckled power politics. Democrats will do and say anything they think will keep Kavanaugh off the bench.

The longer it goes on, the more claims they will gin up until Republicans just can’t take it anymore and slink off in defeat, leaving Democrats in control of the Supreme Court. Remember when Harry Reid admitted to lying about improprieties in Mitt Romney’s tax returns but justified it by saying he “did what was necessary.” The same ethic is at work here.

National Review’s Jim Geraghty not only thinks that Ford’s claims should bar Kavanaugh from the Supreme Court, but he told Caitlin Flanagan of The Atlantic, who wrote she believes Ford despite the lack of evidence, that “it’s hard to see how he could remain a federal judge.” David French agreed that the allegations, if proven, should “mar him for life.” National Review Online Editor Charles C. W. Cooke agreed, adding that he doesn’t think that makes him “irrational or a Stalinist.”

Dennis Prager disagreed and made the commonsense argument that people should be judged based on the entirety of their lives and not for things that occurred in their youth, for which there is no evidence, and which the accused has denied. For that, he earned the opprobrium of French’s wife, Nancy, in a scathing op-ed in the Washington Post. French added that she “is no longer a Republican” because Republicans tell her that “character doesn’t matter” and that “people are disposable.”

Yet, these are the people who represent themselves as “true conservatives.” They’re not and it’s time for actual conservatives to realize it and ignore them. What they really are is self-righteous moralizers and anti-social prigs.

Aiding and Abetting Political Enemies
If the Frenches and the Geraghtys of the world kept their opinions to themselves, the country would be better off. Unfortunately, they are members of a very vocal political suicide cult who falsely claim the conservative mantle yet collaborate with political enemies and work to advance the evidence-free smear of Kavanaugh. The only thing these “conservatives” seem genuinely interested in conserving is the platforms they use to reprimand the rest of us for not living up to their preposterous standards.

For those of us concerned about practical politics and the future of American republicanism, a constitutionalist majority on the Supreme Court is vital to regaining some notion of responsible self-government. It has been the object of two generations of work by actual conservatives. But these hectoring scolds are actively working to seize defeat from the jaws of victory on the basis of a patently obvious, after the buzzer, bad faith smear campaign designed to destroy a man whose entire life—not to mention the testimony of many contemporaries—contradicts the claim.

If they are successful, we will all pay the price.

These are people who must not be allowed to represent the rank-and-file conservatives who backed Trump (none of these commentators did) and who want to effect a constitutional restoration. If you want to see a fair representation of what right-leaning Americans, including women, are thinking about this situation, watch this:

Geraghty claims that an alleged awkward encounter at the age of 17 should earn a lifetime ban from the federal bench. This sentiment appears to be shared by many of his colleagues and fellow travelers. What other employment does he believe should be off limits? I wonder if he’s thought it out that far or if he’s just emoting. Should it bar someone from all legal practice? What about insurance sales? Real estate? How about Walmart greeter?

And why? What are the rules? And what other purported sins should bar Americans from public service and even employment? Failing to observe the sabbath? Idolatry? Taking home some Post-It notes from the office? Dining and dashing with college friends? I’d say that it quickly becomes absurd, but they past that point long ago. And I can’t help but wonder if this provisional Committee on Public Virtue could say that every action of their own conforms to their quickly evolving standards.

A Cop-Out of a Fig Leaf
These so-called conservatives know no sense of proportion and thus lack basic wisdom. The fact is, they have no standards. Everything is ad hoc, impressionistic, emotional, and most of all driven by a sense of seeking to preserve their own place without regard to the good of others or the country. It is ugly, petty, and graceless.

Their preferred formulation of “if the charges are true, then . . . ” is a way to declare guilt and pronounce a sentence without ever having to seeing a shred of evidence and despite vehement, categorical denials from the accused. It is vulgar and wrong. It is also counter to the standards of French’s own denomination, which teaches that the Ninth Commandment requires the maintaining and promoting of one’s neighbor’s good name. By promoting gossip, smears, and accusations in the most public way he is doing just the opposite, despite his use of the “if . . . then” fig leaf.

Let me show you how this works: “If the Frenches, Charlie Cooke, and Jim Geraghty kick puppies, they should never be allowed to have a dog.” It doesn’t definitively say they kick puppies, but it does leave a distinct odor of wrongdoing and helpfully offers a ready-made punishment.

So let’s try another: “If pundits who claim to be conservatives promote unfounded Democrat smear campaigns, then no one should listen to them.”

Or this one: “If they actively use their platforms to undermine conservative causes, then we should realize they aren’t really conservatives at all and ignore them.”

Pharisaical Pretenses
Remember that these are the very same people—the same “principled conservatives”—who claim to want dignity and propriety in our public officials. But their participation in Kavanaugh’s public defenestration makes it less likely that such people will want to serve. It is a vile spectacle. They are nothing but self-seeking virtue hustlers—the right-wing equivalent of Al Sharpton—who claim virtue while practicing vice.

The real truth is that no one is good enough for them because in their hermetically sealed world, politics isn’t a practical art at all, and it isn’t about improving the country. It’s just a game of fake virtue one-upmanship to see who can be holier than thou. It’s unrealistic, immoral, and dysfunctional. It’s just the flip side of the unrealistic utopian ideology which has made Leftist politics so destructive.

On the Right, we need to reject the hectoring moralizers and two-bit virtue hustlers. Destroying people’s lives and careers without evidence, trafficking in gossip and self-regarding sanctimony should be given no place. Like it or not, the pharisaical pretense of Geraghty, French, and company enables vile bottom feeders like Michael Avenatti who cook up sick conspiracy theories about Brett Kavanaugh in a desperate attempt to keep a constitutionalist off the Supreme Court. Shame on them.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

Photo credit: iStock/Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Administrative State • Center for American Greatness • Congress • Deep State • Donald Trump • Law and Order • Mueller-Russia Witch Hunt • Post • The Constitution • The Resistance (Snicker)

Who Leaked on Rod? (Hint: No Friend of Trump’s)

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

Recent articles in the New York Times and Washington Post cite anonymous sources who, claiming familiarity with the incidents and/or former FBI official Andrew McCabe’s contemporaneous memos, allege that Deputy Attorney General Rod Rosenstein wanted to wear a wire and advised others to record the president secretly; and to solicit support from cabinet members to invoke the 25th Amendment to remove the president.

In two separate statements, Rosenstein denied the seditious charges:

The New York Times’s story is inaccurate and factually incorrect. I will not further comment on a story based on anonymous sources who are obviously biased against the department and are advancing their own personal agenda. But let me be clear about this: Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment.

Then, despite his promise, he commented again:

I never pursued or authorized recording the president, and any suggestion that I have ever advocated for the removal of the president is absolutely false.

Rosenstein’s defenders claim the “wire” remark was a sarcastic response to then-deputy FBI director McCabe; and that there exists no evidence Rosenstein pursued the wire or the 25th Amendment strategy.

In a related denial, one of McCabe’s attorney’s, Michael Bromwich, said his client has “no knowledge” of who leaked the memos; noted the memos have been provided to special counsel Robert Mueller’s office; and asserted the “memos memorialize significant discussions [McCabe] had with high-level officials and preserved them so he would have an accurate, contemporaneous record of those discussions.”

Thus, in the curious case of who leaked on Rod, it is wise to follow the Latin legal maxim cui bono (“who benefits”). True, it is likely we will never know with certainty the identity of the leaker(s); nonetheless, it is possible to assess the most pressing question: what interests are served from sacking Rosenstein?

The media elitists would have us believe Trump supporters are conceivably the leakers. Why? So Trump has a pretext to fire Rosenstein (and, perhaps, Attorney General Jeff Sessions). Of course, it’s ludicrous to deem sedition a “pretext” for firing a presidential appointee. Equally, this theory is silly for the very reasons one can plainly see the leaker(s)’ multi-layered scam is designed to damage both Rosenstein and, more importantly, President Trump.

First, the leak is rooted in the lie that President Trump is an unstable scoundrel unfit to serve in office. Note how this lie is unquestioned by the newspapers breaking this “bombshell,” both of which have been fecklessly disseminating the 25th Amendment canard. In this instance, it is the allegedly seditious Rosenstein who seeks to take matters into his own hands to prove it; and to enlist the aid of others to act upon it. If leaked by the president’s supporters, this would not be the context in which Rosenstein’s alleged conduct would be described, and these would not be the outlets trusted to carry the leak.

Second, within the organic logic of the leak, Rosenstein is not portrayed as seditious. In fact, he is a patriot who unfortunately seemed to crack under the stress of being involved in the firing of the Left’s new secular patron saint of the FBI, James Comey. In sad consequence, then, Rosenstein ultimately failed to follow through in helping rid the republic of Trump. The key to this aspect of the leak is not that Rosenstein is weak. The key is its treatment of Comey as a martyr. Again, the president’s supporters would not claim this in any way, shape or form. Who would? The miscreants who want to breathe new life into the myth there is an obstruction of justice claim against the president for firing Comey.

By taking the leaker(s)’ bait and firing Rosenstein, the elitist media would have another bacchanalia of fake news regarding obstruction of justice; and it could very well provide a new rationalization for the special counsel to harry this president and his administration regarding this bogus charge.

Note, as well, the timing of this leak. Ironically, the leak is claimed to give anonymous credence to the premise of Bob Woodward’s new book Fear, specifically, an unstable chief executive needing a 25th Amendment intervention. Further, the leak constitutes an unwarranted and unwanted distraction for the President and Senate Republicans from Judge Brett Kavanaugh’s Supreme Court confirmation hearings.

And, speaking of delaying tactics, firing Rosenstein and the accompanying elitist media kerfuffle would quite likely delay the president’s recently announced declassification and release of the “Spygate” documents—which, the president has said he wants done speedily.

It is this last matter which most evinces that the leaker(s) are enemies of Trump and aren’t very fond of Rosenstein either. The greatest fear of the lawless architects Spygate’s abuses of power is this declassification and release of said documents. The cabal’s vain hope is that such release can be delayed long enough for a newly elected Democratic majority that would embolden their Obama holdover allies in the administration to frustrate these documents release until President Trump can be impeached.

No, it won’t work. And I’d be happy to tell them that, except they’re anonymous. Well, maybe not for long.

The best counsel to the president would be to disregard anonymous fake news, stay the course, and keep attacking on all fronts to make America great again.

He’s going to anyway.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

Photo credit: Alex Wong/Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Defense of the West • Donald Trump • Foreign Policy • political philosophy • Post • Progressivism • The Constitution • the Presidency

Trump and Bolton Take On the International Criminal Court

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

Twenty years ago—the night of July 17-18, 1998 at the United Nations conference in Rome establishing the International Criminal Court (ICC), to be exact—an American amendment to restrict the role of this new supranational global court had just been overwhelmingly defeated. An observer remarked, “the delegates burst into a spontaneous standing ovation which turned into a rhythmic applause that lasted close to 10 minutes.”

From the delegations of the European Union and from human rights organizations including Human Rights Watch, Amnesty International, and a group now called Human Rights First (all of whom were staffed with many American citizens) came wild cheers and applause throughout the night, as the Rome conference rejected a series of amendments proposed by the United States to place checks on the court.

Nineteen years later in November 2017, ICC Prosecutor Fatou Bensouda officially requested permission from the court’s pre-trial chamber to proceed, for the first time, to investigate U.S. soldiers and officials for alleged “war crimes” and “crimes against humanity” in Afghanistan. Human Rights Watch praised the ICC move as a “potential, if long-time overdue, path to justice.” Amnesty International lauded the global prosecutor’s request as “a seminal moment for international justice.”

On September 10, at a Federalist Society luncheon, National Security Advisor John Bolton, speaking for President Trump, responded: “This administration will fight back to protect American constitutionalism, our sovereignty, and our citizens.”

Bolton’s speech was both hard-hitting and highly principled. Rich in historical and constitutional detail, the speech examines the actions of the International Criminal Court in the context of the core principles of American constitutional democracy and the principle that the only legitimate government is government by the consent of the governed. The speech was a tour de force that should be used in classrooms as a clear example of our constitutional morality and democratic sovereignty in action.

Shocked, Appalled, and Principle-Free
Critics immediately launched attacks on Bolton’s speech, but they never responded to his principled arguments in defense of democratic self-government. A hysterical headline on the front page of the New York Times declared “On War Crimes Court, U.S. Sides with Despots, Not Allies.” Human Rights First issued a short statement that Bolton’s announcement was “reactionary fear-mongering.”

Former George W. Bush Administration official John Bellinger worried that the current White House’s actions would “hurt the court and the cause of international justice.” Indiana international law professor David Bosco called Bolton’s speech “maximally offensive to the court, often inaccurate, but also hollow at its core.”

Harvard law professor Alex Whiting of the American Bar Association’s “International Criminal Court Project” criticized what he called “Bolton’s chest-thumping remarks” and the Trump Administration’s “embrace” of “propaganda tactics.” Whiting, too, worried about the harm to the potential effectiveness of the ICC.

None of these critics bothered to engage in a principled debate with Bolton’s constitutional reasoning. Are they capable of making a principled counter-argument?

A Frontal Assault on Democratic Sovereignty
The operating principles of the International Criminal Court are in direct contradiction to the values of democratic self-government. Under ICC rules, the soldiers and officials of a democracy (such as the United States, Israel, and India) that did not ratify the ICC treaty could nevertheless be tried by ICC judges (some from undemocratic authoritarian states, who are state parties to the treaty—e.g.,the Democratic Republic of the Congo, Chad, Tajikistan) against the consent of that democratic state, if the alleged war crimes occurred on the territory of a member of the ICC. In the current situation, the alleged American “war crimes” occurred in Afghanistan, a treaty signatory, so the ICC prosecutor is attempting to assert jurisdiction.

Supporters of the ICC argue that under the principle of “complementarity” the accused nonmember nation-state has the option of trying its own soldiers and officials first. Supposedly, the ICC acts only if the nation-state is “unable or unwilling” to conduct a fair trial of its own citizens. Crucially, however, the final decision on a whether the nation-state is acting properly is, according to ICC rules, to be decided by the ICC, not the nation-state itself.

Further, the definition of what exactly constitutes a “war crime” differs. For example, the ICC relying on Additional Protocol I of the Geneva conventions of 1977 (which the United States did not ratify and, therefore, does not recognize as international law) considers an air force bombing of military targets, without prior warning to civilians in the area, a “war crime.” The United States Defense Department rightly disagrees. In prosecuting cases the ICC obviously privileges its own definitions of war crimes and international law, not those of the accused nation-state.

In short, the entire ICC process is entirely outside of American constitutional democracy and is antithetical to the universal democratic concept of “government by consent of the governed.” Hence, the ICC is, as Bolton said, a “fundamentally illegitimate” institution in principle and in practice.

Reasserting Sovereignty in a Globalized World
When President Trump referred to “sovereignty” 21 times in his 2017 speech at the United Nations many commentators pretended confusion. What was he talking about? What does a concept such as “sovereignty” even mean in our globalized world? But clearly, the Trump Administration’s policy, announced by Bolton, repudiating the attempted power grab by the ICC’s global prosecutor is a perfect example of democratic sovereignty in action.

This issue is part of the great struggle of our time between sovereign self-government and supranational globalism (or transnational progressivism). Israeli philosopher Yoram Hazony, in a brilliant new book The Virtue of Nationalism, describes this conflict as one between nationalism and imperialism. It began, Hazony tells us, in the Hebrew Bible when the nationalism of the ancient Israelites was confronted by the imperialism of the Babylonian, Persian, Egyptian, and Roman empires. And it continues today as transnationalists promote a more centralized neo-imperialist EU against resistance from some nation-states more interested in maintaining their sovereignty.

The parameters of this global struggle are exemplified by two diametrically opposed reactions to President Trump’s U.N. speech. The transnational progressive Swedish Foreign Minister Margot Wallstrom was appalled. “This was a bombastic nationalist speech. It must have been decades since one last heard a speech like that in the U.N. General Assembly,” she fumed. “It was the wrong speech, at the wrong time, to the wrong audience.”

On the other hand, the democratic nationalist prime minister of Israel, Benjamin Netanyahu, was delighted: “In over 30 years in my experience with the U.N., I have never heard a bolder or more courageous speech.”

The Americanists” Fight Back
Eighteen years ago in a 19-page academic essay in Chicago’s Journal of International Law, John Bolton asked “Should We Take Global Governance Seriously?” He concluded, “sadly the answer is yes.”

Moreover, writing September 1, 2000, Bolton argued we should take the “debate over global governance” seriously “not only today but far into the foreseeable future.” Prophetically, Bolton described a conflict between “Globalists” and “Americanists” that will be “fought out at the confluence of constitutional theory and foreign policy.”

That conflict continues today, but with a vital difference. Whereas previous administrations would equivocate on this point, the Trump Administration with Bolton as its point man, is unequivocally putting the interests of the “Americanists”—of our Constitution, our sovereignty, and our citizens—first.

Photo Credit: Nicholas Kamm/AFP/Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Administrative State • America • Big Media • Center for American Greatness • Congress • Conservatives • Deep State • Democrats • Donald Trump • Post • Progressivism • The Constitution • The Courts • The Culture

The New Refuge of Scoundrels

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

Just when observers had concluded the desperate progressive opposition to Brett Kavanaugh’s nomination to the U.S. Supreme Court could not stoop much lower, it most certainly did.

Senator Dianne Feinstein (D-Calif.), in the news recently for somehow unknowingly employing a Chinese spy as her gofer and chauffeur for 20 years, passed on information to federal investigators that weeks ago had come to her attention from an unnamed, unidentified, and anonymous female who claimed she was a high school acquaintance of Kavanaugh’s. Apparently, we were to believe that the once-anonymous informant had harbored a long-simmering, but heretofore never-voiced complaint of sexual assault against Kavanaugh, which coincidentally reached a peak of unsustainable resentment at the time of his nomination to the highest court in the land.

After days of gossip and innuendo to the effect that the likely next Supreme Court Justice might just be some sort of pervert, Anonymous finally came forward and identified herself as a victim of a then 17-year-old inebriated Brett Kavanaugh who (she says) sexually manhandled her in 1982 when she was 15. More specifically, the woman now alleges that Kavanaugh and another student at a high-school party entered a room inebriated, pinned her to a bed, and then groped her while she was clothed. Young Kavanaugh then allegedly attempted to take her clothes off her while he and his classmate, Mark Judge, both laughed “maniacally.” She adds that she had sought “medical treatment” for her unspecified injuries.

Anonymous identified herself in the Washington Post on Sunday as Christine Blasey Ford, a registered Democrat, Bernie Sanders supporter, and psychology professor at Palo Alto University, who otherwise had no recollection exactly where or when the supposed assault occurred some 36 years ago. Nor did she offer any clear reason why she had never then, or in the more than three decades since, contacted authorities to report the purported assault, other than claiming in 2012 that the incident then 30 years earlier still troubled her and contributed to her own sense of unease.

Or as Ford explained her sudden self-unmasking over the weekend: “Now I feel like my civic responsibility is outweighing my anguish and terror about retaliation.” A cynic might suggest that anonymity was useful in the 11th-hour smearing of Kavanaugh, but had proved not quite enough to derail his nomination, and so the fallback and default position of identification followed.

Ford was wise finally to come forward, given that the ability of the defendant now to face his accuser is a fundamental tenet of Western jurisprudence, as are canons such as statutes of limitations and hearsay. And just as Kavanaugh has labored for days under terrifying smears of Anonymous’s charges, so, too, will Ford have to prove to the court of public opinion that her narrative is believable, and neither timed nor crafted for the higher progressive objective of destroying a conservative Republican Supreme Court nominee.

Feinstein, in raising these initially anonymous allegations, was trafficking in the world of the English Star Chamber Court, the Inquisition, and the whispers and initial innuendos that prompted the hysteria of the Salem witch trials. Or rather she had a finger in the wind: if the 36-year-old charges created an Anita Hill-like hysteria, Feinstein was to be seen as heroic and on the barricades of the #NeverKavanaugh resistance. But even if her the charge proved absurd, then she could have retreated into something like “Just Sayin’.

So Feinstein saw no downside in releasing the initially anonymous sourced charge just after the formal hearings on Kavanaugh had concluded, in hopes that the smear could not be answered by cross-examining senators, but might gin up pressure on senators nonetheless to change their votes.

When the gambit backfired, Anonymous then—and only then—stepped forward to press her charges. What is left unsaid is that we will no longer have a free country or enjoy civil liberties and the safety of a Bill of Rights, if any American, at any time, can be ruined by an allegation of unproven sexual assault of some 36 years past, when the accused was a 17-year-old teenager, by an accuser who initially trafficked anonymously in such allegations, came forward only as part of a wider, more intensified and collective last-ditch effort to destroy the reputation of the accused, and yet has no clear memory of exactly where she was at 15, or the approximate date, when she claims that she was assaulted, or why she made no such accusation for 30 years—or when she raised the issue some six years ago privately during counseling, why her therapist’s notes of such revelations do not now match her current version of the incident.  

Most would assume that when Blasey Ford wrote in her allegation, “I have received medical treatment regarding the assault,” she would produce proof of a confirmable visit to an emergency room or doctor fairly soon after the alleged attack—not subsequently refer to a couples therapy session 30 years later, during which the therapist took notes that now do not, six additional years later, synchronize with the current allegations.

Bad Faith Publishing at the New York Times
Anonymity has never become more disreputable—and legitimized. An unidentified source is the new American means that is to be justified by noble progressive ends, often in the context of somehow delegitimizing Donald J. Trump and anyone or anything remotely connected to him.

Newspapers rarely print anonymous op-eds. And when they do, the themes are matters of policy or ideology, not self-righteous confessions of stealth and supposedly justified conspiracies against the president in the final weeks before a midterm election. Yet on September 5, the New York Times published an unsigned confessional from one of many supposed “senior officials” who all are said to be members of #TheResistance. These disloyal insiders, we are told, are doing all they can to subvert the operations of the Trump Administration and, in their warped view, see these actions as the embodiment of some kind of patriotism.

Both the Times and the unknown author of the accusations believe that anonymity is justified because of the extraordinary danger that Trump is said to pose to the American commonwealth.

In reality, both parties more cynically assume that anonymity precludes all discussions of verification. What Ben Rhodes once cynically called the “echo chamber” and what President Trump refers to as “fake news” are supposed to have earned our automatic trust. They have not.

We have no idea whether the Times is acting in good faith and publishing verbatim the insider’s account, or whether it solicited the op-ed, or whether the op-ed was edited or massaged by the Times—given that we have no ability to question the author, much less to see any supporting documents or corroborating testimonials. Moreover, the Times just published a fake news account that United Nations Ambassador Nikki Haley was ordering extravagant drapes for her office (actually ordered during the Obama Administration). Its veracity continues to erode.

Far more important, the anonymous op-ed makes sweeping, even subversive, assertions that many like the author in the administration may well be breaking federal law by deliberately not carrying out, or indeed actively obstructing, administrative or legal orders. But ascertaining the truth of such charges is not the objective of the Times’s gambit. Instead, speculation, gossip, rumor, and “fear” are—as pundits grow feverish in their claims that the ogre Trump forced professionals of such rare virtue bravely to come forward.

Bob Woodward’s Games of Anonymity
The op-ed appeared conveniently as a would-be force multiplier of advance copy excerpts of Bob Woodward’s new tell-all Fear, circulating among journalists and reviewers. Fear is yet another Woodward exposé that reviewers say makes the identical argument as does Anonymous: so chaotic and disruptive is the landscape within the Trump Administration that the ensuing climate of fear naturally begs for some sort of deep-state intervention (as in the removal of an elected president).

There is no need to rehash four decades of commentary on Woodward’s journalistic methodology of using unnamed sources to “reconstruct” dialogues and conversations, replete with quotation marks. Generations of critics have warned that his muckraking cannot be verified and often cannot be fully accurate or even true.

When both observers and participants question the veracity of Woodward’s scenarios, sometimes the implication follows that, if called to account, he just may release (promises, promises) “tapes” of his sources to validate his dramatic reconstructions of these anonymous interlocutors.

Those quasi-threats are then usually followed by backpedaling: he has promised anonymity to his sources, and so, unfortunately, he cannot follow through on his warnings to substantiate his narrative. It is almost as if the threat to resort to citations, footnotes, or any type of confirmation of his speakers with background information of time and place would be seen as subversive.

We have forgotten how in the last four decades since the appearance of All the President’s Men just how the Woodward method has become institutionalized by the national press. We know the familiar modus operandi: the journalist is contacted by a leaker or indeed trolls for the leak. The “source” demands to remain anonymous. Negotiations follow about the terms of cloaking the informant. The motive of the unnamed source—whether it be patriotic, careerist, self-interested, or venomous—is immaterial.

The journalist is the ventriloquist, his sources puppets. Any observer who reads Woodward sees how the psychodrama further unfolds: should an anonymous source balk, then he must soon realize that some other anonymous sources might offer an alternate—and by definition competing and even more unflattering—narrative.

Sources, then, vie for primacy and likely exaggerate and fabricate, worried that if one does not leak or provide “background” he may become a target rather than the targeted: that is, someone else will first go full-blown Woodward.

At times, more substantial deep-state sources may use Woodward as much as he uses them, feeding him their own narratives and their own sources to substantiate their yarns, albeit of course, anonymously.

All of the above is the best-case scenario. Just as often journalists can invent dialogue and psychodramas, and attribute them to “informed sources,” “a high senior official,” or “sources tell us.” After Journolist, the WikiLeaks /John Podesta trove, the epidemic of fake news, and the “echo chamber,” why should anyone take the new journalists at their word?

Even at best Woodward is a postmodern Thucydides, whose 141 speeches in his magisterial history have sparked 2,400 years of controversy over their veracity. The historian himself, presaging Woodward, confesses that he wrote down what he heard. Fine. But when that effort proved not entirely feasible, Thucydides confesses that he put those words into the mouths of speakers that they should have said:

. . . it was in all cases difficult to carry them [the speeches in the history] word for word in one’s memory, so my habit has been to make the speakers say what was in my opinion demanded of them by the various occasions, of course, adhering as closely as possible to the general sense of what they really said.

Woodward says he relies on tapes rather than memory, but his method is as ambiguous as that of the ancient historians who routinely put their own words into the mouths of speakers. The speakers in Woodward’s “histories” usually say what is demanded on them by “the various occasions”—and in accordance with Woodward’s own thematic purposes.

Redaction, Anonymity, and Leaking
Anonymity has also become the impediment to ending the entire Russia-Trump collusion mythology. Almost every document that is so painstakingly obtained from a Justice Department or FBI archive appears so heavily redacted as to be worthless. Miscreants are not identified by name, but instead by letters or numbers. The point of redaction is to disconnect the deep-state messenger from the incriminating message.

How strange, then, that some government leaks to the press are replete with names, and so damn the innocent like Carter Page. Yet at other times official government documents use redaction to protect the identity of the culpable. So the final irony of the new cult of anonymity is that not all anonymity is equal.

The Obama National Security Council and others did their best to unmask and, quite illegally, leak the names of those caught up in surveillance. Either officials in the Justice Department or the FBI or both fed the toady press the names of a number of surveilled Trump campaign personnel.

If an official is willing to offer dirt on the current president, then journalists peddle the gossip and innuendo through the use of anonymity to “protect” a valuable source.

Yet if a name is legally protected from disclosure, but its release might fuel an anti-Trump narrative, then it is usually leaked.

Noble progressive ends justify any means necessary to obtain them—and increasingly anonymity is the preferred method.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

Photo credit: iStock/Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Administrative State • America • Congress • Democrats • History • Political Parties • Post • Republicans • The Constitution • The Left

Cory Booker’s Commodus Moment

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

This is the closest I’ll get to an ‘I am Spartacus’ moment.” Thus spake U.S. Senator Cory Booker (D-N.J.), who “violated (a) rule knowingly” in an attempt to obstruct the confirmation of Brett Kavanaugh.

Or, if we want to be more realistic in understanding what he did, he turned his party’s futile gestures of obstructing the Kavanaugh nomination, to his own political benefit.

In the end, it hasn’t turned out well for him. But let’s take a moment, before the faux “rulebreaking” episode fades, to ponder his “Spartacus” reference.

Spartacus was a slave gladiator. His arena wasn’t an air-conditioned legislature; his shackles weren’t constitutional limitations on government power, or the ethics rules of the United States Senate. His training program did not include Stanford, either at the undergraduate or graduate level. For the amusement of the elites in his day and of the vulgar Roman mob, Spartacus frequently had to kill fellow slaves or accept death for himself. After leading a revolt of fellow slaves, he did choose death in a “last stand” against the vengeful legions.

Hollywood’s version of his story was an inspiring tale of a battle for freedom, and the “Spartacus moment” to which Booker believes he can appeal, presumably, refers to the famous scene in which fellow slaves try to preserve their leader by claiming, one after the other, to be Spartacus. Thus, a “Spartacus moment” would not be any old act of defiance, but specifically, taking the hit for someone else more important than yourself to the resistance, so as to preserve his anonymity. It is precisely the opposite of grandstanding for the sake of increasing one’s own name recognition.

Bit of a metaphor fail, there, Cory.

A member of one of the most highly privileged elite clubs in our society, pretending to break a rule which he’d surely be able to break with impunity in any case, is not engaging in a “Spartacus moment.”

However, there may be a reference from classical history which is a better fit for this occasion.

The Roman Emperor Commodus, reimagined as the cinematic villain in Ridley Scott’s “Gladiator,” had his “wannabe-Spartacus” moments. This ultimate representative of the privileged elite had a fine education indeed, and even a quasi-divine status. Sometimes, though, he shed his godhood for the purpose of taking to the sands of the arena; his day’s version of slumming it with the locals. He tried to acquire for himself the glamorous image of the desperate slaves whose reputations were won in genuine fights for survival—but the Roman public were not fools and understood that he faced no real danger.

They also resented the fact that he paid  himself vast sums (a million bronze coins per appearance) from the public treasury, for his mock exploits.

Of course, since the Romans no longer had a republic at that point, they couldn’t do anything about Commodus. Their fake gladiator had to be endured.

On the other hand, next election, we can do something about our wannabe-gladiators cum Commodus—that is, if we’ve still got a republic. Let’s find out.

Photo Credit: Scott Free Productions/Empire & Revolution

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Administrative State • America • Congress • Conservatives • Post • Progressivism • separation of powers • The Constitution • The Courts • The Resistance (Snicker)

Are Dems Right to Panic Over the Court? Five Originalists Weigh In

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

My intuition is that the Democrats are not panicking enough about the pending confirmation of Judge Brett Kavanaugh to the United States Supreme Court. They’ve been so busy ginning up their base with claims that Kavanaugh will spell the end of abortion and gay marriage that they haven’t focused on the more likely, and larger, impacts of an originalist court. Trump’s court will change America.

Kavanaugh is most robust in defending the Constitution on foundational questions, not the headline grabbers. This is good news.

An originalist court will bring needed changes to everyday life, liberty and the pursuit of happiness. We’ve already seen several dramatic victories when Justice Neil Gorsuch joined the court last term. This was a foretaste of far-reaching changes to come. Reinstating constitutional safeguards against government power will be significant for religious freedom, free speech, curtailing racial preferences, unleashing free enterprise, and stopping unaccountable government.

In Justice Anthony Kennedy’s last term, when he sided with the conservative justices, we saw that a faithful reading of the Constitution can be revolutionary. In Janus v. AFSCME, government workers were freed from compulsory union fees. Unions spent almost $2 billion on lobbying and campaign contributions in 2016, raised with those compulsory fees. Janus may cut the cycle of Democrat politicians voting for ruinous salaries and pensions, which bankrupt local and state government, as the cost of union support. And it set an important legal precedent for undoing poor court decisions from the past.

The Masterpiece Cakeshop ruling in favor of a Christian baker targeted by gay rights activists, trying to force him to bake a gay wedding cake, was an important victory for free exercise of religion. Even liberal Justice Kagan, who was furious at what she called “weaponizing the First Amendment” in the Janus case, joined the consensus defending the First Amendment in the Masterpiece case which was decided on a 7-2 majority.

Breaking the Grip of Stare Decisis and Chevron Deference
Is my intuition right about the game-changing power of honoring our Constitution? To answer this question, I sought out five of the best originalist legal minds in the country. In one interview after another, these judges and Supreme Court lawyers agreed about the importance of President Trump selecting originalist justices. The two legal mainstays that allow the Deep State to continue its power grab unchecked are about to be slowly but methodically dismantled.

These much-misused legal doctrines are stare decisis and Chevron deference. In the 20th century, stare decisis and the Chevron deference enabled the explosive expansion of the executive bureaucracy and of government power over all areas of life and the economy. These technical terms will never become household words, but changing them will affect every household in America.

Stare decisis means not overturning precedent, even if the precedent was wrongly decided and unconstitutional. It is often quoted by liberals to argue that Roe v. Wade is sacrosanct.

Chevron deference is a doctrine that says the courts should defer to the executive branch agencies, allowing them to write regulations and policy that carry the force of law, with only limited judicial review. It delegates interpreting laws to bureaucrats, which deprive citizens of recourse to court review. This gives a green light to executive overreach. For example, the Obama administration did not have to bother trying to pass a transgender bathroom law. A government bureaucrat merely reinterpreted Title IX of the Civil Rights Act to define unisex bathrooms as discriminatory based on newly invented gender rights.

It has been almost a century since progressives on the Supreme Court radically transformed America’s legal traditions.  We will not see abrupt and rapid change, as when progressives legislated from the bench in Roe v Wade or dictating gay marriage.  The Trump court will be the beginning of a new era of slower, case by case progress back to constitutional limits on government power.

Jim Burling, Pacific Legal Foundation
First, I talked with Jim Burling, vice president of litigation at the Pacific Legal Foundation, which has 10 wins and only two losses before the Supreme Court. PLF has been a powerhouse for decades defending property rights, notably against eminent domain and the EPA. Then some interesting things happened. One was in the realm of national politics, and the other was an intellectually electrifying book that created a seminal change in their thinking about defending liberty.

The political change began with President Obama’s big government agenda, and the voters’ repudiation of him two years later, resulting in his loss of Congress. Unwilling to let his power be curbed by our constitutional separation of powers, Obama embarked on an imperial presidency. He put the administrative state on overdrive. He ruled through executive orders and unaccountable bureaucratic regulations, often brazenly illegal, such as funneling half a billion dollars of bank fines to private radical organizations, often flouting constitutional limits, for example, turning the Clean Air Act into a war on coal.

PLF realized that their defense of property rights faced insurmountable odds against the extra-legal deep state. A 2014 book by Philip Hamburger, Is the Administrative State Unlawful? (a shorter version, The Administrative Threat is a good introduction) galvanized them to shift their approach to directly attack deep state prerogatives unlawfully delegated by the courts through Chevron deference.

Hamburger’s historical deep dive into 17th-century England, the original showdown between Parliament and the absolutist powers of the King, showed how those hard-won constitutional principles applied to the present-day battle with the bureaucratic state. The lawyers at PLF realized they had a blueprint in their hands they could use to roll back the deep state’s self-anointed kingly powers. Civil servants have no right to define law, judge compliance, or apply penalties. Bureaucrats in America now exercise the constitutionally delegated powers that belong to the legislature and the courts; powers that the kings of England were forced to relinquish centuries ago.

Jim Burling believes we are at one of those seminal moments in intellectual history, when clear thinking unleashes profound forces for change. PLF went through the Hamburger book chapter by chapter, translating the historical battles into current constitutional freedom battles that could be won. Their new goal is to claw back the deformation of progressive rulings and restore limits on bureaucratic power.

In Justice Gorsuch’s first court session, PLF won two cases, one on free speech and one safeguarding the right to sue the EPA in federal court, a right trampled by the EPA’s infamous Obama era “waters of the United States” rule, by which the federal government seized jurisdiction over every piece of private property in America that has a spring puddle or an irrigation ditch, and gave homeowners only 120 days to seek redress in court.

The night before President Trump’s election, Burling couldn’t sleep. He was thinking about the coming liberal court under Hillary Clinton’s administration. The Pacific Legal Foundation would have to stop looking to the Supreme Court.  As the returns on election night came in, Burling thought, “We’re not going to lose the court after all.”

Burling believes President Trump has done a spectacular job with his court appointments. He foresees more victories against the Chevron doctrine, the legal power tool of the deep state.

His long-term dream is to return the Commerce Clause to regulating only true interstate commerce, not all economic activity in the country. As a young law student, he was taught that because of precedent economic freedom was gone forever. Now rolling back government intrusion that stifles free enterprise seems like a viable goal.

Burling expects Judge Kavanaugh to be faithful to the actual language of statutes and the Constitution. Republican nominees in the past were often chosen based on political favors owed, such as John Sununu’s successful lobbying for Justice David Souter simply because he was from New Hampshire, despite his liberal record. President Trump was serious about seeking out the best originalist judges in the country. There is not a bad choice among them.

Will the new court be a gamechanger? There is reason for hope, according to Burling, that the court will be more robust in overturning bad court precedents, but he foresees only incremental change, given Chief Justice Robert’s predilection for narrow rulings. Bigger changes will await another Trump nominee.

Jeremy Tedesco, Alliance Defending Freedom
The day after Kavanaugh’s nomination to the Supreme Court, I spoke with Alliance Defending Freedom (ADF) senior counsel Jeremy Tedesco, who successfully argued the Masterpiece Cakeshop case during Justice Kennedy’s final term on the court. ADF lost the case in every court all the way up to the Supreme Court, where the group won a landmark victory, 7-2.

ADF is the country’s premier law firm defending the sanctity of life and religious liberty. They have taken nine cases to the Supreme Court in the last seven years and won every single time. ADF can be proud of their Masterpiece win, which was based on the free exercise of religion.

Tedesco is looking forward to having, not a conservative majority, but an originalist one. To truly protect the First Amendment, we need justices who interpret according to the text and original intent of the constitution. With Justice Kavanaugh replacing Justice Kennedy, that dream has a chance of becoming reality.

I asked Tedesco to describe his “dream case” to bring before a Supreme Court with Gorsuch and Kavanaugh on board. His answer focused on the First Amendment. “In Masterpiece, the court did not reach the ultimate free speech question: whether the state can compel creative professionals to create custom artistic expression that violates their beliefs. In Masterpiece, the court reserved that question for future cases.”

ADF has several open cases working their way through lower courts, putting “stepping stones in place,” that Tedesco hopes will lead to another major free speech victory at the Supreme Court.

Kavanaugh’s record on freedom of speech and religion, as analyzed by ADF’s CEO, Michael Farris, is encouraging.  Kavanaugh dissented in an Obamacare case that ruled pro-life organizations must give free contraception and abortifacients to their employees. Judge Kavanaugh argued that the religious believer, not a government regulator, has the right to decide the ethics of their own behavior.

When “the Government requires someone (under threat of incurring monetary sanctions or punishment, or of having a benefit denied) to act or to refrain from acting in violation of his or her sincere religious beliefs,” Kavanaugh wrote, “that constitutes a substantial burden on the exercise of religion. . . . That is precisely what happened here.”

In another case, an atheist claimed that the prayers during the presidential inauguration violated the Establishment Clause of the First Amendment. The D.C. Circuit Court of Appeals refused to take the case, ruling the plaintiff could not show a concrete injury. Kavanaugh dissented. He would have heard the case and ruled against the plaintiff, because of longstanding precedent and widespread use of “so help me God” in official oaths.

Kavanaugh is a strong judicial advocate against bureaucratic overreach. He ruled in an FCC case that the court should not defer to the executive branch legislating through regulations. He wrote, “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”

Breaking free of the Chevron Doctrine forces responsibility on Congress, which is accountable to voters. It opens up many opportunities to ADF’s defense of the American freedom.

Judge Clint Bolick, Arizona Supreme Court
My next interview was with Clint Bolick, a justice on the Arizona Supreme Court. Judge Bolick worked previously at the Phoenix-based Goldwater Institute, where he was vice president of litigation. He’s a Supreme Court lawyer and a protegee and friend of Justice Clarence Thomas, dating back to their work together at the Equal Employment Opportunity Commission in the 1980s. Bolick also co-founded the Institute for Justice, which litigates for mom and pop businesses fighting government regulations, school choice, property rights, and free speech. He is one of the country’s giants in defense of individual liberty and the right to engage in free enterprise. Bolick is an unapologetic activist in defense of the constitution.

Judge Bolick thinks the enthusiasm about the Kavanaugh appointment on the right and the hysteria on the left are both overstated. Justice Kennedy often sided with the originalist judges. An originalist majority has been whittling away at the Commerce Clause for years, returning power to the states. That trend will not change with Kavanaugh, but it will accelerate.

The biggest change Bolick foresees is on the Chevron doctrine’s deference of the court to the administrative state.  Justice Gorsuch is famous for a sweeping opinion in which he attacked Chevron directly. (Kavanaugh is widely regarded as strong in this area as well.)

Judge Bolick sees the recent Janus ruling as a roadmap for how to revisit stare decisis, with potential application to Roe v Wade and gay marriage. Janus overturned a previous Supreme Court decision in order to rule against mandatory union fees, because the fees were spent on political campaigns, and were thus coerced political speech. The court considered the reliance of the public on settled law, including the practical ramifications of overturning it, and came out in favor of overturning precedent in order to restore First Amendment rights.

I asked Judge Bolick what part of constitutional jurisprudence he would like to see revisited by the new court. His answer was quick: return economic freedom to an equal footing with our other constitutional rights. Overrule the Jim Crow-era Slaughterhouse Cases. The 14th Amendment, passed to protect freed slaves after the Civil War, had three provisions. Two are famous—equal protection and due process. The first one, just as important, was gutted by the Supreme Court’s 1873 Slaughterhouse decision and has passed away from our collective memory. It is the “privileges and immunities of citizens.”

Privileges and immunities of citizens go back in history—they were guaranteed to Christopher Columbus and the Pilgrims. They were of utmost importance to our nation’s founders and include the right to pursue a livelihood, own property, make contracts, and bear arms.

Justice Thomas is the leading proponent of bringing back constitutional protection for these economic rights. Economic freedom would do more to help black Americans than “affirmative action” and race-based preferences ever could. Onerous licensing requirements, such as requiring 2,000 hours of training to be licensed to braid hair for a living, blocks ordinary people from starting up the ladder to prosperity.

State governments take the freedom out of free enterprise, lessening people’s lives and harming the economy. The Institute for Justice is currently defending the rights of an outstanding black couple—he is a former Army Ranger and corporate project manager, she has an MBA and a successful business—who want to offer job skills classes. Under Virginia law, they must apply to state bureaucrats, pay thousands of dollars, rent classroom space and create a library, do mountains of paperwork, all just to request a license that could be refused. The case is being argued on free speech grounds, but from what Judge Bolick explained, the 14th Amendment’s privileges and immunities of citizens should give this couple direct protection of their economic enterprise.

Returning to an original, textual understanding of economic freedom is a lifetime dream for Bolick. He believes an originalist court might take it on.

Robert Alt, The Buckeye Institute
Next, I had the privilege of talking with Robert Alt, a highly respected originalist legal expert, mountain climber, Iraq War correspondent, and hard-working president of the Buckeye Institute, a think tank that focuses on economic freedom. Buckeye last term filed an amicus brief in the Janus lawsuit. Alt was upbeat after the 5-4 victory in that case, which freed government employees from having to pay a fee to a union against their will.

“The liberty of the individual was upheld,” Alt told me. Janus was all about consent. It offers a model of how to reconcile a previous wrong decision with stare decisis, the judicial norm of respecting settled law. Stare decisis should distinguish between errors of interpreting a law passed by Congress (which the other branches can correct more easily) and errors in interpreting the Constitution itself (which are nearly impossible for the other branches to correct). The tradition that legal stability requires the court mechanically to maintain constitutional errors is wrong. When a Supreme Court error deprives the individual of constitutional rights, in this case of freedom of speech and association, it should be corrected by the court.

Janus was a vital win for originalists. It overturned a 41-year-old precedent, affirming the responsibility of the Supreme Court to undo poor decisions of past progressive court rulings. It applied the First Amendment to prevent compulsory speech, in this case, being compelled financially to support a union’s political lobbying.

Politically, Janus is of paramount significance. Rush Limbaugh calls collusion with public unions a Democrat money laundering scheme. Unions spent $1.7 billion on politics in 2016, mostly for Democrats. Democrat politicians bankrupt cities and states to pay for unrealistic salaries and benefits demanded by government unions. In exchange, government unions skim off some of that taxpayer largess through compulsory fees and funnel it back into Democrat party election coffers. It is not just worker’s hard-earned money, but all our hard-earned tax money being collected by unions and passed along to the Democratic Party.

We are talking about big bucks, election-changing bucks. According to Alt, some rural teachers in Ohio pay up to $1,200 in union dues. There are 5 million union members in compulsory union states, and if 20 percent opt out, unions stand to lose a significant amount of their political war chest.

The leftist Nation magazine analyzed the impact of Wisconsin and Michigan becoming “right to work” states. Both states went for Trump, the first time they went Republican since the 1980s. The loss of union money, used for getting out the Democrat vote, resulted in a 3.5 percent swing in favor of Republicans, enough to change the outcome of the election. To say that Democrats are concerned would be an understatement.

During oral arguments, Justice Kennedy asked, wouldn’t the unions lose power if you lose this case? When the union lawyers answered yes, their goose was cooked. Kennedy saw this as the crux of the case: unions’ collective bargaining speech was inherently political; hence workers were being compelled to take part in political speech.

Addressing the wider question of how a more originalist court with a second Trump Justice will change America, Robert Alt foresees a rollback of the administrative state. We have had a dereliction of duty both by Congress and the Courts, both happy to pass power to unaccountable bureaucrats in the executive branch. A stronger originalist court will be willing to limit Chevron deference, which allows unelected administrators to rule through regulation.

The pace and reach of bureaucrats issuing regulations are out of control. Robert Alt oversaw a project to catalog all federal criminal laws and count them for the first time. There are 4,500 federal criminal laws spread throughout the law code.

How many criminal federal regulations are there? No one knows for sure. The best guess comes from the work of Professor John Coffee at Columbia Law School. He estimates there are 300,000 federal regulations that carry criminal penalties that were never approved by Congress.

President Trump could be the pioneer who forces Congress and the Supreme Court to do their jobs and take power back from the administrative state. So far, the liberal judges are not budging. They apply Chevron deference to maintain outcomes they like, but not to respect Trump’s lawful immigration policy.

Alt’s dream for an originalist court? Like Clint Bolick, he would revisit Slaughterhouse. That series of Jim Crow-era decisions crushed newly freed slaves’ economic liberty and stripped all Americans of protection against state laws that infringe on the “privileges and immunities of citizens.” The loss of these fundamental rights became settled law and is not even taught to young lawyers. The result is that economic rights are not protected from government intrusion like other safeguards in the Bill of Rights. The heavy hand of government and crony capitalism was unleashed on free enterprise: licensing laws run amok, big business welcoming burdensome regulations that they can afford to comply with, but which crush new competitors. And we mustn’t forget that privileges and immunities also guarantee the right to bear arms across the states.

Alt does not see the Supreme Court suddenly becoming a strongly originalist institution, striking down laws to protect individual rights. Chief Justice Roberts is a “minimalist” who believes on principle that the High Court should have a modest role. The irony, as we saw in his Obamacare ruling, is that Justice Roberts exerted huge judicial power in the name of limiting judicial power. He created his own remedy to save Obamacare and avoid ruling it unconstitutional.

Pete Hutchison, Landmark Legal Foundation
My last conversation was with Pete Hutchison, who succeeded radio talk show host Mark Levin as president of the Landmark Legal Foundation. Landmark’s mission is to fight the administrative state’s abuse of power. Naturally, Hutchison is pleased with Trump’s focus on originalist judges. An originalist Supreme Court justice strives to apply the law dispassionately, with no political agenda. There isn’t a single liberal judge who would go against the Democratic agenda, Hutchison told me, because ignoring outcomes and focusing on rule of law doesn’t fit their judicial approach.

Hutchison minced no words on Judge Kavanaugh. “He is brilliant and extremely well qualified,” he said. “But I think the Left should be celebrating. He will set the meat slicer on its thinnest setting in cases like that dealing with Obamacare.”

Landmark filed one of only two amicus briefs in the 2012 Obamacare case that addressed the question of whether the tax penalty could be considered a constitutional tax. “We went through the Constitution’s requirements and concluded that the penalty was not a constitutional tax,” Hutchison explained. “Kavanaugh embraced the tax notion . . . It was a thinner slice than Roberts in a way, as he would have held the case another two or three years.”

But Hutchison thinks Kavanaugh “will be great on Chevron deference, which is critical, and on the vast majority of other matters.”

He adds that Trump’s next pick, if it comes from the president’s famous list of candidates, is “very likely to be the big one if the Republicans can hold the Senate” in the fall. “I can only imagine the collective freak-out should Judge [Amy] Barrett get the next nod!”

Hutchison is optimistic that with Gorsuch and Kavanaugh, the new Supreme Court will block the Left from using “disparate impact” as a legal theory to advance federally mandated racial quotas in employment, housing, education, and indeed, every area of life where you can count people by race. Disparate impact is dangerous and undoing it perhaps could be the most important benefit of the Trump presidency from a liberty standpoint.

Like the other originalist lawyers and judges with whom I spoke, Hutchison sees the Chevron deference of the courts to executive branch bureaucrats as teetering, possibly to fall before a more originalist court. Congress purposely delegates authority to agencies by writing vague statutory schemes to avoid voter scrutiny, even though delegating legislative power to unelected officials is flatly unconstitutional. It affects every area of the law where regulations are written, absolving politicians from responsibility for anything.

An originalist court would push back and ask legislators: What authority did you delegate? What are the limits of that authority? Is this a constitutionally legitimate delegation of power? An important example is the Obama-era “Waters of the United States” rule, which the Trump Administration has sought to reverse. A lawsuit challenging this is currently working its way through the lower courts.

Hutchison thinks Justice Kagan is right to worry about that the First Amendment could serve as a sword against progressivism. The First Amendment would take on more power as a constitutional right under an originalist court. Freedom of speech, religion, and assembly would be used as legal protection against the progressive activist judges imposing a social justice agenda. We saw that happening in several important originalist victories in the court’s last term, affecting government union dues, gay marriage, and pro-life pregnancy centers. The Masterpiece decision raised the bar to a higher standard, called “strict scrutiny,” to justify the government limiting a constitutional right such as free speech or freedom of religion.

An originalist court is also likely to revisit the federal balance of power. Hutchison points to an interesting Commerce Clause case still in the lower courts, that challenges California’s animal rights mandate for chickens. California voters dictate food or fuel standards to providers from other states, without their citizens having any say so—that’s not how the federal system and representational government were meant to work. Farmers in Ohio and Iowa will be forced to heat their barns and get rid of half their chickens. Consumers across the country would pay a premium for eggs. A court that follows the meaning of the 10th Amendment reserving power to the states will give such cases a fairer hearing than in the past.

Change Is on the Way
I came away from these conversations with a new appreciation that change won’t come quickly through a more originalist court, but it will come. We’ll be heading in the right direction—the direction of limited, constitutional government, as the framers intended. The court will throw controversial questions back to the Congress and the states to decide, in protracted and impassioned political battles, where they belong. Unlike progressives ruling from the bench by fiat, we will have to work through all three branches of government—as it should be.

The court alone will not dismantle the administrative state or force government to retreat from our lives, but it is an indispensable player. Justices Gorsuch and Kavanaugh give us reason to expect more justice and less unchecked expansion of government power.

Democrats do not understand the Constitution or the love and fidelity it inspires among ordinary Trump voters. They don’t understand how many Americans want the court to fight for our constitutional safeguards against government power.  Our precious American individualism, freedom, and prosperity depend upon it, in the digital age more than ever. Progressive Supreme Court justices are all about advancing the political agenda du jour and care nothing about constitutional principles. They think originalists are the same. We’re not. We revere the limits as much as the rights handed down to us as a sacred and incomparable legacy.

It is definitely time for Democrats to panic.

Photo credit: Melina Mara/The Washington Post

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Administrative State • Center for American Greatness • Conservatives • Donald Trump • Law and Order • political philosophy • Post • Republicans • self-government • separation of powers • The Constitution

Polarization Over Kavanaugh Is a Good Thing

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

The heated polarization over Judge Kavanaugh’s nomination to the Supreme Court is a sign that the country is ripe for a serious reckoning with what makes a judicial nominee—particularly one to the U.S. Supreme Court—“qualified.” It shows that America is once more willing to take on the burden of doing politics with respect to the judicial branch. And since the court’s power is extremely broad in scope, it’s both necessary and good that the nation is soberly deliberating about this vital question through its elected representatives.

Benjamin Wittes, a senior fellow at the Brookings Institution and the editor-in-chief of the legal blog Lawfare, is of a different opinion, however. He is worried about the state of America’s judicial confirmation process. In the pages of The Atlantic, Wittes laments that we are in the death throes of the “Confirmation Wars” that rage about us. Judge Kavanaugh, he writes,

will be confirmed because there are 51 Republican senators in office and a Republican vice president who can break a tie if need be. While he may get a few Democratic votes, he will get confirmed—indeed, he will get a vote at all—because Republicans right now have the raw political power to confirm him on their own. That political constellation of power exists because people expect him to vote in certain ways on certain types of cases, to deliver certain specific outcomes on issues they care about. Democrats will oppose him for the same reasons.

While this constitutes a deviation from past practice, it’s difficult to see precisely what’s either technically or substantively wrong with the situation that Wittes and those who agree with him decry.

Technically, at the political-constitutional level, the Senate is well within its power to withhold its “advice and consent” and so reject any president’s (judicial) nominee for any reason—or no reason at all. As we’ve seen, the Senate can refuse even to give a nominee a hearing. While that has incensed some, the reality is, in appointment matters, the Senate has the final say, and nobody who’s being honest doubts that.

As a substantive matter, Wittes’ view—namely, that nominees should be on the auto-confirmation track if they’re well-credentialed and have the right “temperament”—is only coherent if one believes that a nominee’s having the right judicial philosophy is a nice “value add” but isn’t strictly necessary to be a qualified judge.

But that’s wrong. Judicial philosophy—how one views the Constitution and conceives of one’s role as a judge, particularly how one understands the limits of one’s own authority—is by far the most important component of being a good judge. And the post-Bork Senate is finally showing that it understands this.

Whether each party consciously understands why it supports the judicial philosophy that it does—“originalism” for the Republicans, “living constitutionalism” for the Democrats—is wholly beside the point. What does matter, however, is that it has happened. And it has forced us to confront an uncomfortable reality: For Republican and Democratic senators alike, only a certain type of nominee is confirmable (i.e., the kind that has the judicial philosophy to which these senators are partial, regardless of why they are partial to it).

This is as it should be, the lamentations of “proceduralists” like Wittes notwithstanding. What matters more than anything else with respect to the judiciary is that the judges who get confirmed won’t one day reveal themselves to be robed tyrants. The country had enough of that from the Warren court. The old confirmation process was possessed of a certain decorum, yes, but it was at the same time not well-suited to detect and then smoke out nominees who would go on to rule by judicial fiat. Plus, it was only able to be so genial because only one judicial methodology, what we today call “originalism,” was understood to be legitimate, and most judges operated within that framework.

Until the 20th century, that a judge would be a natural-law originalist went without saying. But, beginning in late-19th and early-20th century America (and even earlier in a non-American context), Oliver Wendell Holmes, Jr. precipitated a legal revolt, with the aim of reconstituting the judiciary into one that would rule with an eye toward reifying the best social consequences. The Holmesian judiciary would base its decisions on economic, social science, and statistical reasoning at the expense of the actual text of any given law. He and his disciples pushed “living constitutionalism” into the mainstream, where it had no right to be and where, regrettably, it remains to this day. “Originalism” only became a self-conscious legal theory in the 1980s as a counter-reaction to Holmes’ legal rebellion, but it has always existed.

It simply won’t do to lament the “politicized” process we have today, as Wittes and others do; that critique means nothing. In the United States, judges always have been subject to political-electoral rule and control. On the front end, they need to run the presidential-nomination-and-Senate-confirmation gauntlet, and on the back end, they can be impeached. (Judges need to be impeached much more frequently, as it happens.)

Here’s Wittes again: “Our debate about judges takes place in the language of principle. We pretend to debate judicial philosophies, when we all know there was no philosophical objection to confirming Merrick Garland” (emphasis added).

Wittes goes too far, however. Senate Majority Leader Mitch McConnell’s (R-Ky.) stated reason for blocking Judge Garland had to do with the timing of an election, to be sure, but we must ask: Were McConnell and Co. flexing their political muscles just for the sake of flexing? Or because they opposed Judge Garland’s becoming Justice Garland and therefore gaining the authority, along with just four other justices, to impose his will on the entire nation? Obviously it’s the latter; the move was highly risky and thus it needs to be justified on grounds other than, “Screw Obama!”

At some level, the GOP understands that a non-originalist/“living constitutionalist” judicial philosophy is inherently disqualifying of a judicial nominee (at least one to the Supreme Court), and it doesn’t matter if that’s just because the nominees they oppose “would give us results we don’t like.” In this case, even if not in some others, the ends really do justify the means, and that’s because nominees bring their background assumptions onto the bench with them; judges whose basic disposition is non-originalist simply cannot be trusted to act as judges ought to act, how the Constitution envisions they’ll act.

The Constitution is far too important to be left in the hands of judges who see its provisions as having about as much solidity and force as silly putty. We cannot risk handing over the Constitution to judges who have no qualms about torturing it to say something it plainly does not whenever it’s politically expedient.

What we need is even more polarization, more rancor, over the judiciary. This polarization in our body politic is akin to a fever in a human body: Just as a fever combats sickness, so, too, does polarization. Except, instead of the flu, America is fighting the virus of judicial tyranny.

A Justice Kavanaugh would be the beginning of her recovery.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

Photo Credit: Raymond Boyd/Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Administrative State • Conservatives • Donald Trump • Government Reform • Law and Order • Post • Pro-Life • Republicans • Second Amendment • self-government • separation of powers • The Constitution • The Left • the Presidency

The Coming Restoration of the Constitution

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

Just as the upcoming midterm elections may be the most important of our lifetimes—since they will determine if the Trumpian Counter-Reformation will continue or be frustrated—the hearings this week on the nomination of Brett Kavanaugh to the United States Supreme Court are a watershed event in jurisprudence.

Fifty years ago there was a fragile consensus, even in our great law schools, about how justices were to go about doing their jobs. That consensus was formed by admiration for Felix Frankfurter, the occasionally mercurial, but stunningly brilliant, appointee of Franklin Roosevelt. Frankfurter, contrary to the later pattern of justices appointed by Republican presidents, moved to the right on the court, becoming more conservative with age. By the end of his career, in a series of thoughtful opinions, he had explained that the task of a justice was not to formulate new constitutional law according to his personal preferences, but, rather to exercise restraint and wisdom in preserving the original constitutional scheme of separation of powers and preeminence of state and local governments.

For Frankfurter, and for sensible justices since, in particular Justices William Rehnquist, Antonin Scalia, and Clarence Thomas, the federal government was one of limited and enumerated powers, and justices were supposed be jurists, not legislators.

By the turn of the 20th century in the law schools, at least, as I tried to show in my recent Law Professors: Three Centuries of Shaping American Law, the Frankfurtian consensus had collapsed, so-called “legal realism” had triumphed, adherence to the rule of law was out of favor, and the task of justices had been reconceived as that of Ephors uniquely qualified to dictate rules for the rest of their fellow Americans.

Dismantling the Old Constitution
It takes about 30 years for the wildest ideas in the legal Academy to be transformed into mainstream jurisprudence, and thus the jurisprudence of the far Left—Critical Legal Studies (the principal tenet of which is that law is simply politics)—which was in ascendance in the mid 1980s, profoundly shaped decisions such as Obergefell v. Hodges (2015), when the Supreme Court declared—rejecting millennia of experience—that the United States Constitution mandated that marriage could no longer be limited to a bond between one man and one woman. This followed the landmark opinion in NFIB v. Sebelius (2012), when Chief Justice John Roberts, who prior to that time had been regarded as a fairly reliable conservative, in the course of upholding the Patient Protection and Affordable Care Act (“Obamacare”), virtually declared there were no longer any limits on Congress’s legislative power.

Put simply, the court had laid the groundwork for the destruction of our constitutional scheme, and had nearly abandoned the traditional ideas that judges were not legislators and that it was the state and local bodies, not the federal government, that were supposed to be the primary movers in national life. Justices David Souter, Sandra Day O’Connor, and Anthony Kennedy, all Republican appointees, had been instrumental in this dismantling of jurisprudential tradition, but they are all gone now.

President Trump, influenced by Leonard Leo and the Federalist Society, as well as the Heritage Foundation, pledged to reverse this dismantling, and this was enough to garner him the support of a few of us traditionalists in the academy. He confirmed our faith in him with the Neil Gorsuch appointment, and he has done the same with the nomination of Brett Kavanaugh, a man squarely in the Frankfurtian mold, even if he comes from a hotbed of anti-Frankfurtian jurisprudence, Yale Law School. The Life of the Law, it would seem, is full of ironies.

A New “Swing Justice”
The Left has been apoplectic since the announcement of Kavanaugh’s selection, as it accurately perceives that this may mean a new direction on the court. Where Justice Kennedy had been the “swing justice,” supporting his progressive colleagues on social issues such as gay marriage and abortion, Kavanaugh’s joining the court will give the “swing” position to Roberts, perhaps the least conservative of what will now be a group of five.

Adam Liptak, the New York Times’s Supreme Court correspondent, and thus a reliable barometer of the progressives’ view of the Court, declared, “If Roberts assumes that position . . . he will lead a solid five-member conservative majority that would most likely restrict access to abortion, limit the use of race-conscious decisions in areas like college admissions, uphold voting restrictions, expand gun rights, strike down campaign finance regulations, and give religion a greater role in public life.”

Just so. The Supreme Court is not going to overturn Roe v. Wade (1973), the decision that somehow discovered a right to terminate a pregnancy in penumbras and emanations from various amendments, but that decision was clearly without adequate constitutional foundation, and the court has already begun the process of returning the protection of fetal life, at least in the later months of pregnancy, to the states, where traditionally it belonged. The same can be said of the protection of the right to vote, which even the 14th and 15th Amendments recognized was a matter for state and local governments.

Liptak is probably right about future court decisions by a conservative majority that may end other nefarious aspects of federal campaign regulation, as they should be ended. Such legislation, with the damnable McCain-Feingold law as the worst example, ought to be seen for what it is—incumbency protection. The remnants of McCain-Feingold and other such legislation effectively prevents newcomers to politics who cannot afford the consultants and lawyers who are necessary to conduct modern campaigns without running afoul of arcane and onerous rules, and the possible risk of fines and prison terms for violations.

A Litany of Dog-Whistles for the Left
This was a country founded on the propositions that there can be no order without law, no law without morality, and no morality without religion, as Supreme Court Justice Samuel Chase declared in a grand jury charge in 1803, voicing sentiments shared by Alexander Hamilton, George Washington, and before them, William Blackstone and Edmund Burke. Thus, it will be a salutary development if, indeed, the court gives religion, in Liptak’s words, “a greater role in public life.”

The Left’s dream of repeal of the Second Amendment is not going to be realized, and, accordingly, the court may, as Liptak expects, protect the traditional right to bear arms. That is now recognized as an individual right, like the others guaranteed in the Bill of Rights, and it should be no surprise that a conservative court would enforce it.

Conservatives traditionally have recoiled from the Left’s penchant for counting by race, and for seeing individuals not as fully-formed and unique human beings, but as markers in a political game pitting ethnic groups against each other. Increasingly, conservatives have held with Martin Luther King, Jr., that Americans should be judged by the “content of their character” (as well as their innate talents and abilities) rather than by the “color of their skin.”

Chief Justice John Roberts has been eloquent in condemning racial politics, and if he leads the Court to limit the “use of race-conscious decisions” he will be leading it in the right direction.

Liptak’s litany of dog-whistles for the Left are actually a program of traditional and sensible jurisprudence for the Right, and for the nation. President Trump has made a second brilliant appointment to the Supreme Court, and though the Left will rage this week, there should be enough senators who understand that it is the popular organs like the Senate that should be making the law, not the judicial branch, and that the Constitution will be better preserved in the hands of a Justice Kavanaugh.

Photo Credit: Chip Somodevilla/Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

America • Center for American Greatness • Education • Identity Politics • Post • The Constitution • The Courts

Crazy Brainy Asians

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

The Justice Department last week filed a “statement of interest” on behalf of a lawsuit by Students for Fair Admissions against Harvard University for discriminating against Asian-American applicants as a class. The government’s intervention is stronger than a mere “friend of the court” brief and portends a federal lawsuit against Harvard.

To better understand any likely outcome in this case, some familiarity with relevant case history is helpful. Due to their unusual history in America, distinct from that of other Asian-Americans, Japanese Americans have had singular experiences in the court system that are instructive today for all Americans, not just Asians or other ethnic minorities. President Theodore Roosevelt’s “Gentlemen’s Agreement” with the Emperor of Japan, which limited Japanese labor immigration and, among other things, protected San Francisco children of Japanese and other Asian ancestry from discriminatory treatment in its public schools would be the beginning of any such abbreviated history. This period of limited immigration ended with the Immigration Act of 1924, which closed immigration from Asian countries and severely restricted it for eastern and southern Europeans.

In response to Japan’s attack on Pearl Harbor, Franklin Roosevelt’s administration relocated 110,000 ethnic Japanese from the West Coast, about 90 percent of their total in the U.S. mainland population. The U.S. Supreme Court decided the major cases challenging the relocation in December 1944. While Korematsu v. U.S., by a vote of 6 to 3, authorized the initial phase of the relocation, it did not justify the  relocation centers themselves.

In fact, ex parte Endo, decided the same day, expanded the bureaucracy’s existing liberal leave policy to include all those in the centers who were loyal to the United States. The government, “has no authority to subject citizens who are concededly loyal to its leave procedure.” Free people do not require government permission to live where they wish. This unanimous decision thus dismantled the centers and allowed the residents to return to the west coast. The court timed its opinions to follow the shifting of the war front to the western Pacific Ocean and the national elections in November (thus preventing the Japanese return from becoming an election issue).

The complexity of the law in these relocation cases later was reflected in the affirmative action cases argued by liberal justices. In Odegaard v. DeFunis (1974) dissenting Justice William O. Douglas, author of ex parte Endo, criticized the “reverse discrimination” mentality: “The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans and not to place First Amendment barriers against anyone.”

But he then concluded the University of Washington law school’s preferential admissions policies may well be consistent with the Constitution. Quite aware of how race and ethnic categories can be misused, Douglas recalled that the Japanese relocation cases should be understood as exceptions in that “those making plans for defense of the Nation . . . were planning for the worst.”

Douglas’s reference to the Japanese exclusion cases was then amplified by Justice William Brennan, in his joint opinion in the monumental Bakke affirmative action case. Brennan was a towering figure in liberal jurisprudence, who tried to use the exception posed by Korematsu to justify discrimination against racial or ethnic groups: As with the possibility of Japanese invasion, affirmative action’s enlightened goals provide a rational basis for denying rights to some groups in order to favor others.

The court’s most recent reference to the Japanese exclusion question was this past term’s “travel ban” case. Justice Sonia Sotomayor’s dissent tried to compare the Trump Administration’s alleged Muslim travel ban to the relocation of Japanese-Americans, while Chief Justice John Roberts dismissed Korematsu as overruled by “the court of history.” Neither saw the relocation justification in the light of its pairing with ex parte Endo: despotic action may be necessary to defend the nation, but the dictates of necessity are limited by the requirements of republican government.

The current case that draws together these diffuse strands of Asians in America is the lawsuit charging Harvard with discrimination against Asian-American undergraduate applicants. A new report by my wife, Dr. Althea Nagai, published last week by the Center for Equal Opportunity, focuses the attack, using Harvard’s own admissions data from 2009-2017 to show that the university consistently lied in its public representations about its discriminatory practices. No other explanation seems plausible for the results of Harvard’s admissions process that produced such uniform ceilings, with entering classes of between 15 and 18 percent Asians (excluding Asians from abroad) over the last several years. Two pie charts below encapsulate the Center’s report, and a third table summarizes how each stage of admissions whittles down the Asian numbers. (The Harvard class of 2021 has a total of 1,687 members.) The graphics were created by Althea Nagai from Harvard’s own data, which university officials have tried to disavow since it became known in discovery.

Chart 1, Hypothetical Breakdown of Admittees, Based Solely on Academics.  Source: Althea Nagai, “Harvard Investigates Harvard: “Does the Admissions Process Disadvantage Asians?” Center for Equal Opportunity, Aug. 30, 2018.

Chart 2, Final Model of Racial and Ethnic Distribution of First Year Class. Source: Althea Nagai, “Harvard Investigates Harvard: “Does the Admissions Process Disadvantage Asians?” Center for Equal Opportunity, Aug. 30, 2018.

Nagai’s report points out how Harvard used different criteria (recruited athlete, legacy or alumni preference, “personal qualities,” race) to reduce Asian admissions at every stage and boost numbers of other groups. As the report elaborates, being an Asian applicant reduced the likelihood of admission, when compared with others of comparable academic merit. It is not sports or extracurriculars that hurt Asian applicants. They suffer a setback just by being Asian.

Harvard has a personal ratings system, where an applicant is judged by the admissions office on whether the person has a “positive personality,” whether “others like to be around him or her,” if s/he has such traits as “likability …helpfulness, courage, [and] kindness,” is an “attractive person to be with,” “widely respected,” a “good person,” and has good “human qualities.”

The personal qualities category is derived from letters of reference, personal essays, and interviews. The suspicion, based on anecdotal evidence from admissions personnel, is that the Admissions staff has a stereotyped view of Asian-American applicants that unfairly and illegally harms their admission chances.  

Graph 1 showing decline of Asian-American admissions when other factors, including race, are added. Source: Althea Nagai, “Harvard Investigates Harvard: “Does the Admissions Process Disadvantage Asians?” Center for Equal Opportunity, Aug. 30, 2018.

For reasons unknown and unacknowledged, Harvard set an Asian quota of below 20 percent over the last 15 years, as this graph from the previous CEO Report on Harvard shows. The contrast between Harvard and Caltech, which does not use racial/ethnic quotas, is striking. (The Harvard Asian admissions numbers for the class of 2021 went up a few points to 22 percent when the current lawsuit was filed, although Harvard’s “public” numbers may not be the same as the ones they are legally required to report to the government, the latter being based on the government’s definitions. The numbers in the Caltech-Harvard report are based on statistics reported to the U.S. government. )

Graph 2 showing a ceiling for Asian-American admits (green line) since the early 1990s. Source: Althea Nagai, “Too Many Asian Americans: Affirmative Discrimination in Elite College Admissions,” Center for Equal Opportunity, May 22, 2018.

But, to construct a kind of liberal establishment defense of Harvard, one should reassess the “personal qualities” factor. A Harvard man is not Library Man. For that purpose, it’s helpful to recall how liberal icon justices Douglas and Brennan used the precedent of the Japanese exclusion cases to defend earlier racial and ethnic preference policies. One might even add a national security threat, given the high rate of Asian applicants who are immigrants or only first-generation Americans. They may lack not only commitment but loyalty to America, to say nothing of Harvard. Ever shouting “USA! USA!” Harvard might be of one voice with Bismarck about “Das gelbe Gefahr” (Yellow Peril). Thus, the Great Wall of Harvard might be seen as a measure that would permit assimilation to proceed (as the Immigration Act of 1924 intended).

But there is another way for that avatar of excellence and for us to look at the world. The recently concluded Little League World Series featured a team from South Korea and, from the United States, Hawaii. The American roster had players of varied ethnic backgrounds reflecting its home state demographics. Rather than being embarrassed to have a student body resembling Hawaii’s world champions, maybe Harvard should recall why baseball is the all-American game. The Hawaii team figured it out without a Harvard degree among them.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

Photo credit:  Brooks Kraft LLC/Corbis via Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

2016 Election • Administrative State • Deep State • Government Reform • Post • The Constitution

America’s Crisis Is Three-Tiered Justice

[fusion_builder_container hundred_percent=”no” hundred_percent_height=”no” hundred_percent_height_scroll=”no” hundred_percent_height_center_content=”yes” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” enable_mobile=”no” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” margin_top=”” margin_bottom=”” padding_top=”” padding_right=”” padding_bottom=”” padding_left=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text]

[/fusion_text][fusion_text]

Last week brought to the fore a serious problem now threatening to undermine the very foundations of America’s constitutional republic: we no longer have equal application of justice under the law. The rule of law has become trifurcated, with a different application of the law depending upon one’s position in the political hierarchy.

First, there’s one application of the law for members of the powerful elite who have the right political connections. Here, the law is more a series of suggestions that might or might not be followed with almost no legal consequences for non-compliance.

Example A, of course, is Hillary Clinton. Many people have gone to jail for doing what she did, including members of our armed forces. Yet she paid no consequences for violating laws on the use of classified information on her unsecured and illegal private server. She played games, likely for personal gain, with our national security. Yet she and her enablers and co-conspirators like her aides Cheryl Mills and Huma Abedin are apparently above the law, even escaping consequences for lying to federal agents.

There is also the case of U.S. Rep. Debbie Wasserman Schultz (D-Fla.). Her erstwhile Pakistani IT staff, who also worked for dozens of Democratic members of the House, had a history of highly questionable behavior, with some even suggesting that they potentially were running a spy ring inside of Congress, accessing computers and uploading sensitive information to the cloud to be accessed by foreign powers. Not only did federal prosecutors refuse to pursue anything regarding those allegations, but just this week, as Paul Manafort and Michael Cohen are having the book and the kitchen sink thrown at them over bank fraud, one of these staffers, Irwan Awan, got a slap on the wrist for a charge of bank fraud to which he pled guilty, will have no fines, and will serve no jail time. It seems likely that an investigation of these staffers would have turned up too much dirt on Democratic members of Congress.

Then there’s the application of the law for high-powered government bureaucrats. They can abuse their power, lie under oath, spy on Congress, pass around fake dossiers, leak to the press while turning the bureaucracy into personal weapons against political opponents, but face no consequences save getting a fat contract as an on-air contributor from a news outlet.

And finally, there is the application of the law for the rest of us, the normal everyday Americans who bear the full brunt of the law for a single violation of mishandling classified information or any other breach of national security law. If you have the wrong political connections or aligned yourself against the establishment in any way, you get pre-dawn raids from an FBI that look more like the KGB’s modus operandi than that of a constitutional republic.

So if you try to tell me that we have equal application of justice under the law in America, you’re living in an alternate reality because what’s taking place around us points to arbitrary law.

This is a very real and fundamental problem for this country because if everything is arbitrary, nothing is sacred. And if nothing is sacred, and we start to just make up rules as we go along, society devolves. When the idea of law becomes arbitrary all we are left with as a society is competing opinions.

Society cannot stand the tension for too long: one of the opinions must become the new “right” or absolute. But the people who believe in the wrong opinions? Well, to resolve the tension they will be compelled, by force, to believe. And that is why all of this discussion about the equal application of justice and rule of law is so desperately important.

We were founded on the idea of rule of law, where all, regardless of last name or political affiliation or connections, stand equal before it. But we’ve now made it a farce. We have condoned political warfare by means of the law; call it “lawfare” if you will. There are two likely outcomes to this behavior: we risk our republic imploding and collapsing under the arbitrary hypocrisy of it all, or the people wake up and exact serious consequences for those guilty of such behavior. Both are ugly and painful outcomes. We must avoid the first at all costs, and endure the pain of the second to set things right.

Throughout history, in most nations, the powerful and elite thought they could play by different rules, and for periods of time they’re able to get away with it. Consider France’s old regime as well as its revolutionary period; power, not law, ruled the day.

Whether we are talking about kings who think they are the state, or revolutionary parties of the Left that think they the sovereign, the people are abused when law is only a tool for the powerful to wield. The ruling class and elites crushed those beneath them in France, living decadent and ostentatious lives, creating different rules that benefited themselves over the mere peasants. So detached were the French elites from reality that they were likely still confused when they were being trundled off to the guillotine. It didn’t matter if the rule of law was being abused by kings or elected officials, the rule of law was still abused to the detriment of the nation.

But the people throughout history have always cried out for justice, and if the ruling class in America is not careful and does not correct its mistakes and realize it too stands equal before the law, the people will come for them with pitchforks and torches.

Photo Credit: James D. Morgan/Getty Images

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]