Thoughts on The Court

1

Monday’s New York Times “The Daily” podcast was uncharacteristically obtuse and irritating.

Topic: “What the last few weeks mean for the future of the Supreme Court.”

How about “What the last few weeks mean for the future of the United States Senate,” since nothing has happened that delegitimatizes the court, but a lot has happened since 2016 to make people despise the Senate for treating Justices as partisan political actors, a role the Justices themselves shun.

Let me put it another way: I don’t think that Democrat Presidents get vote pledges or even winks and nods from their court nominees. Neither do Republicans. I prefer Republican nominees from the expectation (which has been frustrated more than once) that they hold a judicial (not political) philosophy that will produce decisions I prefer (and think closer to the Constitution’s true meaning) as compared to those likely from Democrat nominees.

For me, the court is presumed to be Teflon to Senatorial misbehavior. Senators can beslime a nominee, but swearing in washes right off from the nominee all the Senate’s slime. Senators can beslime themselves, too, and that lingers..

2

Democrats and/or progressives reportedly are concerned about whether they can get a fair shake now from Justice Kavanaugh.

I suspect they will, though it’s possible that Justice Kavanaugh feels, and will continue to feel, the equivalent of what Clarence Thomas reportedly said upon learning that he head been confirmed: “Whoopty-damn-do. Now where do I go to get my reputation back? It wasn’t worth it.”

If they can’t get a fair shake because of the last few weeks, it will be a shame. It will also be an illustration of what trial lawyers say about cross-examining sympathetic witnesses: “If you wound, you’d better kill.

3

Unrelated to the Times podcast, it’s ironic that progressives/Democrats were saying Kavanaugh will overturn Roe” with conservatives/Republicans replying “no he won’t.”

4

UPDATE: I wish Justice Kavanaugh, already sworn in, had talked The Donald out of that Monday evening dog-and-pony-show “shadow swearing in,” the slime of which linger a bit longer because … Trump.

UPDATE 2: Here’s a more thorough scrutiny of Monday’s night’s unseemly events:

Though ceremonial swearings-in like the one Mr. Kavanaugh received are not unheard-of, President Barack Obama’s two court picks, Justice Elena Kagan and Justice Sonia Sotomayor, wisely eschewed such spectacles after they were confirmed, asserting their independence from the president who chose them. Mr. Kavanaugh, unwisely, did not follow their example, dragging his fellow justices to an event that at times felt like a Trump victory lap. “The White House ceremony, which included cocktails and a band, in some ways felt like a cross between a campaign rally and a wedding reception,” The Post’s Ashley Parker and John Wagner reported. Also in attendance were Fox News’s poisonous conservative provocateur Laura Ingraham and Senate Majority Leader Mitch McConnell (R-Ky.).

In my mind, Justice Kavanaugh damaged himself more by not following the Kagan and Sotomayor approach than he ever did in the confirmation hearings.

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No peace I find

1

[O]ur brains did not evolve to understand the world but to survive it. Reality is software that doesn’t run well on our mental hardware, unless the display resolution is minimized. We therefore seek out stories, not because they are true, but because they reduce the incomprehensible into that which is comprehensible, giving us a counterfeit of truth whose elegant simplicity makes it seem truer than actual, authentic truth.

Gurwinder Bhogal.

 

2

I spent days laconically poking at this blog, trying to get to the bottom of Brett Kavanaugh and Christine Blasey Ford. But I can’t come up with a story (see item 1) that persists for more than 24 hours.

I wouldn’t call my experience “oscillating wildly,” but “oscillating around equipoise” would be fair.

Under the circumstances, it would be presumptuous and vain beyond the usual measure to confide my present conviction, as it seems likely to be swayed yet again. Because my current conviction is related to a recurring “even if” conviction I’ve had about this matter, I may have finally found a resting place, but I’m not at all sure. I’ve stripped out some quotations that now seem beside the point.

Yes, I do think that the Kavanaugh matter in some ways is “signal,” not “noise.” It involves two (or more) looming varieties of damage to one of our nation’s most important governing institutions, and that seems to matter legitimately to citizens even if I could once and for all dismiss it sub specie aeternitatis.

 

3

“Tell me again why we shouldn’t confront Republicans where they eat, where they sleep, and where they work until they stop being complicit in the destruction of our democracy,” tweeted Ian Millhiser, justice editor at ThinkProgress.

“Because it is both wrong & supremely dangerous,” replied Georgetown Law professor Randy Barnett. “When one side denies the legitimacy of good faith disagreement over policy — as well as over constitutional principle — the other side will eventually reciprocate. Neither a constitutional republic nor a democracy can survive that.”

Hugh Hewitt

4

Donald Trump doesn’t understand George H.W. Bush’s “thousand points of light,” and that may be his most telling vulgarity. Barack Obama didn’t get it, either.

There was never a time that I didn’t get it.

As has been pretty well documented, though, those points of light have been vanishing since Tocqueville commented on them and even during my own (soon) 70 years. And that may be part of our death sentence as a free people.

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Tangential Miscellany

1

Riveted by the proceedings, I felt at times I should have looked away rather than play voyeur to the humiliation of two fine people — stripped of dignity and emotionally exposed before the world.

Kathleen Parker.

This was a predictable response of decent people. Unlike political pundits, I had no obligation to watch, so I didn’t. That limits how much I can comment with integrity.

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I didn’t watch Thursday’s hearing because I didn’t expect to come any closer to warranted belief by watching (and I expected to be slimed — see above). I think I called that right. Except that most Kavanaugh backers found Ford a powerful witness, Thursday seemed to function as Rorschach Test.

* * *

I’m pretty disgusted with both the Wall Street Journal and the New York Times coverage. The Times is more blatantly partisan, dishing up wave upon wave of shockingly tendentious commentary and “news,” but I also have trouble crediting most of the Journal’s arguments for Kavanaugh.

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Lindsey Graham’s display of rage seems a bit amnesiac. Despicable power grabs in confirmation context started with the proto-Borking, but the penultimate power grab was the GOP’s grab and tabling of Merrick Garland’s confirmation hearing. The GOP brought a pen knife, the Democrats brought an AK-47, but it’s the same street fight.

2

Regarding Presidential politics more generally:

I just don’t understand it. Why aren’t parents more concerned about what their children are hearing about the President’s behavior? … I am left to conclude from these opinions that our greatest problem is not in the Oval Office. It is with the people of this land! We have lost our ability to discern the difference between right and wrong.

As it turns out, character DOES matter. You can’t run a family, let alone a country, without it. How foolish to believe that a person who lacks honesty and moral integrity is qualified to lead a nation and the world! Nevertheless, our people continue to say that the President is doing a good job even if they don’t respect him personally. Those two positions are fundamentally incompatible. In the Book of James the question is posed, “Can both fresh water and salt water flow from the same spring” (James 3:11 NIV). The answer is no.

… Nothing short of a spiritual renewal will save us.

Dr. James Dobson.

Those words are as true now as they were when Dr. Dobson first wrote them — about Bill Clinton, of course. Surely you didn’t think that an Evangelical® would say such a thing about Donald Trump, God’s anointed!

3

When you strip away the blind, fawning hero worship of his supporters and the shrieking, garment-rending hysteria of his opponents, instead examining the actual behavior of this administration, the sitting president looks an awful lot like a fairly conventional Republican scumbag with about as many differences from Obama as Obama had from Bush.

And, to be clear, that is a bad thing. Both Trump supporters and Trump haters get upset whenever I say that this president is not significantly different from his predecessors in any meaningful way outside of rhetoric and narrative, Trump supporters because they believe he is a populist hero and Democrats because I’m disputing the narrative that he’s Literally Hitler. But I don’t say this because I like upsetting everyone, I say it because it’s extremely important to be absolutely clear about what is happening here if we ever want to turn things around for the fate of our species. Trump’s election did not represent the arrival of a new Hitler-like monster, the monster was already here. The call is coming from inside the house..

I’m getting used to Caitlin Johnstone, and trying to figure out the (seeming) conspiracy theory she believes — as I think she’s also doing. Sometimes, Donald Trump appears as one of the plutocrats who’s controlling this all; other times, he’s beholden to those plutocrats.

But she does rack up a lot of points as she careens about the pinball table.

4

If journalism is the first draft of history, history editors have pretty good job security well into the future — assuming we have a future and that people there will want to read history instead of just consulting their feelings.

5

Today is the 20th anniversary of my Father’s repose in the Lord. He was one of the most level-headed people I know, or at least he created that impression by not blathering.

That obviously is a recessive trait, or perhaps one acquired on mine sweepers in the South Pacific and not hereditable.

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Potpourri (mostly political) 9/25/18

1

I apologize if I’ve quoted this before, but I’m a retired lawyer, I’ve watched SCOTUS for decades, and I can’t stop mulling this over.

Here goes:

I can imagine two operative standards for a nominee in Kavanaugh’s shoes. One is what we might call the minimally convincing standard—which we can loosely define as a showing just powerful enough to align the few uncommitted Republicans with the already-declared Republicans and thus assure confirmation.

The other let’s call the no-asterisks standard—that is, a showing sufficiently powerful that a reasonable person will not spend the years of Kavanaugh’s service mentally doubting his integrity or fitness for the role he is playing. It is a showing sufficient for a reasonable pro-choice woman to believe it legitimate—if not desirable—for Kavanaugh to sit on a case reconsidering Roe v. Wade, or for a sexual-assault victim, whatever she may think of his views, to believe it legitimate for him to hear her appeal.

Putting it all together, Kavanaugh’s task strikes me as an unenviable one. He needs to prove a negative about events long ago with sufficient persuasiveness that a reasonable person will regard his service as untainted by the allegations against him, and he needs to do so using only arguments that don’t themselves taint him.

Benjamin Wittes in the Atlantic.

I have called this article “clarifying,” and I particularly had these passages in mind. But now I’m wondering.

We’re all aware of the high levels of polarization in the country. Democrat Senator Mazie Hirono says she disbelieves Kavanaugh’s denial of Dr. Ford’s accusation because she doesn’t like his ideology. On the other side, we have Donald Trump predicting he could shoot someone in Times Square and get away with it.

Consider Hirono and those blasé Times Square bystander archetypes. Where is the archetypal “reasonable person” (or “reasonable pro-choice woman”) who hasn’t already made up his or her mind on the Kavanaugh nomination, or whose opinion of his qualifications (not some political calculus) has materially changed because of the accusations against him?

If you were already inclined to trust Kavanaugh, the evidence against him is weak enough to justify rallying to his side. (“How dare these liberals engage in dirty tricks against this smart, decent family man who’s devoted his life to the law!”) But if you were already inclined to distrust him, the evidence against him is strong enough to justify feeling vindicated. (“You mean the guy who seems eager to gut women’s reproductive rights shows a pattern of misogyny and violence againéé women? No kidding!”)

Damon Linker.

Who thinks that they’ll watch Dr. Ford or Kavanaugh without a glimmer of confirmation bias?

Can any justice be confirmed in this toxic atmosphere without an asterisk by his or her name? (“Hey! I’m reasonable! I think he’s guilty as hell! He’s just the type!”)

Can any conservative man be confirmed without accusations of sexual improprieties? If it comes from an old acquaintance rather than a total stranger, won’t it always come packing an asterisk?

There’s an aphorism about not letting the perfect be the enemy of the good. It’s on my mind these days.

2

FBI Director Christopher A. Wray recently told an audience that there must be a way that cryptographers hadn’t thought of yet to securely guarantee that law enforcement could unlock encrypted devices. He proclaimed “We put a man on the moon” in trying to make the point that if mathematicians and scientists could do that, surely they could find a way to build a secure encryption backdoor. But after decades of research and debate, the experts overwhelmingly agree: trying to build a secure backdoor would be like asking NASA’s to safely land a human on the sun. It’s not possible.

Robyn Greene

3

If Trump fires Rosenstein, he gets rid of the guy who has been Robert Mueller’s main protector at Justice. Yet firing him on charges of insubordination means believing that the Fake News got the story about Rosenstein’s 25th Amendment musings right. This may be the ultimate Trumpian dilemma.

Bret Stephens, in conversation with Gail Collins.

4

The clear implication of the [ad’s] sumptuous red lipstick and the impossibly tall high-heel is that a woman’s womb, ovaries, and breasts are recreational equipment which it would be unthinkable to waste on nurturing a new human being. Maybe when these organs are older and starting not to work so well, they can be used for making and nourishing babies—after a few rounds of chemical fertility treatment, of course. But right now, it’s party time. It’s me time. It’s little black dress time.

Because sex is fun, right? And it’s even more fun when there’s an edge of risk in it, which is why we end up with “emergency contraception” ads in the Underground and an epidemic of STDs. But what’s the purpose of all these cocktails and clubbing? Why do people devote so much of their lives to finding someone with whom to rub bodies if they’re not interested in what body-rubbing was designed to create?

Or take for example this WebMD article about “emergency contraception,” which suggests a woman might want to use it if she had sex and “something went wrong.” Could you run that by me again? In what other instance do we describe body systems accomplishing their intended functions by saying “something went wrong”? ….

G. Shane Morris, If You Don’t Want Kids, Don’t Have Sex (or Get Married).

Caveat: Do not ever think that my quoting something from Shane Morris implies that I agree with him more than about half the time. Some day, I may even unload on him about something in the other half.

5

… I despise Ted Cruz. That is “D-e-s-p-i-s-e,” in case I haven’t spelled out my loathing clearly enough … Because he’s like a serpent covered in Vaseline. Because he treats the American people like two-bit suckers in 10-gallon hats. Because he sucks up to the guy who insulted his wife — by retweet, no less. Because of his phony piety and even phonier principles. Because I see him as the spiritual love child of the 1980s televangelist Jimmy Swaggart and Jack Nicholson’s character in “The Shining.” Because his ethics are purely situational. Because he makes Donald Trump look like a human being by comparison. Because “New York values.” Because his fellow politicians detest him, and that’s just among Republicans. Because he never got over being the smartest kid in eighth grade. Because he’s conniving enough to try to put one over you, but not perceptive enough to realize that you see right through him. Because he’s the type of man who would sell his family into slavery if that’s what it took to get elected. And that he would use said slavery as a sob story to get himself re-elected.

Otherwise, you might say I’m his No. 1 fan.

Bret Stephens, in conversation with Gail Collins.

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Monday 9/17/18

1

David French is much more sensible than Damon Linker on the current status of the Brett Kavanaugh nomination. Linker’s approach gives veto power to accusers whose lurid accusations are likelier false than true (by which I’m not pre-judging the current accusations — I’m talking about his rationale).

Neither would approve a Thursday vote, though.

2

I believe it was Ross Douthat who coined “if you don’t like the Religious Right, just wait ’till you see the irreligious right.” That’s panning out — though the “irreligion” is just one facet of communal breakdown:

[T]he different groups make about the same amount of money, which cuts against strict economic-anxiety explanations for Trumpism. But the churchgoers and nonchurchgoers differ more in social capital: The irreligious are less likely to have college degrees, less likely to be married and more likely to be divorced; they’re also less civically engaged, less satisfied with their neighborhoods and communities, and less trusting and optimistic in general.

This seems to support the argument, advanced by Tim Carney of the Washington Examiner among others, that support for populism correlates with a kind of communal breakdown, in which secularization is one variable among many leaving people feeling isolated and angry, and drawing them to the ersatz solidarity of white identity politics.

… only about a third of Trump’s 2016 voters are in church on a typical Sunday, and almost half attend seldom or not at all.

Ross Douthat

3

[T]he Deep State now feels confident enough to say … openly: the Deep State wants international conflict. The op-ed includes a bald-faced declaration to that effect:

Take foreign policy: in public and private, President Trump shows a preference for autocrats and dictators, such as President Vladimir Putin of Russia and North Korea’s leader, Kim Jong-Un . . .

Astute observers have noted, though, that the rest of the administration is operating on another track, one where countries like Russia are called out for meddling and punished accordingly. . .

The op-ed goes on to talk approvingly about how the Deep State has punished Russia against the President’s wishes, to the point of boasting about it:

He (President Trump) complained for weeks about senior staff members letting him get boxed into further confrontation with Russia, and he expressed frustration that the United States continued to impose sanctions on the country . . .

But his national security team knew better – such actions had to be taken, to hold Moscow accountable.

Here is the significance of the op-ed, not in what it reveals about President Trump but what it says about the Deep State itself, namely that it thrives on unnecessary and strategically counterproductive international conflicts. Those conflicts justify the trillion dollar “national security” budget off which the Deep State feeds, they provide the arenas in which the “national security team” builds its careers and power and they distract the public from our sorry military performance against the real threat, the threat of Fourth Generation war and the entities that wage it. They are, in short, bread for the Establishment and circuses for the citizens.

William S. Lind, The Deep State Speaks (emphasis added).

4

First, now that being censored on social media is a surefire way to win conservative clicks, it’s fair to assume that claims of censorship will proliferate, and not all of them will be true. Second, that doesn’t mean they’re all false, either. When it comes to the right, Silicon Valley almost certainly suffers from what the Valley used to call “epistemic closure” before the Valley embraced it. In that climate, “Sorry, mistake” isn’t likely to mollify anyone.

So the right has good reason for its suspicion, and no way to get good evidence that might rebut it. To see if Alex Jones had indeed been turned into Voldemort, I had to put my Facebook account — and a bit of my reputation — at risk. And even then, the fact that my account stayed up might simply show that the censors saw it as a trap that they were smart enough to avoid.

Bottom line: conservative concern about platform bias will continue to grow, and only radical transparency about platform standards and due process is likely to address that concern.

Stewart Baker (emphasis added), who tested reports that linking to Infowars from Facebook could get you suspended from the latter.

My personal “line I won’t cross” is somewhere between Breitbart and Infowars. I’ll occasionally visit the former, never knowingly visit the latter as if I might learn anything except how odious it is.

Where’s Facebook’s? Okay to link to Richard Spencer? Daily Stormer?

5

The McCarrick outcry is fading, it would appear, because his victims are adult men. Apparently sexual abuse of young men by an older man who is their ecclesiastical superior isn’t that big a deal.

Adult men make less instantly sympathetic victims than children, and the alleged incidents involving McCarrick are less headline-grabbingly horrifying than the episodes revealed by Pennsylvania’s recent grand jury report. But the church has more than a duty to ensure that minors aren’t victimized and should be sensitive to the fact that, where religious authority is exploited, the effects of sexual abuse can be especially devastating, as in Reading’s case.

Terry Mattingly, commenting on some fine reporting by Elizabeth Breunig under the Washington Post’s “Acts of Faith” rubric.

Yeah. Right. Winnowing out men who don’t want the priesthood so much that they’ll tolerate hanky-panky is a swell way of making sure you get lots of gay or sexually ambivalent priests who value the prestige of priesthood more than the truth of dogma and moral teaching.

6

Seriously, folks, if you are planning to withhold your regular tithe to your diocese for the time being, why not redirect it to the Norcia monks, who are the real deal? They are a light for the whole world. Please think about making a donation — or sign up for regular donations. You know how much I care about them, and esteem them. If you want to give confidently to help build a Catholic future you can believe in, the Monks of Norcia need your help.

Rod Dreher.

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Saturday, 9/8/18

1

07stephensWeb-superJumbo

Where do I buy the hat on the left?

Bret Stephens continues his open letter to big-bucks politial donor targets:

The next time you meet a candidate asking for your money, start the conversation with two questions. First: “When did you last change your mind on a significant political, economic or social issue, and why?” Second (if the candidate is already in politics): “When did you vote with the other side?”

In person, many of you are nuanced, balanced and sane in your overall political outlook, irrespective of whether you lean left or right. The problem is that you tend to care mainly about specific policy outcomes — killing the Iran deal, say, or acting on climate — and you’re willing to swallow your misgivings about the other stuff, like Donald Trump’s character or the Democrats’ Sandernista tendencies.

Sacrificed in the bargain is much concern about the tone of campaigns, the rules of politics, the process of policymaking, and ordinary considerations of collegiality and respect.

Let me ask you to think hard about the increasing cost of that bargain. A president who rages like King Lear on the heath because an op-ed in The Times was mean to him. Senate Democrats who cheerfully turn a Supreme Court confirmation hearing into a carnival show while they audition for the Democratic nomination. The collapse of regular order. The vanishing filibuster. The constant threat of government shutdowns. The ceaseless campaign that always comes at the expense of governance. The administrative state on which we increasingly rely to run things because elected officials can’t. The rush to the exits by the more honorable public servants.

This is the politics of maximum polarization and total paralysis, waged with the intensity of the Battle of the Somme and yielding about as much ground. Right now, you’re contributing to this. Stop.

There’s an alternative. Split more of your money between the parties. Fund candidates with proven or potential cross-party appeal. Help out politicians with scores below 100 percent from the N.R.A. or the Sierra Club. Set up a PAC — call it SanePAC or NotNutsPAC — to help candidates facing primary challenges from the further-right or further-left. Expand the reach of purple America at the expense of deep red or deep blue.

I, a Trimmer, endorse this message. I’d add that part of “the cost of the bargain” is bullshit “gotcha” attempts that make the Newspaper of Record look crypto-Resistant.

2

Almost all the excellent reporting of the last year and a half has also been fed by constant distress signals from within the White House, where grown-ups have had to contend with a psychologically disturbed, delusional, and hugely ignorant president, who has no capacity or willingness to learn.

Sometimes I think it’s useful to think of this presidency as a hostage-taking situation. We have a president holding liberal democracy hostage, empowered by a cult following. The goal is to get through this without killing any hostages, i.e., without irreparable breaches in our democratic system. Come at him too directly and you might provoke the very thing you are trying to avoid. Somehow, we have to get the nut job to put the gun down and let the hostages go, without giving in to any of his demands. From the moment Trump took office, we were in this emergency. All that we now know, in a way we didn’t, say, a year ago, is that the chances of a successful resolution are close to zero.

Andrew Sullivan

I can’t endorse much of what Sullivan wrote this week beyond these snippets.

3

Conservatives have long derided “activist” judges who, they argued, issued sweeping social policy without a popular mandate or widespread support. Such protestations helped propel a movement. They might do well to heed their own warnings.

Joshua Zeitz, concluding Why Conservatives Should Beware a Roe v. Wade Repeal. I only came across this because John Fea, who I’ve been following for a month or so, fell for it.

First, any “lack of popular mandate or widespread support” has little if nothing to do with conservative laments about liberal judicial activism. That is a straw man, pure and simple.

Thank you for letting me get that off my chest.

As for the rest, maybe I’m jaded by having spent too much time “in the trenches,” but it strikes me as targeted at a squishy and ignorant set of fence-straddlers. Zeitz’s con goes like this:

  • The pro-abortion side won the battle in Roe v. Wade but suffered the grievous wound of overreach (which is true).
  • Public sentiment is somewhat more pro-abortion now than in 1973 (which I’ll take as true for sake of argument).
  • If conservatives overreach, they, too, could suffer the wound of overreach (which is garbled in its elaboration).

John Fea actually fell for the fallacy that reversal or overruling (not “repeal,” as in Zeitz’s title) of Roe would make abortion virtually illegal (“one can only imagine the strength of the counter-reaction should a conservative court all but criminalize …”).

Reversal of Roe would, in the overwhelmingly likeliest case, return the abortion issue to state legislatures, where the response would vary from complete bans on abortion (which would be widely ignored in “hard cases” after the signing photos were taken) to complete legality with public funding (can you say “California”?).

A vanishly unlikely theory would actually read an abortion ban into the 14th Amendment. The theory argues, in effect, that exploding understanding of fetal development and our early criminal abortion laws were contemporaneous with the 14th Amendment; so contemporaries, if asked, would have said “Why yes, now that you mention it, I guess fetuses are constitutional ‘persons’.” I’m not sure whether anyone is actually advancing this theory in any legal cases. I became aware of it from a third-tier law journal. I hope it’s recognized as “a bridge too far” invitation to conservative judicial activism.

Since neither Roe nor Planned Parenthood v. Casey was well-reasoned or highly principled (Casey effectively replaced Roe with a rationale that is even more patently mockable), I would be personally gratified by the restoration of some constitutional equilibrium through reversing that line of cases.

That reversal would, indeed, be followed by something approaching 50 fierce state legislative debates. The results in most states would be compromises that neither side liked. But that’s where the issue belongs, I believe.

Now: all that having been said, I have been persuaded that a likelier result than any reversal of Roe/Casey is continued chipping away.

It is, after all, not really within the control of “conservatives” — or of Donald Trump, despite campaign bloviating about what his nominees would do — whether bad “progressive” precedents from 45 years back stand or fall.

The Supreme Court, in whose control it is, does not disregard factors like a bad precedent having nevertheless become woven into the social fabric, or a reversal, howsoever well-reasoned, reinforcing the lamentable perception that the Courts are really just super-legislatures.

I’m betting nothing I can’t afford to lose on overruling of Roe in my lifetime.

4

Congressional G.O.P. Agenda Quietly Falls Into Place Even as Trump Steals the Spotlight. Very misleading headline if one thinks an agenda for Congress is more than confirming POTUS’s judicial nominees. There is no GOP congressional agenda revealed in this story.

5

Perhaps most concerning, Judge Kavanaugh seems to have trouble remembering certain important facts about his years of service to Republican administrations. More than once this week, he testified in a way that appeared to directly contradict evidence in the record.

For example, he testified that Roe v. Wade is “settled as a precedent of the Supreme Court.” But he said essentially the opposite in a 2003 email leaked to The Times. “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so,” he wrote then.

Judge Kavanaugh’s backers in the Senate brushed this off by pointing out that his 2003 statement was factually correct. They’re right, which means that his testimony this week was both disingenuous and meaningless.

If the New York Times submitted this drivel as part of a resumé for a “Fact-Checking” position, I wouldn’t give them an interview.

6

Here’s a quote, via the Telegraph, from the prosecutor in the trial where Karen White admitted two indecent assaults against female prisoners:

“The defendant would stand very close to [the victim], touch her arm and wink at her. Her penis was erect and sticking out of the top of her trousers.”

I swear, I wasn’t going to pass along Rod Dreher’s story of tragic stupidity in the Anglosphere, but the Prosecutor’s remark toward the end was irresistibly classic trans gibberish.

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Spleen ventings (and more)

1

Spleen venting #1: I’m pleased that the American Bar Association, which marginalized itself over decades, will now be denied its long preeminence in advising the Senate on federal judicial nominees.

I’m one of those who quit the ABA in 1992 when it endorsed abortion. I still say “to hell with ’em.”

They can line up with all the other conservative and liberal interest groups, as a liberal interest group is all they are these days.

2

Spleen venting #2:

This is what court evangelicals do. They tell the president to fire an Attorney General who rightly recused himself from the Mueller investigation. Falwell Jr. wants Sessions fired in the hopes that his replacement as Attorney General will end the investigation. In other words, Falwell Jr. wants to protect Trump against accusations that he is an adulterer, a liar, and a felon.

John Fea, Jerry Falwell Jr. Told Trump to Fire Sessions

This strikes me, a former Evangelical, viscerally, as I was enrolled for three semesters, during the Vietnam War, in a Christianish educational institution where support of that war was a litmus test.

I don’t think that educational mis-step of mine was why I left Evangelicalism; it certainly was not the proximate cause (the proximate cause was disenthrallment with Dispensationalism and discovery of Calvinism, which I also left decades later — see below). But I’ve never given a dime to that place after leaving.

Falwell, too, is making enemies of many of his growing number of former students.

And because all American Christians are judged disproportionately by the doings of “Rome” and Fundamentalists/Evangelicals, I’m feeling a bit slimed again.

(Hereditary Evangelical fiefdoms, by the way, are a scandal too rarely highlighted.)

3

Trump hates the media because he hates the news, and he hates the news because the news about him is bad. Unable to attack the news itself, he attacks those who report it. He isn’t the first president to attack the press, but he’s the first to label it “the enemy of the people” — a Stalinist term so odious that Nikita Khrushchev banned it. President Richard Nixon said, “The press is the enemy,” but at least he said it privately, as a means of venting, not on social media or to raucous crowds who prefer the Second Amendment to the First.

In his book The True Believer, Eric Hoffer wrote, “Mass movements can rise and spread without belief in a God, but never without belief in a devil.” …

Last month, Attorney General Jeff Sessions said that colleges were turning young people into sensitive snowflakes. Trump is the ultimate snowflake. He wants all of cyberspace to be his safe space.

As Harry Truman famously didn’t say, if you can’t stand the heat, complain about the heat, lie about the heat, and, if possible, ban ovens and stoves.

To find out what Truman really said, Google it.

Windsor Mann, Please be sensitive to our snowflake president’s need for safe space.

Gotta either laugh or cry. I try to choose laughter, even if derisive.

4

It’s interesting to consider, but the Protestants I’ve known who became Catholic were not angry at the church they left behind. They’re been simply grateful to have embraced what they consider to be a more truthful, richer form of the Christian faith. The ex-Catholics I’ve known tend to be angry. In all honesty, I haven’t known many ex-Catholics who were Protestant or Orthodox. Almost all of the ex-Catholics I know ceased to practice any form of the Christian faith. It hadn’t occurred to me until this morning, but I think that’s interesting. Why might they leave Christianity entirely, instead of just become Episcopalian or Southern Baptist?

The answer, I believe, is that Catholicism is such a totalizing faith. That’s not a criticism at all …

I describe having lost the ability to believe in it anymore as like leaving a bad marriage. I wanted so bad for this “marriage” to work, but I realized one day that my bride didn’t love me, that she loved herself, and was going to do whatever she wanted to do, and to hell with me and the kids. Staying in this marriage meant putting up with her abusiveness. I couldn’t do it anymore ….

Believe it or not, one reason I write so often about this current Catholic scandal is that I want the Catholic Church to be healthy and holy. I may not be part of it anymore, but if she is sick unto death, then that affects the entire Body of Christ. If I had no Christian faith at all, I would still want the Church to be healthy, because as that scintillating atheist Camille Paglia has said in the past, the Church is a pillar of our civilization. No church, and we descend into barbarism.

Rod Dreher, reflecting, musing broadly on Damon Linker’s leaving the Roman Church (bold in original, italics added — though italics seem to disappear in this stylesheet).

I may have mis-gauged how coherent this excerpt would be without the elided material. It’s another powerful way of expressing the sense of loss Rod felt and still feels. I hope Linker feels it too, and finds Christ too compelling to forsake His Church (a very loaded term in this context) entirely.

For what it’s worth, my experience echoes Rod’s in this regard: I left Evangelicalism for Calvinism, pretty bitter about what I perceived as its pervasive Dispensational Premillennialism (it dawned on me later that I did not get that from my parents, but from my Christian Boarding School — proof, had I noticed it, that nondispensationist Evangelicalism was possible), but left Calvinism for Orthodoxy “simply grateful to have embraced … a more truthful, richer form of the Christian faith.” I still consider Calvinism a pretty good place to come from, and I don’t think that would change even if my wife had followed me from Calvinism to Orthodoxy.

5

Consider recent state and local actions punishing those who decline to use an individual’s pronouns of choice. California Gov. Jerry Brown signed legislation last year threatening jail time for health-care professionals who “willfully and repeatedly” refuse to use a patient’s preferred pronouns. Under guidelines issued in 2015 by New York City’s Commission on Human Rights, employers, landlords and business owners who intentionally use the wrong pronoun with transgender workers and tenants face potential fines of as much as $250,000.

… For those with a religious conviction that sex is both biological and binary, God’s purposeful creation, denial of this involves sacrilege no less than bowing to idols in the town square. When the state compels such denial among religious people, it clobbers the Constitution’s guarantee of free exercise of religion, lending government power to a contemporary variant on forced conversion.

[I]ndividuals need not be religious to believe that one person can never be a “they”; compelled speech is no less unconstitutional for those who refuse an utterance based on a different viewpoint, as the Supreme Court held in West Virginia State Board of Education v. Barnette (1943). Upholding students’ right to refuse to salute an American flag even on nonreligious grounds, Justice Robert H. Jackson declared: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, religion or other matters of opinion or force citizens to confess by word or act their faith therein.” This is precisely what forced reference to someone else as “ze,” “sie,” “hir,” “co,” “ev,” “xe,” “thon” or “they” entails. When the state employs coercive power to compel an utterance, what might otherwise be a courtesy quickly becomes a plank walk.

Abigail Shrier, The Transgender Language War (emphasis added)

6

Socialism moves human goods outside of market relationships and currency exchange. Most of the programs people now describe as socialism simply entail a more muscular welfare state liberalism. It must be repeated over and over again: “the government pays for stuff” is not socialism. And from my vantage, much of the [Democratic Socialists of America]’s national platform is precisely “the government pays for stuff.”

Fredrik De Boer, hyperlink added.

7

[W]hen people ask me why I didn’t try life among the Trads instead of leaving for Orthodoxy, the answer is right here in this tweet. Some of the best Catholic friends I have, and those I most admire, are Trads, but my general experience with Trads is that too often an intense bitterness, a hardness of heart, and barely-banked anger prevails among them. Our Lord told of the Good Shepherd who leaves his flock of 99 sheep to go after the one who is lost. Far too many Trads would deride that lost sheep a weakling and a quitter.

Rod Dreher, reflecting on this pharisaic Tweet:

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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).

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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.

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.