The notorious RBG replacement process

I’m going to step away from the Delaware election for an evening and let you know what I think about all this.

We knew it had to happen someday – after all, during the spring there were the rumors floating around that she had already died – but last Friday Supreme Court Justice Ruth Bader Ginsburg set off to meet her Maker at the age of 87. There’s no question she lived a long life full of accomplishment, but the one thing she apparently failed at was her gamble that she would outlive the term of a Republican president. Thus, the sky fell in on the Left just in time for a glorious late-summer weekend.

I’m not even sure the body had assumed room temperature before the “Biden Rule” caterwauling began. “You can’t select a nominee before the election!” they sputtered. “It would violate Justice Ginsburg’s final wish!” Obviously this hearsay superseded her previous on-the-record statement that a president’s term is four years, not three years and nine months.

Even if not, however, the Constitution dictates that the President in office select a nominee, a person who is appointed with the advice and consent of the Senate. And this is where the comparisons to the 2016 replacement of the late Justice Antonin Scalia fall apart. For the Senate did give advice that year to President Obama – you can send anyone you want who shares your judicial temperament, but we will not consent. To turn a phrase, “we won.” Merrick Garland may have been a moderately left-wing judge compared to others nominated by Obama, but the Senate was not looking for moderate and they held the cards.

So now we have all sorts of vows from the Left should Trump nominate a conservative on his way out the door – they’ll be stacking the Supreme Court, adding the District of Columbia and Puerto Rico as states, ending the filibuster and the Electoral College – and that’s just for starters. (And this doesn’t count the implied threat of more civil unrest Democrats have made.)

It’s that threat I want to address. Let’s say Kamala Harris wins the election. (And yes, I know Joe Biden is on the ballot but the over/under for his time in office with me is six months.) Knowing that President Trump and Mitch McConnell worked exceptionally hard over the last four years trying to overcome eight years of highly political Obama judicial appointees – with enough success that they got to select 1/3 of the Supreme Court and enough appellate judges to tip the balance in some districts to the conservative side – is it outside the realm of possibility that the organizers of the rioting may become leaders of assassination teams bent on picking off Trump appointees to open judicial seats that they believe our impeached but not convicted 45th President “stole?”

I don’t come to this conclusion lightly. In his column today, The Patriot Post‘s Mark Alexander quoted AOC, who said, “We all need to be more courageous and we all must act in unprecedented ways to make sure that our rights are stabilized. And to Mitch McConnell, we need to tell him that he is playing with fire.” To me, those “unprecedented ways” sound like a serious violent intent.

I am certain these judges already have extra protection, but an attack over the summer on the family of a federal judge pointed out the risks. And while the story writer bent over backwards to blame President Trump and “right-wing news” for these threats, it’s not right-wingers who are rioting, disrupting restaurant goers at dinner, or murdering Trump supporters. It’s not a long step to go from “defund the police” to “overturn the judicial system.”

And even if all elements of the RBG story remained the same except for the date being January 21, 2021 I believe the Left would have reacted the same way, screaming that RBG’s legacy was such that no conservative judge could follow her despite the fact Trump was re-elected with a GOP Senate majority still in place. The TDS is strong with these people and like spoiled children they don’t react well when they are told “no.” Add to that the lack of respect for life and you have the ingredients for what I’m describing.

You know, I really hate to think the worst of people but in my 56 years on this planet those suspicions have come to pass more than I would have liked. So I fervently pray I’m wrong but figure it’s an eventuality for which we may need to prepare.

Replacing Scalia

Sometimes in life timing is everything. Being out of the loop yesterday due to some family business, I didn’t learn about Justice Antonin Scalia’s death until I saw it on the evening network news. (My reaction: “You gotta be kidding me…we’re so screwed.”) It turns out, though, that something I wrote for the Patriot Post just two weeks ago becomes more prescient than ever. My “assuming all of them survive this year” just got tossed out the window.

Obviously Democrats feel that the timing means Barack Obama can select that cherished fifth liberal vote he needs to seal the deal and consign America to the ash heap of unlimited government power. In an e-mail with the subject “Our message to Mitch McConnell” they warn:

Our president, Barack Obama, has been very clear: He’s going to fulfill his constitutional obligation and nominate our next Supreme Court justice.

But we’ve got a Republican Congress insisting President Obama shouldn’t even bother to nominate a justice to the Supreme Court. And we have a field of Republican presidential candidates saying that the Senate should block and obstruct any nominee, Michael.

So it’s on us to stand with President Obama and make sure that Mitch McConnell and his fellow conservatives in Congress allow President Obama to do what is his right and responsibility — name the next Supreme Court justice.

Yet the Constitution is clear that the President can only appoint Supreme Court justices “by and with the Advice and Consent of the Senate.” (For those liberals unfamiliar with the Constitution, refer to Article II, Section 2. It is not close to the “right to privacy” that some have read into the document.) If McConnell wants to wait until the election to act on the vacancy, he can do so although there is the risk that he may not be Majority Leader when the next President is inaugurated given the composition of the Senate and those up for election.

I’ve seen it pointed out that Justice Anthony Kennedy was seated in the last year of Reagan’s term; however, Kennedy was actually appointed in November 1987 and seated in February 1988. (Had the Democrats who ran the Senate been as congenial to Reagan’s initial nominee, Robert Bork, the election-year appointment would have been unnecessary.) They fail to recall how Senate Democrats treated President Bush in 2008 with regard to nominees, a practice sometimes known as the “Leahy rule.” (Democrats, of course, blame longtime GOP Senator Strom Thurmond, who blocked President Johnson’s attempt to promote Abe Fortas from associate Justice to Chief Justice in 1968, after Johnson decided to forgo re-election.)

In truth, the last time such a maneuver was performed was in 1956 when President Eisenhower made a recess appointment of William Brennan in October, just before his eventual re-election. (Brennan was eventually confirmed by the Senate in a near-unanimous vote.) Obviously such an avenue would be available to Barack Obama, and it would be particularly attractive to Obama given his interpretation of “recess.”

As it so happens, the Senate is in a recess through February 22, and the Left is salivating at the prospect of Obama rapidly selecting a nominee this coming week. Even if not confirmed, the appointee would sit until the end of the Senate’s term in early January, 2017, presumably reversing many of what were perceived to be 5-4 decisions in the favor of conservatives.

So if I were a liberal judge who is called by Barack Obama as a potential SCOTUS member, I would take the job without much of a worry about it being temporary. First of all, I can just see Obama making the appointment and daring the Senate to call him on it. Given the propensity of Mitch McConnell to roll over to Obama he won’t do so.

Further, if the Republicans nominate Donald Trump to be their nominee (which polls suggest may occur), based on current polling data he’s the most likely to lose to the Democratic nominee. And if Trump’s campaign sinks the GOP’s chance to retain the Senate the new nominee would either finally win formal appointment or be granted yet another recess appointment through early 2019.

Meanwhile, a voice of sanity on the SCOTUS will be laid to rest and missed more and more as the years go on. Indeed, we are screwed.

Conservative and Republican reaction to SCOTUS decision predictable

I have seen a lot of disappointment over the last 36 hours or so, as conservatives lash out at a decision they believe was ill-considered. I get a lot of e-mail from numerous sources, so I’ll have several links for you to follow. But I’m saving room for my reaction, too.

And if you’re wondering, I really don’t give a damn about what Democrats are crowing about, because they’re almost always wrong anyway. I don’t have to be fair and balanced here. So I’ll concentrate on some of the Republicans and Libertarians who we can vote for here in our locality.

For example, Mitt Romney promised to repeal Obamacare on his first day as President. While that may seem like a little bit of a stretch, it’s actually possible because Congress is in session a couple weeks before the new President is sworn in. If H.R. 1 in the 113th Congress is a full-blown repeal of Obamacare and the Senate can get past a Democratic filibuster (which some say isn’t possible anyway) they could present to bill to President Romney on January 21, 2013. But I’m not going to hold my breath.

Onetime Republican Gary Johnson agreed, with the Libertarian pointing out:

There is one thing we know about health care. Government cannot create a system that will reduce costs while increasing access.

Johnson also believed the “uncertainty” of the health care law was contributing to the unemployment problem in America.

Turning to our state of Maryland, U.S. Senate hopeful Dan Bongino called the decision “a serious blow to the freedoms of all Americans.” But he implored his supporters:

We can fix this, we will fix this. Get off the mat, there is one more round to fight…

From now until November 6th be a wolf not a sheep. Commit yourself to changing the country for the better and make today nothing but a bad memory.

Similarly, Congressman Andy Harris dismissed the ruling as

…determin(ing) the law’s constitutionality, not whether the law is good policy. Americans have already made up their mind on that issue. A majority favor repealing the law.

The sentiments were echoed by the Maryland Republican Party, where Chair Alex Mooney called yesterday “a very difficult day for all of us.”

I wanted to add one more from a group called the Job Creators Alliance. I don’t recall hearing from them before but it’s a group of CEOs who banded together to advocate business-friendly policy. And Staples founder Tom Stemberg spoke on behalf of the group when he said:

The Supreme Court of the United States has dealt a critical blow to free enterprise. By upholding the mandate as a tax, the Court and this Administration has ensured that taxes will go up for middle class working families and small businesses everywhere. Legal arguments aside, Obamacare is a disaster for small business owners and entrepreneurs. It will result in thousands of lost jobs, increased health care costs and an increased inability for small businesses to provide coverage to employees.

Today’s decision not only leaves the hurdles to job creation that Obamacare posed untouched, but adds additional uncertainty to the economy which will make it much more difficult for our economy to grow.

My reaction sort of falls along the same lines, but I thought I saw a silver lining when the individual mandate was struck down – Congress can’t necessarily compel us to buy a product. But they sure can set up a punishment for not doing so, and that’s the scary part.

However, this goes back to something which was said during the U.S. Senate campaign by Richard Douglas when he argued repeatedly that SCOTUS should uphold the law. Because this has been kicked back to Congress to resolve, it only takes a determined effort by voters to elect enough conservatives to Washington to overcome the kicking and screaming objections by Democrats to overturning Obama’s namesake program. If they can repeal a Constitutional amendment by enacting another one scant years later, Obamacare can be eliminated as well.

Of course, this all depends on electing the right legislators – unfortunately, if the American people are really the “sheeple” some would lead you to believe we are that may not happen. If the same actors remain in place, come 2014 we’ll be on the road to the government telling us just how and when to wipe our asses.

The Potemkin candidate

At first glance, Murray Hill wouldn’t be a name to jump out at a political observer. In an era of political newcomers thanks to the effect of TEA Party activism, Murray Hill would seem to be just another Republican entering Maryland’s Eighth Congressional District fray, seeking the GOP nomination to face entrenched Congressman Chris Van Hollen. Beating Van Hollen, the head of the Democratic Congressional Campaign Committee, would seem like a tall order and an incredible accomplishment in a district which arguably may be the most liberal-leaning in America.

The campaign has drawn a significant amount of attention, though, something that first-time political candidates would drool over – Murray Hill’s campaign Facebook page has over 10,000 fans and the bid’s YouTube advertisement has drawn over 200,000 views. Obviously their local Congressional campaign has taken on a national scope.

But Murray Hill isn’t just one who would be derided as a RINO (Republican In Name Only.) In fact, Murray Hill isn’t a person at all.

Call it the intersection of a fortunate choice of names and slick packaging, but the nascent Murray Hill campaign was a brainchild of the marketing and public relations firm which bears the name. Its Congressional bid was their logical extension of the recent Citizens United v. Federal Election Commission Supreme Court ruling which threw out several campaign finance prohibitions on corporate campaign expenditures. In their view, to give corporations free speech rights also gives their company the right to run for Congress. Murray Hill chose to run as a Republican “because we feel the Republican Party is more receptive to our basic message that corporations are people, too.”

Yet the creative minds backing Murray Hill’s bid think in a manner quite differently than the GOP mantra of lower taxes, less government, and increased freedom – in fact, they have seen the Republicans as their opposition. William Klein, Murray Hill’s campaign manager, has worked on numerous Democratic campaigns and firm founders and partners Eric Hensal and Patrick Mancino cut their political teeth by promoting the interests of organized labor groups, particularly in the construction industry. Their client base has primarily come from labor and environmental groups wishing to promote a softer image.

So far Maryland’s state board of elections has taken a dim view of Murray Hill’s ballot bid, denying them in part because the five-year old company technically doesn’t meet the age requirement for running for Congress. But that hasn’t stopped the company from pressing on with its ersatz campaign, even asking RNC Chairman Michael Steele to intercede on their behalf in the effort to convince the elections board to allow them registration and candidacy.

Of course, their campaign isn’t so much about running for Congress as it is being upset that the Supreme Court leveled the political playing field between corporations and unions – in fact, the changes made by the Supreme Court also helped labor interests by overturning precedent disallowing their participation, too. But the previous rules did give Big Labor an advantage, and the Citizens United ruling eroded that edge. Murray Hill would have never considered a political run had it not been for this particular Supreme Court decision.

But over twenty states – including Maryland – already allow corporate funding of elections, and one need only look at the Democratic dominance of the Free State to see that corporate funding alone hasn’t helped the GOP there. In that respect, Murray Hill is acting like the five-year-old it is by putting up this petulant bid for a Congressional seat.

Michael Swartz, an architect and writer who lives in rural Maryland, is a Liberty Features Syndicated writer. This article cleared back on March 29th.

It’s all in how you ask the question

One news item making the rounds today comes from a polling question. The ABC News/Washington Post poll asked Americans about a number of subjects, but the headline comes from a statement that 80% of Americans disagree with the Supreme Court’s decision in the Citizens United case.

Perhaps they do, but I think some of the disagreement comes in the way the question was asked. Here’s how the poll asked the respondents on the 35th of a grueling 40-question list:

Changing topics, do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections? Do you feel that way strongly or somewhat?

Well, shoot, when you ask it that way, I might even be inclined to oppose the decision. I wonder if the responses would’ve been different had the question been asked:

Do you support or oppose the Supreme Court decision which held that corporations have the same free speech rights as individuals when it comes to political contributions?

But by couching in both political and monetary terms, the pollsters led people to what they considered the “proper” answer. It also shows that Americans are woefully deficient at understanding the Constitution because they agreed with the next question:

Would you support or oppose an effort by Congress to reinstate limits on corporate and union spending on election campaigns? Do you feel that way strongly or somewhat?

Obviously they don’t recall the First Amendment: “Congress shall make no law…abridging the freedom of speech.” The Supreme Court held money equalled speech in Buckley v. Valeo:

The Court concurred in part with the appellants’ claim, finding that the restrictions on political contributions and expenditures “necessarily reduce[d] the quantity of expression by restricting the number of issues discussed, the depth of the exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”

Understanding that is the key to supporting the Citizens United decision. There are still laws on the books regarding disclosure of who contributes, and those are advisable.

What Democrats in Congress would like to do is put the genie back in the bottle for corporations, yet leave unions free to do whatever they wish. Obviously they’re a little angry that their key special interest now has to play on a more level field than they did before the Citizens United decision.

Every time someone tries to take the money out of politics, smart people figure out ways around it. When McCain-Feingold passed, millions of dollars just shifted to 527 groups who did the dirty work for politicans. At least with the Citizens United case we’ll have more accountability to just who gave money to whom, then try to figure out the quid quo pro.

If the press wasn’t worried about losing influence, perhaps they wouldn’t need to create an artificial issue by asking loaded questions on a poll. The SCOTUS may not have made the popular decision, but it made the correct one.