Justice for All

Hearings are underway for Supreme Court nominee Amy Coney Barrett. She has been doing well. There are plenty of sources for highlights. Mostly I want to talk about the Constitution and what the Supreme Court’s role is according to our law.

Amy Coney Barrett shows she doesn't need
notes to answer Senators' questions
image from New York Post

We recently went through the first three Articles of the Constitution, dealing with the legislative, executive, and judicial branches. Article III covers the judicial branch. There are briefly written limits describing the duties of the federal judiciary. The problem we’re in right now is the extension beyond those limits.

It may be that these hearings are used by future generations as a basic lesson on the Constitution. Judge Barrett has answered questions in a way that explains the Court’s role in adjudicating according to the law, not according to what some partisan wants the outcome to be.

There was a line of questions on Tuesday, from Senator Amy Klobuchar, former Democrat presidential candidate. She wanted to know whether, as justice, Barrett would adhere to stare decisis in all cases—which has been the purpose of the questioning all along, to know whether she will go along with previous bad rulings that the Democrats like. Klobuchar asked in reference to a Texas Law Review article Barrett had written using the term superprecedent. It’s a term I hadn’t heard before, but Barrett defines it when asked:

Senator Klobuchar questions Judge Amy Coney Barrett
screenshot from here

ACB: The way that it’s used in the scholarship, and the way that I was using it in the article that you’re reading from, was to define cases that are so well settled that no political actors and no people seriously push for their overruling. And I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category. And scholars across the spectrum say that doesn’t mean that Roe should be overruled. But descriptively it does mean that it’s not a case that everyone has accepted and doesn’t call for its overruling.

Klobuchar asks again about Roe. Gets the same response. Asks again about United States v. Virginia Military. Gets the same response.

The denseness of the Democrat questioners is a product of an ideological mind that isn’t open to another way of thinking.

Democrats think of the Supreme Court—and the court system leading up to it—as an additional legislative (lawmaking) body, where they can press through their agenda when they can’t get it through elected means. Wherever the courts have been controversial, it is based on the idea that the ruling should be what Democrats want the outcome to be, not based on what the law is.

Earlier today there were additional witnesses, ACB having sat through multiple 12-hour days of questioning earlier in the week. The first two additional witnesses were from the American Bar Association who had been involved in her rating—which was the highest rating: well qualified to be on the Supreme Court. Mr. Noel said they looked at “a judge’s analytical abilities, clarity of writing, knowledge of the law, application of the law to the facts, harmonizing a body of law, reasoning, scholarship, and the ability to communicate effectively.” What didn’t come into it was the nominee’s political leanings or even her judicial philosophy. Incidentally, that’s why Justices Kagen and Sotomayor also got the highest rating from the American Bar at the time of their hearings.

Much of what the Court does is not controversial. I used to try to measure the block voting of the Court [see here and here], until I discovered that the SCOTUS blog does an annual stat pack to provide that info. This year, the 2019 session (they start in October and end the following June, or whenever they finish) there were fewer cases than usual; 10 were postponed until the 2020 session because of COVID-19. The rulings played out this way:

·         9-0           22 cases               36%

·         8-1           6 cases                 10%

·         7-2           12 cases               20%

·         6-3           7 cases                 11%

·         5-4           14 cases               24%

So, out of 61 total cases, you have a combined 40 cases, or 66%, that are settled with little disagreement. For that to happen, you need justices who actually understand the law.

The difficulty comes with the more controversial cases, especially the quarter of them with a 5-4 split. For those cases, you need justices who both understand the law and adhere strictly to the Constitution.

Or, that is what we should want in a country based on the rule of law rather the law of the ruler. 

But that is not what Democrats want. They actually, indeed, want justices who will ignore the law and come up with some rational-sounding justification for ruling according to the outcome they want.

That is what they had with Ruth Bader Ginsburg. When you look at praise for her legacy, they don’t quote her rulings for their brilliant clarity on the Constitution; they quote her accomplishments as an activist attorney, earlier in her career, and praise her defense of “rights” that were invented, by the Court, beyond the Constitution.

They are partisans using the judiciary in partisan ways. And they assume that the conservative side does the same. You could see the confusion on the faces of Democrat senators as Barrett explained, over and over again, what the Constitution says is the role of the judiciary—to interpret law, not to make it. She even reminded them that, if a ruling based on the law wasn’t to their liking, it was up to their branch, the legislature, to make changes to the law.

But they would much prefer to have their hand-selected but unelected oligarchy rule from the bench, rather than submit to the scrutiny of the voting public, which might not agree with their designs.

So, about the other additional witnesses today: Those in support of the nomination (Judge Thomas Griffin was one) talked about how Judge Barrett has a record of following the law—even when it went against her personal preferences. Those against the nomination talked about issues they were concerned about—echoing the Democrat senators who questioned Barrett.

Some were concerned about the ACA (Affordable Care Act, the ironic actual name for Obamacare). It’s clear that isn’t settled law, because it was a closely split decision with plenty of flaws in the Roberts-led opinion that construed a requirement to buy a product as a tax, if that’s what it took to allow the law to stand. If it ever comes before the Court again, would getting rid of a bad law take away people’s healthcare? It could be temporarily disruptive, but anything that leads to less government interference and more free market solutions will be better for all in the long run. But the Democrat side doesn’t want to risk losing power over the people in areas not granted to the government in the Constitution. Usurping power is such tedious work, they don't want to have to redo it.

Some were concerned about Roe v. Wade being overturned. While it’s unlikely that could happen, it isn’t out of the question. What would be the result of a reversal? A return of the question of abortion to the individual states, where it sat before that still-unsettled bad ruling. Theoretically, some states could then pass laws to outlaw abortion—probably with exemptions for pregnancy resulting from rape and for threat to the life of the mother. But states that favor abortion now would have it—with fewer limits than now. So the testimony was disingenuous at best.

Crystal Good, testifying against Amy Coney Barrett
screenshot from here

One testifier was a woman who had been the victim of abuse in her home. The adults in her life had not believed her and failed to bring an abusive stepfather to justice. But she didn’t need an abortion because of rape; she was 16 when she got pregnant from having sex with her boyfriend. And, she tells us, because her grades were so good, she was able to convince a judge that she was capable of making a decision to kill her baby that the adults in her life were not entitled to decide. What an inconvenience that was, to go before the judge in intimidating private chambers rather than in a large public courtroom! [What?] But she’s happy and proud that she did what it took to kill that baby so she could go ahead with plans for her life and not be punished with a baby. 

And therefore she’s an authority we should believe when she says we shouldn’t have a judge like Amy Coney Barrett who wants to take away that "right" of a 16-year-old to kill her baby that resulted from illicit teenage sex. Yeah, I’m not convinced—either of that argument or of Barrett’s inability to rule on the law based.

Another concern is that the Supreme Court might have to get involved, as in Bush v. Gore, to settle the upcoming election—when it should be settled by the votes. We agree, it should be settled by the votes; in Bush v. Gore the votes didn’t settle it. And every time the vote count came out the way the Democrats didn’t like, they changed the rules in hopes of changing the outcome—until the Supreme Court stepped in, on behalf of the people of the nation, to stop activist Florida Democrats from overruling the votes of the people not only in Florida but in the entire country.

Could such a situation happen again? Only if the Democrats attempt to steal the election again. So, yes. Since they are bound and determined to do that, with mail-in ballots and voter harvesting schemes; refusing to clear voter rolls; and allowing illegals, felons, and dead people to vote—yeah, the Supreme Court could conceivably be called on to step in. But it won’t be to overrule the votes of the people; it will be to attempt to protect the votes of the people. And it would be better to have all the Constitution-reading judges we can get on that ruling so we can avoid a stalemate.

Every issue the opponents of the nomination bring up is an issue in which they want an outcome that is outside the Constitution.

If you’re a Republican, or a Democrat, who cares about the rule of law and abiding by the Constitution, you benefit from this nomination. Only if you favor partisan arbitrary rule would you oppose the nomination. But that is what the opponents do, and they are relentless.

Back in 2014 I used an analogy; the “19 times” referred to cases against the HHS mandate in Obamacare that had been rule in favor of the plaintiff. I originally referred to the then-DOJ head, but to update, I’ll just use “the tyrannists”:

Great Wall of China
Mr. Spherical Model took this photo in 2013

You’ve probably heard the Thomas Edison quote, in which he says, “I have not failed. I have just found 10,000 ways that won’t work.” Maybe the tyrannists have that kind of attitude.

We feel strong having thwarted the assault on our rights each of these times so far. But we are required to win 100% of the time; the Constitution’s enemies only have to win once.

Think of the Constitution as a high wall protecting our liberties—visualize the Great Wall of the Constitution. The tyrannist is among the enemy Radical Socialist Hordes trying to invade. Picture this tyrant, with grappling hook and long rope in hand. He throws the hook time after time. Each time, the metal hits the wall and falls to the ground. He picks it up and throws it again. Nineteen times so far. But he’ll keep throwing. All he has to do is throw it hard enough to catch one time. Then he can climb the rope, secure it further, and allow one invader after another to follow him. And they can bring additional ropes up, and secure them when they get to the top, so more invaders can come at the same time.

The failed throws aren’t evidence that he’s a failure and should stop trying; to him it is just part of the process of the invasion effort.

At that point the ACA hadn’t won a case. It had lost 19 in a row. But once it got a single win—the hook was set. Only recently has President Trump removed the mandate penalty. But the rest of that monstrosity of law still binds us.

I ended that piece with this, which fits again today:

If there is any lesson in the balance in split cases, it is that we absolutely need the next appointment to the Court to be a person who loves and understands the Constitution, and the rights it was written to protect.

The more I see of Amy Coney Barrett, the more I am persuaded that she is such a person. All Americans—even those who don’t recognize it—benefit from that kind of justice. It is “justice for all.”[i]

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[i] The last three words of the Pledge of Allegiance.

Let’s Raise a Hand against Socialism

This past Friday a question was asked to the debating Democrat candidates for the presidency. George Stephanopoulos said, “Let me just ask, is anyone else on the stage concerned about having a democratic socialist at the top of the Democratic ticket?” 

No hands were raised. Then Amy Klobuchar briefly raised her hand, but peer pressure pushed her hand back down. Then, when called on, she points out that socialism is divisive. So she doesn’t call herself that, but many of her policies do.

Amy Klobuchar, second from right, raises hand
screenshot from here

So let me translate for you: Whoever the Democrats nominate favors a radical shift to socialism, which is incompatible with our US Constitution. The Democrat Party will support socialism—and are cavalier about a simple majority overthrowing our Constitution.

That means that they do not understand our Constitution.

Last September I mentioned a list of questions I use to reveal whether a candidate understands and supports the Constitution, or has something else—namely, tyranny—in mind. I’m using this list as I work on my choices in local Republican Primary races. I wish Democrats were using this list as well.

Socialism would affect all three spheres: political, economic, and social. But in its simplicity, socialism is the replacement of a free market with a government centrally controlled economy. So I’m going to look at just the economic questions today.

And, while all the Democrat candidates lean socialist, Bernie Sanders, the most openly avowed socialist, claims to have held the same beliefs for many decades, and he has a website proclaiming his plans. So we’ll use him to answer our questions today. Maybe this exercise will help us see whether socialism leads to prosperity or to poverty.

Bernie Sanders during last Friday's debate
AP Photo by Patrick Semansky found here

First question.

What do you believe is the optimum percentage of GNP that should be taken in taxes? And for the sake of discussion, let’s add, for what purposes should these taxes be spent? 

Here’s the short answer from Frank Sammartino, TaxPolicyCenter.com, concerning Bernie Sanders (2016 campaign): 

Presidential candidate Bernie Sanders proposes significant increases in federal income, payroll, business, and estate taxes, and new excise taxes on financial transactions and carbon. New revenues would pay for universal health care, education, family leave, rebuilding the nation’s infrastructure, and more. TPC estimates the tax proposals would raise $15.3 trillion over the next decade. All income groups would pay some additional tax, but most would come from high-income households, particularly those with the very highest income. His proposals would raise taxes on work, saving, and investment, in some cases to rates well beyond recent historical experience in the US.

I didn’t get an actual answer, other than, no matter who you are, you need to pay more. Upper rates could reach beyond historic—which means confiscatory (at which levels, no one willingly pays, so tax revenue actually goes down). And that money will be spent for non-governmental powers, such as a non-choice healthcare system takeover, federal government controlled education, forcing businesses to pay family leave or avoid hiring parents. Plus, incidentally, paying for infrastructure projects that might qualify as of interstate interest.

I went to Bernie Sanders’ campaign site. It didn’t help getting my specific questions answered. There is, however, an overall sense that, no matter how much government takes, it’s not enough—and we’ll just keep taking from the evil rich until we run out of spending ideas. So, how much should be taken in taxes? Probably upwards of 80% of GDP. 

Next question.

What do you believe is the government’s role in contributing to economic health? For example, if there is a sudden recession (as we were hit with in 2008), how should government react?

Let’s look at those 2008-2009 bailouts. Bernie Sanders was against them before he voted for them. His reasons for originally disapproving (besides their starting under a Bush administration) strike me as convoluted. But there’s a timeline from four years ago following debates against Hillary Clinton. You can see the FactCheck.org (not necessarily unbiased) analysis here. It looks to me as if, when he thinks about people being unemployed, maybe he’ll vote for a bailout, but if he thinks in terms of an evil large corporation or industry, he’s against helping them.

What about stimulating the economy? I think he thinks socialism will magically do that, even though it never has, and even though estimates are that his plans would decrease real income for wage-earners who happen to keep their jobs.

If you read the Constitution, however, you learn that government’s only role is safeguarding wealth; i.e., minting money, prosecuting theft and fraud, etc. As we’ve seen the last three years, the more government gets out of the way, the better the country’s economic health.

Next question.

What do you believe is government’s role in the distribution of income discrepancy between the poor and the wealthy?

This is a good question for Bernie Sanders. He has an ad in which people redefine freedom in terms of having all their worries taken away, paid for by magic, or by some enslaved taxpayer—he doesn’t say. No mention of government’s control over their lives when that happens, so that’s pretty disingenuous. But there’s more on his website:

Here’s what he says on "Taxes on Extreme Wealth":

·         Establish an annual tax on the extreme wealth of the top 0.1 percent of U.S. households.

·         Only apply to net worth of over $32 million and anyone who has a net worth of less than $32 million, would not see their taxes go up at all under this plan.

·         Will raise an estimated $4.35 trillion over the next decade and cut the wealth of billionaires in half over 15 years, which would substantially break up the concentration of wealth and power of this small privileged class.

·         Ensure that the wealthy are not able to evade the tax by implementing strong enforcement policies.

Even though he says he’s raising taxes only on those with accumulated wealth over $32 million, elsewhere he admits that everyone, even low-income earners, will pay higher taxes (that’s under his single-payer healthcare plan). So, let me translate. Tax on wealth means confiscation of wealth that taxes have been paid on in previous years.

Dr. Zhivago arrives home
screenshot from here

Remember that scene in Dr. Zhivago when he comes home to find his family mansion has been parceled out to multiple families, and he has been apportioned maybe a single room to use out of his whole house? That is socialism confiscating wealth. Government takes title if it deems you “own” too much. Bernie thinks he should be the one to decide whether you have earned more than you deserve—which goes against the Constitution’s mandate to protect wealth. He plans to steal it.

For a lesson in what this means today, try this PragerU video: “Does Bill Gates Pay His Fair Share?” 

Also, Bernie’s in favor of re-lowering the estate tax to affect estates over $3.5 million. In other words, a small-to-medium-sized business cannot be passed down from one generation to the next, even if the next generation has been working in that business for years to make it successful—because Bernie says that would be unfair.

Again, instead of protecting wealth, he plans to take it and use it as he sees fit, because he thinks that’s more fair than having the person who earned the wealth decide what to do with it.

Next question.

What do you believe should be government’s role in charitable help to the poor and suffering?

Bernie believes some other taxpayer should pay for your healthcare, and that he should be able to decide what healthcare you’re allowed to buy, or what you must buy. And this would be $40 trillion added to the backs of working taxpayers.

He also believes some other taxpayer should be enslaved to work to pay for your education, whether that taxpayer has a college degree or not, because he thinks that’s fair. Plus, spending this $3 trillion will buy him younger voters. (My commentary, but his policy.)

He thinks government should enslave some working taxpayers to put government in the business of real estate, building housing that will be guaranteed at a low rate—because “the projects” have been such nice neighborhoods wherever they’ve already been tried.

He thinks government should enslave some working taxpayers to provide high-speed internet to every citizen, because (based on the history of the communications industry) he doesn’t see how a free market could ever innovate enough to provide those “needs.”

Government isn’t capable of charity. But Bernie feels very charitable with your hard-earned money. And you’re supposed to feel charitable when he demands that money from you.

Did we mention the $1.8 trillion Social Security expansion? Or the $16.3 trillion on a climate plan that will shut down the economy? Or the $30.1 trillion to guarantee every American a job paying $15 an hour plus benefits, working for the government if no one else hires them.  Remember, government doesn't create wealth, only spends it, so that money comes out of enslaved working taxpayers' pockets.

Next question.

What do you believe are the purposes and limits of the commerce clause of the Constitution?

I don’t see an answer to this on his website. He seems to believe the federal government has the right—even the calling—to step in wherever he, the great dictator, has the urge to. Under “Revitalizing Rural America” this includes farmers, foresteers (does he mean foresters?), and ranchers in whichever state they may reside. And he plans to enslave working taxpayers to “reinvest” in rural areas where entrepreneurs have not been willing to invest.

The commerce clause in the Constitution is to make sure commerce can flow state-to-state. To make sure South Carolina wouldn’t embargo against North Carolina goods, for example. That is all that was granted. Anything else is usurping ungranted power.

Next question.

What do you believe is the role of the Federal Reserve, and how/whether it is benefiting the economy?

Bernie is in favor of auditing the Federal Reserve. So am I. But he doesn’t want to limit Federal Reserve power. He just wants to stick it to Wall Street (where most Americans have retirement investments). He plans to use executive orders to adjust ATM fees, and grant banking powers to post offices. While he’s at it, he’ll add a per-transaction tax to “restrict rapid-fire financial speculation.” I think he doesn’t like day traders? He certainly doesn’t like investors using their capital—their surplus wealth—to invest in projects that could produce more wealth.

Whether the Federal Reserve is constitutional or not—that’s irrelevant to him, since he intends to ignore the Constitution anyway.

Should we be afraid to have a socialist at the top of the ticket in a presidential election? Yes. Not because he can’t be defeated—he will be. But because the debate shouldn’t even include throwing out our Constitution. A party that would put forth such a candidate should be denounced as treasonous against our United States.

At least we will be able to clearly see the contrast between those who love freedom, prosperity, and civilization—and the entire other party who love tyranny, poverty, and savagery.