Plus ça change …

Plus ça change, plus c’est la même chose:

A recent story about Leonard Leo, who advises the President on judicial nominees and is connected to the ascent of judges such as Kavanaugh, was even more hysterical. The author worried about a “secretive network of extremely conservative Catholic activists” who are stacking the federal courts with conservative jurists. Leo’s membership in the Knights of Malta, his public work in defense of religious freedom around the world, and his connection to Catholic-educated nominees such as Kavanaugh and Neil Gorsuch, all caused the author to fret that Leo is “shaping the federal judiciary according to his beliefs, with very clear ideological consequences.” The article asserts that the conviction that human life begins at conception is a religious belief. And it laughably attributes to Catholics the view that natural law “trumps any secular law that humans (or legislatures) might dream up.”

The American tradition of constitutionalism abhors inquiries into the particular creeds espoused by candidates and nominees for public office. The Constitution of the United States prohibits religious tests. And anyway, religion is not the issue. Fidelity to the rule of law is what matters. Anyone can determine to follow the law, even Senators Feinstein and Durbin.

There is no reason to think that someone who accepts on faith the teachings of the Bible or the Roman Catholic Church is any less capable of correctly interpreting and applying the law than someone who accepts on faith what scientists tell us about global warming. Faith in something must precede reason—at the very least, faith in reason itself—else we could never know anything.

Adam J. MacLeod, Why Judge Kavanaugh’s Religion Should Be an Issue.

The other liberal complaint is that since the Catholic position on abortion is religiously derived, if it ultimately becomes law, that constitutes an imposition of religion. This argument is nonsense, too. Under American concepts of political pluralism, it makes no difference from where a belief comes. Whether it comes from church teaching, inner conviction or some trash novel, the legitimacy of any belief rests ultimately on its content, not on its origin. It is absurd to hold that a pro-abortion position derived from, say, Paul Ehrlich’s overpopulation doomsday scenario is legitimate but an anti-abortion position derived from scripture is a violation of the First Amendment.

Charles Krauthammer, Washington Post, March 23, 1990 (part of his collection Things That Matter).

* * * * *

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Some succinct standing advice on recurring themes. Where I glean stuff.

Follow me on Micro.blog Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving. Or, if you prefer, those micro.blog items also appear now at microblog.intellectualoid.com.

Calming the discord

Impatient with the three branches of government established at the nation’s founding, the left routinely takes its politics to the streets now to demand remedies for “inequality” or “injustice.” Yet these inchoate demands have become so disconnected from the normal mechanisms of politics that no Congress, representing 535 elections, could possibly turn them into legislation.

Shortly after the Obergefell decision, something else of cultural and political significance happened. Within months, the left began to agitate for transgender rights, another moral claim whose substantive meaning is a mystery to most Americans.

Liberals remain incredulous at Mr. Trump’s election. But nearly half the electorate voted for him, and among the reasons is that today a lot of people—across all income classes—feel they are really being jammed by the culture. Progressive jurisprudence had a lot to do with this. Liberals won their share of court decisions, but at a price: The courts in America became an agent of social discord.

It would be good for the country’s stability if a Kavanaugh Court disincentivized the left from using the courts to push the far edges of the social envelope. This is not about turning back the clock. It is about how best to resolve bitter social and cultural disputes in the future. It is about no longer using the courts to make triumphal moral claims against the majority.

In the Kavanaugh Court, extending rights claims beyond their already elastic status is going to require more rigor than appeals to a judge’s personal sensibilities or a theory of social organization developed in law journals.

Advocates for social change involving race, gender, identity and such will have to convince representative majorities, elected by voters, to agree with their point of view. Unlike in the past four decades, the high court will more often weigh in after, not before, the political process has happened.

The United States needs to settle down politically ….

Daniel Henninger (emphasis added, paywall)

I’m less convinced than Henninger that the Roe v. Wade line of cases can survive a court that shows rigorous respect for the Constitution. Here’s why.

Not too long ago, I got into an internet dust-up with an progressive ignoramus who claimed that the purpose of the Constitution was to establish “rights.” I tried to correct him, and was treated as a monster for denying his dogma.

He was wrong, but he’s far from alone. It’s widely overlooked these days (though probably not widely ignored when mentioned) that the Bill of Rights are ten amendments to the constitution, the core purpose of which was to set up the rules for governing a new nation (duh!).

Among those rules were separation of the national government into three branches, with checks and balances among them, and with limitation on their overall power because states and the people would retain all powers not delegated to the national government.

So when an overreaching court seizes an issue from the States, although the Constitution left that issue to the states, that seizure is no less a violation of the constitution than when Congress makes a law, say, respecting the establishment of religion or prohibiting the free exercise thereof.

The Supreme Court Justices swear to uphold the Constitution, and take no oath to advance rights claims without Constitutional roots. Doesn’t that oath oblige justices to undue the mistake of a prior court that improperly wrested an issue away from those to whom the Constitution left it?

It’s pretty well known among legal scholars that the constitutional underpinnings of our abortion jurisprudence are somewhere between shaky and fanciful. There was a veritable cottage industry of attempts on the legal left to re-write the defective Roe v.. Wade opinion in law journal articles from 1973 to 1992, when Justice Kennedy replaced all the trimester crap and other Roe detritus with the equally risible “mystery passage” and invocation of stare decisis to avoid a “jurisprudence of doubt.” (“Shut up,” he explained.)

Perhaps a “Kavanaugh Court” would demur from overruling the Roe line of cases because frank overruling would increase an already-dangerous level of political discord. I suppose that could be justified on a “lesser Constitutional evil” theory (e.g., “If we honor federalism and return abortion laws to the states, where they belong, the whole Constitutional edifice could be toppled in the aftermath”).

In an era of Constitutional outrages, I don’t think that would be at the top of the outrage list, but I could fairly easily see it going the other way, too, especially if our political discord dies down before an appropriate case reaches the court.

* * * * *

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Some succinct standing advice on recurring themes. Where I glean stuff.

Follow me on Micro.blog Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving. Or, if you prefer, those micro.blog items also appear now at microblog.intellectualoid.com.

‘Zat all you got?

  • Brett Kavanaugh participated in an aggressive investigation of Bill Clinton under Ken Starr in his late 20s or early 30s.
  • He thereafter served in Dubya’s White House and gained a much greater appreciation of the weighty duties of the office (and what, perhaps, Bill Clinton could have done had he not been besieged legally).
  • So in 2009, when a Democrat was President (and he decidedly was not in the White House), Kavanaugh published a Law Review article suggesting that Congress should pass a law exempting the President from personal legal distractions until he leaves office.
  • So Brett Kavanaugh’s change of mind on this issue is not a cynical effort to endear him to Donald Trump, and the chance that he thinks Judges may exempt the President without Congressional legislation is very slim.

The New York Times Daily podcast Wednesday was very disappointing on these matters, only once mentioning the 2009 date of the law review article, not noting that Barack Obama was then President, and generally hinting at a convenient and politically ambitious conversion.

Seriously, Times: Is that all you’ve got?

UPDATE: No, it’s not all the Left has. It took me about 10 seconds to decide that deleting this blog entry, upon learning the followng salient fact, would be dishonest, as I’ve tried to be an honest broker with my ideological cards on the table.

From that Law Review Article:

Even in the absence of congressionally conferred immunity, a serious constitutional question exists regarding whether a President can be criminally indicted and tried while in office.

Expect to hear that quoted back during confirmation hearings. Expect also to hear that it was a footnote acknowledgement, not a principal argument.

* * * * *

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Some succinct standing advice on recurring themes. Where I glean stuff.

Follow me on Micro.blog Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving. Or, if you prefer, those micro.blog items also appear now at microblog.intellectualoid.com.

Will Kavanaugh butcher the sacred cow?

I think it was Nina Totenburg who on NPR Tuesday evening was incredulously challenging a Trump spokesman on the claim that President Trump didn’t ask SCOTUS nominee Kavanaugh about abortion — because Trump said on the campaign trail that he would appoint pro-life justices. As the spokesman pointed out, he also promised that there would be no litmus test and that he provided a list, later expanded, of people from whom he would nominate.

Here’s the solution of Totenburg’s clumsy effort at setting up a trick box:

  • There are no secret handshakes or pass-codes. Trump and Kavanaugh are (or will be) telling the truth when they deny discussing abortion. Get over it.
  • Trump (or, likelier, his advisers on judicial matters) are just quite confident that the people on his list are going to be hostile to the Supreme Court’s abortion jurisprudence because it’s a hot, steaming mess, lacking firm roots in the Constitution. The people on the list revere the Constitution and will be disinclined, all else being equal, to ignore hot steaming messes that sully the Constitution by the pretext that it, the Constitution, and not errant justices, created the mess.
  • Notably, Democrat Chuck Schumer has declared his certainty — and horror — about how Kavanaugh would decide abortion cases (presumably starting with Kavanaugh’s constitutional reverence and following the trail from there, though Schumer would never admit that the one follows the other logically).
  • Democrat Presidents are similarly confident, without actually asking, that their nominees are not going to be overly troubled by the legal messiness of the status quo. Their party has a rather latitudinarian view about the importance of the Constitution’s original public meaning, plus some theories on how we can never know that meaning, and (double-plus) it reveres the sexual revolution. Q.E.D.
  • Trump was and is a bullshitter. Any correspondence between what he promises and what he does is, generally, coincidental. His judicial nominees from that list have been a happy exception, as he has hewed to the list of nominees from which he promised to pick. (Okay: Schumer’s a bullshitter, too, though definitely a minor-leaguer compared to President MAGA.)

A Kafkaesque part of the prescribed ritual combat will be invocations or deprecations of “Roe v. Wade.” It’s weird because Roe finally succumbed to its birth defects (helped along by a thousand cuts from Law Journal articles, left, right and center) in 1992, with Anthony Kennedy and company quietly interring it and trotting out the new rationale for continuing a liberal abortion regime: No more trimesters or such; the test of a law is whether it creates an “undue burden” on access to abortion, because “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life.” (Damn! How could I have missed that?!)

Roe is dead. De mortuis nil nisi bonum. But if you take away the totemistic invocation of Roe, the Senate might be struck dumb(er).

And therein lies the dilemma that will produce some sordid theater over the coming months.

* * * * *

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Some succinct standing advice on recurring themes. Where I glean stuff.

Follow me on Micro.blog Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving. Or, if you prefer, those micro.blog items also appear now at microblog.intellectualoid.com.

Worldview shapers

They’re all good judges, but for what it’s worth, I hope President Trump nominates Amy Coney Barrett to be the next justice on the Supreme Court.

… The way Senate Democrats treated Barrett last autumn — in particular, Senator Dianne Feinstein’s argument that Barrett was simply too religious and too devoutly Catholic to serve on the bench, declaring, “the dogma lives loudly within you,” revealed an argument this country needs to have: whether the country accepts deeply religious people in positions of legal authority.

… I don’t think you have to look too hard to find progressives who believe, more or less, that devout Catholics — perhaps devout Christians of any stripe — simply can’t be trusted to rule on the law and should be prevented from serving in the judiciary whenever possible. A Catholic judge can insist, loudly and often, that they believe their role as a judge is to rule on the law and the Constitution alone, and that while their faith no doubt shapes their values and their worldview — as much as any religion, philosophy, or atheism shapes the values and worldview of any other judge — and some progressives will insist it’s all a ruse. Some are determined to see any religiously active Christians as theocrats in black robes. (As this 2007 cartoon demonstrates, the arguments are sometimes not that subtle at all; merely an affiliation with a Catholic faith makes you an agent of the Pope.)

You know that if Barrett is the nominee, someone on the Left will make an openly sexist criticism. You know her seven children will be discussed in depth. You know that someone will inevitably make an argument that amounts to, “Look, if we’re going to allow Catholics to be judges, they at least have to be lapsed Catholics.”

Why do some progressives see Catholics and/or Christians as aspiring dictators from the bench, eager to toss away any established rights, established traditions, and impose an oppressive doctrine on the entire country and stifle dissent and differing points of view?

Because that’s how some progressives see the role of the judiciary.

Jim Geraghty (boldface added)

I have already given my reasons why I hope President Trump does not nominate Judge Barrett for this vacancy, and neither Geraghty nor Rod Dreher have persuaded me that “teachable moment” outweighs “vicious bloodbath.”

But the text that I’ve boldfaced alludes to a blind spot that drives me nuts: the idea that there is neutral ground, and that our judges should be picked from there.

There is no neutral ground. That’s not a “this is war, so pick your side” statement. It’s a statement about the formation of educated, balanced and strong adults, from which sizable group we pick things like Supreme Court justices (and, normally, Presidents).

If there are any amnesiacs, who’ve truly lost the conceptual screen through which they sift reality (at least by default, and subject to changes of mind), they will not be chosen by any President who wants to leave a print on the judiciary, which is to say “by any President.”

Some remaining choices are candidates who know they have a screen through which they sift reality but lie about it, and those who have a screen through which they sift reality but don’t realize it.

I think a candidate who’s honest about his deepest personal commitments and plausibly promises to distinguish them from the law is the best choice of the three.

* * * * *

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Some succinct standing advice on recurring themes. Where I glean stuff.

Follow me on Micro.blog Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving.

Zombie Analysis

Zombie analysis of Supreme Court nominees is my topic today.

Iconic radio talk show host Rush Limbaugh has often said that liberals “always let us know who they fear” through their unhinged attacks. Among all the potential nominees mentioned a little over a week ago, Amy Coney Barrett immediately attracted the most flak from the left.

And so, of course, the preferred nominee of Doug Mainwaring at brain-dead website LifeSiteNews.com, is Amy Coney Barrett. Not because dispassionate conservative analysis commends her (a topic entirely ignored), but because she triggers the enemy:

  • NARAL
  • Planned Parenthood
  • Seasoned Democrat politicians
  • Dick Durbin
  • Chuck Shumer
  • New York Times
  • MSNBC
  • Ruth Marcus
  • Chris Cillizza
  • Slate.com
  • Washington Post
  • Ivy League law school hegemony

I am not making this up or exaggerating. Literally the first ten reasons given for supporting her are the identies of ten opponents. The last two are my interpretations of less straightforwardly identified bogeymen.

The article, by the way, bears the unironic title “12 reasons Amy Coney Barrett should be on the Supreme Court.”

I have nothing against Amy Coney Barrett except that this kind of trolling is the commonest artument for her. That’s not her fault. It’s just the times we live in.

And it’s contemptible. It doesn’t even do justice to the qualifications of Judge Barrett, who is reduced to a piece of red meat.

* * * * *

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Some succinct standing advice on recurring themes. Where I glean stuff.

Follow me on Micro.blog Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving.

If you promise, deliver

[John] McAdams, a professor of political science, wrote on his personal blog, Marquette Warrior, about a recorded interaction in which a graduate student philosophy instructor told her student that his opinions opposing gay marriage “are not appropriate.”

A month later, without presenting him with any formal charges, Marquette suspended McAdams, cancelled his classes, and banned him from campus. The college later insinuated that McAdams violated a harassment policy, and that his punishments stemmed from his naming the instructor in his blog post and linking to her own, publicly available, blog.

“As FIRE has argued since the beginning, Marquette was wrong to fire John McAdams simply for criticizing a graduate student instructor who unilaterally decided that a matter of political interest was no longer up for debate by students,” said FIRE Executive Director Robert Shibley. “This ruling rightly demonstrates that when a university promises academic freedom, it is required to deliver.”

Though Marquette is a private, Roman Catholic institution not bound by the First Amendment, the university promises faculty “the full and free enjoyment of legitimate personal or academic freedoms,” and it explicitly guarantees that “dismissal will not be used to restrain faculty members in their exercise of academic freedom or other rights guaranteed by the United States Constitution.”

Press Release by FIRE. From their computers to God’s ear — and the ears of other university administrators:

“Administrators cannot simply decide that they do not like the results of certain faculty speech, and then work backwards to find a justification for firing them,” said Ari Cohn, director of FIRE’s Individual Rights Defense Program. “The court’s decision recognized that allowing a university to do so is incompatible with any meaningful understanding of academic freedom. Colleges and universities across the country that are facing calls to discipline faculty members for their online speech should pay attention to today’s decision.”

* * * * *

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Some succinct standing advice on recurring themes. Where I glean stuff.

Follow me on Micro.blog Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving.

“But Gorsuch”

Since Justice Anthony Kennedy announced his retirement, I have repeatedly heard some version of the following from conservatives who declined to back the Republican presidential nominee in 2016: If I had known that Donald Trump would keep his promises on judges, I would have voted for him.

The conservative case against Trump was always two-fold: His personal flaws would cripple his presidency and discredit conservatism, and he was more of a liberal Trojan horse than a true conservative anyway.

… Trump has been better for conservatives on judicial and social issues than we had reason to expect, and he has aggressively cut taxes and regulations. Overall, the personal criticisms of Trump have held up while the ideological objections so far have not.

Maybe the long-term damage Trump does to conservatism’s brand outweighs his contributions on judges. But that is a tougher case to make than simultaneously arguing Trump is too liberal and too flawed ….

W. James Antle III.

Comments from a conservative who, ahem!, “declined to back” the candidate of my former party:

  1. Trump’s promise on judges was so clear and specific that I trusted it more than any other of his promises that I can recall. His promise-keeping on this is a silver lining in a dark cloud.
  2. My concern was not that Trump would have a crippled presidency but that he would have a consequential presidency though his narcissistic and possibly sociopathic impetuousness and love of chaos. That concern remains, though I’m less concerned now about him pushing nuclear launch buttons (or trying to do so, leading to a de facto coup by a military countermand).
  3. That Trump was no conservative was manifest from his personal life and populist rabble-rousing. But that did not mark him as a “liberal.” Political reality simply is not well-portrayed by a one-dimensional line running from conservative to liberal.
  4. The damage Trump does to the culture — no, make that “the utter inability of Donald Trump to improve our God-forgetting and increasingly toxic culture” — makes even the judicial “win” feel Pyrrhic.

My vote if I had it to do over? My state was a safe state for Trump (though his whole candidacy boggled my mind), so I was spared a terrible decision. I still would have written in the American Solidarity Party candidate.

UPDATE: #4 is added.

* * * * *

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Some succinct standing advice on recurring themes. Where I glean stuff.

Follow me on Micro.blog Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving.

Δ blindness

The New York Times item (news? analysis? editorial?) on the Right “weaponizing” the First Amendment is, of course, subject to satire and plausible accusations of hypocrisy — as is the Rights newish romance with that Amendment.

But here’s a fresh spin on the story:

[I]f you follow this logic of this Times analysis, then workers at low-budget religious ministries that offer women alternatives to abortion actually represent “the powerful” classes in California, in a free-speech fight with government, Planned Parenthood, et al, over whether ministries can be compelled to give women what amounted to referrals to abortion facilities.

When you apply this to other crucial First Amendment doctrines then you would find yourself defending the rights of a single baker (a traditional Christian) to decline a request to create a one-of-a-kind artistic cake celebrating a same-sex wedding rite (after offering the couple any of the standard cakes or desserts in his shop). The baker’s very narrow, faith-based refusal of this task was offensive and caused pain, yet the gay couple had many other options in the local marketplace. The baker is “the powerful” force in this legal fight?

It would also be possible to defend Catholic nuns who refused government commandments that they cooperate with efforts to provide contraceptive options to their own staff, in violations of important Catholic doctrines linked to their mission. The elderly nuns represent the “the powerful” classes in this legal fight?

I am left, once again, wondering what label to assign to contemporary people and groups that are weak in their defense of free speech, weak in their defense of freedom of association and weak in their defense of the free exercise of religion. What should fair-minded journalists call them? What should the Times team have called the powers that be on the “progressive” side of the debate (including the newspaper’s editorial-page team)?

The one label that cannot be assigned to these groups is “liberal.” That just won’t fly, in the wider context of American political thought.

(Terry Mattingly, emphasis added)

Progressives and Conservatives have different characteristic blindnesses.

* * * * *

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Some succinct standing advice on recurring themes. Where I glean stuff.

Follow me on Micro.blog Follow me on Micro.blog, too, where I blog tweet-like shorter items and … well, it’s evolving.

The autonomy ethic

My micro.blog account isn’t working as expected this morning, so I’m posting this here:

Justice Anthony Kennedy didn’t invent the shift from community to autonomy, but in 1992 he articulated it more crisply than anyone else: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

… You’d think [this “mystery of life” passage] would lead to a very small state that would leave a lot of freedom for people. In fact, it leads to a big, intrusive state. If you strip away all the communal commitments that help people govern themselves from within, then very soon you find you have to pass all sorts of laws to govern them from without. If you privatize meaning so that people get to follow their unrestrained desires, they immediately start tramping on one another, and public pressure grows for restrictive laws, like hate speech regulation, to keep things from getting out of control.

Any society has to perform at least two big related tasks — raising the young and pursuing of the good. It takes a village to do both these things. As Yuval Levin reminded us in an essay in First Things a few years ago, people are only capable of exercising responsible freedom when they are embedded in and formed by social institutions — like family, schools that take morality seriously and a shared civic order. It’s not a do-it-yourself job.

The autonomy ethos forgets this. Justice Kennedy channeled it in its purest form.

David Brooks Much more could be said, and some already has been said, about Justice Kennedy’s wooly-headed “swing vote” jurisprudence in some areas of law, but the “mystery passage” is likely the wooliest.

* * * * *

The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Place. Limits. Liberty.

Some succinct standing advice on recurring themes.

Where I glean stuff.