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judiciary national politics & policies

Yes, We Can

Ruth Bader Ginsberg, RBG, Supreme Court

“She was an amazing woman, whether you agree or not,” a visibly saddened President Trump offered reporters upon hearing that Supreme Court Justice Ruth Bader Ginsberg had passed away. She had “led an amazing life,” he added.

Not amazing enough, however, to nudge Mr. Trump to wait and let the next president nominate Ginsberg’s successor — either himself or a coin toss between Joe Biden and Kamala Harris should Democrats win. 

That delay was reportedly the justice’s dying wish.

The president’s opponents would certainly prefer that, too, but Trump vows to quickly name his third High Court replacement. 

And why not? There is a vacancy; he has the constitutional power. 

Sure, Republican senators will be charged with hypocrisy. And accurately, because they blocked President Obama’s 2016 pick of Merrick Garland, claiming the voters should decide by choosing the “next president.” Just as Senate Democrats will be orating the opposite of what they said four years ago.

Hypocrisy is as close to half-right as folks in Washington ever seem to get.

But what should you want your so-called representative who currently takes up space in the U.S. Senate to do now?

Same as always: The right thing. 

Unfortunately, not likely. 

Always hyping violations of “democratic norms,” it may be the Democrats threatening (again) to blow up the democratic norm of a stable Court. In a Washington Post op-ed, attorney and journalist Jill Fillpovic urged Democrats to “pack the court” if Republicans move ahead in confirming a justice and Democrats win the White House and Senate this November. Though, she advises, “if they’re smart, Democrats will find a more palatable [term].” 

How about a more palatable approach than a Year Zero re-making of the SCOTUS every time party control of the White House and Senate changes?

This is Common Sense. I’m Paul Jacob.

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ideological culture judiciary

Exhibit A+

Neil Gorsuch, Supreme Court,

“Do you really want me to rule the country?” Supreme Court Justice Neil Gorsuch pointedly asked CNN’s Ariane de Vogue.

“It is not a judge’s job to do whatever he or she thinks is good,” Gorsuch added, in response to her concern that judicial activism might sometimes be “needed.” 

“We wrote a Constitution; we put down what we wanted to put in it,” explained President Trump’s first SCOTUS pick. “We can amend it when we wish, and it is not up to nine people to tell 330 million Americans how to live.”

Gorsuch is making the media rounds promoting his new book, A Republic, If You Can Keep It — borrowing Ben Franklin’s famous quip when asked about what form of government the delegates at the 1787 Constitutional Convention had produced. 

Gorsuch follows the judicial philosophy of originalism, criticizing interpretations that jigger the Constitution with the times. “You know, the living Constitution is going to take your rights away,” the justice argues, “and it’s going to add ones that aren’t there.”

And defending the rights actually in the Constitution means, Gorsuch believes, that judges must enforce limits on government. Last weekend in The Wall Street Journal, Kyle Peterson noted that Gorsuch has been true to that mission, pushing back against the High Court’s longtime deference to the administrative state. 

This philosophy puts him beyond partisanship. “Gorsuch voted with liberal justices on important decisions on surveillance and sentencing,” Jonathan Turley writes in The Hill. “He also joined in key decisions supporting free speech against the government. . . .”

All this makes Neil Gorsuch the best justice on the Supreme Court. Perhaps the best in my lifetime. 

And surely Exhibit A in Mr. Trump’s case for reelection.

This is Common Sense. I’m Paul Jacob.

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Neil Gorsuch, Supreme Court,

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judiciary partisanship U.S. Constitution

Heal or Heel?

Supreme Court, packing, packed, red, blue, Republican,Democrat, right, left, partisan,

Call it High Court chutzpah?

In a Second Amendment case seeking U.S. Supreme Court review, five U.S. Senators have filed an amicus curie or “friend of the court” brief . . . that wasn’t very friendly.

“The Supreme Court is not well,” argue Sens. Sheldon Whitehouse (D-R.I.), Richard Blumenthal (D-Conn.), Mazie Hirono (D-Hawaii), Richard Durbin (D-Ill.), and Kirsten Gillibrand (D-N.Y.) in their brief against the Court accepting the case. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”

A not-very-veiled threat.

Is their goal really to ‘reduce political influence’? Or to leverage influence against the Court should it not “heal itself” — or come to heel — by authoring judicial decisions more to Democrats’ liking? 

Seven Democratic presidential contenders, including Sens. Elizabeth Warren, Kamala Harris and Kristen Gillibrand, support court packing — having the next Democrat-controlled Congress increase the size of the SCOTUS beyond nine justices, to 12 or 15.

“[M]ost Americans recognize this tactic for what it is, which is a direct attack on the independence of the Supreme Court,” Sarah Turberville and Anthony Marcum write in The Hill. “It is no coincidence that court packing is employed by would be autocrats all over the world rather than by leaders of liberal democracies.”

To supposedly “depoliticize” the “partisan” Supreme Court, Mayor Pete Buttigieg wants to pick five justices to represent Democrats and five to represent Republicans, and then those ten would together choose five additional justices. 

Nothing like being overtly partisan to vanquish partisanship, eh?

This is Common Sense. I’m Paul Jacob.

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national politics & policies Popular term limits U.S. Constitution

The Court-Packers

Supreme Court, NPC, packing the court, FDR, law, justice, constitution

“What if there were five justices selected by Democrats,” presidential candidate Beto O’Rourke explored at an Iowa campaign stop, “five justices selected by Republicans, and those ten then pick five more justices independent of those who picked the first ten?”

Beto, meet FDR.

President Franklin Delano Roosevelt tried something similar with the Judicial Procedures Reform Bill of 1937, which would have added six new justices to the nine-justice U.S. Supreme Court. It failed in the Senate, even though FDR’s Democratic Party controlled the chamber.

This “court packing” gambit may have been the most unpopular action of FDR’s whopping three-plus terms. 

Despite the obvious self-interested power grab, “Sens. Kamala Harris, Elizabeth Warren and Kirsten Gillibrand . . . would not rule out expanding the Supreme Court if elected president,” Politico reported.

“It’s not just about expansion, it’s about depoliticizing the Supreme Court,” Sen. Warren explained . . . with a straight face. Yet Beto’s suggested reform would officially turn the nation’s highest court into a partisan, two-party political institution.

To the good, Democrats are also bantering about term limits for the nation’s High Court. Trouble is, term limits require a constitutional amendment, meaning a two-thirds vote of both chambers of Congress as well as 38-state ratification. 

Court packing, on the other hand, only requires simple majorities of both houses and the presidency. Which Democrats threaten in 2020.

“You need to gain power,” Washington Examiner columnist Philip Wegmann reminds, “before you can abuse it.”

So the abuse, for now, is merely promising.

This is Common Sense. I’m Paul Jacob. 

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crime and punishment general freedom judiciary property rights

Property Rights vs. Absentee Frogs

frog, Supreme Court, property

When an assault on individual rights achieves a certain depth of irrationality, the Supreme Court is capable of common sense. Even unanimous common sense.

The 8-0 ruling in Weyerhaeuser v. U.S. Fish and Wildlife Service pertains to the desire of the U.S. Fish and Wildlife Service to designate over 1500 acres of Louisiana land a “critical habitat” of the dusky gopher frog. The designation means that owners may not develop the land that they own in even the simplest ways without consulting with/begging permission from bureaucrats.

If a property owner has an actual right to his own property, the government cannot properly commandeer even one square inch of it to appease Lithobates sevosus. Give the creature a YouTube video and leave it at that.

But sevosus doesn’t even inhabit the so-called “critical habitat.”

The frog is not on the property!

This fact enabled Chief Justice John Roberts (not always clear on the meaning of words) the chance to emphasize that words have meaning. “According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat,’” Roberts clarified. “Only the ‘habitat’ of the endangered species is eligible for designation as critical habitat.”

Concurring, pundit George Will says that the decision represents “a recuperative moment for the court” and delivers “a chastisement of the administrative state, the government’s fourth branch, which is one too many.”

Is this ruling as thoroughgoing as it should be? No. Nevertheless, the decision is surely a victory for minimal common sense. Of which we could use more.

And more, also, of maximal common sense.

I’m Paul Jacob.

 

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Photo credit: US Department of Agriculture

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crime and punishment media and media people moral hazard national politics & policies

Not an Accusation

Julie Swetnick

Brett Kavanaugh’s weekend confirmation as an Associate Justice of the U.S. Supreme Court, by a 50-48 Senate vote, didn’t settle the allegations of his past sexual conduct in a judicial manner.

Wild disagreement remains.

Many on the Left continue to believe our newest justice repeatedly lied under oath, having abused at least three women when in high school and college. Many on the Right will view all “three” of these female accusers as political players or pawns, who probably should be punished in some way for lying about such a fine man.

While I doubt we can know for certain about a number of the accusations, there should be less doubt on the exact number of accusations. Which were not three but only two.

“I cannot specifically say that he [Brett Kavanaugh] was one of the ones who assaulted me,” Julie Swetnick told NBC News. But she went on to offer a maybe, a could have, some might haves, an I don’t know . . . and more, none of which amounted to an accusation. What she offered was a chain of suppositions: “Because if Brett Kavanaugh was one of those people that did this to me, there is no way in the world that he should go scot-free on this and that he should be on the Supreme Court. . . . If he does, I, uh — there’s no justice in the world.”

As long as this sort of nonsense is treated seriously in the media and among partisans, there can, indeed, be no justice in the world.

This is Common Sense. I’m Paul Jacob.

 

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