Thursday, July 12, 2018

Two Sides of Law: Inside and Outside

There are two sides to everything, so they say. And there are two sides to the law: the inside and the outside. Or, law-abiding and law-rejecting.

What law are we talking about? The basic law of the nation, the Constitution. All federal laws are subject to the Constitution. It’s not long: 4440 words. The word meanings have not changed so much since it was written in 1787 (ratified in 1788 with the Bill of Rights attached as the first 10 Amendments).
image from here

In other words, a moderately educated citizen can understand it. It doesn’t require any special intelligence, skill, or training. It was understood by the people who voted, in their various states, to ratify it back 230 years ago.

When we’re looking at judges to make rulings in cases, there’s an inside and outside view of that too. Either we want a judge to understand the law and rule based on it, or we want a judge to rule based on something other than the law—his gut feeling, his ideology, his agreement with popular views, his sympathy toward some or against others.

This is something to keep in mind when we’re about to go through the approval process for a Supreme Court justice appointment.

There are going to be two sides in this process: those who want to make sure a judge is both capable of understanding the law and inclined to abide by it; and those who want a judge who agrees with their gut feelings, ideologies, views, and sympathies/biases.

You’ll be hearing that both sides are doing the same thing: trying to use the judiciary to promote their views, ideologies, etc. The liberals/progressives/leftists (choose your term) do it, and the conservatives do it.

But what are the conservatives conserving? The rule of law. The Constitution—and the better union it forms. How does the preamble put it?:

Establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.
What part of that do those who fear a Justice Kavanaugh so violently disapprove of? Or what do they want that is outside the Constitution, and want so badly that they insist that the Constitution’s list of values and its enumerated powers should be considered extremist, radical, and dangerous?

screen shot from Judge Kavanaugh's acceptance speech

Sometimes when there are two sides, there’s the good side and the bad side, the right and the wrong. This may be one of those times.

But you’ll be hearing a lot of things from the opposing sides. Here’s my prediction: Democrats/ socialists/ liberals/ leftists/ progressives will claim the nominee will be undermining the law. But their examples will be rulings of the Supreme Court that went their way but are known—and sometimes acknowledged by judges on their side—to be making stuff up that’s simply not in the Constitution.
Then you’ll hear from Republicans. Some will be talking about some of those particular bad rulings, and hoping they may get overturned (e.g., Roe v. Wade, Obamacare). But mostly they’ll be talking about wanting a judge who goes by the law.

One side genuinely seeks someone to uphold the law. And one side fears someone who upholds the law. Hmm.

Already my predictions are holding true.

Republican Senator Sen. Cory Gardner shared this example:

What we saw last night was, from many on the left, simply mindless partisanship. I’m going to read a press release that was sent out from one liberal organization: “In response to Donald Trump’s nomination of XX to the Supreme Court of the United States,” the following statement was released, “Trump’s announcement today is a death sentence.” Apparently nominee XX was a death sentence. It didn’t matter who he chose, who he selected, they would have opposed it simply because of mindless partisanship.
And it appears the usuals got the memo. Here’s Democrat Senator Chuck Schumer:

What the hard right, the Heritage Foundation that vetted the 25, has learned is that they could never get America to go along with what they believe. They could never get the Congress, even when it’s controlled by Republicans, to go along with what they believe. And so they use the one non-elected branch of government: Article III, the judiciary, to sneak people onto the court who will then decimate Americans’ healthcare. And we are going to force judge Kavanaugh to come clean. Will he protect preexisting conditions? Will he protect Medicaid? Will he protect Medicare? We’re not gonna let him hide behind this “I’ll respect existing law,” because we’ve been burnt too many times by Justice Roberts, by Justice Alito, by Justice Gorsuch, on case after case.
The irony of those who accuse their opposition of doing precisely what they themselves are guilty of!

I’m not exactly sure how Justice Roberts “burnt” him too many times on Obamacare. And I’m not sure why the Heritage Foundation isn’t just conservative or constitutional, but is “hard right.” Everything I’ve read and followed from the Heritage Foundation is about understanding and upholding the Constitution. It's not exactly a sketchy fringe group.

Portraying our country’s basic laws as extremist is a lie. Thatt’s also why it helps to use the Spherical Model, so you don’t get confused by left and right. Instead you can compare and contrast freedom/tyranny, prosperity/poverty, and civilization/savagery. Those of us who support the Constitution want freedom, prosperity, and civilization. Those who rage against the Constitution must want the opposites: tyranny, poverty, and savagery. And you only have to look at what happens where they get their way to know that truth.

Democrat Senator Patty Murray shows her place on the sphere too:

Unfortunately, in Judge Brett Kavanaugh, President Trump has found exactly what he was looking for: someone who will put extreme right-wing ideology ahead of patients’ access to their healthcare. Judge Kavanaugh openly criticized Justice Roberts for saving the Affordable Care Act. And he suggested the DC circuit court should consider a claim that the law was unconstitutional using an argument his colleagues on the bench labeled a flawed misread of precedent.
I openly criticized Justice Roberts for his convoluted ruling on the ACA as well. I understand—enough to follow the train of thought, and some of his reasoning. But I was with Justice Scalia, in his dissent.

Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting.” This Court, however, has no free-floating power “to rescue Congress from its drafting errors.”
And this:

We should start calling this law SCOTUScare.
And also this:

This Court’s two decisions on the Act will surely be remembered through the years…. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
I'd say criticizing Justice Roberts on his King v. Burwell decision puts you in good company, if you’re the kind of person who favors the rule of law. So let’s see Sen. Murray’s shock for what it is: a partisan talking point.

screen shot from Judge Kavanaugh's speech at AEI
Another particular concern is the sacrificial sacrament of the savage belief system: abortion. Judges are careful—of necessity—about sharing their views on controversial topics that may come before their court, and much more so since the Robert Bork hearings, sabotaged by Democrats. So there isn’t much record of Brett Kavanaugh’s views on abortion. Except that, in a speech a year ago at the American Enterprise Institute, he mentioned Justice Rehnquist’s dissents in Roe v. Wade (which was a 7-2 decision) and, two decades later, the Planned Parenthood case. He was talking about Justice Rehnquist's efforts to uphold the Constitution against judicial activism: 

It is fair to say that Justice Rehnquist was not successful in convincing a majority of justices in the context of abortion, either in Roe itself or in the later cases, such as Casey…. But he was successful in stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation's history and tradition.
From this we’re supposed to assume he favors women dying in back-alley abortions? Oh, the horror! Actually, he doesn’t say anything except that he thought Rehnquist’s effort was to prevent creating law from the bench. So, if abortion were an actual right, those who favor it would have no fears from those who are bent on upholding the law.

And even if the Court should have the opportunity to rule on a case that would overturn Roe v. Wade—a possibility, since even Justice Ginsburg has agreed it was badly done—that would only send the issue back to the individual states, where the debate was playing out before the federal court’s interference.

If you favor upholding the Constitution, then Judge Kavanaugh’s acceptance speech offered some reassurances:

My judicial philosophy is straightforward. A judge must be independent, and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent….
I believe that an independent judiciary is the crown jewel of our constitutional republic. If confirmed by the Senate, I will keep an open mind in every case, and I will always strive to preserve the Constitution of the United States and the American rule of law
Republicans/conservatives (not always the same thing, but Republicans here are joining conservatives) are pleased with Kavanaugh mainly for his rule of law philosophy. Here are a few responses recorded by the Washington Post:

Sen. Mitch McConnell: The President really could not have done a better job of picking an extraordinarily well qualified nominee, somebody who’s clearly, over the years, tried to follow the law as it was written, and not tried to get the result you want to get.
Sen. John Cornyn: The reason why I think the left is so afraid of this nomination is because they view the judiciary as a policy-making arm of the federal government. We disagree. And we’re in good company with people like James Madison and Alexander Hamilton, and the Founders, who viewed the judiciary as what they called the least dangerous branch, because they aren’t the policy-making arm of the government; it’s Congress, and it’s the executive branch—that’s where policy needs to be made.
Sen. John Thune: One of the amazing things was that Democrats, who we expected would attack whoever the President nominated, some of them were actually out before he named the individual he was going to nominate, announcing their opposition. So, it’s pretty clear theirs is a knee-jerk reaction. As Senator Cornyn pointed out, Democrats have a view of the judiciary that’s very different.
I can’t say for certain that Brett Kavanaugh will be an excellent justice and a firm upholder of the Constitution. But those who have vetted him think he will, and I hope and pray they are right.

Because, when the law is the Constitution, and we uphold it and let the chips fall where they may, we all get more freedom, prosperity, and civilization. I’m looking forward to a Court that will actually lessen its own power and be law-abiding.

No comments:

Post a Comment