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Great America

Barrett Will Sail

The Left is going to find Amy Coney Barrett a tough nut to attack. She is smart, pleasant, and competent. Her personal history is an open book of service and commitment.

As I write, President Trump has just confirmed what the rumor mill has been disgorging with increasing confidence over the last few days: Judge Amy Coney Barrett is his pick to replace the feminist icon Ruth Bader Ginsburg, who died at 87 a little over a week ago, as a justice on the U.S. Supreme Court. 

The wheels of government tend to turn slowly, but Donald Trump has once again demonstrated that if need be, they can be made to turn with dizzying speed. 

He did it last spring when he mobilized the awesome resources of American business to produce a mountain of medical materiel in record time to meet the emergency sparked by the Chinese virus. 

And he just did it again by nominating Judge Barrett to meet the political emergency threatened by anti-democratic forces massing to upset the 2020 election. 

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) has already announced that Barrett’s confirmation hearings will begin October 12. With the Republicans holding a 53-47 majority, and with no more than two likely defections (at most), she is likely to be seated before the election on November 3. It is imperative that the Supreme Court, which may be called to rule upon various electoral anomalies, be sitting with its full complement of nine justices. 

Barrett graduated first in her class from Notre Dame Law School and then held two clerkships, the second for Justice Antonin Scalia. She was in private practice briefly before returning to teach law at Notre Dame, where she still teaches. In 2017, President Trump nominated her for the 7th U.S. Circuit Court of Appeals. 

I became aware of Judge Barrett in 2018 after Justice Anthony Kennedy announced his retirement. Her name appeared on a shortlist of candidates for Kennedy’s replacement. In the event, President Trump nominated Brett Kavanaugh, whose disgraceful treatment during his hearings by Democratic senators and the media is still horrifying to contemplate. 

Will Barrett face the same level of unhinged vituperation? I think it unlikely, though I remember a conversation I had with a well-informed legal observer in the immediate aftermath of Kavanaugh’s confirmation. “Well, the public was so repelled by that spectacle that Trump’s next nomination is likely to go more smoothly,” I said. 

“No,” insisted my friend. “Next time it will be much worse.” 

It’s early yet, but the response to Barrett’s nomination has been nearly comical in its combination of hysteria and nonentity.

Gosh. Worse than Christine Blasey Ford claiming Kavanaugh assaulted her 30-odd years earlier at a high school party? Worse than Michael Avenatti (remember him?) with his harem of stooges charging the mannerly Kavanaugh with all manner of sexual impropriety? Worse than Senator Kamala Harris (D-Calif.) haranguing him or Senator Sheldon Whitehouse (D-R.I.) attempting to parse entries from his high school yearbook? I am not sure how it could be worse. 

Doubtless, Barrett’s Catholicism will be an issue, as it was during her confirmation hearings for her current position. We’re certain, I think, to get variations on Senator Dianne Feinstein’s “the dogma lives loudly within you” meme. It was supposed to be a crushing remark—Dogma? Dogma? Who pays any attention to dogma in these sophisticated times? 

Its effect, however, was to turn Barrett into a hero for many. There are more than 70 million registered Catholics in the United States, some 22 percent of the population. That is a reality that any politician will have to conjure. Not all of them are “devout” in the way that Joe Biden says he is. 

When he came to office, President Trump promised to nominate judges and justices in the stamp of Antonin Scalia—that is, jurists who saw their task as interpreting the law in light of the Constitution, not promulgating public policy from the bench. 

This he has done. And, as her record indicates, this is exactly what Amy Barrett will seek to do. As she noted during her earlier confirmation hearings, the fact that she is Catholic is “irrelevant” to the job of being a judge or justice. “A judge,” she said in 2019, “is obligated to apply the law as it is and not as she wishes it would be. She is obliged to follow the law even when her personal preferences cut the other way, or when she will experience great public criticism for doing so.”

It is early days yet. But as of this writing, the response to Barrett’s nomination—it’s been building ever since Ruth Bader Ginsburg died and Barrett’s name was again in the mix—has been nearly comical in its combination of hysteria and nonentity. A “SCOTUS Rapid Response Action Guide” has been circulating for a while with tips on how to protest President Trump’s nomination, whoever it might turn out to be. 

To me, one of the many things to admire about Judge Barrett is her commitment to family. She has seven children, two of whom are adopted from Haiti, and the youngest of whom has Down Syndrome. Bizarrely, the Left has seized on this aspect of Barrett’s life, especially her adoption of two “children of color,” as grounds for criticism. Someone on Twitter speculated about whether the adoption process in Haiti was on the up and up. But it took a professional race hustler to crank up the absurdity to genuinely woke proportions. 

Ibram X. Kendi, Henry Rogers, author of the bestselling How to Be an Antiracist, really got the ball rolling with a Twitter thread that began with the declaration that 

Some White colonizers “adopted” Black children. They “civilized” these “savage” children in the “superior” ways of White people, while using them as props in their lifelong pictures of denial, while cutting the biological parents of these children out of the picture of humanity. 

Desperate, what? Take a generous act and filter it through your racialist scrim to turn it into something nasty and culpable. 

It’s of a piece with the gambit that People of Praise, a Catholic group to which Barrett belongs, was the inspiration for Margaret Atwood’s dystopian novel The Handmaid’s Tale. (Our paper of record was on it!) It wasn’t, as publications from Vox to National Review have acknowledged. 

No, the Left is going to find Amy Coney Barrett a tough nut to attack. She is smart. She is pleasant. She is competent. Her personal history is an open book of service and commitment. A sign of how hard a time the Left is going to have in any campaign to discredit her was a list of strategies I saw in the responses to Kendi’s tweet. There are a few items of boilerplate: she was critical of Obamacare, for example, but then so are a lot of people. 

My favorite observation, though, was this: “Name deceptively evokes Coney Island, a place that is good.” 

Is that it? Is that all they’ve got? Pretty pathetic, I’d say. 

I am looking forward to cheering Justice Barrett after she sails through her hearing and the Senate votes to confirm her nomination to the Supreme Court. 

Great America

In Preemptive Defense of Future Justice Barrett

Democrats will be desperate to throw everything they can at the Senate’s walls to see what sticks in a mad rush to stop Judge Barrett from ascending to the highest court in the land. Happily, none of it will work, nor should it.

Justice Ruth Bader Ginsburg’s passing last week at 87 is a sobering reminder that death is the great equalizer in human affairs. For if even a legal giant like Justice Ginsburg—the “Notorious RBG” as she affectionately was known to her many fans—succumbed to it, then so must we all. We should take this opportunity to pray for the repose of her soul and reflect on how fragile our supposed grip on life really is.

Even so, we cannot let something tragic, even something tragic and mysterious like death, distract us from the important, pressing business facing our nation. President Trump has nominated Ginsburg’s replacement and, as many expected, it is Amy Coney Barrett, a judge on the U.S. Court of Appeals for the Seventh Circuit, professor at Notre Dame Law School, and Roman Catholic wife and mother of seven (her youngest is special needs and two are adopted from Haiti). Full disclosure: Notre Dame Law is my alma mater, and I took two seminars with her.

In a very tangible sense, she is the anti-RBG, especially on life issues (evidenced most strongly by how she and her husband have built their family). Of course, this will drive the Left and Senate Democrats insane. They likely will try to attack her along four lines, none of which will include, thankfully, a salacious-but-obviously-false, 11th-hour “gang rape” charge of the sort that was perpetrated, shamelessly and shamefully, against then-Judge Brett Kavanaugh (because that sort of thing just doesn’t work on women, let alone an even-keeled mother of seven like Barrett).

The attacks will come on abortion, the Second Amendment, healthcare, and her personal life—though not necessarily in that order (and, of course, the Democrats may shock us all and outdo even their hysterical, tyrannical behavior in l’affaire Kavanaugh; stay tuned).

Abortion

On abortion, Barrett, admittedly, is an easy target if you’re committed to preserving the status quo or expanding abortion access. She is an openly faithful Catholic mother of seven; before knowing anything else about her judicial philosophy, opinions she’s written in abortion-related cases, or her scholarly writings, that fact screams loudly and clearly, “Roe is on the chopping block.”

But even leaving that aside, Roe demands to be overturned because it is, in the words of Judge William H. Pryor of the 11th U.S. Circuit Court of Appeals, the “worst abomination in the history of constitutional law”—easily on par with Dred Scott and Plessy. Not even liberals like Ginsburg would defend the sweeping decision on its own terms, and constitutional scholar John Hart Ely (who personally supported abortion) once said of Roe that it “is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

In her time as a judge, Barrett twice has dealt with the abortion question. In 2018, the 7th Circuit ordered a rehearing en banc (i.e., a full-court rehearing of a case originally heard by a three-judge panel) in a challenge to an Indiana law requiring fetal remains either to be buried or cremated after an abortion. But the 7th Circuit vacated that order and reinstated the original opinion blocking the state from enforcing the law.

Barrett joined a dissent written by her colleague, Judge Frank H. Easterbrook. Easterbrook addressed a separate provision of the law that also had been struck down but was not at issue at that time. That provision would bar abortions based on the fetus’s race, sex, or disability (e.g., Down syndrome). Easterbrook characterized it as an anti-eugenics provision and suggested that there is nothing in the Constitution that would deny a state the ability to pass such anti-eugenics protections.

The Supreme Court later reversed the 7th Circuit’s opinion on the fetal-remains provision but did not weigh in on the part of the decision that struck down the ban on abortions based on race, sex, or disability, leaving Indiana unable to enforce that provision. Justice Clarence Thomas, with his characteristic flair, memorably blasted abortion as rooted in an ugly eugenic history.

Later, in 2019, Barrett indicated she wanted the full 7th Circuit to rehear a challenge to an Indiana law requiring young women to notify their parents before obtaining an abortion after a three-judge panel had ruled it was unconstitutional. Indiana asked the Supreme Court to weigh in, and the justices sent the case back to the lower courts this summer for another look. Also in 2019, Barrett joined an opinion that upheld a Chicago ordinance barring anti-abortion “sidewalk counselors” from approaching women entering an abortion clinic, something she had to do given Supreme Court precedent on the issue.

It seems reasonably clear that Judge Barrett is skeptical of the so-called right to an abortion, but as a lower-court judge, she is bound by the regime of mass slaughter that was enacted by the raw will of the Supreme Court in 1973. The Democrats will attack her for this, but it will be out of panic that their core sacrament, abortion, will soon be, well, aborted—right into the ash heap of history where it belongs.

Second Amendment

In the 2019 case, Kanter v. Barr, the 7th Circuit upheld the mail-fraud conviction of the owner of an orthopedic footwear company and as a result, his right to keep and bear arms was abrogated. He contended that laws prohibiting people convicted of felonies from having guns violate a person’s Second Amendment right to bear arms. The majority rejected that argument, explaining that the government had shown that such laws are related to the government’s important goal of keeping guns away from people convicted of serious crimes.

Judge Barrett dissented (start at p. 27), arguing that at the Founding, legislatures took away the gun rights of people who were believed to be dangerous, not of just anyone who had committed any felony. So, for Barrett, the laws at the heart of Kanter are too broad because they ban nonviolent persons from possessing a firearm without any evidence that they pose a risk. Barrett stressed that the Second Amendment “confers an individual right, intimately connected with the natural right of self-defense and not limited to civic participation.”

It would be incredible to watch Democrats try to paint Judge Barrett as an extremist on guns given the way they—for the past three months—have excused, downplayed, ignored, and even tacitly encouraged violent mobs’ looting businesses, destroying property, and even murdering supporters of the president—all with revolting impunity.

On second thought, the campaign ads would write themselves. Please do it, Kamala!

Healthcare

A common Democratic talking point about this nomination—aside from their irritating bellyaching about how unfair it is that President Trump, exercising his duly conferred constitutional powers, will be nominating someone that the Republican-controlled Senate wants to confirm in an election year (which has happened frequently throughout our nation’s history)—is that Republicans are trying to kill Obamacare through the courts and that RBG’s replacement will be integral to that devious plot.

On this, they will likely have some ammunition. Of Obamacare, then-Professor Barrett wrote, “In NFIB v. Sibelius [2012] Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” NFIB, recall, was the case in which Roberts miraculously found Obamacare’s individual mandate to be both a tax for some purposes and also not a tax for other purposes (actually, it’s a penalty now!) in order to save the law.

That decision was completely unexpected, and it has been criticized widely. Judge Barrett is not wrong to have observed in a law review article that Roberts tortured a statutory provision to make it say something it didn’t (but also mysteriously did, too) in order to save a landmark law out of a misguided desire to preserve the Supreme Court’s “legitimacy”—but she should be prepared to defend herself nonetheless.

The Republicans will have her back, and she is right on the law regardless.

Personal Life

The fourth and final line of attack will be her personal life. In an era when the politics of personal destruction are the norm, this is an entirely expected, if deeply unwelcome and ugly, avenue for the Democrats to take in opposing Judge Barrett.

Dianne Feinstein (D-Calif.) stated, while questioning Barrett during her confirmation hearing for the 7th Circuit back in 2017, that “the dogma lives loudly within you.” Other senators, including vice presidential hopeful Kamala Harris (D-Calif.), openly have questioned whether a Catholic nominee could be a judge—apparently completely ignorant of Article VI, clause 3 of the Constitution, which states in no uncertain terms that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Good old-fashioned anti-Catholicism is back en vogue!

She will be slammed for her affiliation with the “People of Praise,” a lay organization of Catholics. To that, I say: yawn. It didn’t stick then, and it’s not going to stick now; different strokes for different folks; etc. The absolute best they’ll be able to do is caricature her as a fanatical religious zealot who wants to impose her twisted “Handmaid’s Tale” vision of the world on everyone else. But they were going to do that, anyway.

Normal, well-adjusted people will see a fair-minded, civil, compassionate, intelligent woman who respects our Constitution and the rule of law it secures—including the twin rights to life and self-defense, which sit at the foundation of our society, not to mention the right of religious freedom: the right—the duty, really—to order your life in relation to God as you see fit, leaving others the freedom to do likewise.

Democrats will be desperate to throw everything they can at the Senate’s walls to see what sticks in a mad rush to stop Judge Barrett from ascending to the highest court in the land. Happily, none of it will work, nor should it.

Uncategorized

Amy Coney Barrett and Who We Are as a Nation

We salute Trump for appointing a real believer to the high court. The stakes are nothing short of who we are as a people.

So, it’s Amy Coney Barrett. How great is that? Deo Gratias. For secularists and others out there, that means “thanks be to God.” He is the one who makes all things and keeps all things in existence, even you.

Amy believes that. Maybe that is shocking to you. She also believes that the meaning of her life and work is to see the face of God in the Beatific Vision and live with Him forever.

Once upon a time, these were unremarkable beliefs. They were commonly held. Not at all shocking as they are now.

There have been two competing visions of who we are as a people. One argues that we are a Christian nation and that we were founded that way, that Christianity has pride of place among all faiths, and that the roots of our governmental system are found in the Bible. There is another view: we may be a religious people, but our government may only ever be secular, that is, without God or religion.

Professor Stephen D. Smith of the University of San Diego School of Law calls these the “providentialist” and the “secularist” view. He writes, “Providentialists declare that God works in history, that it is important as a people to acknowledge, and that the community should actively instill such beliefs in children as a basis for civic virtue.” Secularists, on the other hand, “insist that acknowledgments of deity (if there is one) ought to be purely private and that government acts improperly if it enters into religion or expresses or endorses religious beliefs. Thus, what one constituency views as imperative, the other regards as forbidden.”

Many others have recognized these two strains in America’s view of itself. Noah Feldman of the Harvard Law school describes one as “values evangelicals” and the other as “legal secularists.” James Davidson Hunter, author of the influential Culture Wars: The Struggle to Define America, described the two camps as “orthodox” and “progressive.” The orthodox camp is defined by “the commitment on the part of adherents to an external, definable, and transcendent authority” that tells us “what is good, what is true, how we should live, and who we are.” Hunter argues that the progressives, even the religious ones, place their trust in “personal experience or scientific rationality.” These two views naturally play out in different ways concerning political issues. But even more, they inform the adherent as to who we are as a nation. Are we a religious nation, or are we a secular nation? 

The answer to this question will be expressed in the public statements of our leaders, in the ceremonies we carry out, in the words on our money, our national motto, even and perhaps especially in how and what we teach our children. 

Both of these views find warrant in our history and our founding documents. Therefore from our founding onward, each has been competitive with the other. Since this has been a competition, the “providentialists” will have the upper hand at various times, and at other times the “secularists” will dominate. Professor Smith says the competition has been similar to that between the political parties. Sometimes the Democrats win, at other times the Republicans win, but the federal government has never taken a side. 

Something changed in 1962 when the Supreme Court took a side in the culture wars, and it was not our side. In the school prayer decision, the Supreme Court not only struck down fairly innocuous and entirely voluntary school prayers, it determined that the purpose of government must be secular. I would argue this was the nascent establishment of an official state church, a breach of that wall that was supposed to protect believers from the government. This official church has grown larger and more robust and now imposes its dogmas on our school children.

We salute Trump for appointing a real believer to the high court. We look forward to Amy Coney Barrett writing the majority opinion when Roe is overturned. As high as those stakes are, the stakes are higher still, higher than Roe, higher than Obergefell, higher than Eisenstadt and Griswold. Higher than all these encyclicals of the sexual Left. The stakes are nothing short of who we are as a people. Do we have an established secularist church? Are we a Christian people being suffocated by this church? 

I think the Church of the Secularists knows these stakes, and this is why in the coming weeks, they will attack Amy Coney Barrett with all they have, and that is why we, the Christian people, must defend her just as we would defend ourselves and our own children. Those are the stakes. 

Great America

Barrett Did Not Affirm the Illinois Lockdown Order

What she actually did was to prioritize religious liberty.

Twitter is awash with false claims that Judge Amy Coney Barrett should not be nominated to the Supreme Court because she supported the draconian lockdown orders issued by Illinois Governor J.B. Pritzker. More mendaciously, some are claiming that she supported the Democrat Pritzker in excusing violent rioters from the lockdown requirements through which ordinary law abiding citizens are required to suffer.

This falsehood is magnified because it obscures what Barrett actually did in the case: she affirmed a hard-won exemption for religious worship from the generally odious lockdown.  

The plaintiff in the case, the Illinois Republican Party, challenged only the worship exemption (not the lockdown generally), arguing that it was wrong to exempt only religious services from the lockdown. Why the GOP geniuses didn’t just challenge the constitutionality of subjecting their own political activities to the lockdown is anybody’s guess.

But given the argument the Republicans in fact made, Barrett concluded that religious worship occupies such an elevated status, even as compared to other First Amendment-protected rights, that it was not categorically illegal for Pritzker to limit the exemption to religious services.

Again, the Illinois Republican establishment was not challenging the lockdown order generally (or anything to do with failing to enforce the orders against rioters). Federal judges aren’t supposed to go beyond the issues raised by the parties in order to reach points that they would prefer to rule on. We call judges who engage in that practice by a familiar name: “activists.”

Those who are debating the merits of Judge Barrett’s nomination should at least get the facts straight about the cases she rules in, and what her legal rulings actually say. When you consider that she strongly endorsed a very protective view of religious liberty, Barrett may be exactly the one religious conservatives want on the Supreme Court to stand against waffling from Chief Justice John Roberts.

Great America

Getting the Politics Wrong on Supreme Court Nominees

The nominee on the president’s shortlist who is the easiest to confirm to this particular vacancy is by definition the wrong nominee, and the GOP consultant class knows that.

Several outlets identify 11th U.S. Circuit Court Judge Barbara Lagoa as a leading contender to replace the late Ruth Bader Ginsburg on the U.S. Supreme Court. President Trump has described her as “highly thought of . . . I don’t know her but I hear she’s outstanding.”

While her sparse record as a federal judge indicates good legal reasoning and writing skills, why in the world is she being considered for the nation’s highest court? The rest of the president’s statement offers a clue: “I’m getting a lot of phone calls from a lot of people.”

During her 10 months on the federal bench, Judge Lagoa has penned 11 opinions, only three of which are even formally “published,” meaning the other eight have no precedential legal weight in future cases. More than half of her opinions are in routine areas of criminal law, and the others mainly involve questions of state law in cases that happen to be filed in federal court. Her previous 11 months on the Florida Supreme Court yielded only one authored opinion—one confirming that Governor Ron DeSantis had properly invoked his authority under the Florida constitution to suspend the Broward County Sheriff from his duties.

None of her 11th Circuit or Florida Supreme Court opinions deal with any of the legal issues of interest to conservatives: nothing on administrative state questions, no property rights or environmental cases, no First Amendment cases, no federal constitutional issues at all, nothing whatsoever touching on social issues such as abortion or marriage. 

Nothing in her 11th Circuit or Florida Supreme Court work offers any clue of how she would approach any of the questions that make the Supreme Court the ultimate branch of government for conservatives today.

None of this is to say she is a bad judge, and certainly not to impugn her character or her exemplary accomplishments in life. As an attorney reading her opinions, I am confident she would give my clients a fair hearing and a competent decision in the ordinary procedural questions, criminal cases, and contract disputes that occupy most judges’ attention. Her work to date is actually rather bland by comparison to many on President Trump’s Supreme Court short list.

With her name appearing in numerous articles and conversations alongside Amy Coney Barrett as a leading contender, there is nothing in Lagoa’s 11th Circuit or Florida Supreme Court writing to justify her inclusion in those conversations.

Conservatives are eager to have a Supreme Court justice who will transform the court even more than Clarence Thomas did when he was confirmed to succeed Thurgood Marshall three decades ago. We want a justice who is reasonably likely to be a decisive vote in efforts to reign in the administrative state, give a reasonable rather than ideological reading to congressional statutes, and restore the vitality of important safeguards in the Bill of Rights. 

Not least among those rights, there is that little thing about not being deprived of life, liberty, or property without due process of law. It would be generous to even call Lagoa’s federal judicial record on any of these issues “sparse.” There simply isn’t one.

Barrett’s work as a law professor and over the past three years as a federal judge on the 7th Circuit (authoring nearly 80 opinions on a wide range of important topics) gives plenty of reason for confidence that she would fulfill that role without morphing into a Souter or Kennedy, and fair promise that she would emerge as an intellectual leader on the Court in the mold of Justice Scalia, for whom she clerked. 

One need not think badly of Barbara Lagoa to conclude that nominating her would invoke the specter of prior unforced Republican errors such as the addition of David Souter to the court by George H. W. Bush, and his son’s failed effort to nominate his friend and White House counsel Harriet Miers.

So why is a federal judge with no record of distinction on any issue important to conservatives so close to the nomination? As President Trump said, “I’m getting a lot of calls from a lot of people.” Those people, reported to include Florida’s Republican governor and both Republican U.S. senators, want their candidate to get the gig. Because gigs, and not the good of the nation, are what the average politician is about.

Meanwhile, Republican political operatives are out in force proclaiming that Lagoa would be easier to confirm than Barrett, and would win Florida for Trump. I have written previously that the claim Lagoa would help Trump with “winning Florida” lacks any evidence of having been a successful tactic in any other presidential campaign. But the argument that Lagoa will be easier to confirm sounds like a talking point written to sell a bad idea.

The nominee on the president’s shortlist who is the easiest to confirm to this particular vacancy is by definition the wrong nominee, and the GOP consultant class knows that. They are arguing for the president to trade in his one clear opportunity to transform the Supreme Court for a generation, in exchange for gratifying a group of Florida politicians who want to notch one in the usual Washington game of spoils division.

President Trump needs to deliver for conservatives on this opportunity now, and tell the phone callers for Lagoa that this has to be America’s time, not theirs.

Elections

Hold the Hearings

Politically, committee hearings in the coming weeks are a dangerous minefield for Democrats.

I’m as disdainful as anyone of Democrats’ attempts to dictate situationally convenient “norms.” The Wall Street Journal this week detailed the Democrats’ own history of breaking standards they had previously held up as having been given to Moses at Sinai. The politicization of Robert Bork’s nomination. Pioneering the use of the filibuster for judicial nominations. Then the removal of that filibuster when the Republicans took up its use themselves.

So not only should a Supreme Court nominee be voted on before the November election, given what I know of the women on the short list, I’d be disappointed if she weren’t confirmed.

That said, committing to vote on a nominee is one thing. It would be irresponsible to commit to vote for a nominee before you know who it is, even if you know everyone on the short list. To the best of my knowledge and to the credit of Republican senators, none of them have been committing to that.

More controversially, some of my Republican friends are pushing the idea of bypassing committee hearings altogether and sending the nomination straight to the floor. That would be a mistake, both on the merits and on the politics.

Lessons of Kavanaugh 

On the merits, Judiciary Committee hearings can be a useful opportunity for the country to get to know something about a proposed justice before he or she sits on the court. That is a good thing for a constitutional republic. 

I think most people who pay attention to such things have developed a good sense over time for separating out results-oriented attacks from more substantive critique. And most of us are well past knee-jerk weak knees at character assassination attempts like those on Bork, Clarence Thomas, Miguel Estrada, Samuel Alito, and Brett Kavanaugh.

Politically, committee hearings in the coming weeks are a dangerous minefield for Democrats. Their malicious buffoonery during the Kavanaugh hearings two years ago was a political boon to Republican Senate candidates. 

At one point just after the circus that passed for hearings, Republicans had gained significantly on the generic congressional ballot, usually the best predictor of midterm Senate and House results. Had they occurred closer to the election, before memories faded, Republicans might hold two or three more Senate seats than they do, and even might not have lost the House.

Should the Democrats try to repeat that kind of disgraceful demonstration with, say, Amy Coney Barrett, it will likely cost them a great number of votes among their targeted demographic of suburban women. Politically, that’s good regardless of the party in question, because that sort of behavior should be punished.

Saying the Quiet Part Loud

On the other hand, if Democratic senators vote against the nominee without the theater, they’ll have to explain to a disappointed and deflated activist base why they didn’t fight harder against someone they tried to portray as the second coming of Torquemada, or the harbinger of Gilead and the Handmaids. 

They might have to be even more explicit about plans to pack the court, which would also rightly cost them votes. Or they might mumble something about doing their best considering the circumstances, in which case they can probably expect their electoral results to match those of pre-1994 congressional Republicans.

So go ahead, be not afraid, and hold those hearings. There’s plenty of time, and it’s the right thing to do.

Great America

Conservatism, Inc. Informs Us That Opposition to Lagoa Is Racist

With instructions like this, one can be forgiven for doubting that institutional conservatism wants to win.

For an alarming example of institutional conservatism’s response to the emerging conflict on the Right over judicial nominations, look no further than John Fund’s recent column arguing for Barbara Lagoa to get the nod over Amy Coney Barrett as the replacement for the late Justice Ruth Bader Ginsburg.

Fund’s piece is based on the absurdly pandering claim that Lagoa would be easier to confirm because Democrats will be wary of attacking a Hispanic nominee as they rely on Hispanic votes. This is daft.

Fund omits that the Democrats’ savaging of Miguel Estrada inaugurated their use of procedural tactics to close the federal bench to good nominees. Estrada being Hispanic failed to tame Senator Chuck Schumer (D-N.Y.) then. Has anything happened since to make him feel any heat from Hispanic voters?

Fund’s claim is even weirder when you add the stakes in this nomination. The last vacancy in which an iconic liberal was replaced with a robust conservative followed Thurgood Marshall’s retirement in 1991. A few of the older kids might remember the dignified hearings over which Joe Biden presided on the nomination of one Clarence Thomas.

Is that the restraint into which Fund hopes Lagoa’s Cuban birth will shame Chuck Schumer?

John Fund is too experienced a political hand to forget the treatment Democrats gave Thomas and Estrada. So what is he doing? I have no brief against Judge Lagoa, but Fund’s arguments for her can only be read as capitulation in the face of victory. And the only counter he makes to critics on the Right is that they are—you guessed it—racists.

What are his talking points in her favor? And how persuasive are they? Any of them taken alone suggests unfamiliarity with the recent history of Republican Supreme Court nominations. But taken together, his piece amounts to a purposeful call to stack arms.

First, he argues that Lagoa’s nomination to the 11th Circuit Court of Appeals last year had the support of Senator Dianne Feinstein (D-Planned Parenthood), whose defense of Roe v. Wade in confirmation hearing is as ill-informed as it is intransigent. So, if you want to make a transformative appointment based on Feinstein’s opinion, do you want the judge she easily voted for, or the one to whom she famously glowered “the dogma lives loudly in you.” Fund wants us to prefer the one Feinstein supported over the one Feinstein could only bigotedly denounce.

Fund also says Lagoa is the choice because her hearings were peaceful, while Barrett’s were only mostly peaceful. This is an attempted con, and you are the mark if you believe it. As if Neil Gorsuch and Brett Kavanaugh were treated well as Supreme Court nominees because their confirmation to the circuit courts were nonevents.

John Fund is serious about grasping generational defeat from the jaws of unlooked-for victory: if you are a right-winger who is not sold on Barbara Lagoa, you just might be a racist.

Nothing about what is to come will be peaceful. Any competent political analyst would acknowledge that what the Democrats are preparing right now for whoever is nominated will be the most astonishing “shite show” in the history of the U.S. Senate. And yes, I include the caning of Charles Sumner on the Senate floor.

This confirmation will mark the most significant shift in the Supreme Court since Thomas was confirmed in 1991. And Thomas joining the court did not approach creating a Kennedy/O’Conner/Souter-proof majority. This nomination could do exactly that: a five-member squad that won’t need to deal with Chief Justice Roberts if they don’t want to. The entire Left will consider this worthy, in fact demanding of, their last desperate throw. They will leave no weapon unused.

Against the logic of this, does Fund think that the Left will stand down? It is incompetent to even imagine they would. Going into this den, why would you prefer a nominee who had an easy confirmation over one who has already stared down Feinstein and her unhinged colleagues and acquitted herself with mastery?

If this is not enough Expert Professional Conservatism, Fund informs us that Lagoa’s nomination would win Florida for Trump. Aside from the slight problem that a “go it safe, don’t anger the Left” nomination would certainly lose Trump the Great Lakes states and Mitch McConnell the Senate, that might be totally cool.

If it were even true. Home state Supreme Court nominations have no demonstrated track record of delivering that state for a president. Eisenhower appointed liberal William Brennen to the Supreme Court in 1956 ostensibly to woo New England liberals to the cause of his reelection. Eisenhower swept New England in both of his elections, along with most of the rest of the country, so there is no proof Brennen got him anything electorally. But Brennen stayed on the Court until 1990, contributing heavily to its leftward drift until he was replaced by David Souter, whom we were assured would be a “home run for conservatives.” Talk about being tired of winning.

That brings us to the reason conservatives might be skeptical of Lagoa, especially in comparison to Barrett. Where Barrett has such a solid paper trail, suggesting to almost all observers that she would vote to overturn Roe, Lagoa has been a judge since 2006 with little to indicate what she thinks of such things. Fund expertly assures us that her short time as a federal judge (following several years on the Florida bench) and lack of paper trail on constitutional questions should be no more a cause for concern on the Right than it was for, that’s right, David Souter.

At this point, I am wondering if Fund is trying to break into the sort of satire best left to the pros at the Babylon Bee and CNN.

But Fund is serious about grasping generational defeat from the jaws of unlooked-for victory: if you are a right-winger who is not sold on Lagoa, you just might be a racist. Good thing we have the expert professional conservative guidance to know that wanting the better choice for America’s future is evidence, as it always is, of racism.

With instructions like this, one can be forgiven for doubting that institutional conservatism wants to win.

 

Elections

A Nomination and an Election in the Balance

A civilized discussion of abortion would be a preferable backdrop to the election than the Democrats’ continued desperate effort to maintain public hysteria over the coronavirus.

It is already a cliché to say that the death of Supreme Court Justice Ruth Bader Ginsburg further complicates what is already a tumultuous election campaign. All the arguments for and against the propriety of nominating and attempting to confirm a replacement on the high court bench in the midst of an election campaign are self-serving casuistry by both parties to give the sanctuary of legal tradition to the opportunistic positions that they will take.

According to the Republicans, they have a right and duty to fill such vacancies as soon as possible. And according to the Democrats, any such initiative must await the results of the election for the president and the Senate. 

As in most political arguments, unless something seriously illegal is being considered, the real question is what is politically possible. It will be extremely difficult, though perhaps not technically impossible, to have a new nominee confirmed prior to the election on November 3.

Controversies over judicial appointments have gone on throughout the life of the Republic. The person generally regarded as the greatest jurist in American history and the longest-serving chief justice of the United States, John Marshall, was appointed to the office which he held for 34 years by President John Adams in 1801—more than two months after Adams had been defeated by Thomas Jefferson and Aaron Burr in the presidential election. Even so Marshall continued to serve concurrently as secretary of state until a month after his elevation as chief justice, when Jefferson was inaugurated and James Madison replaced Marshall at the State Department. 

Although a number of America’s most exalted historic figures were involved in those contentious times, the violence of the charges hurled between the camps of Alexander Hamilton, Jefferson, Burr, and Adams were not markedly less incendiary than the current ambience of American national politics. The example of Marshall may perhaps be taken as an encouraging precedent to demonstrate that comparative normalcy and civility return eventually to American public life.

Since the president has the undoubted right to fill this vacancy, there is no reason why he does not do so, as he said over the weekend was his intention. Despite the self-assurance of many commentators who have filled the airwaves since the announcement of Justice Ginsburg’s death on Friday evening, it is impossible to predict with confidence where the political advantage might lie if the president sends the Senate the name of a nominee in the next week. 

The disgraceful harassment of Brett Kavanaugh two years ago will not be followed exactly, as the president has promised that his choice will be a woman, and the great rap on Kavanaugh was that more than 30 years before, in high school, he allegedly pounced on a girl, now a somewhat eccentric academic living in California. Kavanaugh’s accuser was allegedly able to escape when a friend jumped on them both, sending them tumbling. But all of the witnesses named denied any recollection of such an incident, and the whole story was pretty fuzzy and in any case irrelevant. The judge vehemently denied that the incident had ever occurred and he was confirmed.

If the president decides to go forward with this now, other issues as explosive as sexual assault are awaiting detonation. 

The two leading candidates appear to be circuit court appellate judges Amy Coney Barrett of Indiana and Barbara Lagoa of Florida. Both have been recently confirmed by the Senate to their present positions and both unquestionably are highly qualified and competent judges. It is indicative of the antlike progress of atheism through official America and of the imperishable durability of sectarian bigotry, that Barrett’s status as a practicing Roman Catholic creates a hair-trigger on the abortion issue. 

Barrett handled this question skillfully at her previous confirmation hearing in saying that judges interpret the law, they do not make it. As long as the Roe v. Wade decision of 1973, which legitimizes abortion as within a woman’s right to determine in privacy what goes on within her own body, is the law, she would observe the law. Under rather obnoxious questions from Senator Dianne Feinstein (D-Calif.), who had the effrontery to submit her to something of a religious examination, Barrett said that neither her religious nor any other convictions would influence her interpretation and application of the law.   

Since the U.S. Supreme Court can strike down or rewrite laws, Barrett would, if nominated and confirmed to the high court, be entering a more dangerous world. The problem of the pro-abortionists is that Roe v. Wade decision was a correct decision for faulty reasons. Abortions occur and they must be sanitary and un-stigmatizing, and the state does not have and should not seek to have the right to force childbirth on a woman who does not wish to have a child. 

It is a matter of great moral significance, however, and the real issue is when the unborn attain the rights of human beings. Here there is room for a full range of intelligent arguments from conception to birth at full term. (The desire of some zealots, such as the unrigorous Democratic governor of Virginia Ralph Northam, to extend the permissible to outright infanticide of delivered babies, is fundamentally unacceptable.) 

What ultimately is going to have to happen is some form of compromise in which abortions are uncontroversially available for up to approximately five months and thereafter, for an abortion to be performed, the circumstances will have to be considered according to criteria to be determined. This is a compromise that will not satisfy large numbers of sincere champions at the far ends of the issue. But it is what other civilized countries have done and democracy usually implies some degree of compromise. 

If Barrett were nominated, it is possible that the president could moderate somewhat the predictable hysteria of the pro-choice movement, (i. e. pro-abortion), by repeating his view that the abortion rules should be left to the states to establish. This would assure a reasonable variety of abortion regimes to serve the whole country and might somewhat placate all but the most militant.

Since Barrett unquestionably is qualified and is not on a pro-life crusade, if the White House handles her nomination carefully and the Democrats are as frenzied in their antagonism as they were to Justice Kavanaugh, Democrats could alienate the entire Roman Catholic community of the United States, about a quarter of the population, and many others of other faiths. 

Lagoa’s religious views are less well known. As a Floridian fugitive with her family from Castro’s Cuba, her nomination could be politically timely. 

There is no reason for the president to make the tentative gesture of an interim appointment, but he could make it clear that if his nominee is not confirmed by election day, the results of the election would be taken into careful consideration before attempting to confirm the nominee. That might not allay many suspicions but it might not arouse as much hostility as expressing determination to confirm whatever the election result. It is very hard to manage these controversies but it might be possible to dampen the extremes. 

A civilized discussion of abortion would be a preferable backdrop to the election than the Democrats’ continued desperate effort to maintain public hysteria over the coronavirus, while arguing for renewed economic shutdowns to embarrass the president, no matter how much damage would be inflicted onto millions of other people.    

I am generally skeptical about chaotic election scenarios, but the election conceivably could go to the Supreme Court and end in a 4-4 tie, creating a severe crisis. Chief Justice John Roberts would probably vote with the other Republican appointees, but avoiding such a scenario would furnish the president an argument for swift confirmation of his nominee.

Elections

Dear GOP Senate: Get This Right!

The GOP Senate has been a big disappointment to the Republican base during Trump’s first term. Can they end with a bang and show they deserve to try again?

Dear Leader McConnell and Members of the Republican Senate:

As Jack Nicholson said in “Terms of Endearment,” you were just inches from a clean getaway.

Armed with a wholly unimpressive list of accomplishments from the past four years, with the exception of confirming hundreds of federal judges, you were prepared to return home to defend your paltry record with little more than the argument that the other side is much, much worse. Which, lucky for you, is true.

But a funny thing happened on the way to the campaign trail: Ruth Bader Ginsburg passed away. Reliable news outlets reported that in her final days, the Clinton-appointed Supreme Court justice dictated a statement to her granddaughter indicating she wanted the “new president” to appoint her replacement, the latest in a series of Trump-fixated dying requests. 

Fortunately, many constitutional scholars have assured us that no “Election Year Death-Bed Wish” provision exists. Nor does a “Feelings of Jeff Flake” clause or “MSNBC Meltdown” disclaimer. Subsequent case law does not affirm that the random rantings of bartenders-turned-congresspersons should in any way guide such a venerated process.

All of which means you have a big decision to make. And this could be the chance to redeem yourselves for a multitude of egregious mistakes made during Trump’s first term, conduct that many voters in the Republican base consider an unforgivable abdication of power.

Your success in defending the nomination of Brett Kavanaugh amid one of the most despicable character assassinations in modern political history notwithstanding, Senate Republicans have done nothing to confront the Left’s nonstop assault against the president, his family, his administration, and by default, his supporters.

Check that. It’s not that you failed because saying you failed would suggest that you even tried to defend the president of your own party. In too many instances, Senate Republicans acted as accomplices in the Left’s reckless anti-Trump crusade.

The appointment of Robert Mueller, Barack Obama’s longtime FBI director, to investigate the imaginary crime of Russian election collusion will go down in Republican Party history as one of the worst political mistakes of all time. You knew full well by the time Mueller was appointed in May 2017 that Trump-Russia “collusion” was a total falsehood fabricated by the Democratic Party and Clinton campaign operatives.

But you demanded a special counsel after the president fired the treacherous James Comey as director of the FBI. When the Justice Department tasked Mueller with continuing the charade, a charade you knew would cripple the president for months if not years, you swooned.

Leader McConnell, you repeatedly lauded Mueller and his work. Senator Ben Sasse, who has remained silent on the real scandal—how Obama’s White House weaponized the most powerful government agencies in the world against Donald Trump—called Mueller an “exceptional public servant” and applauded his “record, character, and trustworthiness.” Senator John Cornyn, you assured us that Mueller is a “well-respected law enforcement professional.”

Senator Susan Collins, remember how you insisted Mueller “has sterling credentials and is above reproach?” You had no qualms back then about the appointment of an unelected, unchecked, and extra-constitutional partisan prosecutor, but now that you’re up for reelection the idea of filling a legitimate vacancy on the nation’s highest court based on clear constitutional guidance and precedent gives you the heebie-jeebies? What gives?

While Andrew Weismann, er, Robert Mueller (wink, wink) spent millions of our tax dollars and concocted bogus charges against Trump associates, you protected him. Remember when the president and others raised legit concerns about Team Mueller’s conduct? Some of you collaborated with Senate Democrats to author a bill that ensured Mueller would be permitted to “conduct fair and impartial investigations” without fear he would be fired by the president. 

For all we know, without the involvement of William Barr in the spring of 2019, Mueller would still be conducting early morning raids on senior citizens to the delight of CNN viewers and you guys would still be paying the bills.

At the same time, you’ve been completely impotent in exposing Obamagate or holding anyone accountable. Letter after letter went unanswered. Deadlines expired without any repercussions. Promised public reckonings never happened; subpoenas for Obamagate perpetrators are still threatened as the clock runs out and public interest wanes.

That’s only one part of your collective dereliction of duty. After the president tried to curb record numbers of illegal immigrants attempting to enter the country, 12 of you sided with Democrats and voted to overturn his emergency declaration to defend the southern border.

This included you, Senator Lisa Murkowski; you solemnly lectured us about your deep regard for the separation of powers. “This is about making sure that we respect the lines and the lanes of the authorities that are laid out in the Constitution,” Murkowsi preached way back in February 2019.

But oddly those lanes and lines have disappeared as Senator Murkowski plans to abdicate her constitutional duties by refusing to consider President Trump’s nominee to the Supreme Court. Apparently there is some “not before Election Day” lane in the Constitution that only Senator Murkowski knows about.

After the president was impeached on the thinnest of grounds in a successful attempt to bury bad news about the Biden family’s overseas grift, Senator Mitt Romney earned his long-desired place in the history books as the first senator to vote to convict a president of his own party. What was his intra-party punishment for that betrayal? Nothing.

Now we await yet another lecture from the two-time presidential loser about why he plans to “follow his conscience” and refuse to vote for Trump’s candidate before the election.

Senator Romney’s conscience, however, has been MIA since declaring his support for Black Lives Matter. While BLM thugs harass innocent people at restaurants and roadways, steal their way to reparations, and promise more violence until they’re satisfied, Romney is uncharacteristically quiet. Where are you, Pierre Delecto? Saving your fire for the Bad Orange Man instead of the perpetrators of the country’s race war?

Which reminds me that most of you have played along with the BLM movement in one way or another; bending the proverbial knee to agitators who despise everything you claim to honor. Some of you, including Leader McConnell, offered emotional tributes to George Floyd from the Senate floor last June and bolstered the Left’s mantra about “systemic racism.”

Senators Ron Johnson and James Lankford, remember when you suggested replacing Columbus Day with Juneteenth Day after Senator Johnson worked with his far-left colleague from Massachusetts to invent a new national holiday? That did wonders for racial comity since BLM vandals and ambushers have really settled down since then.

LOL.

So, fellow Republicans, you now have a chance to redeem yourselves for all the broken promises, craven capitulations, and straight-up betrayal of your constituencies. Accept the president’s nominee and move forward without delay on confirmation. And when the expected attacks against the nominee are unleashed by Democrats, don’t do what you did during the Kavanaugh debacle by appeasing the false accusers while making a bad situation worse. Move full steam ahead—before Election Day.

Then let the political chips fall where they may. You’ve been a big disappointment to the Republican base during Trump’s first term. End with a bang and show that you deserve to try again.

Great America

Waging Lawfare Against the Left

It’s a battlefield where conservatives have to meet force with equal or greater force, lest everything else they fight for, and all their victories, are nullified.

Ian article with a brazenly deceptive title, “Third Party Contenders Not a Factor in 2020,” U.S. News & World Report proceeded to provide evidence that third-party contenders most definitely will be a factor in deciding what is certain to be a very close presidential election in November.

Consider the magazine’s take on these two battleground states. Wisconsin: “a recent New York Times/Siena College poll has Biden with 48% support, Trump with 45%, and Libertarian candidate Jo Jorgensen with 2% support.” Pennsylvania: “Biden with 48% support, Trump with 45%, and other candidates getting 2% support.”

In the case of Pennsylvania, note the deceptive reference to “other candidates.” What they really mean is Libertarian Jo Jorgensen. Because in a court ruling just handed down in Pennsylvania, based on a technicality, Green Party presidential candidate Howie Hawkins will not be on the ballot. A similar fate befell Hawkins in Wisconsin, where a slim majority on the court denied the Green Party contender a spot on the ballot.

Thanks to legal decisions, in two crucial battleground states where Trump won by less than 1 percent in 2020, there is a Libertarian Party candidate on the ballot willing and able to steal Trump votes, but no Green Party candidate to siphon off socialist voters and Bernie Sanders die-hards. This benefits Biden.

As anyone who can remember the court-adjudicated outcome in Florida back in 2000 will attest, it’s impossible to overstate the importance of legal rulings that can affect a presidential election. And what happened this week in Wisconsin and Pennsylvania courtrooms could be just enough to change the 2020 outcome.

The American Battleground of Lawfare

According to lawfareblog.com, the term “lawfare” originally emerged in the 1950s in contexts “ranging from divorce law to courtroom advocacy to colonialism to airfare for lawyers.” And, at least since 2010 when this term resurfaced, “its most prominent usage today very much concerns national security.” Hoping the still-active lawfare blog will indulge this expansion of the definition, “lawfare” seems an apt word to describe the growing role attorneys and courts have in deciding the future of America. And using the term “lawfare,” which connotes war, gives the ongoing legal conflicts that will determine our future the weight and intensity it deserves.

A good example of how the Left uses lawfare, with no opposing forces to hold them in check, was the relationship between Barack Obama’s Environmental Protection Agency and litigants representing powerful environmentalist nonprofits. In what an R Street Institute report called the “Sue and Settle era,” “the Obama administration’s EPA chose not to defend itself in more than 100 lawsuits brought by special interest advocacy groups and paid out $13 million in attorneys’ fees in such cases.”

While $13 million is insignificant compared to the billions shoveled into environmentalist nonprofits by liberal foundations, the deeper significance of this uncontested lawfare was that, as R Street reports, “sue and settle became one of the primary avenues to formalize major regulations, including the Clean Power Plan’s proposed constraints on carbon emissions as well as recent mercury and air-toxin standards.”

This process isn’t restricted to the EPA, or to purely environmental issues. Leftist activist groups sue a friendly federal bureaucracy, the bureaucracy immediately settles, and then using the court’s consent decree as cover, they co-write transformative new regulations. Whenever there is a Democratic administration—and often enough when there is not, because the bureaucracies remain dominated by progressives—this process of using lawfare to generate new regulations rips its way through every executive agency.

Green Lawfare Across the Nation

For years, Americans living in the Western United States knew that by suppressing both the logging industry and natural wildfires, their forests were becoming dangerously unhealthy. Trees at many times their historic density were stressed and dying, turning literally hundreds of thousands of square miles of forest into tinderboxes. But rural communities could not thin the nearby forests because of environmentalist litigation.

Examples of this go way back, and happened in every state. 

In Arizona, the Phoenix-area newspaper East Valley Tribune in 2003 described the difficulties that common-sense forestry managers were having in a story headlined, “Lawsuits stall forest thinning.” In 2015, well before the devastating round of wildfires in 2018, the Sacramento Bee published an article, “Anti-logging lawsuits hurt fight against forest fires.” 

And even now, after the 2020 wildfires that are already worse than ever, in August the New Mexico Forestry Industry Association, in a press release, claimed that ongoing lawsuits are “killing many of the small businesses that are critical for protecting our water and forest ecosystems from catastrophic wildfire.”

In California, a hotbed of green lawfare, it wasn’t just active litigation that prevented forest thinning, but a web of regulations that in part were the result of previous litigation and consent decrees. 

For example, after fires obliterated the town of Paradise in 2018, residents of nearby Berry Creek tried to get permission to thin overgrown forests along evacuation routes. Local officials complained “the environmental reviews were too cumbersome and too time-consuming for a nonprofit to tackle. They required archaeological studies, landowner permission slips, bird surveys and more—making the process arduous to the point of inaction.”

Berry Creek is now a pile of ashes, and 15 people are dead. They couldn’t get out. If over the past few decades, lawfare were waged by the Right as aggressively as it has been waged by the Left, the outcome may have been different.

How Lawfare Affects Crime and Punishment

By now most everyone involved in politics is aware that George Soros not only has been bankrolling radical organizations with uplifting names, or pouring money into marquee political contests, but he is also picking off district attorney elections. 

Until recently mostly under the radar, Soros, along with other wealthy liberals, has spent millions over several years to get criminal-friendly district attorneys elected. A recent Los Angeles Times article provides comprehensive details and surprising balance regarding how Soros money has transformed criminal justice in major cities across the nation.

When Soros shovels money into district attorney races, he is engaging in yet another form of lawfare. District attorneys have perhaps unwarranted power and discretion. As it stands today they can choose to ignore serious crimes. Cities where Soros money played a critical role in successful campaigns for district attorney include Philadelphia, Houston, Chicago, San Francisco, St. Louis, and Phoenix. Cities currently facing an election with a Soros-backed candidate include Los Angeles, San Diego, and elsewhere.

America’s cities are in embarrassing, tragic decline wherever progressive politicians have taken power. But lawfare—in the form of litigation but also in the form of prosecutors who are leftist radicals—affects as much if not more policy than elected officials. Which brings us to the judges.

Activist Judges Are Lawfare Incarnate

While the term “activist judge” jokingly can refer to any judge with whose rulings you disagree, the philosophy of judicial activism poses a serious challenge to defenders of the Constitution, and proponents of judicial activism are almost always leftists. 

When considering some of the astonishing rulings coming from activist judges—such as the Ninth Circuit ruling in 2006 that homeless vagrants cannot be detained unless they can be offered free housing—it is easy to see why activist judges are yet another front on the battlefield of lawfare.

While many blue state courts are hopelessly in the grip of activist judges, the battle for control of the federal court system remains in furious conflict. According to the Pew Research Center, as of July, of the active federal judges, Trump, the Bushes, and Reagan appointees account for 392, while Obama, Clinton, and Carter appointees account for 400. 

What about the critical circuit courts of appeals?

The chart below shows the makeup of the circuit courts based on whether or not the judges were appointed by a Democrat or a Republican president. The GOP advantage is much higher among senior circuit judges, 76 to 31. This makes the outcome of the 2020 presidential election even more consequential, because although senior circuit judges still rule on cases, as soon as a judge elects to transition to senior status, a vacancy is opened up on that circuit. As can be seen, the vast majority of vacancies in the next four years are likely to be opened up by departing judges who were appointed by Republicans.

The most significant variable affecting the role of judges in America’s political fate, of course, is the U.S. Supreme Court. 

The death of Justice Ruth Bader Ginsberg may not result in Trump successfully naming her replacement, since several Republican senators in close races may decide it is politically impossible for them to vote to confirm a new justice so close to the election. But even if Trump does appoint one more justice before the end of his first term, a Biden victory still could overturn the balance of power on the court. 

If Biden gets elected, the Democrats in Congress have declared their intention to expand the U.S. Supreme Court, and the circuit courts, to create new vacancies that would allow them to acquire an instant majority. There is nothing in the U.S. Constitution that would prevent them from doing so.

In all areas of lawfare—aggressive litigation in all sectors of society including shaping election outcomes, “sue and settle” collusion with government bureaucracies, and activist prosecutors and judges—the American Left and their billionaire backers are willing to bend the rules and spend whatever it takes to achieve their ends.

Lawfare, defined here as legal warfare to set public policy, often beyond further recourse, is a battlefield where conservatives have to meet force with equal or greater force, lest everything else they fight for, and all their victories, are nullified.

Elections

A Nomination to Confound and Confirm

Events are moving fast, and new information is dribbling out almost hourly. But the odds favor Barbara Lagoa to replace the late Ruth Bader Ginsburg.

A while back, I wrote an essay suggesting that Justice Ruth Bader Ginsburg should make a deal with President Trump: retire in exchange for a say (some say—but only some) in whom the president would nominate to replace her, with that someone being a nominee other than Judge Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals.

Well, Justice Ginsburg didn’t listen to me, and now any hope she may have had of influencing Trump’s choice is gone. 

Perhaps she neglected to read my piece. Perhaps, back in 2018 or 2019, she thought she would outlast Trump (and, for all we know, she came damn close— who knows how the election will turn out?). Perhaps her vanity got the better of her. In any event, here we are.

As I write this (one day after the news landed with the force of Hurricane Katrina, sending the Left into paroxysms of petrified panic, helpless rage, and impotent fury), it is a given that Trump will nominate somebody.

But that was always a given. Considering the Democrats’ howls of outrage about not waiting to fill the vacancy until after the election, it would behoove Trump to move rapidly and create “facts on the ground”—i.e., to announce the nominee, whoever it might be, Monday or Tuesday at the latest. This is no time to dilly-dally. We also know that Senate Majority Leader Mitch McConnell intends to hold a vote (we don’t know when—before or after November 3) and that at least Senate Judiciary Committee Chairman Lindsay Graham (R-S.C.) is on board. 

Chuck Grassley (R-Iowa), the former chairman of the Judiciary Committee, is also presumably on board. Lisa Murkowski (“R”-Alaska)—we assume—is not on board. Susan Collins (R-Maine) is not on board with the idea of the vote, but how she would actually vote is anyone’s guess. 

Senator Mitt Romney (R-Utah) remains a wild card. Romney is a small man, unworthy of the trust placed in him by Utah voters (and, eight years ago, by the rest of us). He is no doubt itching to piss on Trump’s parade, even if it means a loss of a Supreme Court seat, perhaps forever. Does he care about being remembered as a quisling by all Republicans, possibly forever? Who can say? It will require a virtuoso-like performance by McConnell to keep Romney marching to the same drumbeat.

But getting back to the most important question: Who?

There are two names that have been floated previously, and are still in the running: Judge Britt Grant of the 11th Circuit and Judge Amy Coney Barrett. The other earlier names can be, for all practical purposes, ignored. 

The White House released 20 new names on September 9. Of those, we can immediately cross out all the men. It is impossible to imagine that Trump would nominate a man under these circumstances. And, in fact, the president announced Saturday night it will be a woman.

Similarly, we can forget the three senators on the list. Trump needs them in the Senate, and there is no margin for error. (And, of course, there is the fact that they are all men.) 

Separate from any purely judicial and ideological considerations, Barbara Lagoa’s nomination has clear political benefits for Trump.

Looking at the remaining names, there are two district court judges: Martha Pacold of the Northern District of Illinois and Sarah Pitlyk of the Eastern District of Missouri. Both have been on the bench for about a year, and both seem to be very unlikely choices. It would be unusual to elevate a judge from the district court directly to the Supreme Court (not unheard of, but certainly unusual), and certainly unusual to elevate someone with so little judicial experience. My guess is they are on the list to make it look like lots of women are under consideration, but nobody seriously considers them to be viable contenders.

Kate Todd, also on the list, is deputy assistant to the president and deputy counsel to the president. While her biography is generally impressive, and in more normal times she might be a serious contender, I find it difficult to imagine her as a Supreme Court nominee. A district court judgeship, certainly. An appellate court judgeship, by all means. But the highest court in the land? Conservatives want a solid paper trail that proves someone’s conservative bona fides, and most of Todd’s paper trail is in representing others, rather than expressing her own views. She may be a good lawyer and a solid conservative, but . . . no. Not this time, and not for this vacancy.

Two appellate judges deserve a closer look. 

Allison Jones Rushing of the 4th Circuit might be a good pick, except for two problems: she has only been on the bench for about a year, and she is on the young side. Thirty-eight might be an age when someone could be elevated to the Supreme Court in the 19th century, but today? Her youth and inexperience would give Democrats yet another weapon to wield against her and against the whole confirmation process. So as tempting as it might be to nominate Rushing, with the hope that she’ll be writing conservative opinions on the Supreme Court for the next 50 years, I don’t see it.

Bridget Shelton Bade of the 9th Circuit is 54—probably at the other outer edge of what Trump would want in a nominee’s age. Her problem is that she’s only been an appellate judge since April 2019. She was a magistrate judge for seven years before that, but magistrate judges do not handle the kinds of constitutional law issues that conservatives care about, they mostly deal with discovery disputes in litigations. Her paper trail—the one relevant to conservatives, at least—is a bit thin. There is also the fact that she is from the 9th Circuit, and that fact alone is enough to make conservatives squirm a bit. Judge Bade is based in Phoenix, but still . . . It’s the 9th Circuit. In other words: no.

That leaves only one name, out of 20: Barbara Lagoa of the 11th Circuit. 

Lagoa’s federal judicial experience is also on the thin side—only about a year. Before that, however, she was a justice on the Florida Supreme Court and a state appellate judge for 13 years before that. Inexperienced, she is not. 

And so, we have, in reality, three contenders: Amy Coney Barrett, Britt Grant, and Barbara Lagoa.

Of the three, in the abstract, Barrett is probably what conservatives would consider the gold standard: 48, three years of appellate judicial experience, rock-solid conservative bona fides, devoutly Catholic, unquestionably pro-life. She also brings a lot to the table in terms of motivating Republican voters, though it is unknowable at this point if she would also motivate Democratic voters more than Grant or Lagoa. 

Except there is one problem. Right now, today, with six weeks to go before the election, Barrett would probably fall one or two votes short in the Senate. It is unfair, but politics is the art of the possible and this is politics in its purest, rawest, most brutal form.

So if I were Trump, that would leave me with selecting between Grant and Lagoa. For conservatives, the choice is between getting something less than 100 percent of the gold standard (i.e., Grant or Lagoa), and—quite possibly—zero. This is no time to insist on purity. We must accept 80 percent of the gold standard over a very real possibility of nothing.

Grant has been on the appellate bench for two years, and before that she served on the Georgia Supreme Court for a year and a half. In other words, she has sufficient judicial experience, though not a wealth of it. She is 42—10 years younger than Lagoa, which would normally be a significant point in her favor. It is, however, the only point in her favor over Lagoa that I can see. She is a solid conservative, though I have not heard her described in the same glowing terms as Barrett. Nonetheless, Republicans certainly would have no problems getting behind her nomination. 

In ordinary times, Grant would be a good choice—and she might yet be one, if and when Justice Stephen Breyer, who is 82 and no spring chicken, retires in Trump’s second term. 

But these aren’t ordinary times.

Which brings us back to Barbara Lagoa. Separate from any purely judicial and ideological considerations, her nomination has clear political benefits for Trump. She is Cuban-American, from a state where the Latino vote is critical. She is the daughter of Cuban refugees, which makes for a compelling life story. She helps lock down Florida. Her Latino background might even marginally help Trump elsewhere. She is 52 (almost 53)—young enough to serve for another 30-35 years. She has also been vetted over and over. What are the odds that Democrats will unearth that a 52-year-old mother of three girls is a secret member of a satanic sex cult?

Opposing Lagoa would put “pro-women” identity politics-obsessed Democrats in a bind. They will be rabidly and uncompromisingly attacking a very accomplished, highly qualified Latina woman for the sole reason that she was nominated by Trump. I also believe that any polls today showing that voters prefer Biden over Trump to nominate the next justice are little more than piffle over abstractions. 

Once there is a specific nominee—a highly qualified one—who checks off the right demographic boxes, Democratic opposition will seem like unprincipled opportunism and rank hypocrisy. How believable will Representative Alexandria Ocasio-Cortez’s (D-N.Y.) or Senator Chuck Schumer’s (D-N.Y.) hysterics against a Cuban-American woman sound? 

Nor can the Democrats effectively attack her as some sort of anti-woman right-wing radical. Such attacks would simply lack credibility—and Lagoa can easily respond to them by calmly reminding people that she is a woman with three teenage daughters, and it would be ridiculous to accuse her of not caring about her own daughters (and leave it at that). 

Attacking Lagoa might motivate the progressive hard Left, but for most normal people it would make the Democrats look sleazy. Wavering Republican senators (like Collins and possibly Murkowski) would find it easier, in the end, to vote “yes.” Even Romney, that aspiring quisling, might be too embarrassed to vote “no.” When the fate of the Supreme Court seat hangs in the balance, and the vote is a nail-biter, you need every advantage, however slight—and Barbara Lagoa is ahead of Grant here.

If Lagoa’s confirmation hearings are held over Zoom, Democrats won’t even have a good place to gather for their hysterical protests. Such hearings will get fairly boring to watch fairly quickly, for most people. There is simply not as much drama in a Zoom conference as there is in a live Senate hearing. Writing angry tweets in attempts to whip up public discontent just doesn’t have the same impact. On the other hand, after demanding perpetual COVID-19 lockdowns, under what theory can Democrats argue with a straight face that in-person hearings are absolutely necessary?

Events are moving fast, and new information is dribbling out hourly. By Tuesday, all this tea leaf reading may be dust in the wind.

Trump could surprise us with Barrett, or Grant, or even Kate Todd. But if I were a betting man, I’d put my money on Barbara Lagoa.

Elections

Ginsburg’s Death Brings Referendum on Communism and Revolution Into Focus

May Ruth Bader Ginsburg rest in peace. May the rest of us work towards peace through the vindication of the principles of 1776.

Decency calls for solemnity on the occasion of the death of a person of importance such as Justice Ruth Bader Ginsburg. 

A pioneer, Ginsburg attended Harvard Law School in 1956 as one of only nine women. 

A scholar, following a clerkship in the Southern District of New York, Ginsburg co-authored a book on Swedish civil procedure, taught law at Rutgers, founded the Women’s Rights Law Reporter, and taught at Columbia Law School and Stanford. Ginsburg proved herself an effective courtroom advocate, particularly in the application of the Equal Protection Clause of the 14th Amendment to women. 

President Carter tapped Ginsburg for the United States Court of Appeals. President Clinton nominated Ginsburg to the Supreme Court on June 14, 1993. She was confirmed 48 days later.

Ginsburg’s distinction on the Supreme Court—other than in forming a tight bond with her ideological opposite, Justice Antonin Scalia—is to have become the embodiment of the defense of abortion as a constitutional right, to the point of deification. Ginsburg, “the Notorious RGB” as she became known to her fans, is the Left’s goddess of abortion. 

Decency also requires us to discuss other things about Justice Ginsburg. Her death has deepened this country’s political crisis, and Justice Ginsburg played a role in that crisis. 

The average age of the current Supreme Court justices is 65. Ginsburg had been the oldest Justice on the Supreme Court since 2010, and ranked at the time of her death as the fourth-oldest in the history of the country.

It is no accident that Ginsburg found herself a generation ahead of the average age of her colleagues. In 2015, when President Obama had the power to nominate a replacement for Ginsburg, she was 82 and had been suffering from pancreatic cancer since 2009. Yet she declined to go along.

Insisting that she remain, Ginsburg either did not see or did not care that President Obama reliably would have appointed someone who shared her judicial philosophy, and that Senate Republicans reliably would have confirmed. Needless to say, President Obama would have appointed a woman to succeed Ginsburg, and so by refusing the opportunity, Ginsburg—tireless advocate of women—barred the advancement of another. 

Ginsburg’s personal engagement in her causes proved more important to her than the success of those causes. The entirely predictable outcome has now come to pass. 

This exposes a character flaw in Ginsburg. Having worked stubbornly into her position, with equal stubbornness she clung to it, as though she alone had the wisdom, in advanced age and failing health, to carry on her cause. 

If Justice Ginsburg’s ego blinded her to this moment, which so many anticipated, one has to ask, what else did she fail to foresee in her long career?

We can start with the incompatibility of abortion and the grounding principles of the United States. The president reminded us this week, in attacking postmodernist historian Howard Zinn, that the definitive moment of the creation of the United States is 1776, with the Declaration of Independence and its principle that all men are created equal and endowed with inalienable rights, beginning with the right to life.

It represents the confluence, as opposed to conflation, of the ancestral and the good, in the rudimentary stuff of the United States.

Ginsburg’s nearly unqualified embrace of abortion as a fundamental extension of the rights embodied in the Bill of Rights and Equal Protection Clause of the Constitution implies either the rejection of the Declaration of Independence or its perversion in a manner no less repugnant than that of the Dred Scott opinion of 1858. If Dred Scott notoriously hardened opinions leading to the Civil War, Nortorious RBG hardened opinions around abortion in derogation of the notion human beings have inherent rights that every other human being is bound to respect. 

America’s revolutionary dedication to a republicanism that became a light unto the nations has descended into a street battle with a vicious Marxist movement. Whether accidentally or intentionally, Ginsburg is connected to that, and you will witness that connection in the invocation of her deified remembrance in the coming political trials in the next months.

The 2020 election is now bracketed by two violent extremes that draw strength from Justice Ginsburg’s inability to foresee the consequences that follow from her rejection of the Declaration in defense of abortion. 

On one side are the echelons of fighters for Communism, a doctrine which explicitly advances the idea that certain persons—capital, oppressors, the white privileged, the ever-growing list—have no rights anyone is bound to respect. This doctrine is intertwined with abortion in its hostility toward the family and the family’s role in the morality that supports private property and in its derogation of inalienable right to life. 

On the other side is Donald Trump, who explicitly made the restoration of the principles of 1776, and their grounding in natural right, his cause, and opposes abortion more directly and forcefully than any president in the history of the country. 

This moment, this election, and what flows from it is a referendum on these issues.

May Justice Ginsburg rest in peace. May the rest of us work towards peace through the vindication of the principles of 1776.

Elections

Democracy’s Logic Demands a Nomination and a Vote

Nominate, confirm, and let the people judge.

Nominating to fill the Supreme Court vacancy now, but deferring confirmation until after the election—especially if the nominee were to be subjected to hearings in the meantime—would further advertise the Republican Party’s unseriousness and likely contribute to President Trump’s defeat in November. Highly qualified nominees would be reluctant to lend themselves to such a fraught game.

The least useful Republican senators have rushed to urge the president to agree to a delay, and (almost) threatened to join the Democrats in opposing the nomination if the vote comes before the election. Majority Leader Mitch McConnell (R-Ky.) responded with characteristic ambiguity by promising that the Senate would vote on confirmation. But when? 

Any and all familiar with the U.S. Senate know that most senators, especially the least responsible, will do almost anything to avoid voting, that advertising their doubts is a standard way of saying “don’t make me vote,” and that it says nothing about how they actually will vote when they have to. 

Understandably, senators such as Lisa Murkowski (R-Alaska), Susan Collins (R-Maine), Martha McSally (R-Ariz.), Cory Gardner (R-Colo.), and Thom Tillis (R-N.C.), who have made careers of talking conservative while doing their utmost not to displease the ruling class that despises us, don’t want further to energize opposition to their reelection. Hence, they kind of promise to vote “no” now while kind of promising to vote “yes” after the election. 

The question before President Trump and McConnell is whether to identify with these small masters of not so small betrayals. If they do, they would discredit themselves and their party. Why should voters believe that, all together, they will do after the election what they have the power to do now but refuse? What is the difference between before the election and after the election? 

There is only one difference, namely: to act before an election is to submit one’s actions to immediate judgment by the sovereign people. As you act, you must explain to the voters why it is right to act as you do. The voters then decide on you.

Why would anyone promise to do something after an election that they refuse to do beforehand, if not to evade the voters’ direct judgment? Why should the voters not suspect either that Trump and McConnell are leading from behind or even amenable to some sort of bait-and-switch to please the likes of Murkowski? And why would Murkowski not be emboldened by the success of her kind of threat?

And why would a worthy nominee agree to undergo the certainty of vilification by the Left knowing that, after the election, the newly reelected weak Republicans would be stronger than ever in pressing the concerns of their ruling class donors against Trump, newly a lame-duck, regardless of voters whom they would not have to face for another six years? 

President Trump’s voters are angry because, during the past four years, they have lost more control over their lives and have seen America’s power structure turn against them even more than in the previous generation. They have seen the presumed conservative Chief Justice John Roberts lead the charge against them, and Justice Neil Gorsuch playing a troubling role. Trump has worked hard to reassure his voters that, all this notwithstanding, he is doing his best to translate his promises into practice. His promises regarding the Supreme Court are the clearest and the most obvious in his power to keep.

Filling the current vacancy with a proven conservative leader—or at least forcing a vote on such a nominee before the election and as part of the election campaign—is an opportunity Trump and McConnell cannot evade.

The schedule and process of confirmation are solely in their hands. One day of hearings, with ad hominem circuses banned, followed quickly by a Judiciary Committee vote, limited floor debate, and a full vote of the Senate. If President Trump and McConnell force such a process, they should be confident that the dynamics of democracy will deliver a Supreme Court nomination victory and a bigger than expected victory on November 3.

Of course, Republican senators are free to vote “no,” especially the ones up for reelection. In the current binary environment, however, such a choice is tantamount to a repudiation of the voters on whom they rely for reelection. Voting “no” would mean resigning from the Senate and from the Republican Party as well. After such a vote, on whom would they rely for their next election? To what office? Not even town dog-catcher would be open to them.

Powerfully, democracy’s logic argues to Donald Trump and Mitch McConnell: Nominate, confirm, and let the people judge.

Elections

Confirm a Justice Now

This is no time for Senate Republicans to go wobbly.

The instant Justice Ruth Bader Ginsburg’s passing was announced, the battle lines were drawn. Or, more accurately, one side girded for battle, while Republicans clucked with confusion about what to do next.

Which should be no surprise. If Republicans are good at anything, it’s finding “principled” reasons to betray their constituents and contradict their much vaunted philosophy. President Trump, naturally, has sounded strong, as, to his credit, has Senator Mitch McConnell (R-Ky.). But the majority leader has to manage a fractious caucus and a thin margin. Many of his members either will be looking for excuses not to vote, or for a reason to vote no, or (worse) will be persuadable by sophistical arguments as to why stabbing their president, their voters, and their country in the back is “the right thing to do.”

Herewith, if any of them are listening, are some reasons not to take those paths.

The Alleged 2016 Precedent

All Democrats and a few Republicans are already saying that McConnell’s refusal to advance the nomination of Merrick Garland in 2016 set an inviolable precedent that the GOP would be hypocrites to overturn. But there are differences between 2016 and 2020.

First, Barack Obama was at the end of his constitutionally limited two terms. The 2016 contest, therefore, was an “open-seat” election. Voters are much more likely to hand the presidency to the other party in an open-seat election; they have done so in the last three straight, whereas no incumbent has lost since 1992. A president at the end of his second term is a lame duck; it makes some sense in that circumstance to give a new president, with a new mandate, the chance to shape the court rather than let the outgoing has-been, who’s already had eight years to do as he will, one last shot at a legacy.

President Trump was almost a shoo-in for reelection before the lockdowns crushed the economy, and he remains a strong bet. He’s still immensely popular with his base and his approval ratings are the highest of his presidency—and higher than many of his predecessors’ at the same point in his term. He is anything but a lame duck. He deserves a chance to exercise his constitutionally enumerated powers and deliver for his voters.

Second, in 2016, the Senate was controlled by Republicans. That remains the case today. But four years ago, the president was a Democrat. The so-called Biden Rule, which McConnell invoked in 2016, and named after a 1992 floor speech by current Democratic nominee but then-Senator Joe Biden, holds that a justice should not be confirmed in a presidential election year when, in Biden’s words, “divided government” reflects a lack of a “nationwide consensus” on which party’s judicial philosophy should carry the day. That circumstance obviously does not prevail today. 

Of course, for all the howling about McConnell’s alleged hypocrisy, we have heard not a peep about Biden happily sidestepping his own rule in 2016. 

Remember, too, that senators no less than presidents have constitutionally enumerated powers and popular mandates. They owe loyalty to their voters no less than did President Obama or does President Trump. Republican voters elect Republican senators in very large part because they expect those senators to shape the courts in a conservative direction. Doing so can mean blocking the elevation of liberal justices no less than ensuring the confirmation of conservatives. 

In either case, Republicans are both exercising their lawful powers and delivering for their constituents—which is exactly what they are elected to do

The fact that Mitch McConnell—no one’s idea of an ideological firebrand—understands this while many “principled conservatives” do not should prompt the latter rethink their squeamishness.

The two most recent, and therefore currently binding, expressions of the will of the people were the elections of 2016 and 2018. The former produced a Republican president and reaffirmed Republican control of the Senate, in place since the election of 2014. The latter reaffirmed Republican control of the Senate yet again. The will of the people, therefore, as expressed through elections—the only legitimate basis for the exercise of political power in our constitutional system—is that conservative justices be elevated to the Supreme Court.

One-Way “Precedents”

Alleged “precedents” such as the Garland nomination, in any case, seem only to apply to us. The Democrats violate precedents at will when doing so suits their interests, and then attack us when we follow their most recent precedent. 

It wasn’t Republicans who nuked the filibuster for judicial nominees. Can you recall a single instance of Republicans treating a nominee as disgracefully as the Democrats treated Robert Bork, Clarence Thomas, or Brett Kavanaugh? I can’t. Yet they constantly and sanctimoniously insist that the process is sacrosanct while scolding Republicans to obey every past procedural and conventional nicety that the Democrats have already torched.

Republicans mostly go along obediently. The Democrats nearly always vote in lockstep against any Republican judicial nominee; Republicans routinely break ranks and vote for Democratic nominees. A phrase I’ve heard to describe this faux-magnanimity is “beautiful losers,” though there’s nothing beautiful about it.

Does anyone for a second think, were the shoe on the other foot, the Democrats would hesitate to confirm their pick? To ask is to laugh.

The call to respect “norms” rings hollow after four years of the Left, the leftist media, the courts, and the administrative state all breaking norms, to the point of threatening if they don’t get their way on this vacancy, even more systemic change: D.C. and Puerto Rico statehood (four more Democratic senators, forever), abolishing the Electoral College (New York, California, Chicago, and Philadelphia electing the president, forever), and packing the Supreme Court.

Stopping Election Chaos

This argument is not original but bears repeating. Democrats have assured the American people that, unless Joe Biden wins in a landslide, they will litigate the living hell out of the 2020 election. One likely outcome, given the potentially huge number of lawsuits and the slow and cumbersome nature of the legal process, is that, in order to have a president by January 21, the Supreme Court will need to intervene as it did in December 2000.

In that case, what happens if the court splits 4-4? Who decides? There does not appear to be a clear constitutional mechanism. An unresolved Electoral College vote, constitutionally, goes to the House. But what if, because of legal chaos, electors are not designated? Then what? Decide the election in the streets?

Democrats appear to relish the thought. Some have openly called for a “street fight” to follow the chaos they deliberately intend to unleash in the courts. To say nothing of the fact that Republicans have no hope whatsoever of winning a “street fight” against the Democrats’ combined Antifa-Black Lives Matter militia and the protection and leniency that militia receives from law enforcement and Soros-funded prosecutors, a “street fight” settling an American presidential election should be the last thing any decent citizen of either party would want. As would any un- or extra-constitutional means for settling such an election.

What Is Political Power For?

Republican senators should ask themselves: why are they senators? Why did they run for office? What, if anything, do they hope to achieve once there?

Some no doubt are time-servers who like the perks and hope to get rich after leaving office. But some, even most, surely got into the game to do something. Is there a bigger something than confirming a constitutionalist Supreme Court justice to a closely divided court, when at least two of the “conservative” justices are drifting left, on the eve of the most important election in living memory? If you can’t rise to this occasion, why are you there? And why should your constituents send you back?

The Democrats know what political power is for: to enact your side’s agenda. They and their media allies successfully gaslight Republicans into fearing that exercising political power is “partisan” and therefore illegitimate—but only when Republicans do it. Democrats themselves have no hesitation.

Nor should they. The whole point of our democratic-republican system is for voters to elect people they perceive to be on their side, who favor their own approach to common problems, and who when given the opportunity then enact that agenda. That, in essence, is democracy. That is what Republican senators are there to do. Let them do it.

The Politics Are on Our Side

Not a single Republican should pay a moment’s heed to Democratic crocodile tears about the unseemliness of political considerations intruding into such grave matters. Whom to nominate to the Supreme Court, and when, are fundamentally political questions. In our system, political questions are supposed to be decided politically.

Yet those worried that the politics play against our party’s interests are wrong. Nothing energizes the Republican base like a Supreme Court fight. Nothing brings out Democratic ugliness and insanity like a Supreme Court fight. Few issues, if any, unite the Republican Party’s various factions—from the country-clubbers to the MAGA diehards—quite as effectively as judges.

I know some senators are in tough reelection fights this year. I will not presume to claim to understand their state electorates better than they do. I ask of them only two things. First, consider the possibility that, in this extraordinary year, the views of your constituents aren’t what they used to be. They may well be more open than you think to confirming a Supreme Court justice right now.

Second, the worst that could result from doing the right thing is that you aren’t reelected. Is that so bad? Aren’t you there to cast the tough votes? And consider the upside: doing the right thing for your country and party, and then paying a political price for it, will make you a hero whose courage will be long-remembered. Is there a finer legacy?

A Show of Strength in the Face of Chaos

This year has amply demonstrated the fragility of American society, the weakness of our political institutions, and the strength and ferocity of the Left. The latter has made it quite plain that they want to tear down the entire edifice of our nation, burn our cities, topple and desecrate our monuments, destroy law and order, shred the Constitution, and transform the country into a permanent leftist one-party state. One more justice on the court won’t necessarily prevent all that—but one more conservative sure would help!

The Republican base is fired up now, but only months ago was demoralized in the face of constant rioting, mayhem and seemingly purposeful government inaction. Should Republican senators, who have the power to make this appointment happen, not exercise that power, Republican voters are likely to conclude their government, and their country, has been lost to them. And, in all likelihood, it will have been.

If on the other hand Republican senators stick together, get behind and elevate a qualified nominee to the court, not just Republicans but moderates, independents and apoliticals alike are likely to appreciate a show of strength in service to our nation and its constitutional order.

To borrow from Margaret Thatcher, now is no time to go wobbly.

Elections

For the Sake of the Constitution, and the Country, Fill Ginsburg’s Seat Quickly

Many Americans would feel relieved to have the question settled so that they can focus on what they are supposed to be deciding: whether President Trump or Joe Biden will make a better president. 

Justice Ruth Bader Ginsburg died Friday at the age of 87. Her passing was not unexpected. On the contrary, her steadily worsening condition over the past several years left her increasingly incapacitated. After Donald Trump’s election in 2016, many on the Left expressed dismay that she chose to stay on the court rather than resign and let President Obama nominate her replacement. 

Liberals feared she would die during Trump’s presidency, and her seat—which they regard almost as their sacrosanct property—would be in the hands of a Republican president and Republican-controlled Senate. 

That fear proved prescient. But few expected the moment would come so close to the November election. 

Ginsburg made a political calculation. Even on her deathbed, she was acutely aware of the political implications of her passing: she issued a statement expressing her “fervent wish” that she will “not be replaced until a new president is installed.” Given that she herself put the country in this difficult position, we should not allow our thinking to be clouded by any false sentimentality about her death. Rest in peace, Justice Ginsburg. 

Now let’s move on.

Democrats may assume that Ginsburg’s dying wish is a given. And they will pretend that it is some time-honored precedent. With the election only six weeks away, they assume there just won’t be enough time to act. 

If Trump loses in November, it would be politically impossible to nominate a replacement during his remaining lame-duck months in office. If he wins, much would depend on what happens with the elections for the Senate, which has the constitutional authority to approve any nominations to the Supreme Court under that body’s “advice and consent” power. 

Presidential elections should not be about the Supreme Court. This is one of the unhealthiest features of our dysfunctional government.

Republicans currently hold a slim majority of 53 seats in the Senate, with 45 Democrats and two Independents (Bernie Sanders of Vermont and Angus King of Maine—both of whom “caucus” and vote with the Democrats). In November, 23 Republicans and 12 Democrats will be on the ballot fighting to keep their seats. These considerations make any decisive action by the Republicans even more challenging.

But despite the apparent difficulty of doing so, the president should nominate, and Senate Republicans should confirm, a new Supreme Court Justice before the election on November 3.

It’s doable, and it would be the best outcome for the common good of the country. 

Here’s why:

Although it might seem hyper-partisan, this course could actually reduce the temperature in the current white-hot political environment. President Trump has the unquestioned authority to nominate, and the Senate has unquestioned authority to confirm a new justice. And until November, no one is a lame duck. 

Of course, getting through a hearing in the Senate Judiciary Committee, followed by a full vote of the Senate, in six weeks would be moving quickly by modern standards. But that simply reflects how partisan the process has become, which is precisely the problem. 

Democrats may have burned their bridges with their shameful tactics against Justice Brett Kavanaugh in 2018. They dragged out the confirmation for three months with a seemingly endless series of unfounded slanders and sleazy innuendo. They are in a bad position now to object to a quick and dignified vote. 

In the early days of the republic, justices were confirmed within a matter of days. Even as recently as the Lyndon Johnson Administration in 1965, the Senate confirmed Johnson’s nominee, Abe Fortas, within two weeks. There is no legitimate reason the process needs to take any longer now. 

Taking this issue off the table by filling the Supreme Court seat before the election would ensure that people are not going to the polls to vote, indirectly, for a Supreme Court justice. That’s a terrible distortion of how our federal government is supposed to operate; and it puts an unreasonable burden and expectation on the voters. 

Presidential elections should not be about the Supreme Court. This is one of the unhealthiest features of our dysfunctional government. 

The Supreme Court was intended by the Founders to be a nonpartisan judicial authority that decides cases of federal law. It was never intended to adjudicate our most contentious policy issues. Our democratically elected Congress is supposed to do that. It is their job to make the laws, with the signature or veto of our democratically elected president. It is a travesty that we now assume that nine judges will hand down, from on high, their pronouncements about our most urgent political questions. 

In the words of the Federalist, the Supreme Court should have “neither force nor will.”

Getting this done won’t be easy for Republican Senate leader Mitch McConnell (R-Ky.). The “Old Unreliables,” like Mitt Romney (R-Utah) and Lisa Murkowski (R-Alaska), certainly will threaten to vote against a quick replacement. Well, OK. Let’s find out. 

The vote surely will be close. In the event of a tie, Vice President Mike Pence would cast the tie-breaking vote. That would also send liberals into paroxysms of rage. But it’s how the process is supposed to work. In addition, just in case the presidential election results are disputed, we must have a full Supreme Court, should there be any disputes for the court to decide. 

Of course, filling the seat quickly—and overruling what certainly will be loud and even hysterical objections by Senate Democrats—may leave some voters incensed, and they will take their anger out at the polls. 

But many (maybe a lot more) Americans would feel relieved to have the question settled so that they can focus on what they are supposed to be deciding: whether President Trump or Joe Biden will make a better president. 

That’s what voters can and should be thinking about in November; not who may or may not get onto the Supreme Court.

Elections

Where Is Joe Biden’s Supreme Court List?

A Biden list would confirm the worst of Americans’ fears about what sort of dystopia a Democratic presidency, armed with the levers of judicial branch nomination powers, would inflict upon We the People.

President Donald Trump on Wednesday unveiled his much-anticipated new Supreme Court nominee “list.” A whopping 20 names long, Wednesday’s list includes figures from all walks of legal and political life: federal appellate court judges, federal district court judges, sitting U.S. senators, current and former Trump administration figures, current state officers, and a former U.S. solicitor general.

With the 24 viable names remaining from the three previous “lists”—the first two of which were released during the 2016 presidential campaign and were crucial to ensuring religious conservative voter turnout for Trump—there are now 44 candidates being publicly floated for the next Supreme Court vacancy.

The latest list, an election year attempt to secure conservative turnout amidst a deeply disappointing—perhaps crisis-inducing—recent Supreme Court term, is a positive development for a forceful, full-spectrum, nonlibertarian conservatism. Some of the potential nominees from the list who are most likely to be considered seriously for the next high court vacancy—Judges James Ho (full disclosure: my former boss) and Gregory Katsas, in particular—are truly outstanding. And the fact that other no-holds-barred social conservatives, such as Senator Josh Hawley (R-Mo.) and Judge Kyle Duncan, were included at all ought to be reassuring to traditionalist conservatives who prioritize the timeless substantive goals of republican self-governance over the fetishization of a morally denuded proceduralism.

Conservatives, leery as ever following last term’s devastating cases on issues as wide-ranging as abortion, immigration, Title VII, and whether half of Oklahoma is actually part of Oklahoma, now have 44 names to actively vet and consider. True, a more truncated and meaningfully targeted list would have been better to salve social conservative wounds, but the fact is that those on the right most upset with the list are the sclerotic old guard who steered the legal conservative movement toward this crisis point.

And especially when considering some of the outstanding holdovers from the first three lists—Judges William Pryor, Amy Coney Barrett, and so forth—the reality is there are many people Trump has named who, if nominated and confirmed to the Supreme Court, would make substantial headway in reviving the right to life, defending religious institutions, securing national sovereignty and promoting the common good of the nation, communities, and families.

As disappointing as the last Supreme Court term was, we have still come a very long way from Harriet Miers.

All of which leads us to an obvious question: Where on earth is Democratic presidential nominee Joe Biden’s Supreme Court nominee list? Alas, that obvious question has an answer that is just as obvious: It’s not coming. And it’s not coming for the extraordinarily simple reason that Joe Biden, Senator Kamala Harris (D-Calif.), and Democratic Party grandees all know that such a list would scare the living daylights out of the American people.

In 2016, between one-fifth and one-quarter of the electorate, according to exit polling, cited the Supreme Court as their number one issue on which to vote. Of that judiciary-centric slice of the voting electorate, Trump outpaced his rival, Hillary Clinton, by a huge margin of 15 points.

The Supreme Court is clearly a losing political issue for Democrats and the American left. After all, it is the side that has consistently lost major cases and has had its substantive moralistic prerogatives democratically removed under the risible pretext of black-robed constitutionalization that stands the most to gain from institutionally reclaiming Alexander Hamilton’s “least dangerous” branch.

Put more simply: The progressive Left’s relentless, century-plus-long crusade to twist the Constitution beyond recognition and embolden a sycophantic legal academy and judicial oligarchy willing to implement its vision via judicial fiat has, as a blunt political matter, reached the point of diminishing marginal returns. This is no small irony.

And there’s more. On issue after issue, the median American—law-abiding, patriotic, religious or at least friendly to religion—would be repulsed by the radicalization a Biden Supreme Court list would entail.

We would see judges, academics, and career bureaucrats who have dedicated their careers to stamping out religion, wrecking America’s territorial sovereignty, stripping Americans of their individual right to keep and bear arms, and codifying the bloodiest and most reckless of abortion regimes. A Biden Supreme Court list, in short, would confirm the worst of Americans’ fears about what sort of dystopia a Democratic presidency, armed with the levers of judicial branch nomination powers, would inflict upon We the People. Far better for the Democrats to hide their agenda and try to dupe Americans; candor and transparency will not redound to their benefit.

Joe Biden’s decision not to release a Supreme Court nominee list similar to Trump’s is, as a matter of principle, cowardly. But as a prudential matter, it is likely the wiser political move—which itself is immensely telling.

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Great America

We Don’t Need to Invoke Article V to Rein in Radical Judges

Right now, the political branches can exercise the inherent authority they already possess to counteract anti-constitutional court decisions through ordinary legislation.

James W. Lucas argued at American Greatness recently that the solution to lawless, radical judges is to be found in “reviv[ing] the people’s ultimate control over the meaning of our foundational document by reforming and updating the amendment process.”

Lucas observes correctly that, contrary to the founders’ intent, “the Supreme Court has become the Constitution.” What he means is, “[t]hrough judicial interpretation, the Supreme Court has gained the power, essentially, to rewrite the Constitution as it sees fit.” Not only that but “the court’s revisions cannot be reversed or challenged”—creating a situation which, unsurprisingly, generates intense partisan rancor over both its composition and decisions.

It’s true that Lucas’s proposed solution would work—but only if we could actually pass an amendment to amend Article V. It’s not at all clear how we could do so under the current procedures, which Lucas concedes make the U.S. Constitution by far “the most difficult charter to amend in the world.” 

Given how polarized the country is at this moment—and with the Democrats constantly attacking basic constitutional norms, including equal representation in the Senate, the legitimacy of the Supreme Court, and the very existence of the Electoral College—it seems unwise and imprudent to make the Constitution even easier to amend.

The Constitution should be amended only when there is supermajority support for doing so, and if we are going to tinker with that process, we should only do so when there is already broad, society-wide agreement on justice and the common good. Amendments are generated by a largely unified polity that already agrees on much; they do not create such unity and agreement.

But that does not mean that we have no choice but to lay supine before lawless federal judges, particularly those of the Supreme Court, and passively accept whatever distortions they introduce into our fundamental law.

We have more options to get a handle on this situation besides impeaching judges and/or selectively stripping the appellate jurisdiction of federal courts. Right now, the political branches can exercise the inherent authority they already possess—a power that’s grounded in the political philosophy of the Declaration of Independence and inherent in the Constitution’s separation-of-powers principle—to counteract anti-constitutional court decisions through ordinary legislation, thereby returning the country to the legal status quo ante.

The Declaration is the very “ground and foundation” of the Constitution. Its famous second sentence is indispensable to a proper understanding of the Constitution. The Declaration teaches that all legitimate political authority originates and flows from the sovereign people to their government, not the other way around. In other words, the American people are sovereign, and any and all authority exercised by our government—whether it be federal, state, or local—is delegated to it by the people’s consent. 

The Constitution, which is designed to secure our “safety and happiness,” makes our consent real. It serves those great ends (“the alpha and omega of political life”) by enabling our experiment in representative self-government; protecting our natural, civil, and political rights; and securing our natural liberty by limiting government to its proper spheres of action.

Further, the Constitution is the nation’s fundamental positive law and is therefore outside the reach and control of any of the three branches, which are subordinate to it; this is why, pace Lucas, it is conceptually impossible for the Supreme Court to “change” the Constitution’s meaning, even if every June we all act as though its decisions can and do.

This very brief exposition of the connection between the Declaration and the Constitution allows us to apprehend a correlative truth: There is a hierarchy of institutional governmental power. And because proximity to the people is directly correlated with greater authority in matters of governance, the closer a governmental institution is to the people, the more authority and power it has. 

Thus, the political branches, which are in various ways and to varying degrees popularly elected by the people, possess more authority than do both the lower federal courts and Supreme Court, whose compositions are both refracted by the appointments process on the front end and made less responsive to the public on the back end because of the judges’ and justices’ life tenure.

The conclusion of this argument is not as radical as it might seem. Canada’s constitution contains a “notwithstanding clause” in Section 33 of its Charter of Rights and Freedoms (which is the rough equivalent of our Constitution’s Bill of Rights). Under the notwithstanding clause, a Canadian legislature can pass a law that expressly, brazenly, and obviously violates the Canadian constitution so long as it announces before it passesa law—or after a law has been reviewed by a court—that it will pass said law “notwithstanding” whatever the Canadian constitution says. (These exemptions can last for up to five years at a time; if an exemption is not renewed, it expires, and the legislation is consequently invalid if it, in fact, violates the constitution.)

Simply put, the political branches in America have a similar power (albeit one that is not explicitly provided for in our Constitution as it is in Canada’s), namely, the power to counteract erroneous court rulings by operation of their basic constitutional authority and duty to pass laws. Moreover, this power is similar in kind, even if not quite in scope, to Congress’s plenary authority over federal statutes. Congress, at least in the modern era, frequently (and uncontroversially) exercises its power to amend its statutes in the face of Supreme Court decisions that it believes have wrongly interpreted them.

Besides an implicit commitment to judicial supremacy—or, the “imperial judiciary,” as Senator Josh Hawley (R-Mo.), following Antonin Scalia, has dubbed it—there is simply no justification for ceding final authority over the meaning of the Constitution to the Supreme Court as we’ve done for decades. We also have no reason to think that only the (rightly) extraordinary invocation of Article V, whether it be modified or not, can overturn a Supreme Court decision. 

In fact, the best, most proper keepers of our fundamental law are We the People’s elected representatives—because they are closer, more accountable, and more responsive to us than are insulated, life-tenured federal judges. And they can act tomorrow to correct whatever errors they believe the courts have committed.

In this truly revolutionary moment, with perhaps the most important election in our lifetimes just under two months away, it’s time for us to relearn the things that make America exceptional. And resisting the ever-growing reach of the courts into every facet of our lives by properly reasserting the primacy of the people’s political control over our Constitution is as good a place as any to start.

Great America

The Solution to Radical Judges Is to Revive Article V

The U.S. Supreme Court should not have the final say on our Constitution’s meaning.

Vice President Mike Pence observed recently in an interview that Chief Justice John Roberts “has been a disappointment to conservatives.” He was referring specifically to a number of recent cases in which the chief justice sided with the four justices appointed by Democratic presidents against the conservatives on the court. The vice president’s comment is in keeping with a long-standing conservative frustration with the leftist drift of justices appointed by Republican presidents, a drift with no counterpart among justices named by Democrats. He emphasized that appointing “principled conservatives” to the courts would again be a theme of his and President Trump’s reelection campaign. 

As necessary a step as that is, there is a much more expedient solution to the problem of our errant Supreme Court. Rather than relying entirely on the good faith of unaccountable life-tenured justices, no matter how well vetted they may be, we need to revive the people’s ultimate control over the meaning of our foundational document by reforming and updating the amendment process.

The underlying problem is not simply the failings of these black-robed mortals, but that the Supreme Court has become the Constitution. Through judicial interpretation, the Supreme Court has gained the power, essentially, to rewrite the Constitution as it sees fit. And the court’s revisions cannot be reversed or challenged. It is no wonder that control of a seat on the court generates passions exceeding those of any elected office. 

The Constitution’s framers never envisioned the court occupying this role. Rather, they intended that constitutional change come about through the democratic political process of amendment. When they wrote Article V, which governs the procedure for passing amendments there were no other written national constitutions on which to model it. But what seemed a workable process for twelve states in the age of horse and sail is no longer sufficient for 50 states with a hundred times the population in a fast-paced world. 

The United States Constitution is now the most difficult charter to amend in the world, and it shows. No one under the age of 50 would remember the last time our Constitution was amended in a regular fashion. (The 26th Amendment, which lowered the voting age to 18, was ratified in 1971. The 27th Amendment, which concerns congressional pay increases, was proposed in 1789 but not ratified until 1992—highly unusual.) One would have to be over 100 years old to remember the last time a major national issue was resolved by amendment (the 19th Amendment in 1920 extending the franchise to all women). 

A few simple adjustments to Article V, however, could re-energize the amendment process. 

The most useful adjustment would streamline the process for initiating amendment proposals by the states. Article V provides that amendments can be initiated either by a two-thirds vote of both houses of Congress or by a convention called by two-thirds of the states. No such convention has ever been called, nor is one likely ever to be called. Contrary to the framers’ intent, this has given Congress a de facto monopoly on initiating amendments and cut off the states’ ability to do so. And, despite enduring popular support for a number of both liberal and conservative amendment proposals, Congress has not initiated any amendments for almost half a century.

The convention of states mechanism was introduced only on the second to last day of the Constitutional Convention as an afterthought, and over James Madison’s very prescient warnings that the lack of procedural guidance in Article V would make it unworkable. In 1787, a proper convention might have been thought necessary for a simple reason—communications. When it could take weeks for a message to travel from one end of the nation to another, getting together in a convention was the only practicable way for states to hash out amendment proposals. 

 Obviously, that situation no longer exists. Now states can easily communicate with one another to coordinate amendment proposals without meeting in a formal convention. Allowing a few states to launch an amendment proposal without having to go through the archaic mechanism of a convention or the congressional bottleneck will democratize the amendment process by opening it to local grassroots efforts. 

 Another useful adjustment would be a slight reduction in the approval thresholds in Congress and the three-quarters of the states required for ratification. As the experience of anyone who has been on a committee or tried to run a dinner group reveals, getting nine people to agree is difficult (the number of states required to ratify when the Constitution was written), getting unanimity from 38 (the number of states required to ratify today) is impossible, as is also demonstrated by statistical analysis

 Of course, if a functioning amendment process were in place, we still would not be amending the Constitution every time there is widespread disapproval of a Supreme Court decision. A smoother process, however, would supply an alternative in cases that cause continuing harm, and that the court is failing to correct. Roe v. Wade is an obvious example. 

It could also act as a psychological brake on the judicial amendment of the Constitution. No longer would the courts seem like the last resort for plaintiffs, such as same-sex couples wishing to marry and deemed sympathetic by elitist judges. Originalist judges could convincingly point to the amendment process, if it were again viable, as the proper avenue for revising the Constitution. If the people want such changes, let them be the ones to initiate it.

 Writing about our constitutional republic, James Madison noted that it “has been the misfortune … of other nations that their Governments have not been freely and deliberately established by themselves,” whereas “the boast of ours [is] that such has been its source and that it can be altered by the same authority only which established it.” 

Madison continued, however, “it is a further boast that a regular mode of making proper alterations has been providently inserted in the Constitution itself. It is anxiously to be wished therefore, that no innovations may take place in other modes, one of which would be a constructive assumption of powers never meant to be granted.” Our Constitution should be able to change, but the agents of that change should be the people through the democratic amendment process, not the deceitful subterfuge of judicial amendment disguised as interpretation.

 A revitalized amendment process also would facilitate other useful changes unrelated to bad Supreme Court decisions. Many amendment proposals stymied by our current insurmountable procedures enjoy broad support. For example, congressional term limits are supported by large majorities of Americans (including 76 percent of Democrats). It is inconceivable that such a reform will ever get two-thirds support in Congress—it must be initiated at the state level. 

Whether one objects to Roe v. Wade or to Citizens United v. FEC, there is a broad consensus that we face challenges that can be addressed only on the constitutional level. A content-neutral reform of the amendment process could attract bipartisan support in our time when many long for national unity on something. And it would enable “We The People,” not five unelected and unaccountable judges, to have the last word once more on our fundamental national law.

Great America

Hawley Is Right to Demand Supreme Court Nominees Explicitly Oppose Roe

To delay any longer skewering Roe, even as we cower behind talk of “methods,” “process,” and “umpires,” is to commit voluntarily to play judicial politics with one hand tied behind our back. It’s foolish behavior that needs to end.

Senator Josh Hawley (R-Mo.) took to the Senate floor late last month “to revise and extend” his remarks about the United States Supreme Court from mid-June. He asked a pointed question: “Is this a constitutionalist court?”

His answer was an emphatic “No.” In fact, this court is the antithesis of what it should be. 

“When looking at the results of this last term, the only thing I can say for certain is that, in the words of the late Justice Scalia, ‘the imperial judiciary lives,’” Hawley said. “This is a court that freely rewrites congressional statutes [Bostock v. Clayton County], that has protected the worst left-wing precedents of earlier years [take your pick], that in the final week of its term gave away half the state of Oklahoma [McGirt v. Oklahoma].”

But what made his short speech so remarkable is the ferocity with which he took aim at Roe v. Wade, the infamous 1973 decision in which the Supreme Court, by a 7-2 vote, held that nested within the 14th Amendment’s Due Process Clause is a “right to privacy” that protects a woman’s right to procure an abortion.

Hawley did not tiptoe around Roe’s deeply immoral holding, something Republicans do constantly because to do otherwise is considered “imprudent” and “in poor taste.” He did not mince words: “Roe is an illegitimate decision. It has no basis in the Constitution. None. It has no basis in the law. None of the Constitution’s specific and enumerated guarantees of privacy even begin to legitimize the taking of innocent human life.” 

He went on, explicitly linking Dred Scott v. Sandford (1857) and Plessy v. Ferguson (1896) to Roe: “Dred Scott and Plessy and Roe are abusive, morally repugnant decisions that wounded the soul of this nation. They dishonored this nation’s fundamental faith in the dignity and worth of every person.”

It’s about time a Republican politician spoke with such clarity and vigor on abortion—the issue that has most divided our country, leaving it a “house divided.” Were this the extent of his rhetoric, Hawley would deserve much praise. But he did not stop there. Instead, he proposed a tangible course of action that all Republican senators should take up—that is, if they are as serious about actually tackling abortion as they claim to be in their periodic campaign ads begging for money and votes.

For Hawley, “Roe is a window into the constitutional worldview of a would-be justice.” Because if a nominee believes “Roe was rightly decided, then there just is no two ways about it: [he is] a judicial imperialist” who “believe[s] that unelected judges should have the power to enact their own social views . . . regardless of what the Constitution says or what we the people have expressed preference for, voted for, and enacted into law.” Such a nominee shows obvious disdain for the American system of self-government, the notion “that sovereignty rests with We the People—that it should be the people who are in charge.”

For these reasons, Hawley bluntly stated: “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade was wrongly decided.” By “explicitly acknowledged,” he means, “I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”

Hawley’s rejection of rote, mechanistic proceduralism in this area is important. Proceduralism is good and valuable when the system in which it operates is healthy. But when the surrounding legal environment has been dragged leftward and corrupted nearly beyond recognition by those who once detested and still detest it, a slavish devotion to that warped procedure merely ratifies, cements, and legitimizes all manner of erroneous and unjust deviations from the original and ratified status quo. In other words, it disrespects the sovereignty of the people. When hewing to procedure is the highest good, it is impossible to arrest the operation of the leftist jurisprudential ratchet.

But others do not see the flag Hawley has planted in such a positive way.

Carrie Severino, otherwise known for her defense of the rule of law and of Justice Brett Kavanaugh’s nomination, finds Hawley’s “new test” to be “manipulative false advertising” that “won’t work.” Why not?

Because David Souter, Anthony Kennedy, and Sandra Day O’Connor all to varying degrees criticized Roe and then got cold feet when the time came to scrap it—but Clarence Thomas, who “testified in his confirmation hearing that he could not recall debating or stating the merits of Roe even in private discussion, and added that he had not decided its merits in his own mind,” is now “the Supreme Court’s most vocal critic of Roe.” And, in any case, Hawley has no mechanism to enforce nominees’ pre-hearing assurances.

Severino faults Hawley for not going far enough, that is, for not “ask[ing] nominees to commit to overrul[ing] Roe” and for not explaining how he would “forc[e] them to live up to that commitment.” Nonetheless, she’s completely sure that were he to do so, he “would make a mockery of the law by creating the expectation that future justices must pledge certain outcomes as a condition of their confirmation.”

That all sounds nice and “conservative” (especially with an obligatory Scalia quote from Planned Parenthood v. Casey tossed in). But it’s actually a deeply hollow posture, not to mention an exercise in special pleading for this one case, Roe—the “sun” around which our legal culture orbits and which has distorted even mundane legal process (read Justice Neil Gorsuch’s dissent in June Medical Services, L.L.C. v. Russo, which catalogs this so-called  abortion distortion). Sadly, Roe is now doing the same even to non-judicial rhetorical attempts to extricate ourselves from its gravitational pull.

If Roe really is as heinous a ruling as Hawley contends, and I’m sure Severino believes it is, then why is it wrong for the senator—who as a lawmaker is permitted (obliged, really) to have positions on substantive issues affecting the common good and individual rights—to inquire into a nominee’s legal position vis-à-vis whatever issues are important to his constituents, not to mention the nation as a whole?

Answer: It’s actually entirely appropriate. And if judicial nominees don’t like it, that’s too bad; they won’t get Hawley’s vote.

Imagine it’s 1898, and a senator takes to the floor and excoriates Plessy v. Ferguson, saying, “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Plessy was wrongly decided.

Who among us would find this objectionable? How could we, when the decision was so obviously wicked and wrong from the day it was handed down? And, most importantly, why is Roe any different—is it not at least as unjust as Plessy?

It’s clear that Hawley is right to demand this anti-Roe posture from nominees under his consideration, not least because “Roe is the reason we have a legal conservative movement to begin with” as well as “why generations of religious conservatives [have] vote[ed] for Republican presidents.” To delay any longer skewering Roe, even as we cower behind talk of “methods,” “process,” and “umpires,” is to commit voluntarily to play judicial politics with one hand tied behind our back. It’s foolish behavior that needs to end.

Nominees who haven’t made it clear that Roe is an abomination before they are on the doorstep of life tenure and immense power, as a general rule, lack the fortitude and moral clarity required to be a justice of the Supreme Court (and, I’d add, judge of any federal court).

Kudos to Hawley for his leadership here. His colleagues should join him, potential nominees should take note, and the country should be optimistic that better days are ahead.

News

Far-Left Groups Preparing Judicial Picks for Biden If He Wins the White House

The lists are being arranged by roughly half-a-dozen organizations, including progressive group Building the Bench.

Radical far-left groups are already building up their own lists of potential federal court picks, including for the U.S. Supreme Court, for Joe Biden to choose from in the event he is elected president, the Daily Caller reports.

The lists are being arranged by roughly half-a-dozen organizations, including progressive group Building the Bench.

A spokeswoman for Building the Bench said that “I would be lying . . . if I said there aren’t people we would prefer to see on the bench, because the courts are significant to our ability to advance the constitutional rights and protections we are committed to advancing.” Other groups involved in the effort include the Human Rights Campaign and Demand Justice.

The effort is in response to the historic number of federal judges confirmed over the course of President Trump’s first term, spearheaded by Senate Majority Leader Mitch McConnell (R-Ky.). Over 200 federal judges were nominated and confirmed by President Trump and the Republican-controlled Senate, including 53 appeals court judges and 146 district court judges.

President Trump has also named two Supreme Court justices, Neil Gorsuch and Brett Kavanaugh. The Senate had only recently confirmed the 53rd appeals court judge, Cory Wilson of the 5th Circuit, thus officially filling up every single appeals court vacancy left from the Obama Administration.

Leftist groups have made it their mission to focus not on a judge’s knowledge of the Constitution, but instead on simply appointing as many women and minorities as possible, often complaining that many of Trump’s nominees were white and mostly male.

The Left staged its most strident opposition to the president’s second Supreme Court nominee, Brett Kavanaugh, by hiring multiple left-wing activists to accuse him of sexual misconduct; all of the allegations were ultimately debunked, and Kavanaugh was confirmed by a narrow Senate majority.

Biden, who named U.S. Senator Kamala Harris (D-Calif.) as his running mate on Tuesday, has pledged to nominate a black woman to the Supreme Court if he is elected.