Tag Archives: Brett Kavanaugh

Four More Years to MAGAA

28 Wednesday Oct 2020

Posted by in Big Government, Liberty, Politics

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As a “practical” libertarian, my primary test for any candidate for public office is whether he or she supports less government dominance over private decisions than the status quo. When it comes to Joe Biden and his pack of ventriloquists, the answer is a resounding NO! That should clinch it, right? Probably, but Donald Trump is more complicated….

I’ve always viewed Trump as a corporatist at heart, one who, as a private businessman, didn’t give a thought to free market integrity when he saw rent-seeking opportunities. Now, as a public servant, his laudable desire to “get things done” can also manifest to the advantage of cronyists, which he probably thinks is no big deal. Unfortunately, that is often the way of government, as the Biden family knows all too well. On balance, however, Trump generally stands against big government, as some of the points below will demonstrate.

Trump’s spoken “stream of consciousness” can be maddening. He tends to be inarticulate in discussing policy issues, but at times I enjoy hearing him wonder aloud about policy; at other times, it sounds like an exercise in self-rationalization. He seldom prevaricates when his mind is made up, however.

Not that Biden is such a great orator. He needs cheat sheets, and his cadence and pitch often sound like a weak, repeating loop. In fairness, however, he manages to break it up a bit with an occasional “C’mon, man!”, or “Here’s the deal.”

I have mixed feelings about Trump’s bumptiousness. For example, his verbal treatment of leftists is usually well-deserved and entertaining. Then there are his jokes and sarcasm, for which one apparently must have an ear. He can amuse me, but then he can grate on me. There are times when he’s far too defensive. He tweets just a bit too much. But he talks like a tough, New York working man, which is basically in his DNA. He keeps an insane schedule, and I believe this is true: nobody works harder.

With that mixed bag, I’ll now get on to policy:

Deregulation: Trump has sought to reduce federal regulation and has succeeded to an impressive extent, eliminating about five old regulations for every new federal rule-making. This ranges from rolling back the EPA’s authority to regulate certain “waters” under the Clean Water Act, to liberalized future mileage standards on car manufacturers, to ending destructive efforts to enforce so-called net neutrality. By minimizing opportunities for over-reach by federal regulators, resources can be conserved and managed more efficiently, paving the way for greater productivity and lower costs.

And now, look! Trump has signed a new executive order making federal workers employees-at-will! Yes, let’s “deconstruct the administrative state”. And another new executive order prohibits critical race theory training both in the federal bureaucracy and by federal contractors. End the ridiculous struggle sessions!

Judicial Appointments: Bravo! Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and over 200 federal judges have been placed on the bench by Trump in a single term. I like constitutional originalism and I believe a “living constitution” is a corrupt judicial philosophy. The founding document is as relevant today as it was at its original drafting and at the time of every amendment. I think Trump understands this.

Corporate Taxes: Trump’s reductions in corporate tax rates have promoted economic growth and higher labor income. In 2017, I noted that labor shares the burden of the corporate income tax, so a reversal of those cuts would be counterproductive for labor and capital.

At the same time, the 2017 tax package was a mixed blessing for many so-called “pass-through” businesses (proprietors, partnerships, and S corporations). It wasn’t exactly a simplification, nor was it uniformly a tax cut.

Individual Income Taxes: Rates were reduced for many taxpayers, but not for all, and taxes were certainly not simplified in a meaningful way. The link in the last paragraph provides a few more details.

I am not a big fan of Trump’s proposed payroll tax cut. Such a temporary move will not be of any direct help to those who are unemployed, and it’s unlikely to stimulate much spending from those who are employed. Moreover, without significant reform, payroll tax cuts will directly accelerate the coming insolvency of the Social Security and Medicare Trust Funds.

Nonetheless, I believe permanent tax cuts are stimulative to the economy in ways that increased government spending is not: they improve incentives for effort, capital investment, and innovation, thus increasing the nation’s productive capacity. Trump seems to agree.

Upward Mobility: Here’s Joel Kotkin on the gains enjoyed by minorities under the Trump Administration. The credit goes to strong private economic growth, pre-pandemic, as opposed to government aid programs.

Foreign Policy: Peace in the Middle East is shaping up as a real possibility under the Abraham Accords. While the issue of coexisting, sovereign Palestinian and Zionist homelands remains unsettled, it now seems achievable. Progress like this has eluded diplomatic efforts for well over five decades, and Trump deserves a peace prize for getting this far with it.

Iran is a thorn, and the regime is a terrorist actor. I support a tough approach with respect to the ayatollahs, which a Trump has delivered. He’s also pushed for troop withdrawals in various parts of the world. He has moved U.S. troops out of Germany and into Poland, where they represent a greater deterrent to Russian expansionism. Trump has pushed our NATO allies to take responsibility for more of their own defense needs, all to the better. Trump has successfully managed North Korean intransigence, though it is an ongoing problem. We are at odds with the leadership in mainland China, but the regime is adversarial, expansionist, and genocidal, so I believe it’s best to take a tough approach with them. At the UN, some of our international “partners” have successfully manipulated the organization in ways that make continued participation by the U.S. of questionable value. Like me, Trump is no fan of UN governance as it is currently practiced.

Gun Rights: Trump is far more likely to stand for Second Amendment rights than Joe Biden. Especially now, given the riots in many cities and calls to “defund police”, it is vitally important that people have a means of self-defense. See this excellent piece by David E. Bernstein on that point.

National Defense: a pure public good; I’m sympathetic to the argument that much of our “defense capital” has deteriorated. Therefore, Trump’s effort to rebuild was overdue. The improved deterrent value of these assets reduces the chance they will ever have to be used against adversaries. Of course, this investment makes budget balance a much more difficult proposition, but a strong national defense is a priority, as long as we avoid the role of the world’s policeman.

Energy Policy: The Trump Administration has made efforts to encourage U.S. energy independence with a series of deregulatory moves. This has succeeded to the extent the U.S. is now a net energy exporter. At the same time, Trump has sought to eliminate subsidies for wasteful renewable energy projects. Unfortunately, ethanol is still favored by energy policy, which might reflect Trump’s desire to assuage the farm lobby.

Climate Policy: Trump kept us out of the costly Paris Climate Accord, which would have cost the U.S. trillions of dollars in lost GDP and subsidies to other nations. Trump saw through the accord as a scam under which leading carbon-emitting nations (such as China) face few real obligations. Meanwhile, the U.S. has led the world in reductions in carbon emissions during Trump’s term, even pre-pandemic. That’s partly a consequence of increased reliance on natural gas relative to other fossil fuels. Trump has also supported efforts to develop more nuclear energy capacity, which is the ultimate green fuel.

COVID-19 Response: As I’ve written several times, in the midst of a distracting and fraudulent impeachment attempt, Trump took swift action to halt inbound flights from China. He marshaled resources to obtain PPE, equipment, and extra hospital space in hot spots, and he kick-started the rapid development of vaccines. He followed the advice of his sometimes fickle medical experts early in the pandemic, which was not always a good thing. In general, his policy stance honored federalist principles by allowing lower levels of government to address local pandemic conditions on appropriate terms. If the pandemic has you in economic straits, you probably have your governor or local officials to thank. As for the most recent efforts to pass federal COVID relief, Nancy Pelosi and House Democrats have insisted on loading up the legislation with non-COVID spending provisions. They have otherwise refused to negotiate pre-election, as if to blame the delay on Trump.

Immigration: My libertarian leanings often put me at odds with nationalists, but I do believe in national sovereignty and the obligation of the federal government to control our borders. Trump is obviously on board with that. My qualms with the border wall are its cost and the availability of cheaper alternatives leveraging technological surveillance. I might differ with Trump in my belief in liberalizing legal immigration. I more strongly differ with his opposition to granting permanent legal residency to so-called Dreamers, individuals who arrived in the U.S. as minors with parents who entered illegally. However, Trump did offer a legal path to citizenship for Dreamers in exchange for funding of the border wall, a deal refused by congressional Democrats.

Health Care: No more penalty (tax?) to enforce the individual mandate, and the mandate itself is likely to be struck down by the Supreme Court as beyond legislative intent. Trump also oversaw a liberalization of insurance offerings and competition by authorizing short-term coverage of up to a year and enabling small businesses to pool their employees with others in order to obtain better rates, among other reforms. Trump seems to have deferred work on a full-fledged plan to replace the Affordable Care Act because there’s been little chance of an acceptable deal with congressional Democrats. That’s unfortunate, but I count it as a concession to political reality.

Foreign Trade: I’m generally a free-trader, so I’m not wholeheartedly behind Trump’s approach to trade. However, our trade deals of the past have hardly constituted “free trade” in action, so tough negotiation has its place. It’s also true that foreign governments regularly apply tariffs and subsidize their home industries to place them at a competitive advantage vis-a-vis the U.S. As the COVID pandemic has shown, there are valid national security arguments to be made for protecting domestic industries. But make no mistake: ultimately consumers pay the price of tariffs and quotas on foreign goods. I cut Trump some slack here, but this is an area about which I have concerns.

Executive Action: Barack Obama boasted that he had a pen and a phone, his euphemism for exercising authority over the executive branch within the scope of existing law. Trump is taking full advantage of his authority when he deems it necessary. It’s unfortunate that legislation must be so general as to allow significant leeway for executive-branch interpretation and rule-making. But there are times when the proper boundaries for these executive actions are debatable.

Presidents have increasingly pressed their authority to extremes over the years, and sometimes Trump seems eager to push the limits. Part of this is born out of his frustration with the legislative process, but I’m uncomfortable with the notion of unchecked executive authority.

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Of course I’ll vote for Trump! I had greater misgivings about voting for him in 2016, when I couldn’t be sure what we’d get once he took office. After all, his politics had been all over the map over preceding decades. But in many ways I’ve been pleasantly surprised. I’m much more confident now that he is our best presidential bet for peace, prosperity, and liberty.

Scorning the Language of the Left

12 Sunday Jan 2020

Posted by in Censorship, Leftism, Political Correctness

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It’s hard not to ridicule some the language adopted by our lefty friends, and it can be fun! But it’s not just them. We hear it now from employers, schools, and otherwise sensible people too eager to signal their modernity and virtue. Lionel Shriver dissects some of this “Lefty Lingo” in an entertaining piece in Harper’s. It’s funny, but it aroused my contempt for the smugness of the “wokescenti” (a term Shriver attributes too Meghan Daum) and my pity for those “normals” simply desperate to project progressive sophistication.

Here are a few of Shriver’s observations:

“Privilege”: makes you incapable of understanding that which you criticize.

“Whereas a privilege can be acquired through merit—e.g., students with good grades got to go bowling with our teacher in sixth grade—privilege, sans the article, is implicitly unearned and undeserved. The designation neatly dispossesses those so stigmatized of any credit for their achievements while discounting as immaterial those hurdles an individual with a perceived leg up might still have had to overcome (an alcoholic parent, a stutter, even poverty). For privilege is a static state into which you are born, stained by original sin. Just as you can’t earn yourself into privilege, you can’t earn yourself out of it, either. … . it’s intriguing that the P-bomb is most frequently dropped by folks of European heritage, either to convey a posturing humility (“I acknowledge my privilege”) or to demonize the Bad White People, the better to distinguish themselves as the Good White People.

Meanwhile, it isn’t clear what an admission of privilege calls you to do, aside from cower. That tired injunction ‘Check your privilege’ translates simply to ‘S.T.F.U.’—and it’s telling that ‘Shut the fuck up’ is now a sufficiently commonplace imperative to have lodged in text-speak.”

“Cisgender”: “Cis-” is a linguistic shell game whereby the typical case is labelled cis-typical.

“Denoting, say, a woman born a woman who thinks she’s a woman, this freighted neologism deliberately peculiarizes being born a sex and placidly accepting your fate, and even suggests that there’s something a bit passive and conformist about complying with the arbitrary caprices of your mother’s doctor. Moreover, unless a discussion specifically regards transgenderism, in which case we might need to distinguish the rest of the population (‘non-trans’ would do nicely), we don’t really need this word, except as a banner for how gendercool we are. It’s no more necessary than words for ‘a dog that is not a cat,’ a ‘lamppost that is not a fire hydrant,’ or ‘a table that is actually a table.’ Presumably, in order to mark entities that are what they appear to be, we could append ‘cis’ to anything and everything. ‘Cisblue’ would mean blue and not yellow. ‘Cisboring’ would mean genuinely dull, and not secretly entertaining after all.”

“Microaggression“: Anything you say that bothers them, even a little.

“… a perverse concoction, implying that the offense in question is so minuscule as to be invisible to the naked eye, yet also that it’s terribly important. The word cultivates hypersensitivity.”

“_____-phobic”: the typical use of this suffix in identity politics stands “phobia” on its head. To be fair, however, it started with a presumption that people hate that which they fear. Maybe also that they fear and hate that which they don’t care for, but we’ll just focus on fear and hate. For example, there is the notion that men have deep fears about their own sexuality. Thus, the prototypical gay-basher in film is often compensating for his own repressed homosexual longings, you see. And now, the idea is that we always fear “otherness” and probably hate it too. Both assertions are tenuous. At least those narratives are rooted in “fear”, but it’s not quite the same phenomenon as hate, and yet “phobic” seems to have been redefined as odium:

“The ubiquitous ‘transphobic,’ ‘Islamophobic,’ and ‘homophobic’ are also eccentric, in that the reprobates so branded are not really being accused of fearfulness but hatred.”

“LGBTQ“: Lumping all these “types” together can be misleading, as they do not always speak in unison on public policy. But if we must, how about “Let’s Go Back To ‘Queer'”, as Shriver suggests. The LGBs I know don’t seem to mind it as a descriptor, but maybe that’s only when they say it. Not sure about the trannies. There is a great Libertarian economist who is transsexual ( Dierdre McCloskey), and somehow “queer” doesn’t seem quite right for her. Perhaps she’s just a great woman.

“The alphabet soup of ‘LGBTQ’ continues to add letters: LGBTQIAGNC, LGBTQQIP2SAA, or even LGBTIQCAPGNGFNBA. A three-year-old bashing the keyboard would produce a more functional shorthand, and we already have a simpler locution: queer.”

“Problematic”, “Troubling” and “Inappropriate”: I’m sure some of what I’ve said above is all three. I must confess I’ve used these terms myself, and they are perfectly good words. It’s just funny when the Left uses them in the following ways.

“Rare instances of left-wing understatement, ‘problematic’ and ‘troubling’ are coyly nonspecific red flags for political transgression that obviate spelling out exactly what sin has been committed (thereby eliding the argument). Similarly, the all-purpose adjectival workhorse ‘inappropriate’ presumes a shared set of social norms that in the throes of the culture wars we conspicuously lack. This euphemistic tsk-tsk projects the prim censure of a mother alarmed that her daughter’s low-cut blouse is too revealing for church. ‘Inappropriate’ is laced with disgust, while once again skipping the argument. By conceit, the appalling nature of the misbehavior at issue is glaringly obvious to everyone, so what’s wrong with it goes without saying.”

Here are a few others among my favorites:

“Patriarchy“: This serves the same function as “privilege” but is directed more specifically at the privilege enjoyed by males. Usually white, heterosexual males. It seeks to preemptively discredit any argument a male might make, and often it is used to discredit Western political and economic thought generally. That’s because so much of it was the product of the patriarchy, don’t you know! And remember, it means that males are simply incapable of understanding the plight of females … and children, let alone queers! Apparently fathers are bad, especially if they’re still straight. Mothers are good, unless they stand with the patriarchy.

“Hate Speech“: This expression contributes nothing to our understanding of speech that is not protected by the Constitution. If anything its use is intended to deny certain kinds of protected speech. Sure, originally it was targeted at such aberrations as racist or anti-gay rhetoric, assuming that always meant “hate”, but even those are protected as long as they stop short of “fighting words”. There are many kinds of opinions that now seem to qualify as “hate speech” in the eyes of the Identitarian Left, even when not truly “hateful”, such as church teachings in disapproval of homosexuality. There is also a tendency to characterize certain policy positions as “hate speech”, such as limits on immigration and opposition to “living wage” laws. Hypersensitivity, once more.

“Sustainability“: What a virtue signal! It’s now a big game to characterize whatever you do as promoting “sustainability”. But let’s get one thing straight: an activity is sustainable only if its benefits exceed its resource costs. That is the outcome sought by voluntary participants in markets, or they do not trade. Benefits and costs “estimated” by government bureaucrats without the benefit of market prices are not reliable guides to sustainability. Nor is Lefty politics a reliable guide to sustainability. Subsidies for favored activities actually undermine that goal.

There are many other Lefty catch phrases and preferred ways of speaking. We didn’t even get to “safe space”, “social justice”, and the pronoun controversy. Shriver closes with some general thoughts on the lefty lingo. I’ll close by quoting one of those points:

“The whole lexicon is of a piece. Its usage advertises that one has bought into a set menu of opinions—about race, gender, climate change, abortion, tax policy, #MeToo, Trump, Brexit, Brett Kavanaugh, probably Israel, and a great deal else. Reflexive resort to this argot therefore implies not that you think the same way as others of your political disposition but that you don’t think. You have ordered the prix fixe; you’re not in the kitchen cooking dinner for yourself.”

 

“Othered” By the Left

31 Thursday Jan 2019

Posted by in fascism, Identity Politics, Progressivism

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Progressivism certainly has its discards. The photo showed a trash bin labeled “CATHOLIC DUMPSTER”. Dead bodies were hanging out of the top. A “friend” had posted it on Facebook, ostensibly as humor. I thought it was in poor taste and had the temerity to say so in a comment; naturally I was immediately castigated by a mob for expressing that opinion. The “friend” said that if I really knew him, I’d realize that he loves everyone. That claim was quickly undermined by his partner, who joined the exchange to spew vitriol for Christians. A wiser person on the thread, perhaps detecting a whiff of hypocrisy, noted the likely outrage had the label on the trash bin said “JEWISH DUMPSTER”. Well yes…. Er, maybe. The political Left, it seems, is drifting ever closer to anti-Semitism as well as radical intolerance for Christians. This in addition to outright hostility toward whites, men, or anyone perceived as having “privilege”. The rhetoric is becoming increasingly hateful, vile, and violent.

A recent confrontation in front of the Lincoln Memorial wrapped together several objects of leftist hatred. It involved boys from Covington Catholic High School and left-wing activist Nathan Phillips, an Omaha Indian, as well as a group of black nationalists called the Black Hebrew Israelites. The Covington boys are white, male, Catholic, pro-life, and they wore MAGA caps. They were passive except for chants intended to drown-out shouts of “faggots” from the Black Israelites, but the media almost uniformly portrayed the boys as racist villains in the immediate aftermath, based on incomplete video evidence. It is difficult to ascertain who released the original video, but a longer version proved that the boys were not at fault. Meanwhile, Phillips proved to be a bald-faced liar. He lied about the sequence of events, the behavior of the boys, and about having served in Vietnam. But those lies fueled a media narrative as well as the fertile imaginations of many leftists. The full video reveals that Phillips marched from some distance straight up to one of the teenagers and proceeded to bang a drum in the kid’s face. The boy maintained his composure and kept a calm smile on his face. Later, however, that smile was cited as proof of racism!

A few members of the media retracted the awful things they said about the teenagers and the incident, but others continue to allege that the Covington teenagers were at fault, or that they at least share the blame. Some of the rhetoric is no less hateful than before the full video became available. This is a far cry from the heartfelt entreaties to avoid criticism of any controversial opinions expressed by “the children” in the wake of the Parkland High School shooting. In the present case. the kids have been targeted with a slew of insults and threats to themselves and their families.

Regarding the MAGA caps, I am by no means a Trump enthusiast, but I root for him to do well as our president despite my strong disapproval of some of his policies. You won’t ever catch me in a MAGA cap. However, I do not believe that he and his political base are racist. Trump is an equal opportunity denigrator, but he’s called a racist every time his target happens to be a person of color, as though people of color are always above criticism. Trump is called a racist for his promise to build a wall along the Mexican border to stem illegal crossings, though the same proposal has been offered by many Democrats over the years, including Barack Obama and Check Schumer. Therefore, the very idea that wearing a MAGA cap is a racist signal is transparently political and absurd. That some of the Covington boys wore MAGA caps has reinforced other excuses to target them for vicious criticism.

A further issue is that the Covington boys are privileged, you see, guilty of possessing white, male privilege, even as they defended a black classmate harangued by the Black Israelites. They attend a private school, and so they must be from wealthy families and worthy of progressive hatred. They were in DC for the March for Life, so they are opposed to reproductive choice and must hate women. In fact, it’s been alleged that they were in DC only to oppose the Women’s March. Misogynists!

Hatred for Catholics and for anyone who has attended private schools is always de rigueur on the Left. That was quite clear during the Brett Kavanaugh confirmation hearings. Hatred gushed from the Left not only because they were satisfied of Judge Kavanaugh’s guilt based on unsubstantiated, 11th-hour allegations leveled against him by an SJW, but apparently also because he attended a Catholic boys school! Oh, and he is male. I have another “friend” whose Facebook feed was littered with smears of Kavanaugh, including characterizations of private school kids as “smug little weasels”. As Caroline Lewis said at the time, these “critics” are barbarians. Do you think they don’t want to hurt those they’ve “othered”, or want someone else to hurt them in one way or another? The boundaries of grievance always expand, and will keep expanding until they eat their own.

David French claims that his defense of Christian education prompted an activist to start the #ExposeChristianSchools hashtag. Now, I’m sure everyone who has attended public or private schools can repeat a litany of stories about a few awful teachers they were forced to endure, not to mention the hostile environment that school children often create for one another. But private schools, and religious schools, are often superior options for parents and children. If you don’t like the curriculum, don’t send your kids there. If you don’t think the policies are sufficiently inclusive, or the environment will be unhealthy for your child, then send them elsewhere. But the vilification of an entire segment of the population based on how they choose to educate their children is despicable. They’d ban Christian education if they could… and religion!

Note that the Left’s insistence on state domination is itself a threat of violence. While capitalism and free markets are cooperative in nature, socialism is at its core authoritarian and coercive. If you resist you become an enemy of “the people”, and such enemies will have consequences to pay.

Antifa is unashamedly violent, but it might be only the tip of the iceberg. The rhetoric of the Left has become increasingly hostile toward Christians, Jews, males, whites, Republicans, and of course anyone achieving material success. There is no forgiveness nor genuine love of others in leftist doctrine. Indeed, the “otherism” inherent in leftist identity politics is dangerous and a source of increasing social instability. Their “eliminationist rhetoric” is becoming all too common (scroll down at the link).

For now I’ll continue to engage in the marketplace of ideas. Perhaps it’s becoming a war. Us “others” need to keep voting and never back down. And by all means, be prepared to defend ourselves and our loved ones by any means necessary.

 

 

 

 

 

The Court and Kavanaugh

08 Monday Oct 2018

Posted by in Supreme Court

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There are both great and hysterically negative expectations for Brett Kavanaugh’s seating on the Supreme Court, depending on one’s perspective. The changes are likely to be much less dramatic than many think, however, according to Glenn Reynolds in his Sunday column. As he says, most cases before the Supreme Court are decided by easy majorities, and that won’t change. On split decisions, Kavanaugh will be less of a “swing vote” than Anthony Kennedy, no doubt, and he will have influence over the choice of cases to be heard by the Court because the selection of a case requires only four justices.

Reynolds thinks Kavanaugh is not as conservative as partisans hope or fear. For example, Reynolds believes he is unlikely to vote to overturn Roe vs. Wade, when and if that question comes before the Court. There may be shifts on narrower questions, such as an earlier definition of fetal viability (in recognition of improved medical technology) and greater protection against arrangements that facilitate illegal funding of abortions by federal taxpayers. Reynolds acknowledges, however, that Kavanaugh is a stronger advocate of Second Amendment rights than Kennedy, so those protections are less likely to be eroded.

Reynolds’ also notes a shift that is likely to take place in legal academia:

“Strange new respect for judicial minimalism. As Harvard Law professor Adrian Vermeule remarked, ‘Law review editors: brace for a tidal wave of legal academic theories supporting judicial minimalism, Thayerianism, and strong — very strong — theories of precedent. Above all: the Court must do nothing without bipartisan agreement, otherwise it is illegitimate.’ The past half-century’s enthusiasm for judicial activism will vanish, as legal academia turns on a dime to promote theories that will constrain the court until a left-leaning majority returns, at which point they’ll turn on a dime again.”

That is all too likely. My liberal friends insist that the four justices on the left are free of political bias. Don’t laugh! I’ll be happy if Kavanaugh, as a justice, sticks to his traditional originalist philosophy on constitutional interpretation. I’m under no illusion that the left side of the bench takes the original meaning of the Constitution seriously.

My own concerns about Kavanaugh have to do with his earlier work in the Bush White House on issues related to national security, including work on the PATRIOT Act. In fairness, that work took place at a time when the horrors of 9/11 were still fresh in our minds. However, years later he wrote a favorable judicial opinion on metadata collection by the government. It’s disturbing that Kavanaugh has ever shown a willingness to relinquish the rights to privacy and due process as a routine matter of national security. The founders’ intent was to protect individual rights from the threat of tyranny, so they expressly limited the power of government through the Constitution. Those who would claim that threats to national security are so compelling as to supersede individual rights are perhaps the very tyrants the Constitution was meant to foil. Nevertheless, my hope is that Kavanaugh, having come face-to-face with those who would prefer to deny privacy and due process rights when it suits them, has gained additional respect for these protections.

The “Judicial Temperament” Ruse

02 Tuesday Oct 2018

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“Judicial temperament” applies to situations in which an impartial third party is or would be acting as a judge, weighing evidence that might support one side of a case or the other. It cannot apply to one of the parties to a dispute or allegation of wrongdoing, nor can it reasonably be inferred in other matters from the attitude or statements of one of the first two parties with respect to the accusation. Of course, an individual accused of a misdeed for which they KNOW they are innocent can be expected to react angrily. That would be natural and understandable, and it has nothing to do with the individual’s judgement in other realms. Any victim of wrongdoing has a right to be angry, and a false accusation is no exception.

Christine Blasey Ford has accused Brett Kavanaugh of a sexual assault that she says took place 36 years ago when the two were in high school, but without corroboration of any kind. The Left has characterized Kavanaugh’s righteous indignation as a “temper tantrum” unbefitting a Supreme Court Justice. “Oh, but why are you so angry?”, they ask. Really.

Assuming that he is indeed innocent of the charge, and there are many reasons to doubt its veracity, Kavanaugh’s reaction was well-justified. The allegation was unveiled by the minority on the Senate Judiciary Committee at the eleventh hour as they prepared to vote on bringing his name to the floor of the Senate for confirmation. A much earlier disclosure was possible and would have permitted an investigation weeks before the Committee hearings. Not only that, the minority presumed his guilt, he was called “evil” by one senator, he received death threats against his family, and he was forced to field a host of probative questions about his teenage scribblings in a high school yearbook. Only a Vulcan would greet such sabotage of character with equanimity, and I’ll gladly give Kavanaugh a pass on it. I mostly enjoyed his fire and emotional at the hearing last Friday.

Another dimension of judicial temperament is impartiality. The meaning of that term can be manipulated, of course. For example, one’s views on constitutional interpretation are at the very root of many political disagreements, yet when convenient, some pretend that the two are mutually exclusive. Shall we disqualify anyone with a specific constitutional philosophy? Does it somehow depend on which seat is open? Of course not.

On the other hand, Kavanaugh voiced what many knew to be true at the hearing last Friday: the Leftist minority on the Committee had prepared an ambush to destroy him. He also noted the possibility of lingering resentment for his role on Ken Starr’s staff investigating the Clintons in the 1990s. Perhaps Kavanaugh was unchaste to express what was obvious, and the Left has seized on those statements as evidence of a disqualifying political bias. But again, he stated what he knows to be true.

Kavanaugh’s is widely viewed as an impartial jurist, and he has a history of collegiality with judicial peers from across the political spectrum. As Randy Barnett states at the link above:

“His 300 opinions have been thoughtful and well reasoned. His reasoning has repeatedly been adopted by majorities of the Supreme Court. He gets high marks from, well, from everyone for his intelligence, decency, and judicial temperament.”

It is my conviction that Kavanaugh would rely on his legal scholarship and constitutional philosophy, as he has in the past, in deciding his positions on issues that come before the Court, rather than hearing cases with a view toward malice against particular individuals or one end of the political spectrum. I also believe he is wise enough to know that he should recuse himself in cases of obvious personal conflict. The charge that he lacks judicial temperament is an additional attack based on his judicial philosophy, and it is an opportunistic attempt to discredit him on the basis of his strong and understandable response to a smear campaign.

Can Dems Keep a Straight Face Through Thursday?

21 Friday Sep 2018

Posted by in Defamation, Sexual Predation, Supreme Court

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A political party that wants voters to give them control of Congress also wants you to believe that a man is guilty until proven innocent; that presumed guilt is contingent on gender and race; and that sitting on accusations until the midnight hour is not a manipulative, politically-motivated stunt. With all due respect to victims of sexual predation from both genders (oops, perhaps I should have said all genders), the allegations and smears against Brett Kavanaugh smack of political motivation, and you can bet Kavanaugh’s detractors are proud of it.

First there was Professor Christine Ford’s allegation about an assault 36 years ago at a party that no one remembers, including her. Then there are the cloudy and shifting recollections of Deborah Ramirez about a dorm party at Yale 35 years ago at which she thinks Kavanaugh exposed himself as part of a drinking game, but no one else seems to recall that event either. In fact, it’s reported that Ramirez was not going forward with the claim until she was sought out by congressional Democrats. And then there is Michael Avenatti, the cartoonish attorney for porn star Stormy Daniels, who says that Kavanaugh and a buddy, Mark Judge, regularly drugged women and arranged for “trains” of men to rape them. Avenatti now says one such woman will come forward within 48 hours. Perhaps she’s still negotiating her deal with Avenatti. Why, you could almost get the idea that Democrats are actively recruiting accusers.

Here’s what Charlie Martin said:

“Okay, so we’re up to Kavanaugh and Mark Judge supposedly pimping out drug-addled high school girls to pull a train with classmates without anyone mentioning it for 36 years. Do the accusations of Satanic abuse and child sacrifice hold off until Wednesday, do you think?”

Ford claims that Judge Brett Kavanaugh, 36 years ago as a teenager, sexually abused her at a high-school party while his friend, Mark Judge, watched. She claims Kavanaugh pushed her down on a bed, groped her, attempted to remove all or part of her one-piece swimsuit, and placed his hand over her mouth to silence her protests before Master Judge piled on top, causing the three to fall off the bed and allowing her to escape from the room.

Democrats say this allegation should keep Kavanaugh off the Supreme Court or delay any vote on his appointment until after a full investigation by the FBI. Let’s review some facts in the case:

  • Ford can’t recall a specific location, how she got there or how she got home, how she wound up in the upstairs bedroom with the two boys, the name of the party’s host, or more specifics about the date of the alleged assault.
  • Ford says she never told anyone about the incident until years later when she revealed it to a therapist, whose notes say there were four people in the room and do not mention Kavanaugh.
  • The allegation was made by Ford in a letter to Senator Diane Feinstein on July 30, five weeks before the Senate Judiciary Committee held hearings on Kavanaugh’s nomination to the Court. Feinstein did not mention the letter during the hearings. She revealed it’s existence just a few days before a scheduled Committee vote on the Kavanaugh nomination, six weeks after her receipt of the letter. Feinstein has refused to reveal the unredacted contents of Ford’s letter to the Judiciary Committee.
  • Kavanaugh has denied the allegation and says that it could be a case of mistaken identity. Kavanaugh’s friend Mark Judge denies that the incident took place.
  • Ford named two other individuals as potential witnesses who could place both Ford and Kavanaugh at the party in question. Both have stated that they are unable to do so. The first, another male friend of Kavanaugh’s, released a statement praising Kavanaugh’s integrity. The second, a woman, stated that she does not know Kavanaugh and is unable to place the two at a party together. That’s a total of three witnesses who say they didn’t witness anything.
  • Some 200 alumni of Ford’s private all-female high school wrote a letter in support of Ford, but many of them are not even contemporaries of Ford and Kavanaugh.
  • Some 65 women who knew Kavanaugh during his high school years have signed a letter vouching for his character; a number of college and law school classmates as well as high-profile female attorneys who have worked with (and for) Kavanaugh have publicly stated their support and vouched for his integrity.
  • Originally, Ford and Kavanaugh both agreed to appear before the Judiciary Committee on Monday, Sept. 24; the vote on Kavanaugh’s nomination was delayed a week. Subsequently, Ford stated that she would not appear before the Committee until the FBI had completed an investigation of the incident.
  • The charge would not be a federal crime, so the FBI declined to investigate.
  • Later, she expressed a willingness to appear under the right conditions, but not as soon as Sept. 24; only questions from Senators; Kavanaugh cannot be in the same room; and Kavanaugh must go first.
  • After a week of repeated requests through Ford’s attorneys and several “deadlines” set by the Committee Chairman, it now appears that the hearing will take place on Thursday, Sept. 27, but the terms have not been fully settled.

I think the Committee Chairman, Chuck Grassley, got played in accepting the delays. It allowed the Democrats to raise these unprovable accusations in a campaign against Kavanaugh in the media. It also invited the very bandwagon effect of unfounded accusations we are now witnessing, as the underhanded effort to block Kavanaugh’s appointment began to bear additional fruit.

The alleged crime occurred when both Ford and Kavanaugh were minors (Ford was 15, Kavanaugh 17). The statute of limitations applicable to minors in the state of Maryland, where the alleged incident occurred, is three years or until the “injured party” reaches the age of majority. It is therefore too late for Ford to file criminal charges against Kavanaugh. The statute of limitations is reasonable to the extent that teenagers do a great many stupid and harmful things for which they should not necessarily be held responsible as adults. Sexual aggression, if proven, may well cross a line depending on its character and severity, but from a legal perspective that line is determined, in part, by the victim’s determination to bring charges at a time when the charges can reasonably be investigated. Ford did not bring them, and she did not so much as mention them to anyone for about 30 years.

Ford has been involved in some left-wing activism, but her social media profile was  scrubbed before the allegations went public. Her attorney, Debra Katz, has been a prominent member of the MeToo movement. This has, quite naturally, contributed to suspicions that the entire matter is a political stunt. That’s reinforced by Feinstein’s delays in making the matter public, Feinstein’s refusal to release Ford’s letter without redactions, and by the repeated delays in Ford’s commitment to testify before the Committee. In fact, Ford claimed that she cannot appear before the Committee until late next week because she must drive from the west coast to Washington, DC. That’s because Ford says she has a fear of flying and “closed spaces”. Not only that, these fears originated with Kavanaugh’s alleged attack. Just wow! The author at the last link wonders whether Ford took a boat to her internship in Hawaii a few years ago, avoided elevators for 36 years, or perhaps managed her issues with medication.

Ford’s high-school yearbooks were available on-line until just a few days ago, when they were suddenly taken down by the affluent private girls school she attended. The yearbooks do not reflect directly on Ford. They are, however, a bit surprising because they were presumably overseen by faculty, and yet they celebrated heavy drinking and the joys of blacking out, promiscuity, and they even contained hints of racism. The fact that the yearbooks were suddenly removed from the internet reflects on Ford’s defenders, who must have felt that the books would damage her credibility.

Again, the terms of the hearing involving Ford and Kavanaugh are still up in the air. Ford’s insistence that Kavanaugh should testify to the Committee prior to her is contrary to the normal procedure in any case involving criminal charges. The Senate follows the same rules. Putting Kavanaugh in a different room would deny him his right of habeas corpus. The Committee chairman has also suggested that questioning would be handled by a female attorney. Given these differences, it is far from certain that Ford will ever appear before the Committee.

The letter to Feinstein, as it turns out, was drafted by Ford at the senator’s request after Ford had first consulted her congresswoman, Anna Eshoo, earlier in July. The redacted portions of that letter are of interest. After all, they may either bolster or weaken the credibility of the charges. However, if there are allegations in the letter that are false, and if they were revealed to the Committee, it would expose Ford to criminal charges and imprisonment. Could this be why the full letter has been withheld by Feinstein?

However much we might desire justice for victims of sexual abuse, and however much we might sympathize with a victim’s emotional difficulties attendant to such an attack,  those matters cannot be used to deny the due process rights of an accused. Society cannot simply take an accuser’s “word for it”, especially when the accuser declines to take action within a reasonable period of time, one within which evidence and testimony might be gathered effectively. While the evidentiary standards in a criminal proceeding might be more stringent than in assessing an accused individual’s fitness for high office, mere late-hour assertions are not adequate when the record, as in Judge Kavanaugh’s case, is so exemplary, and when there is absolutely no corroboration. Indeed, it is dubious to raise serious allegations of this nature when they are unprovable, and only when the alleged attacker is due to receive a prominent appointment of some kind. Ford’s allegation, and the others, have all the earmarks of a politically-motivated smear campaign.