Category Archives: Courts

A Misapprehension

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John Yoo, Senate Majority Leader Mitch McConnell (R, KY), and others, are suggesting that, given the apparent irregularities (because I’m being polite) in several States’ ballot acceptance and counting procedures, “the courts may decide the election.”

McConnell, et al., misunderstand the situation. The courts won’t decide anything. This election has been decided by American voters. It may take the courts to enforce our decision, though.

There would seem to be strong cases, too, for reversing those…irregularities. Our Constitution’s Article I, Section 4 says pretty explicitly that State legislatures set the Times, Places and Manner of holding Elections… and that Congress may at any time by Law make or alter such Regulations. There’s no wiggle room there.

State non-legislative officials—elections board commissioners, Secretaries of State, governors, et al.—do not have the legal capacity to alter States’ laws, for instance, deadlines for receiving ballots, requirements regarding signature comparison and witness signatures on absentee ballots and mail-in ballots. They do not have that capacity even under the guise of emergencies like the Wuhan Virus situation.

In particular, the virus situation was in full bore by last spring, and both Congress and the States’ legislatures have had months in which to adjust election laws to account for the virus’ impact—and they universally chose to make no adjustments.

Those non-legislative officials’ adjustments are not merely illegal, they’re unconstitutional.

Full stop.

Our Courts

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Throughout this latest Supreme Court Justice nomination and confirmation process, which culminated in Monday night’s swearing-in of Judge, now Justice, Amy Comey Barrett, one of the refrains of the Left has been that the Court has gone too far right and no longer reflects “the population of the United States;” the Court and the courts are “out of touch with the preferences of today’s American population.” The Left demands that our courts “better represent the values of the American people.”

Even, the Supreme Court must act within those values and preferences alone because our Constitution itself has gone out of touch with the people.

One of the threats of the Progressive-Democrats is that they’ll stack the Court—add seats to it—to achieve that “balance.”

The Left misunderstands the role our Constitution has for American judges, and they misunderstand our Constitution’s design for our judiciary system within the Federal government which that same Constitution creates.

On the other hand, Progressive-Democrats use that misunderstanding in their cynical effort to redesign, without the will of We the People—the opening phrase of our Constitution that acknowledges that us American citizens are sovereign, not the Federal government or any part of it—our Constitution, that structure, and the role and operation of our judiciary system, intending to achieve this first by altering the purpose of our Supreme Court better to suit their ends in particular.

Contrary to the foregoing, our Constitution specifies a Federal government consisting of three coequal branches. Two of these are political: Congress and President who are elected by us citizens. These persons are elected for 2-, 4-, and 6-year terms, with elections every 2 years.

The third coequal branch—neither above nor below the political branches—is the judicial branch, whose judges and Justices are unelected and serve life terms, and who thereby deliberately are insulated from the vagaries of day to day, year on year politics—and as deliberately are independent of the political branches other than at the touchstone of (elected) Presidents nominating and the (elected) Senate confirming or withholding confirmation (with each of those answerable to us for their decisions).

From that, it should be clear that it is not the role of judges or Justices, in our system of governance, to reflect the changing values in society, even as those judges and Justices come from the society extant at the time of their nomination and confirmation. Judges’ and Justices’ role, rather, is to apply the Constitution and the relevant statutes in the cases that come before them, and no more or less than that. The courts represent the values of the people by applying the Constitution—ratified by the people and modified by us 27 times—as it is written and applying the statutes enacted by those whom we elect every 2 or 4 (for Presidents) years to represent us as those statutes are written.

It also should be clear from this that the deliberate separation of judicial behavior from political behavior requires judges and Justices to be originalists and textualists. Any move to reinterpret the text of this or that clause of our Constitution, this or that sentence or paragraph of a statute to reflect an individual judge’s or Justice’s understanding of the people’s current values is necessarily a political move, a usurpation of the role and purpose of the political branches. It’s a deprecation of, if not an outright attack on, that separation of the three branches from each other, that separation of powers of each from others.

Amy Coney Barrett at her swearing-in made this plain:

It is the job of a senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give into them. Federal judges don’t stand for election. Thus, they have no basis for claiming that their preferences reflect those of the people.

Nor can they attempt to reflect the preferences of the people any more than they can reflect their own. The preferences of a judge or a Justice is what the text of our Constitution and our statutes say they are. No more or less than that.

It is exclusively the role of the political branches of our Federal government to reflect the mores, the desires of society, to reflect our values for those are political in their reach and are effected in the statutes enacted.

It is the role of We the People—us citizens—to adjust our Constitution as we see fit to reflect our values. And we do that slowly because our Constitution is our plan for governing well into the future, it’s not just a document codifying what’s happening today.

This will, of course produce rulings uncomfortable for Conservatives as well as liberals, especially given the respect for precedent an originalist/textualist judge or Justice must have. Nevertheless, the first and prior precedent, the precedent that governs all else—including the foolishness of the “super-precedents” to which even Barrett succumbs—is our Constitution.

The Left, as a whole, misunderstands. The Progressive-Democrats don’t care; the misunderstanding is just a tool for accruing political power through politicizing what is, by design, an agnostic judiciary.

A State Appellate Court

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One in Michigan got one right. The Michigan Court of Appeals has reversed a State Court of Claims decision that would have counted ballots postmarked by Election Day but received up to two weeks later.

The appellate court held that

[D]esigning adjustments to our election integrity laws is the responsibility of our elected policy makers, not the judiciary….

The court also held that

the state constitution requires all votes to be turned in by 8 pm of Election Day to be counted, and could not be changed by a judicial order.
“The Constitution is not suspended or transformed even in times of a pandemic, and judges do not somehow become authorized in a pandemic to rewrite statutes or to displace the decisions made by the policymaking branches of government,” Judge Mark Boonstra in one of the opinions.

Political decisions must be made by the political branches of government and not by the judicial branch.

Imagine that.

Here, for good or ill, the political branches have made their decision: only votes received by the end of Election Day—and not by the end of the day itself—can be counted. Full stop.

Hypocrisy

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Progressive-Democrats are accusing Republicans of that as they move to confirm Judge Amy Coney Barrett to the Supreme Court “in a Presidential election year.” Typical of them is this bit by Congressman Gerry Connolly (D, VA):

I’m focused on the hypocrisy of the Republicans who promised, Lindsey Graham [R, SC, and Senate Judiciary Committee Chairman] being number one, his own words, said they wouldn’t do this.

What Connolly is carefully ignoring is that Graham, subsequent to that commitment and in response to the then-Judge Brett Kavanaugh Supreme Court confirmation hearings, said in no uncertain terms, that as a result of Progressive-Democrat (my term) behavior during those hearings, all bets were off.

What Connolly also is carefully ignoring is that his Progressive-Democrat confreres on the Judicial Committee during Kavanaugh’s confirmation hearings utterly refused to engage in a serious confirmation process. Those worthies instead executed a deliberate character assassination campaign in an attempt to destroy the man; their effort against Kavanaugh made Progressive-Democrat treatments of Robert Bork, Clarence Thomas, and Samuel Alito look absolutely gentle.

It’s not Republicans who are being hypocritical in this manufactured kerfuffle.

A Supreme Court Selection

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Leslie Marshall thinks Judge Amy Coney Barrett ought not be confirmed—ought not even be considered—as a Supreme Court Justice.

She’s wrong.

Barrett could also cast a key vote on cases involving the upcoming presidential election….

That’s part of the point of getting a ninth Justice quickly confirmed—to avoid the possibility of tie votes on such important decisions.

…she has little in common with Ginsburg.

Nor is she required to have; she’d be her own Justice, just like the other eight each are their own Justice. Contrary to Marshall’s apparent belief, the vacant seat isn’t Ginsburg’s seat, nor is it a liberal’s seat. It’s the people’s seat on We the People’s Supreme Court.

Replacing a white Jewish woman with a white Catholic woman on the Supreme Court does not bring more diversity to the court.

This is wholly irrelevant. The role of Supreme Court Justices—of all judges in the American legal system—is to rule on what our Constitution and the statute before them say, not on what the Justices think those items should say. Diversity for diversity’s sake has no place on a court—especially on a court, where consistency in the application of law is a Critical Item.

Senate Republicans now suddenly have no problem with the idea of a rushed confirmation of a justice….

What rush? Prompt isn’t the same as rushed. And unprecedented, as she also suggested? This is plain nonsense. The precedent is the Constitution with its stated obligation for the President to nominate to fill a vacancy and for the Senate to advise and consent or withhold consent. Full stop.

A big fear is that she will vote to overturn Roe v Wade….

What Marshall is carefully ignoring in her worry that Barrett adheres too closely with Scalia is the latter’s respect for and adherence to precedent and his belief that once a precedent has been accepted by the people, it’s a legitimate law whatever anyone might think of that precedent.

Barrett is unlikely to overrule Roe unless there’s clear reason.

Her rulings as a judge have been very pro-gun rights and she has made decisions unfavorable to undocumented immigrants nearly 100% of the time.

A judge and a potential Justice obeying her oath of office to uphold and defend the Constitution and ruling on the basis of what the text of our Constitution and the text of a statute actually say instead of what she might wish either to say—imagine that.

Threaten the rights of millions of Americans? On the contrary: a Justice who applies our Constitution and the statute before her as they are written would preserve the rights of all Americans, the rights acknowledged in our founding principles statement as being endowed in all men by our Creator and as laid out in our blueprint that tightly circumscribes our government in order to keep the men–of any generation–who populate that government from altering them, weakening them, eroding them into oblivion.

Marshall’s piece is just another hysteria-mongering article of nonsense.