Tag Archives: government

Another Activist Judge

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…stacking the vote and demonstrating the need for judges at all levels who will be true to their oaths of office and rule based on what the law says and not on what the judge wants the law to say.

[L]ast week a [Michigan] state judge ordered officials to keep tallying ballots that arrive up to 14 days late, provided they bear a postmark of November 2 or earlier.

Never mind what Michigan State law actually says on the matter. The judge knows better than the people’s representatives, and she considers herself eminently qualified and obligated to stray from her judicial constraints and intrude into a political matter.

This also illustrates the need to get a Justice confirmed for the Supreme Court seat previously held by the late Justice Ruth Bader Ginsburg—so Court ties can be settled by nine Justices, and not by a capricious Chief Justice.

Illegitimacy

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One of a President’s duties is to fill vacant seats in his cabinet and in the Federal judiciary—especially the latter. Yet today’s Progressive-Democrats in Congress are actively attempting to block President Donald Trump from fulfilling that duty as it applies to the Supreme Court with Justice Ruth Bader Ginsburg’s death. Filling that seat is especially important given that those same Progressive-Democrats have committed to challenging the election outcome if it doesn’t give them the proper outcome, and an empty seat on the Court leaves it unable to resolve tie votes on the upcoming election lawsuits.

Not only are they seeking to block the filling of that vacancy, they’re threatening retaliation if they don’t get their way. Beyond that, the Progressive-Democrats’ supporters are threatening outright violence and widespread destruction.

House Judiciary Committee Chairman Jerry Nadler (D, NY):

If Senator McConnell [R, KY] and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court[.]

Here’s Hillary Clinton’s (D) Presidential campaign press secretary Brian Fallon:

Any Supreme Court with a Trump justice confirmed to Ruth Bader Ginsburg’s seat at this point in the calendar would be fundamentally illegitimate, and Democrats must be prepared to act accordingly[.].

Here’s ardent Progressive-Democrat supporter Reza Aslan:

If they even TRY to replace RBG we burn the entire f—–g thing down[.]

And in response to Senate Majority Leader Mitch McConnell’s (R, KY) vow to hold a vote on President Trump’s nominee:

Over our dead bodies, literally[.]

And fellow ardent Progressive-Democrat supporter Aaron Gouveia:

F–k no. Burn it all down.

And Wisconsin Ethics Commission member (!) Progressive-Democrat Scot Ross directly to Senator Ed Markey (D, MA):

F—–g A, Ed. If you can’t shut it down, burn it down[.]

This has been the drumbeat of the Progressive-Democrats since November 2016. Nothing is “legitimate” unless it’s done by Progressive-Democrats. They’ve been attacking our government, and through that, our nation ever since:

  • in Congress; with their sham investigations and “impeachment”
  • in the courts with their obstructionist lawfare
  • in the streets with their grassroots supporters’ rioting, looting, and street-painted graffiti
  • with one group of supporters in particular threatening that “if this country doesn’t give us what we want, then we will burn down this system and replace it”
  • House Progressive-Democrats threatening to fundamentally alter the Supreme Court if Evil Republicans fill an empty seat with someone and at a time that Progressive-Democrats personally disapprove
  • supporters’ threats “burn Congress down”
  • to mailing ricin-laced letters to the President.

This puts an enormous premium on voting all up and down the ballot in November.

Textualism and Newspeak

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A 5th Circuit Court of Appeals has a case that’s well summarized (for the sake of my thesis) by the Institute for Justice in this way:

What are judges to do when they wish to be faithful to text but two provisions of the same law irreconcilably conflict? The Fifth Circuit brings us the answer with an annual Medicare health care provider compensation formula that overlaps for one day each year.

The court’s answer is a blithe engagement in Newspeak, textualism, and a misunderstanding of the duties of judges. The details of the case itself needn’t concern us here; it’s sufficient that it centers on those two provisions of a statute that contradict each other:

Here’s the conflict:  Federal regulations establish a compensation formula for the payment of certain health care providers—a formula that changes once a year.  But there’s a glitch.  Each formula takes effect on January 1 and runs until January 1 of the following year. That means that, on 364 days of every year, there’s no conflict. But on January 1, two competing formulas purport to apply, making it unclear which one governs:  the new one, or the one from the preceding year.

Now it might seem that a conflict of a single day and a judge or panel of judges picking one of them to govern is a trivial matter. But there’s a principle involved centered on the judiciary’s duty vs that of the political branches that far outweighs the trivium of a single day’s conflict.

Thus:

First, the court engaged in this bit of newspeak [cite omitted]:

respect for text requires that “judges must do the least damage they can.” And doing the “least damage” to the text means attempting to determine, if at all possible, which of the two conflicting provisions should govern in a particular case.

Then the court uttered this newspeak [cite omitted]:

“This is no departure from textualism,” but rather a “recognition” that the law “has produced a series of texts that cannot coexist.”

Of course it is a departure from textualism. The statute says what it says, neither more nor less.

It’s also the case that, under our Constitution, it is the Congress in concert with the Executive (occasionally overruling the Executive)—the political branches of our government—that write the statute; no one in the Judiciary branch has that authority.

Thus, when the plain, obvious, and rational meaning of one clause of a statute directly contradicts the plain, obvious, and rational meaning of another clause of the same statute in such a way that the statute cannot function until its internal contradiction is resolved, only the political branches that resolve the matter.

What, after all, is the court’s limiting principle here? When does a contradiction (for instance) exceed judges’ ability to do the least damage they can? How far can judges depart from the plain, obvious, and rational meaning of this or that clause without altering its plain, obvious, and rational meaning or disregarding it altogether?

How far can judges intrude into the role of the political branches of our government and remain true to their own duties as members of the Judiciary?

The questions answer themselves, and rather tautologically: judges cannot depart from the text without rewriting it. Not by a minim.

Nor can judges intrude into political matters farther than a minim. They can intrude to the limit of a minim, however, and the intrusion takes a much shorter path than trying to find one’s way through the Labyrinth of an Orwellian dictionary: they can rule that, taken as a whole, the statute is unconstitutionally vague from that internal contradiction rendering the statute inoperable, even if its separate clauses are crystalline; they can strike it.

The ruling can be read here.

 

H/t to Institute for Justice‘s Short Circuit newsletter [by free subscription; although IJ gratefully accepts donations at the link in this h/t.

Ethnic Cleansing

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It isn’t limited to the Uighurs, and it’s much more insidious and consideredly humiliating than merely killing or exterminating through forced sterilization.

The People’s Republic of China is trying to exterminate Mongol culture and force them to live mainland Chinese culture.

Thousands of students in Inner Mongolia have taken to the streets during the past week to rally against the government’s three-year plan to push Mandarin-language education across the northern region and phase out local history, literature and ethnic textbooks in favor of national coursebooks, according to rights group Southern Mongolian Human Rights Information Center.

And

Under President Xi Jinping, the Chinese Communist Party has intensified efforts to promote Mandarin and push the country’s ethnic minorities to adopt a uniform Chinese identity.

And

On Tuesday, the first phase of the new policy in Inner Mongolia launched to coincide with the start of the fall semester. It requires all schools to teach Mandarin using national instead of local course material starting in first grade—one year earlier than under the old system.
That means ethnic Mongolian children won’t be able to master the fundamentals of their own language before starting their Mandarin studies, [clothes seller in Xilinhot] Daguulaa said.

This is part of the threat all of us face from an acquisition-minded People’s Republic of China.

Suicide Pact

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The Thomas More Society has filed suit in Federal court against Michigan Governor Gretchen Whitmer’s (D) edict barring gatherings of more than 10 people indoors and more than 100 people outdoors.

[T]he nonprofits Election Integrity Fund and One Nation Michigan [plaintiffs in the Thomas More case] argue that Whitmer’s order functions as an abridgment of their right to free speech and assembly under the US Constitution.
Whitmer’s orders “constitute direct restrictions on [the groups’] right to engage in protected speech and assembly and therefore violate the First Amendment,” the suit argues, stating that any restrictions on constitutional rights “must be narrowly tailored to achieve a compelling government interest.”

Lower (State) courts have ruled that the Wuhan Virus situation is sufficiently important and dangerous that Government restrictions on Constitutional freedoms and rights must be overruled.

However, there is no clause in our Constitution that allows the Government to restrict individual liberties whenever it thinks something is more important than those liberties. In particular, the 1st Amendment says this in pertinent part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…or the right of the people peaceably to assemble….

Hence the need for narrow tailoring of any intended restriction and the need even then—especially then—for that restriction to achieve a compelling government interest, not just one convenient to it. The Government has no interest, compelling or otherwise, in restricting these basic freedoms because of the virus, especially since it’s increasingly apparent that such restrictions cause more medical and economic harm than the virus itself.

Along these lines, Supreme Court Justices Robert Jackson (Terminiello v City of Chicago) and Arthur Goldberg (Kennedy v Mendoza-Martinez) have argued that our Constitution “is not a suicide pact.” Indeed, it is not. However, deviation from our Constitution would lead quickly to national suicide.

The Thomas More case would be a slam-dunk were it not for a collection of self-serving politicians and a similar collection of activist judges.