Tag: SCOTUS

Lazy Sunday LXXIX: SCOTUS

The Portly Politico9 Comments

Perhaps one of President Trump’s most enduring achievements has been his Supreme Court nominations.  He’s managed to tip the Court, however slightly, towards the conservatives.  With the death of Justice Ginsburg, Trump has the opportunity to secure a solid conservative majority on the highest court in the land for at least a generation.

With that, it looks like a good opportunity to review some posts about the Supreme Court:

  • “Breaking: Trump Nominates Judge Brett Kavanaugh to Supreme Court” – The nomination of Brett Kavanaugh was a major shift in American politics.  His confirmation hearings saw the entire fury of the Left unleashed, and it was during those hearings that I believe many of us realized that the old playbook of compromise among competing parties was no long valid or useful.
  • “SCOTUS D&D” – This post was a fun one—looking at the Supreme Court justices (from 2018) in terms of the Dungeons and Dragons alignments.
  • “Logic Breakdown and the Kavanaugh Hearings” – As noted above, the Kavanaugh hearings were a turning point.  I was blown away with the number of arguments people were making on social media that boiled down to “I was raped/sexually assaulted/abused, therefore Brett Kavanaugh assaulted Dr. Blasey Ford.”  The complete embrace of emotionalism and illogical thinking braced me to this stark reality.
  • “Screwed by SCOTUS” – One of my more recent posts on the Court, this piece explored the tendency of conservative justices to make surprisingly bad decisions in league with progressive cause du jours.

That’s it for now.  Here’s hoping President Trump and Senate Republicans can get it done and slam in a super conservative appointee ahead of the election.  We’ll see.

Happy Sunday!

—TPP

Other Lazy Sunday Installments:

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Screwed by SCOTUS

The Portly Politico6 Comments

My brother sent me a meme the other day:  a picture of nine Clarence Thomases under the heading “The Ideal Supreme Court“:

Memes are often pithy statements of the Truth, and, boy, this one nails it.  Given the treacherous and boneheaded rulings from the Supreme Court this week—particularly from perennial traitor Chief Justice John Roberts, joined in one ruling with milquetoast toady Neil Gorsuch—we could do for a Court full of Clarence Thomases.  Such a Court would understand the Constitution and the role of the Supreme Court in relation to it better than any Court we’ve had since the 1920s.

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Trump Stands for Us

The Portly Politico6 Comments

My blogger buddy photog at Orion’s Cold Fire is enduring some bleak New England weather.  Apparently, the bracing cold and gale force winds have sharpened his already-considerable analytical skills, as he’s been killing it lately with his posts.

He’s written a post, “The Unique Value of the Trump Presidency,” which perfectly encapsulates what Trump’s presidency means to the forgotten men and women of this country.  photog rattles off a laundry list of reasons different kinds of conservatives might like Trump—his judicial appointments, his less interventionist foreign policy, his trade war with China—but hones in on the key reason Trump matters:  “… there is actually a much more important aspect to the presidency of Donald Trump that should be emphasized.  He doesn’t despise us” (emphasis photog’s).

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Monday Morning in America

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The Portly Politico is striving towards self-sufficiency.  If you would like to support my work, consider subscribing to my SubscribeStar page.  Your subscription of $1/month or more gains you access to exclusive content every Saturday, including annual #MAGAWeek posts.  If you’ve received any value from my scribblings, I would very much appreciate your support.

The couple of weeks I’ve been feeling bleak about the future.  I’m a declinist by nature when it comes to the macro view, but the micro was starting to get to me.  How do we get through to people?  We don’t have the luxury for the old days of slow, steady relationship building and piecemeal red-pilling.  Further, it seems every step we take forward, the culture takes three steps back.

I wrote as much on Saturday, in a post where I gave full-vent to the frustrations I’ve experienced.  One of the problems with writing daily (and under self-imposed deadlines) is that it’s easy to let your emotions about recent events take over.  I’d been giving way to despair, and it started twisting my analysis.

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Fictitious Frogs and Bureaucratic Despotism

The Portly Politico20 Comments

Thanks to blogger photog at Orion’s Cold Fire for sharing this piece about federal overreach and Chevron deference, “The Celebrated Fake Frog that is Taking Down the Deep State” by Karin McQuillan:  https://amgreatness.com/2019/01/14/the-celebrated-fake-frog-that-is-taking-down-the-deep-state/

One of the key problems conservatives face today is the unelected, unaccountable “fourth branch” of the government, the massive federal bureaucracy.  This bureaucracy is so vast, even presidents can’t seem to rein it in (although President Trump is making an effort to drain the swamp).

The size and scope of it wouldn’t be so terrible if it weren’t so powerful.  Thanks to bad Supreme Court rulings and Congress’s willingness to give the hard task of legislating to federal agencies, bureaucrats have the power to write regulatory rules that have the force of law.  As McQuillan details in her piece, Congress passes vague, broad laws that leave politically-costly questions for the agencies to answer.  In turn, those agencies—shielded as they are from accountability to the voters—write whatever rules they wish, and the American people bear the brunt of these technocratic fiats.

That’s one source of President Trump’s woes from within the government:  there is surely an insulated, upper-crust of old Beltway hands that fully expect that they will call the shots.  McQuillan’s piece describes the absolutely wicked absurdity of this overreach, as exemplified by that most heinous of federal agencies, the Environmental Protection Agency.

Seasoned conservatives are familiar with the EPA’s history of insane, downright anti-human rulings, like preventing farmers in drought-stricken California from receiving much-needed water because they sought to protect the tiny delta smelt (fun fact:  the EPA killed more delta smelt when taking samples of their population sizes than would have died had irrigation systems been activated).

McQuillan’s piece details an example of a Louisiana farmer who was unable to use his privately-held land because it was a potential habitat for species of endangered frog—except that biologists argued the land could not support the frog even if someone put it there!  The farmer won against the EPA at the Supreme Court, setting the stage for potential dismantling of some of the Deep State, and its odious grant of power from Chevron deference.

It’s no wonder that the Deep State tried so hard to oust former EPA Administrator Scott Pruitt, and that it continues to punish President Trump with the pointless, costly, politically-motivated Mueller investigation.

As such, let’s continue to encourage President Trump—and the farmers in Louisiana, playing host to fictitious frogs on their dewy lands—to DRAIN THE SWAMP!

Logic Breakdown and the Kavanaugh Hearings

The Portly Politico26 Comments

The Internet has been all atwitter with talk of the Kavanaugh hearings, particularly Dr. Christine Blasey Ford’s vocal-fry inflected testimony, as well as Judge Brett Kavanaugh’s, and Senator Lindsey Graham’s fiery, righteous outburst.

My general policy with such hot-button current events is to withhold comment until the facts are known.  That’s not a savvy move for a blogger, but it gives me time to make an informed judgment on what the Truth is likely to be.

Below are comments I posted on the Portly Politico Facebook page (which I encourage you to “like,” “follow,” and whatever else one has to do to get notifications these days) about the hearings.  What troubles me the most about the (it seems baseless) accusations against Judge Kavanaugh is the utter breakdown of logical thinking—and the utter willingness of his critics to throw due process and the principle of “innocent until proven guilty” under the bus.

But, we all know it’s political theatre.  The Democrats are attempting to delay or derail the confirmation process until after the 2018 midterm elections.  They could care less about Dr. Ford’s alleged sexual assault.  I also wrote that Judge Kavanaugh would be in for a thorough Borking, so we all knew this was coming; still, I naively did not fathom the depths to which the Left would descend.

As for Dr. Ford, she could very well have suffered some trauma—or some imagined, “recovered” memory.  The old “what-does-she-have-to-gain” defense is as baseless as her claims:  $100,000 (and counting) in GoFundMe money, the kudos of the “Resistance,” probably a book deal, a political career if she wants it—she will be richly rewarded for her role in the potential takedown of an eminently qualified, eminently respectable constitutional originalist.

Submitted for your edification—and the good of the Republic and logical thinking—my reflections:

Some logic re: the Kavanaugh hearings.

1.) Women (and men) are sometimes the victims of sexual assault, rape, etc. That’s bad–evil!

2.) Brett Kavanaugh can be innocent and can still be true.

Just because evil things happen to some people doesn’t mean that Brett Kavanaugh did anything evil, or what he has been accused of doing.

Further:  I keep reading and hearing that Dr. Ford’s testimony is “credible.” Based on what evidence? As far as I can tell, there is NO evidence to support her claim, and a great deal to refute or challenge it. Being emotionally compelling is not the same thing as having substantial evidence.

Maybe something happened to her, maybe not. It’s hard to imagine someone subjecting themselves to this scrutiny for light and transient reasons. That said, the “Resistance” is real. So are recovered memories, or flawed ones.

The Democrats in the Senate don’t care (in general) about Dr. Ford’s allegations or about what’s allegedly happened to other women. They care about delaying the vote on confirmation until after the election so they can scuttle the deal. They’re using women to further their own political agenda, and as much as they’ll protest to the contrary, they know all-too-well the dangerous game they’re playing.

They’ve been running this playbook for decades. Senator Lindsey Graham’s righteous outburst demonstrates that the scales have fallen away from Establishment Republicans’ eyes–the old Marquis of Queensbury rules don’t work when the other side will destroy you when it’s politically expedient to do so.

Baseless, misdirected, and/or politically-motivated accusations don’t help anyone. They harm real victims of sexual assault and rape, as well as men who may be entirely innocent. Further, in the Kavanaugh case, they undermine the legitimacy of our already-ossified institutions.

SCOTUS D&D

The Portly Politico11 Comments

This past Monday night, President Trump nominated Judge Brett Kavanaugh to the Supreme Court, predictably sending progressives into apoplectic (and apocalyptic) fits of self-righteous virtue-signaling and white-knighting.  Naturally, Leftists realize their decades-long project of circumventing representative government through the courts might backfire—when you create an excessively powerful institution and lose control of it, you start to worry that weapon will be turned back on you.

There’s been a great deal of analysis since then of Kavanaugh and how his nomination might shift the direction of the Court.  I’m not steeped enough in the details to make a judgment call myself, though it seems that Kavanaugh is remarkably experienced, and interprets the Constitution fairly narrowly (in the sense that he’s not one to create “emanations of penumbras” of rights or legislate from the bench).

I’m a bit concerned that he’ll be too restrained, a la Chief Justice John Roberts, who disastrously upheld the Affordable Care Act twice, the second time largely on the grounds that the Court should avoid overturning what legislatures enact.  That’s a good impulse generally, but not when the plain language of the act states something contrary to what the Court rules, and the Court deciding that Congress “meant to write it another way” is a funny way of exercising judicial “restraint.”

Regardless, my sense is that Kavanaugh is a solid and safe pick.  I’d much rather have seen, say, Utah Senator Mike Lee get the nomination—there’s no ambiguity about his commitment to constitutionalism—but Kavanaugh might stand a better chance of surviving his confirmation vote (after a predictably theatrical bout of boisterous dissent from doomsday-speaking Democratic Senators).

But I digress.  In attempting to analyze the Supreme Court, Conservative Review‘s Joseph Koss has applied a nifty little model to try to make sense of where the Court has been, and where it might be headed with the addition of Kavanaugh.

Koss is quick to point out that he’s not completely satisfied with this model—he applies the classic Dungeons and Dragons alignment system (the nerd in me is rejoicing)—and that some justices don’t quite fit into one of the nine slots, but he explains his placements thoroughly and carefully.

Check out his analysis here:  https://mailchi.mp/ab9d22079504/supreme-court-alignment?e=0d04a04a52

He also invites readers to tell him how wrong he is here.

***

What do you think, TPP readers?  Is Kavanaugh a slam-dunk pick?  A Washington-insider swamp creature sell-out?  A rock-ribbed conservative?  Leave your thoughts and comments below!

The Evolution of Judicial Supremacy – Judicial Review

The Portly Politico6 Comments

Last night, President Trump nominated Judge Brett Kavanuagh to serve on the Supreme Court to fill the vacancy left by the retirement of Justice Anthony Kennedy.  As such, I thought it would be germane to explore briefly the role of the Supreme Court.

Popular understanding of the Court today is that it is the ultimate arbiter and interpreter of the Constitution, but that’s not properly the case.  The Court has certainly assumed that position, and it’s why the Supreme Court wields such outsized influence on our political life, to the point that social justice snowflakes are now worried about Justice Ruth Bader Ginsburg’s diet and exercise regimen.

Properly understood, each branch—the President, the Congress, and the Court—play their roles in interpreting the constitutionality of laws.  Indeed, President Andrew Jackson—a controversial populist figure in his own right—argued in his vigorous veto of the Bank Bill, which would renew the charter of the Second Bank of the United States, that the President had a duty to veto laws that he believed to be unconstitutional.

Unfortunately, we’ve forgotten this tripartite role in defending the Constitution from scurrilous and unconstitutional acts due to a number of historical developments, which I will quickly outline here, with my primary focus being a case from the early nineteenth century.

The notion that the Supreme Court is to be the interpreter of the Constitution dates back to 1803, in the famous Marbury v. Madison case.  That case was a classic showdown between Thomas Jefferson and James Madison on one hand—representing the new Democratic-Republican Party in control of the executive branch—and Chief Justice John Marshall, a Federalist appointee, on the other.

The case centered on an undelivered “midnight appointment” of William Marbury to serve as Justice of the Peace for Washington, D.C.  The prior president, John Adams, had issued a handful of last-minute appointments before leaving office, and left them on the desk of the incoming Secretary of State, James Madison, to deliver.  Naturally, Jefferson and Madison refused to do so, not wanting to pack the judicial branch with any more Federalists, and Marbury sued for his appointment.

If Marshall ruled that Madison must deliver the appointment, there was a very real risk that the Jefferson administration would refuse.  Remember, the Supreme Court has no power to execute its rulings, as the President is the chief executive and holds that authority.  On the other hand, ruling in Madison’s favor would make the Court toothless in the face of the Jefferson administration, which was already attempting to “unpack” the federal courts through acts of Congress and the impeachment (and near removal) of Justice Samuel Chase.

In a brilliant ruling with far-reaching consequences, Marshall ruled that the portion of the Judiciary Act of 1789 that legislated that such disputes be heard by the Supreme Court were unconstitutional, so the Supreme Court could not render a judgment.  At the same time, Marshall argued strongly for “judicial review,” the pointing out that the Court had a unique responsibility to strike down laws or parts of laws that were unconstitutional.

That’s all relatively non-controversial as far as it goes, but since then, the power of the federal judiciary has grown to outsize influence.  Activist judges in the twentieth century, starting with President Franklin Roosevelt’s appointees and continuing through the disastrous Warren and Burger Courts, have stretched judicial review to absurd limits, creating “penumbras of emanations” of rights, legislating from the bench, and even creating rights that are nowhere to be found in the Constitution.

Alexander Hamilton argued in Federalist No. 78 that the Court would be the weakest and most passive of the branches, but it has now become so powerful that a “swing” justice like former Justice Kennedy can become a virtual tyrant.  As such, the confirmation of any new justice has devolved into a titanic struggle of lurid accusations and litmus tests.

The shabby treatment of the late Judge Robert Bork in his own failed 1987 nomination is a mere foretaste of what awaits Judge Kavanaugh.  Hopefully Kavanaugh is well-steeped in constitutional law and history—and will steadfastly resist the siren song of personal power at the expense of the national interest.

Breaking: Trump Nominates Judge Brett Kavanaugh to Supreme Court

The Portly Politico10 Comments

President Trump has nominated Judge Brett Kavanaugh to replace retired Supreme Court Justice Anthony Kennedy.  This appointment will mark Trump’s second nomination, and will cement the Court’s conservative majority by a narrow 5-4 margin.

Kavanaugh is a devout Catholic and father of three living in Washington, D.C.  He is also a champion for religious liberty, and even the feisty Ann Coulter supports him.  For some readers, that may be cause for concern, but I trust Coulter’s instincts on this one—after all, she predicted Trump would be POTUS, right?

Expect Kavanaugh to face a thorough Borking from Senate Democrats, who will unload on him mercilessly.

Breaking: Justice Anthony Kennedy Retires

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The past few weeks have been chock-a-block with major developments.  The Supreme Court, in particular, has been in the news quite a bit, including striking down compulsory dues payments for non-union members.

Now that the current session of SCOTUS is in recess, Justice Anthony Kennedy, the infamous “swing” justice, has announced his retirement, which is effective 1 July 2018.

This gives President Trump his second opportunity to appoint a justice to the highest court in the land.  The Neil Gorsuch nomination was a slam-dunk, as recent Supreme Court rulings have demonstrated.  Now Trump has the opportunity to appoint a true, consistent, constitutional conservative to the bench.

Justice Kennedy was nominated thirty years ago, after the railroading of Robert Bork.  Bork, a hard-nosed conservative and constitutional originalist—indeed, Bork made originalism cool again—was slandered by the execrable Senator Edward “Teddy” Kennedy, the so-called “Lion of the Senate,” in his melodramatic “Robert Bork’s America” speech against Bork’s appointment.

The speech—a classic misunderstanding of constitutional originalism, and a classic example of fearmongering—argued that women would be forced to have back alley abortions, that black Americans would have to sit at segregated lunch counters, and that Americans would face “midnight raids” on their homes.  Critics of originalists ignore that constitutional originalists recognize the amendment clause of the Constitution—they wouldn’t very “originalist” if they didn’t—and so falsely claim that anyone who supports a literal reading of the document supports slavery (or some such nonsense).

Regardless, President Trump’s potential nominee—who will be chosen from a list of twenty-five—will no-doubt face a proper Borking of his own.  Here’s hoping the Republican-controlled Senate can avoid cucking out on this rare opportunity, and put someone who actually understands and believes in the Constitution on the bench.