Tag Archives: courts

A Response

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Recall Senator Richard Blumenthal’s (D, CT) sly innuendo about Supreme Court Justice nominee Brett Kavanaugh during last Thursday’s (has it been only a week?) Senate Judiciary Committee hearing to receive testimony from Dr Christine Blasey Ford and Judge Kavanaugh:

As a federal judge, you’re aware of the jury instruction falsus in uno, falsus in omnibus [false in one thing, false in everything], are you not? You’re aware of that jury instruction.

Where Blumenthal was being legally pedantic, Victor Davis Hanson has an idea of an entirely appropriate response by Judge Kavanaugh, a broader, literary one, from Horace:

Mutato nomine de te fabula narratur [change only the name, and the story is about you]

Indeed.

An FBI Investigation

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Senator Jeff Flake (R, AZ) sold his Supreme Court Justice nominee Brett Kavanaugh confirmation floor vote for a week-long FBI investigation into Dr Christine Blasey Ford’s accusation against Kavanaugh.  Ostensibly this was a deal he made with his BFF, Senator Chris Coons (D, DE), in return for the Senate’s Progressive-Democrats dropping their complaints that six prior FBI background checks of Kavanaugh didn’t turn up enough dirt to suit them.

Immediately after the Senate Judicial Committee hearing to vote on passing Kavanaugh’s nomination out of committee with a favorable vote (it was) Coons said that if any other allegations of sexual misconduct against Kavanaugh surfaced during the week, he believed those would have to be investigated, too.  The deal, plainly, was just one more stall by the Progressive-Democrats so they could manufacture more smear.  It’s hard for me to believe that Flake was unwittingly played by his friend.

Minimizing delay and calling the Progressive-Democrats’ bluff, President Donald Trump ordered the FBI to conduct its investigation, starting last Friday (Trump ordered it to begin “immediately”), limited in scope to Dr Ford’s accusation, and to complete their investigation within a week.  Senate Majority Leader Mitch McConnell (R, KY) began, Friday evening, the process for the originally scheduled Tuesday floor vote for confirmation.  The combination, if the FBI’s investigation truly is done as ordered, means the floor vote can occur over the weekend—a small delay.

We’ll see what else the Party of Character Assassination will come up with in this week.

Sadly, what’s lost in all of this is how disgustingly the Progressive-Democrats have treated Dr Ford.  They chose to use her accusation—and it’s clear to me that she was abused by someone those decades ago—to manufacture a smear against Kavanaugh.  Further, by holding Dr Ford’s accusation until the last moment—she had written to Senator Dianne Feinstein (D, CA) ‘way back in July, requesting anonymity at that time—these persons prevented the Committee and the FBI from investigating her claim weeks ago without exposing her.  Feinstein’s—their (does anyone really believe Feinstein didn’t share this opportunity with her colleagues?  Does anyone really believe that during those weeks Feinstein, et al., kept Dr Ford’s letter hidden from the FBI and from the Republican Committee members, they didn’t conduct their own investigation, that they really sprang this affair without knowing what they had in their hands?)—decision to expose Dr Ford to the press at the last moment was done solely for her/their personal political gain.

These Progressive-Democrats have abused Dr Ford almost as badly as did her unknown assailant.

Unitary Executive

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Senator Ben Sasse (R, NE), a member of the Senate Judiciary Committee that held hearings last week on Judge Brett Kavanaugh’s nomination to the Supreme Court, had an op-ed in Thursday’s Wall Street Journal that opened with this.

Brett Kavanaugh has been accused of hating women, hating children, hating clean air, wanting dirty water. He’s been declared an existential threat to the nation.

He’s also accused of favoring a unitary Executive and thereby ceding dangerously broad power to the President.

What the accusers carefully ignore is that it’s Congress that has so broadly expanded the power of a unitary Executive, while eliding the fact that our Constitution’s Article II created the unitary Executive in the first place.  It is, after all, Congress that has created all of the Agencies and Cabinet Departments that are in the Executive Branch.  It is Congress that has delegated all the power to those facilities by ceding to them rule-making authority.  All the Executive can do is hire and fire the facilities’ management teams–the only check he has on an overreaching Congress and its abuse of power.

Connections

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One in particular stands out for me: that between Senator Amy Klobuchar (D, MN) and the truth.  Charles Hurt, in the Washington Times, has the sordid story.

[Klobuchar] claims to have read 148,000 documents that reveal Judge Kavanaugh to be so heinous as to be unfit for the high court.

OK, let’s say Ms. Klobuchar spent two minutes reading each document. That would be 296,000 minutes—or 205 days—reading these documents. Which is pretty remarkable considering Judge Kavanaugh was nominated 55 days ago.

There is another word for this. It is called a “lie.” And the person who utters it is known as a “liar,” even if the person she tells this “lie” to is so sleepy-eyed as to appear to be fully asleep.

And this:

But this isn’t even the most astonishing part of Ms Klobuchar’s sewer dive on national television.

She goes on to say that as horrific as all these documents reveal Judge Kavanaugh to be, she is not allowed to share the documents with the American people. She is not even allowed to tell us what they say.

“I can’t even tell you about them right now on the show[.]”

In her opening remarks during Tuesday’s Senate Judicial Committee confirmation hearing on Judge Brett Kavanaugh’s nomination, she repeated lie about the documents, too.  The woman is shameless.

Remember this in the fall when she’s up for reelection.  Remember it in general as all the Progressive-Democrat candidates running this fall show their approval of her dishonesty with their silence.

Kavanaugh and Precedents

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Brent Kendall, in a piece in Monday’s The Wall Street Journal, wrote about the importance of judicial precedence and how willing Supreme Court Justice nominee Judge Brett Kavanaugh would be to overturn them.

Liberals warn that key rulings on abortion, affirmative action, and gay rights could be weakened or reversed by a court that leans further to the right. Many conservatives, on the other hand, hope those precedents will be limited by future rulings and eventually crumble, even if Judge Kavanaugh moves carefully rather than tearing through established doctrine.

Sure enough, in Tuesday’s Senate Judiciary Committee hearing’s opening remarks, it was the End of Days according to the Progressive-Democrats on the Committee.  Kavanaugh represents, you see, everything wrong with President Donald Trump (even though his nomination to office was confirmed a couple of years ago), with Republicans, and with the non-Progressive world.  Women will die (although unborn babies dying doesn’t matter).  People will get horribly sick.  Segregation will return (although it was the Progressive-Democrat Woodrow Wilson who resegregated the Federal government work force that post-Civil War Republicans had integrated, and it’s Progressive-Democrats’ identity politics that actively seeks to segregate Americans politically.)  Violence will rule the streets.

As Kendall pointed out, though,

The judicial doctrine of stare decisis—respect for precedent—is a pillar of the US legal system, and justices generally are reluctant to toss out a ruling without a compelling reason that goes beyond believing it was wrongly decided.

There are two reasons why a precedent should be reversed or overturned by a court, in particular by the Supreme Court.  One, contra reluctant judges (and Kendall?), is if the precedent was wrongly decided: in that case, the precedent should be overturned.  Allowing an error to stand only allows injustice from the error to stand, and the longer the delay in correcting the error, the greater the injustice.  It’s never too late to correct an error.

The other reason is if the circumstances of the precedent no longer apply.  An example of this is the Supreme Court’s ruling of a lack of presumption of privacy in its upholding warrantless wiretapping of a wireless telephone connected to its homeowner’s base station by a then-unencrypted radio signal.  The public has gotten quite a bit more sophisticated about privacy and quite a bit more concerned with preserving it in all venues today, and so the circumstance of that precedent no longer applies—it should be reversed.

In either case, though, it’s not a straightforward affair to come to the recognition of error or of inapplicability.  That depends on the particular facts of a case and on what the applicable law actually says.  It’s unreasonable to expect Judge Kavanaugh to be able to comment substantively on whether he’d use a case to overturn Roe v Wade, for instance, or any of the other cases the Progressive-Democrats have their panties twisted around: he hasn’t seen those cases, since they haven’t come before him.

It’s also unreasonable to say what he might do, as Justice Ruth Bader Ginsburg said at her confirmation hearing.  To speculate in advance would be to prejudge those cases, and no honest judge can do that.

The Progressive-Democrats know that, also.