Daily Archives: 3 November 2016

A Couple of Litmus Tests

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The two major party Presidential candidates have them.  All Presidents and candidates who wish to nominate Supreme Court Justices have them; some are more or less legitimate than others.

Democratic Party Presidential candidate Hillary Clinton’s wants:

The kind of people that I would be looking to nominate to the court would be in the great tradition of standing up to the powerful, standing up on behalf of our rights as Americans[.]

Read that again.  Clinton wants Justices who put social agendas ahead of the actual law before them, ahead of the text of the Constitution, ahead of the Justices’ own oaths of office, which swear them to uphold and defend the Constitution, not ignore it, or “reinterpret” it.

Republican Party Presidential candidate Donald Trump’s wants:

[Justices who would] interpret the Constitution the way the founders wanted it interpreted.

Notice that.  Justices who will do the opposite of what Clinton’s choices will do: rule on the basis of what the law and the Constitution actually say, rather than on what the Justices might wish had been said.

There’s just one more litmus test that I would add, one as general and carefully nonspecific as Trump’s: lose deference to the other branches of the Federal government.  The founders also wrote the Judicial branch as the equal of the Legislative and Executive branches.  No deference is owed, no deference is legitimate.  Deference subordinates what is intended to be a coequal branch of the government to the other two.  Besides, a law is Constitutional, or it is not; that does not depend in any way on who says it.   Further, a matter before the Court comports with the law and the Constitution on its merits, or it does not; that does not depend on who is bringing or defending the matter.

One of these two will be nominating Justices in the next term—at least one, likely three, and maybe four or five.  The next President will determine the tenor of the Court and the viability of our legal system for generations.

It’s clear which set of choices are better for the present and long term health of our nation.

Hand on the Scale

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But, whose hand?

The Ranking Member of the House Intelligence Committee and Democratic Party Presidential candidate Hillary Clinton apologist Adam Schiff (D, CA) insists it’s FBI Director James Comey’s hand because Comey had the temerity (or found the courage, take your pick) to update the Congress on his reopening the FBI’s investigation into Clinton and her private, unsecured email server on which she routinely conducted State Department official business.

…Comey put an “enormous hand on the scale in a political contest” by publicizing investigators’ review of a new batch of emails that might be relevant to Hillary Clinton.

Schiff went on:

Clearly here the [FBI] director did not have the facts.  He had not read the emails. He didn’t know if they were significant or not, and I think we are seeing in all of its graphic character just why these DOJ policies exist.

He did have a salient fact though: the metadata clearly showed that many of those 650,000 Abedin emails on Weiner’s laptop were related to the Clinton investigation Comey suspended last July.  The “hadn’t read” bit is just a cynical red herring.  Of course the MFWIC hadn’t personally read all that stuff.  Equally of course, the MFWIC relied on his agents to advise him.

One salient fact Comey didn’t have, true enough: how those emails got onto the Abedin-Weiner shared, unsecured laptop.  The point of reopening the Clinton case is to answer that question and to determine the extent of the breach regarding Clinton’s abuse of State official business and her abuse of the nation’s secrets.

Schiff plainly misunderstands.  It’s his desired withholding of information that would be the hand on the scale, not its exposure.