Preserving The Legitimacy Of The Supreme Court Must Outweigh Partisan Anger

Protesters on steps of Supreme Court - Brett Kavanaugh confirmation - SCOTUS

Conservatives lived with what they saw as a left-leaning, activist Supreme Court for decades without undertaking serious efforts to undermine the institution. But while the American Left rightly decries the various attacks on governmental institutions in the Age of Trump, their anger at the confirmation of Brett Kavanaugh is leading them to do precisely that which they say endangers the Republic

I spend a lot of time criticizing the American news media, and rightly so since there is a lot to criticize in this so-called renaissance of print journalism in the Age of Trump. I often single out the New York Times for particular criticism – their claim to run a scrupulously impartial and ideologically neutral newsroom is risible when their opinion pages are stacked 10-1 with not just left-wing progressives, but the kind who have drunk deep from the well of social justice and are now utterly high on the most poisonous distillation of identity politics dogma.

But I also feel compelled to give credit where credit is due. While the New York Times and other prestige media outlets may devote large portions of their time and resources to misrepresenting conservatives and stealthily promoting leftist agendas, today their Opinion email bulletin featured a progressive Op-Ed writer who actually sought to lay out the conservative perspective in good faith for the benefit and enlightenment of Times readers, rather than misrepresenting the conservative perspective to generate cheap outrage.

Addressing the ongoing rancor generated by the nomination and confirmation of Justice Brett Kavanaugh to the Supreme Court, Op-Ed columnist David Leonhardt clearly set out his own liberal position, but then laid out the opposing view in a way which did not openly invite ridicule or snap moral judgment.

Leonhardt begins:

In this polarized era, most of us don’t spend a lot of time genuinely trying to see a political issue the way that the other side does. And it’s often worth doing so. Let me give you an example.

He then goes on to state his own personal view (entirely in line with progressive thinking) that the Court is supposedly dominated by an “extremely conservative and partisan majority” sufficient to justify Democrats looking at potentially extreme ways to curb the institution‘s power.

But then Leonhardt says this:

But here, roughly, is how some conservatives think about the Supreme Court:

In the mid-20th century, a liberal court regularly overruled the popular will or blocked the democratic process. It happened most famously on abortion, but also on school prayer and other subjects. And even though Republicans won the White House in five out of six presidential elections starting in 1968, the court remained left of center, partly because a few supposedly conservative justices didn’t turn out to be conservative.

Yes, the current court is more conservative than the country, these conservatives might say. But we know how you liberals feel right now. Don’t go undermining an entire institution of government just because you have some complaints about it.

The Left does not like to be told of its glaring faults and hypocrisies, particularly by one of their own, so we will no doubt soon see what happens to the career trajectory of David Leonhardt. But laid out here, with no attempt at distortion, is the basic thought process behind most conservatives’ attitude toward the Supreme Court.

To be clear, I personally would not have nominated Brett Kavanaugh to the court over concerns about his views of executive power, and I would not have confirmed him after his performance in the confirmation hearings (yes, it’s natural to be angry at what you see as false accusations, but going on a conspiratorial rant about the Clintons is the antithesis of the impartiality which should be shown by a Justice of the Supreme Court, particularly one whose background was in the Republican presidential administration of George W. Bush). There are other judges with similar judicial philosophies who would have been better for conservatives from both a constitutional perspective and the short-term political perspective of the nomination process (cough, Amy Coney Barrett).

But while I would much rather have seen a different justice confirmed to the ninth seat on the Supreme Court, at this point I am more concerned about the hypocrisy of those on the Left who rend their garments about the damage which President Trump is doing to vital American institutions, while also actively seeking to undermine public faith in the court and even enthusiastically contemplating the idea of stacking the court to restore it’s leftward tilt, should they acquire sufficiently strong control of Congress after the midterms.

The dangers posed by President Trump’s erratic, ego-driven leadership are very real, and the precipitous decline in public faith in key institutions of government is a corrosive acid eating away at the American democracy. But those entirely valid fears are recast as cynical partisan pandering when their chief expounders are also doing their darnedest to destroy trust in institutions after having suffered a setback on the Supreme Court. And as a result of this cynical behavior, people are less likely to take the warnings seriously.

Worse still, the Democrats’ pain threshold is apparently so low that they could not tolerate a potential originalist/textualist (or more cynically, rightward) shift on the court for even a week before they started openly agitating to undermine the institution. Say what you want about the Republicans, and there is much to say – particularly concerning their disgraceful refusal to even consider Merrick Garland, President Obama’s eminently qualified Supreme Court nominee – but conservatives watched as the Burger, Rehnquist and Roberts courts handed down many decisions which they regarded as unconstitutional. Decisions which decisively reshaped the fabric of American life. And while nobody would say that Republicans took defeat gracefully or played the part of happy warriors, at least they did not try to stack the court or mount targeted efforts to delegitimize the institution altogether.

One can disagree with the originalist and textualist judicial philosophy which may now come to more prominence in the Supreme Court’s deliberations, but it is a valid and serious worldview worthy of respect, certainly no less so than the “living constitution” alternative. The answer to political setback is not to take one’s toys and go home in a temper – it is to seek to persuade voters that the progressive alternative is better such that Democratic senators and presidents are elected who can nominate like-minded individuals to the Court. The answer is not to falsely claim that theirs is the only pure and neutral interpretation of the constitution while the conservative perspective is uniquely partisan and dangerous.

Congress already has a rock-bottom approval rating, with hardly anyone respecting the legislative branch of government. The divisiveness of the Donald Trump era has seen one group hold out the present head of the executive branch to be worshipful and almost divinely given while the other group thinks he is Literally Hitler. That leaves only one branch of government held in significant public esteem – the judiciary, led by the Supreme Court.

Is undermining remaining public trust in the third branch of government and sawing the third and final leg off America’s governmental tripod the responsible thing to do right now? Is it even the most politically lucrative thing to do in the short and medium term, given how the Kavanaugh saga has energized the Republican base and put a handful of oncecompetitive seats further out of the reach of Democrats?

My opinions on how best to move forward are currently in flux, but I am attracted by propositions that the Supreme Court should no longer be populated with the same nine lifetime appointees, but rather by federal appeals court judges selected at random for shorter terms, on a staggered basis (see this Vox piece, which is sadly also a prime example of how the Left see theirs as the only legitimate point of view and recent progressive leanings of the Supreme Court not something even worth mentioning). Of course, this change is about as likely as President Trump admitting that he is a Russian stooge, resigning Nixon-style and flying away in a helicopter as a bemused nation watches him go. But it seems like a good potential approach, and one which would do much to depoliticize the highest court (even if the nomination of federal appeals court judges then became somewhat more contentious as a result).

But realistically, we go forward with the institutions we have in the form we have them, staffed by the people whom due process has put in charge. And there is a simple choice to be made by the American Left: do they press ahead and burn away remaining public faith in the Supreme Court, or do they commit – as conservatives did, when they saw that they would keep losing and losing at the hands of the judiciary unless they took a long-term approach to regaining influence – to advance their goals utilizing the legitimate, existing (if flawed) processes and institutions available to them?

Last week I attended oral arguments at the Supreme Court for the first time, hearing the somewhat dry but still fascinating case of New Prime Inc. v. Oliveira being argued before the then-eight sitting Justices of the Court. Sitting in the public seating, soaking in the weight of history within those walls and watching some of the best-credentialed lawyers at the top of their game argue before eight eminent and generally well-intentioned jurists was an unforgettable experience, especially given that I am now studying law in the shadow of that court, right here in Washington, DC.

This case was about employment rights and whether long-distance transportation workers were required to resolve workplace disputes through compulsory arbitration rather than through the courts – an edict which currently varies depending on whether the individual is a waged employee or an independent contractor (an increasingly irrelevant distinction in today’s economy). This kind of case is the Supreme Court’s bread and butter – deciding disputes whose facts would make most people’s eyes glaze over within thirty seconds, but which nonetheless need to be resolved in order to give direction to lower courts and advance the broader course of justice in the United States.

This was not one of the few hot-button social issues which attract hordes of placard-waving protesters to the courtroom steps. The case certainly matters, but primarily to the litigants involved and those who share their interests – transport corporations, unions and the like. Does the Left really want to wage such war on the legitimacy of the United States Supreme Court that even these workaday cases become seen by half the country as fraudulently or illegitimately decided? So that lobbyists, pressure groups and corporate interests feel more emboldened to undermine every negative decision and even mount targeted campaigns against specific Justices as a result of their opinions?

I share some of the American Left’s concerns about America’s direction, particularly the slide toward authoritarianism and protectionism (though I hold the Left equally if not more responsible for these phenomena than the Trumpists, who are largely a symptom, not a cause of America’s malaise). But for the life of me I fail to see how waging an all-out assault on the remaining credibility of the most respected branch of the United States government redounds to the Left’s long-term advantage, results in a more functional country or a more harmonious society. All I see is more bitterness, more mutual distrust and more negative energy fueling the ever-growing vortex of our ongoing culture war.

The Left have every right to be angry with some of the circumstances of Brett Kavanaugh’s nomination to the Supreme Court, and with cynical Republican political behavior prior to that. But they do not have the right to enjoy decades of often-amenable Supreme Court decisions, and then seek to tear down an institution vital to all Americans the moment they believe it may no longer adequately serve their progressive purposes.

In that regard at least, the price of the Left’s present paroxysms of rage may be more than this beleaguered country can bear.

 

Brett Kavanaugh swearing in ceremony Supreme Court - SCOTUS

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Lee v. Ashers Baking Company, A Victory Against Compelled Speech

Asher Bakery Belfast gay marriage cake compelled speech

Today saw a victory against compelled speech and authoritarian government, but fewer and fewer voices on the Left are in the mood to celebrate

Today the Supreme Court of the United Kingdom handed down a decision in Lee v Ashers Baking Company Ltd, the UK’s equivalent of the Masterpiece Cakeshop case in the United States (which the UK court actually cited in its ruling).

Both cases came about when plaintiffs claimed discrimination based on sexual orientation after trying to place an order for wedding cakes bearing messages supportive of gay marriage at bakeries owned and operated by traditional conservative Christians, who then refused the orders on the grounds that to produce the cakes bearing the specific messages would violate their deeply held religious beliefs.

From the BBC:

The UK’s highest court ruled that Ashers bakery’s refusal to make a cake with a slogan supporting same-sex marriage was not discriminatory.

The five justices on the Supreme Court were unanimous in their judgement.

[…] The customer, gay rights activist Gareth Lee, sued the company for discrimination on the grounds of sexual orientation and political beliefs.

But the bakery has always insisted its objection was to the message on the cake, not the customer.

I have long taken the view put forward many years ago by Andrew Sullivan, that gay marriage should be accepted on the grounds that broadening an institution which promotes stability, permanence, mutual responsibility and (consequently) social capital can only be a good thing, especially at a time when social atomization and selfish, destructive cultural hedonism are doing so much to weaken vital bonds at the community and national level.

I would never advocate (nor tolerate) religious institutions being forced to conduct gay marriage ceremonies against their will, but rolling out the basic template of marriage and making it more widely accessible – especially to one of the only demographics which currently shows any enthusiasm for the institution! – seems perfectly sensible to me.

But even more abhorrent than the idea that the government might compel religious organizations to conduct ceremonies which violated their codes and moral systems is the  prospect of government compelling the speech of ordinary people, making anybody who wishes to participate in the public square affirm certain social dogmas on pain of civil or criminal liability. We have already seen Canada start to go down this road with Canadian Bill C-16, a statutory amendment which adds gender identity and gender expression to classes of individuals protected under Canadian human rights law, and moves perilously close to criminalizing the “misgendering” of people. Thus it is not inconceivable that someone could be held criminally liable in Canada were they to refuse to conform their speech to proclaim that trans women are women and trans men are men.

Compelled speech is the very last thing a healthy liberal democracy should be striving to enact. Thus it is great to see at least one human rights and civil liberties group – one which has not yet fully prostrated itself before the Cult of Social Justice and Identity Politics – celebrate the Ashers Baking Company decision.

From the Peter Tatchell Foundation:

“This verdict is a victory for freedom of expression. As well as meaning that Ashers cannot be legally forced to aid the promotion of same-sex marriage, it also means that gay bakers cannot be compelled by law to decorate cakes with anti-gay marriage slogans,” said human rights campaigner Peter Tatchell, Director of the Peter Tatchell Foundation.

“Businesses can now lawfully refuse a customer’s request to emblazon a political message if they have a conscientious objection to it. This includes the right to refuse messages that are sexist, xenophobic or anti-gay, which is a good thing.

“Although I profoundly disagree with Ashers opposition to marriage equality, in a free society neither they nor anyone else should be forced to facilitate a political idea that they oppose.

“The ruling does not permit anyone to discriminate against LGBT people. Such discrimination rightly remains unlawful.

“Ashers did not discriminate against the customer, Gareth Lee, because he was gay. They objected to the message he wanted on the cake: Support gay marriage.’

It is sad that statements like this now have to be cheered and encouraged rather than taken for granted by civil liberties defenders and free speech advocates, but such are the authoritarian times in which we live – trapped in a pincer movement between what Maajid Nawaz calls the “Control Left” on one side, and reactionary, protectionist nationalists on the other.

Proving that he is one of the few prominent voices on the British Left who remains capable of thinking through the consequences of implementing illiberal leftist identity politics dogma heedless of the ramifications, Tatchell continues:

If the original judgement against Ashers had been upheld it would have meant that a Muslim printer could be obliged to publish cartoons of Mohammed and a Jewish printer could be forced to publish a book that propagates Holocaust denial. It could have also encouraged far right extremists to demand that bakers and other service providers facilitate the promotion of anti-immigrant and anti-Muslim opinions.

Of course it wouldn’t be; we know that the administrators of this illiberal code – including establishment figures as powerful as the former head of the Crown Prosecution Service – would implement any such statutes or case law highly selectively, punishing only the disfavored “white, Christian male” group while refraining from holding other groups to the same draconian standard. But Tatchell is quite right that the argument for compelled speech, taken not even so far as to its logical conclusion but merely a few steps down the road, would swiftly end up censoring and controlling us all.

The real concern is that old-school campaigners like Peter Tatchell are a dying breed. In fact, they are being hunted to extinction by a new generation of social justice warrior activists whose petty accomplishments are nothing compared to someone like Tatchell (who, like him or not, has labored for years and put his body in harms way more than once in advance of his ideals) but who deludedly think they morally outrank him because they are willing to go further in their rhetorical, legal and constitutional attacks on dissenters.

This is a time when conservatives – indeed, anyone not of an ultra-progressive persuasion – need to pick their battles very carefully. Social conservatives may disagree vehemently with the social views of someone like Peter Tatchell, but in this authoritarian age it is not he who seeks to impose his views on others. Indeed, given the opportunity, some social conservatives would be more likely to impose their own views on progressive dissenters than Tatchell would do to them – which should give serious pause for reflection.

At this time the threat to fundamental rights and civil liberties, when the identity politics Left is hell-bent on compelling the speech of private citizens, forcing them to say words or endorse ideas in which they do not believe, old political divisions must be put aside in order to withstand the creeping incursions of authoritarianism into society. There will be time enough to relitigate social issues once we have jointly confronted and dispensed with the band of zealots who would actually put us in prison for thinking the wrong things.

In these fractious times, the sane(r) Left urgently needs shoring up. Because if things continue on their current trajectory, Peter Tatchell’s ideological opponents on the right will miss him when he is gone.

 

Ashers Bakery Belfast

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RBG, Senate Judicial Confirmations And The ‘Good Old Days’

Ruth Bader Ginsburg at GW Law School

 

A bipartisan Senate confirmation process for Supreme Court nominees was only possible when politicians were idealistic enough to view the court as being above politics, and trust it to remain so

In her appearance yesterday at GW Law School, Supreme Court Associate Justice Ruth Bader Ginsburg was asked to reflect on what had changed since she was nominated to the court by President Bill Clinton in 1993, and her thoughts on the new landscape as Trump nominee Brett Kavanaugh awaits confirmation by the Senate.

In her response, Justice Ginsburg lamented the sharp decline (if not extinction) of bipartisan cooperation and mutual trust between Republicans and Democrats, conservatives and progressives. Ginsburg was confirmed by a vote of 96-3 when she was up for nomination, a tally that would be unheard of today, when political polarization often makes us think of each other more as enemies than fellow citizens. Still, Ginsburg expressed a desire to roll the clock back.

From the National Review:

In a Wednesday appearance at George Washington University Law School, Justice Ruth Bader Ginsburg lamented the degree to which partisanship has infected the judicial-confirmation process, calling Supreme Court nominee Brett Kavanuagh’s recent confirmation hearing a “highly partisan show.”

Contrasting Kavanaugh’s hearings last week with her own, which occurred in 1993, Ginsburg called the partisan grandstanding of Democrats “wrong” and expressed a desire to return a spirit of collegiality to the process.

“The way it was was right. The way it is is wrong,” Ginsburg said to applause. “The atmosphere in ’93 was truly bipartisan. The vote on my confirmation was 96 to three, even though I had spent about ten years of my life litigating cases under the auspices of the ACLU and I was on the ACLU board. . . . That’s the way it should be, instead of what it’s become, which is a highly partisan show. The Republicans move in lock step, so do the Democrats. I wish I could wave a magic wand and have it go back to the way it was.”

This, together with virtually everything else the Justice said, was met with wild and fervent applause in the hall, and enthusiastic agreement online after the fact. And Ginsburg is certainly right – the American system of government can not work as it should when the Supreme Court becomes simply an extension of Congress, where partisan justices nakedly vote to advance a party political agenda and the Constitution is treated as little more than rhetorical clothing for their decisions.

Justice Ginsburg’s confirmation process reminds us that even as recently as 1993, the Senate was able to do the right thing – to confirm a qualified candidate for a position on the highest court in the land on the basis of her known competence and record, even though at least half of the senators voting to confirm her probably disagreed both with her politics and her judicial philosophy. Back then, senators still understood and acknowledged that the test for a Supreme Court candidate was not whether one agreed with their judicial philosophy, but rather whether or not the nominee’s philosophy and approach to the law was derived and applied in good faith. In Ginsburg’s case there was no doubt, and so many Republicans lined up to vote for a card-carrying ACLU member and avowed friend of abortion rights.

Fast-forward to 2018, and how different things look. Desperate to prevent outgoing President Barack Obama from making a third appointment to the court, Republicans created out of thin air a new pseudo-rule that presidents in their last year of office must refrain from making appointments and wait instead for their successor to take office. Thus, Senate Majority Leader Mitch McConnell prevented the senate from even considering the nomination of Obama nominee Merrick Garland, an eminently qualified candidate, allowing the newly-elected President Trump to nominate Justice Neil Gorsuch to the “stolen” seat.

Now, with President Trump in the White House in the prime (or perhaps nadir) of his first term, many Democrats are inventing another pseudo-rule that presidents whose political campaigns are under investigation for potential corruption and coordination with a foreign power  should not be allowed to fill an opening on the court.

Of course, even if both sides did not have their respective arguments to fall back on, most senators within each party would not vote to confirm a candidate seen as sympathetic to the other side, no matter how well qualified. The entire process has become a performance spectacle, where senators with absolutely no intention of voting for a nominee under any circumstance still wail and rend their garments about not being provided with the documents they have already admitted will not influence their negative decision.

Jonathan Turley (full disclosure: my current Torts professor) explains at greater length the problem with theatrics superseding substance:

[T]he Kavanaugh hearings left a troubling and damaging precedent for a process that already lacked substantive content. I have been a critic for years of the modern confirmation hearing, which is largely about senators rather than nominees. The hearings drained what little substance remained in the process. The unilateral denial of documents and theatrics of the opposition left the hearings as little more than a stunt by both parties.

In the absence of sincerity, everybody is now playing a role rather than speaking honestly about their motivations. Judicial nominees play a role (usually that of someone who has taken a vow of silence), senators play a role (amateur dramatics wannabes, mostly) and we all play a role, pretending that we want bipartisanship when really we would be quite happy to stuff the court full of likeminded souls and call it a day.

 

All of which led me to question why everybody applauded Justice Ginsburg as she called for a return to the bipartisanship of the early 1990s. The justice is absolutely right, but many of those applauding – particularly on the Left – seem not to have thought through the consequences of what it is that they are endorsing.

A return to 1990s, Ginsburg-era bipartisanship would see Trump nominee Brett Kavanaugh confirmed by a margin nearly as large as the Notorious RBG’s 96-3 blowout. Why? Because while probably far from the greatest American legal mind alive today, Kavanaugh is eminently qualified for the role. His former classmates and professors at Yale Law School say so. His former law clerks say so. The American Bar Association, which is invited to rate all nominees and testify as to their suitability, rates him as highly qualified.

The only issue would therefore be his conservative politics, past service with the Bush administration and the seeming antipathy of his judicial philosophy to the reasoning behind Roe v. Wade. And by that standard, Democrats would have to swallow their bile and give the man their support. That’s what Republicans did when they voted for Justice Ginsburg, and unless their crocodile tears for the age of bipartisanship are a complete lie, then that’s what Democrats would have to do, in the spirit of consistency, for Brett Kavanaugh.

Some might argue that this is different, that Kavanaugh would be filling the “swing seat” recently occupied by retired Justice Anthony Kennedy and thus tilting the court in a more conservative direction, while Justice Ginsburg’s 1993 appointment merely preserved the pre-existing balance. But there was no asterisk by the word “bipartisan” when Justice Ginsburg uttered it and everybody cheered. She did not say “bipartisanship, except when the ideological alignment of the court is in question, at which point everyone should vote in as nakedly partisan a way as they see fit”. She called for a return to senate bipartisanship, period.

And true bipartisanship with regard to the Supreme Court means accepting the somewhat random nature of the court’s changing shape – that the ideological or philosophical leaning of the court will fluctuate depending on when individual justices retire and which party happens to hold the White House when they do so. True bipartisanship would entail Democrats voting for Brett Kavanaugh and more Republicans voting for the likes of Sonia Sotomayor (68-31) or Elena Kagan (63-37) without complaint, based on their status as qualified, competent candidates.

(We should avoid becoming misty-eyed about the past, though – Justice Clarence Thomas was confirmed to the Supreme Court only after highly contentious hearings and a wafer-thin, decidedly partisan 52-48 vote).

If giving this bipartisan benefit of the doubt now seems impossible – if the idea of vesting many of our fundamental rights and privileges on nine unelected judges who may sometimes lean conservative – then rather than seeking to pack the court with our own ideological soulmates and protesting when the other side does the same, we should return to a system where the rights we consider to be fundamental are put out of daily political reach and enshrined in the Constitution, rather than being fortuitously discovered by “activist” courts or cruelly struck down by “reactionary” ones.

Democrats no doubt argue that in the case of this nomination, the stakes are so high as to justify any lengths of procedural opposition. But Republicans say the same thing when Democrats are in power. That’s what happens when we see each other not as fellow citizens with legitimate political differences but dangerous enemies who pose emotional and physical harm to one another.

I have only been a law student for a month, but even now I can see that the Common Law (and case law in particular), while an remarkable, complex and ever-changing creation, is the very last place you want to vest your most fundamental freedoms. Why? Because fundamental rights which only exist as judicial opinions are at daily risk of being reshaped, expanded, curtailed or reinterpreted by courts across the land. That’s why the right to free speech is properly enshrined in the First Amendment to the Constitution, a safe place where it is much harder to “get at it”, rather than existing as a few throwaway lines in Smith v. Smith, where today’s prevailing attitudes could alter its meaning in about the same subtle way that an avalanche reconfigures a mountain slope.

If we were being honest and sincere when we applauded Justice Ruth Bader Ginsburg’s call for a return to bipartisanship last night, we need to hold ourselves to that higher standard at all times, not simply mourn its loss when the other side holds the reins of power. We need to do the harder work of engaging with our fellow citizens and convincing them that our ideas are superior, building enough of a national consensus that we can prevail with legislative (and where necessary, Constitutional) solutions rather than seeking to take judicial shortcuts around public opinion or political impasse.

Justice Ginsburg talked about “wav[ing] a magic wand” to return to the days of bipartisanship and a less politicized judiciary. But there is no magic solution, no one action that can be taken. The legitimacy of our legal system depends on the behavior of those who run it, supervise it and avail themselves of it. We could return to the days of Justice Ginsburg’s confirmation any time we want, but with a vacant seat on the court today, that would mean Democrats paying a price that they are unwilling to pay. And, to be fair, why should they be expected to pay that political price when the Republicans have proven to be such untrustworthy partners?

So we either take the leap of trust together, or things continue on as they are, becoming progressively worse as every judicial nomination and every Supreme Court decision becomes an existential battle. I fear that despite these rare, commendable calls for bipartisanship, we all know which way we are headed.

 

UPDATE – 14 September

In a commendable display of legal objectivity, prominent lawyer Lisa Blatt – who refers to herself as a “liberal feminist” – writes for Politico Magazine, urging Democrats to vote to confirm Judge Kavanaugh despite their ideological disagreement with him.

Money quote:

I do not have a single litmus test for a nominee. My standard is whether the nominee is unquestionably well-qualified, brilliant, has integrity and is within the mainstream of legal thought. Kavanaugh easily meets those criteria. I have no insight into his views on Roe v. Wade—something extremely important to me as a liberal, female Democrat and mother of a teenage girl. But whatever he decides on Roe, I know it will be because he believes the Constitution requires that result.

It’s easy to forget that the 41 Republican senators who voted to confirm Ginsburg knew she was a solid vote in favor of Roe, but nonetheless voted for her because of her overwhelming qualifications. Just as a Democratic nominee with similar credentials and mainstream legal views deserves to be confirmed, so too does Kavanaugh—not because he will come out the way I want in each case or even most cases, but because he will do the job with dignity, intelligence, empathy and integrity.

If we had more people who think like Lisa Blatt serving in the US senate – or indeed within the judiciary – then we might not be languishing in the bitter, distrustful, polarized stalemate in which we find ourselves.

 

UPDATE 2 – 14 September

Trust the extremists over at Above the Law to take an entirely contrary view.

Notorious RBG - Justice Ruth Bader Ginsburg

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In The Presence Of RBG

IMG_6301

 

Justice Ruth Bader Ginsburg deserves to be celebrated for her trailblazing career and for her jurisprudence, not simply reduced to a pop culture meme and uncritically worshipped for supporting the progressive political agenda

Today, the famed Justice Ruth Bader Ginsburg, Associate Justice of the Supreme Court – now better known as the Notorious RBG – came to speak at my law school. As well she should, perhaps, since she only lives about six blocks away…

It was good to hear the justice and see her firsthand, though if you have watched any of her other recent appearances or speeches (as I have) you would not have learned anything new today, besides a few interesting factoids about the various films and documentaries being made about her life and career.

I have become rather wary of the “cult of personality” which builds up around some jurists, most notably in recent years Antonin Scalia and Ruth Bader Ginsburg – not because either are at all undeserving of the praise and respect they receive(d), but because treating a justice of the Supreme Court first and foremost as a warrior fighting for one’s own pet political issues contributes significantly to the politicization of the court. Especially now, when many American institutions – from the presidency to Congress to the media – face a corrosive crisis of legitimacy, doing anything which makes the Supreme Court even more of the extended political battlefield that it already is seems reckless.

Already we have a president who has vowed to only nominate candidates with preset positions on hot-button issues like abortion, and leftists who call for adding seats to the court to dilute the “conservative” voting bloc – we don’t need to go any further in those unseemly directions.

 

Also from a political perspective, it does not go unnoticed that the first woman to serve on the United States Supreme Court conspicuously fails to enjoy the same acclaim and cult of personality reserved for Justice Ginsburg, the second. Sandra Day O’Connor, nominated by Ronald Reagan and who served on the court from 1981 to 2006, was every bit the trailblazer as Ginsburg. O’Connor, too, had to contend with endemic sexism in her career and achieved a level of success which sets a shining example for aspiring male and female lawyers everywhere. But of course O’Connor, nominated by a Republican president and with a voting record to the court’s ideological right, does not make such compelling Hollywood fodder in a culture which often only celebrates women to the extent they espouse mandatory progressive values. This is a real shame, because O’Connor’s story is very inspiring in its own right. Overlooking O’Connor in order to bestow all of our adulation upon “The Notorious RBG” is akin to ignoring Neil Armstrong and venerating Buzz Aldrin as the only hero of Apollo 11.

As it happens, both Scalia and Ginsburg have written opinions and dissents which I admire (with my still largely-unformed legal brain). I am generally of the opinion that it should be for the state and federal legislatures to explicitly expand enumerated rights by statute or Constitutional amendment rather than continue the charade of having the Supreme Court “discover” new rights which were apparently lurking all along undetected in the words of the founding document. The latter seems like a disingenuous approach, albeit one pursued by both Left and Right on different occasions.

And as Ginsburg pointed out in her remarks this evening, explaining her own equivocation on Roe v. Wade, it can actually be counterproductive for an overly activist court to overstep its bounds and create sweeping new rights at the vanguard of social change. Why? Because this can lead to a political backlash and give opponents a single case law target on which to focus their fire, rather than having to “fight in the trenches” to oppose change in the fifty individual states. How much more secure would Roe supporters now feel in the Age of Trump if the rights they seek to preserve rested upon something more than one solitary Supreme Court decision?

Regardless, there is nothing like looking at Justice Ginsburg’s biography and accomplishments to make one feel inadequate. Here is someone who attended both Harvard and Columbia law schools, served on law review, came up through the ranks of the legal profession when there was real overt hostility to women lawyers, and served a quarter century and counting on the United States Supreme Court. Meanwhile, I plod through my Civil Procedure casebook and try in vain for the third time to understand what the blazes I am supposed to take away from Pennoyer v. Neff.

But I certainly return to my casebooks this evening with an injection of fresh motivation and inspiration. I do not agree with every last one of Justice Ginsburg’s opinions or share her overall judicial philosophy, but I still come away full of admiration, having briefly been in the presence of a real giant of the law. If, at the end of my own legal career I can look back and claim to have made one hundredth of the contribution to law and American life accomplished by Justice Ginsburg then I shall consider my decision to pursue this new calling vindicated one hundred times over.

 

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After The Parkland School Shooting We Need To Rethink The Trade-off Between Liberty And Public Safety

Mass Shooting - Marjory Stoneman Douglas High - Parkland Florida - Gun Control

Conservatives and gun rights activists don’t like to talk about it, but at the heart of their opposition to increased gun control is an unspoken trade-off between defending against possible future tyranny and trying to reduce or prevent otherwise inevitable future deadly mass shootings. In the wake of the Parkland school shooting, we need to drag this debate out into the open and re-examine the trade-offs which we are willing to tolerate

At what point is the promise of the Second Amendment and the assurance it offers Americans as the final firewall against government tyranny outweighed by the monthly carnage in American schools? Or is it wrong to even conceptualise such a tipping point, gut-wrenchingly tragic and outrageous though these endless mass shootings may be?

Are we right to focus on high profile mass shootings when so many more murders take place, in no way less tragic, during shootings involving only one victim? Is it appropriate to even contemplate reviewing something so fundamental to the American culture and precepts of government as the Second Amendment based purely on high profile massacres, when they form such a small percentage of the total yearly gun homicides?

Even if it were possible to outlaw the kind of weapons often used in high profile mass shootings, would it ever be politically or logistically possible to enforce a ban and/or seek to recall these weapons from lawful owners while providing appropriate monetary compensation, or would this simply leave the citizenry more at the mercy of criminals, or even provoke armed insurrection by those unwilling to comply?

All of these thoughts and more have been going through my mind as I learned of the latest deadly school shooting, this time at Marjory Stoneman Douglas High School in Parkland, Florida, where seventeen young people are known to have been killed.

I have long supported gun ownership rights, albeit with some caveats. Part of this is a function of growing up in the United Kingdom, where not only are most of the police unarmed, but where the law often ends up penalising those who try to engage in legitimate self-defence. If the government will not quickly and reliably come to one’s aid in a life-threatening situation, particularly given the rising Islamist terror threat, then what right has the government to demand that citizens forego even non-lethal methods of personal self-defence such as tasers or pepper spray?

I am not yet constitutional scholar enough to be able to adequately dissect the Second Amendment and the myriad existing gun control laws, but clearly there are existing limits on the right to bear arms, set both by the definition of the word “arms” and by state and federal law. One cannot construct a homemade nuclear weapon or dirty bomb in one’s garage or laboratory as an insurance policy against government tyranny, for example, and even the most conservative Republicans and the NRA don’t seem to register any objection to that.

As with free speech and the First Amendment, a line has been drawn. In the case of free speech, the line has rightly been set at the point of incitement or “fighting words”, the credible threat of harm to another individual. In the case of gun ownership and the Second Amendment, the line is both blurrier and more jagged, with various carve-outs and inconsistent application among the various states. But over the passage of time it was decided that certain semi-automatic weapons should be legal while others designated “assault weapons” are not, and yet nowhere is this spelled out in the Constitution.

Since there is then precedent for wide-ranging interpretation, it does not seem unreasonable to demand one of two things – either that the Second Amendment is revisited and its language tightened up to elucidate precisely what constitutes “arms” and precisely what infringements upon the right to bear such arms are now tolerable, or that the line in the sand (whose presence we all tacitly tolerate anyway) is redrawn in a way that restricts the type of weapon repeatedly used in these mass shooting incidents.

I believe that principles are important. In the Brexit debate here in Britain, I maintain that the principles of democracy and self-determination are sacrosanct and in themselves worth voting to leave the European Union, which is a deeply antidemocratic supranational government in gestation. I hold this view despite the fact that Remainers can point to many potential short and medium-term costs (albeit some of them invented or far-fetched) because democracy, though not quantifiable, is priceless.

And so it is with liberty and the right to fend off a tyrannical government, I suppose. America’s history is rooted in having to fend off a colonial power and fight to remain independent. American government is further predicated on the noble idea that the government and institutions of the day exist at the sufferance of the people, from whom they are temporarily given certain powers of governance, unlike most other countries where rights flow from the government to the individual. Given that the arc of history does not inevitably bend towards progress, and that tyranny can re-emerge unexpectedly at any time, a plausible and coherent (if distasteful) argument can be made that no matter how grim the death tolls and murder rates, the fundamental, universal liberty which the Second Amendment protects is yet more precious even than the lives taken every day by the bullet.

And yet. And yet we do not live in a world of pure political theory. We live in the real world, a fallen world where at some point the body count, the sheer mass of lost human potential will eventually outweigh (if it hasn’t done so already) any benefit that the Second Amendment offers in its current form.

For the past decade I have been a project and program manager by trade, and one of the key things we do in my job is assess and mitigate risk. In order to do so, one needs to determine both the likelihood of an adverse event happening and the severity of the consequences if it does so. Assigning a numeric value to each, one can then multiply the two variables to arrive at a unique risk rating for any eventuality, and use that rating to determine whether the risk can be mitigated and whether it is worth the cost of doing so based on the probability and severity of any potential fallout.

The Second Amendment is essentially a risk mitigation strategy against the re-emergence of tyrannical government. The result of true tyranny (though such things always exist on a sliding scale) can inevitably be measured in countless human lives, as borne out by every dictatorship which has ever existed. The probability of tyranny re-emerging, however, fluctuates all the time according to societal trends and political developments – at this time, some might say that the probability has spiked somewhat, while others would say that such an assessment is overblown.

We then need to compare the price of our current risk mitigation strategy against government tyranny – the Second Amendment in its current form – against the price of such a tyranny re-emerging in the event that we either cease to mitigate the risk (by abolishing the Second Amendment and attempting a recall or seizure of guns in legal circulation) or reduce our mitigation efforts (by imposing additional limits and restrictions on Second Amendment rights).

I’m sure that some person far cleverer (and more clinically, dispassionately calculating) than I could input thousands of societal and political variables into a huge Excel spreadsheet, work some pivot table magic and come up with a theoretical crossover point in terms of lives currently being lost versus lives potentially saved by fending off government tyranny (to the extent that current levels of gun ownership are any true defence against such tyranny). However, I am not that person. All I can do is go by my gut feeling and confess that much as I believe in gun ownership and support the Second Amendment in principle, it seems evident to me that we are way past the tipping point and that something needs to change.

A reasonable trade-off at this point, I believe, would be the banning of the sale of semi-automatic, gas-operated weapons and potentially compulsory buy-backs and amnesties to remove as many as possible currently in private ownership, given the capacity of such weapons to rapidly inflict mass casualties and their current popularity with mentally disturbed or evil people for whom such firearms are their weapon of choice.

I arrive at this position based on an honest and realistic assessment of both the risk of government tyranny (the ultimate reason that supporters of such weapons invoke in their defence) and the ability of such weapons in the public domain to deter against tyranny. I would not go further and propose the banning of non auto-loading firearms because there is a legitimate self-defence and recreational interest in keeping them, while they also provide a continued (if reduced) protection against the emergence of government tyranny, with the reduction in deterrence more equal to the potential lives saved through a successfully-enforced ban of semi-automatic weapons.

As Salon (hardly an unbiased source, but instructive in this instance) wrote in the aftermath of last year’s Las Vegas shootings:

The problem with gas operated weapons is that they are very, very dangerous. They are inherently dangerous, of course, because they are capable of killing people. But they are also dangerous because of the design of their rapid fire mechanisms and because of the nature of the humans who use them. In order for one of these weapons to be safe when it is loaded with a magazine full of bullets, two things must happen: the safety must be on, and it must not have a live cartridge in the chamber. But even if these safety precautions are taken, it’s still dangerous because dropping the weapon might chamber a round and knock the safety off, causing it to fire. The United States Military considers the gas operated weapons it issues to soldiers to be so dangerous that loaded firearms are not permitted on military bases here in this country, or even on bases in combat zones abroad. When I was in Iraq and Afghanistan, every time we entered an Army basecamp, our convoys had to pull over to the side of the road short of the camp entrance, soldiers had to dismount and walk over to barrels full of sand, and pointing the barrels of their M-16’s or M-4’s into the barrels, they had to remove loaded magazines from their rifles and clear the chamber of live rounds. Only when their weapons were completely unloaded and the bullets were put away were they safe.

[..] That’s all the Congress needs to know in order to write legislation that will make it far more difficult for mass killings to be carried out in the future. Ban the sale of gas operated weapons. Ban the importation and manufacture in the United States of new gas operated weapons except those for military or police use, and ban the sale or resale of currently existing gas operated weapons. The Las Vegas shooter apparently bought all of his weapons in contemplation of using them to shoot up the concert on Sunday night. If he had been unable to legally purchase his arsenal of gas-operated rifles, he would have been unable to kill 59 and wound over 500. Nor would the shooters in Orlando, or Newtown, or Virginia Tech, or Aurora Colorado have been able to so easily carry out their mass murders. If each of those shooters had to cock his weapon every time he fired it, far fewer people would have died.

Could such a ban be enforced by a mere Act of Congress? Again, I am not yet lawyer enough to proffer a deeply informed opinion. It may well be that such a ban could only be achieved through a Constitutional amendment – and given the current lack of clarity in the Second Amendment, the latter course of action would probably be preferable. Far better to have a clear and unambiguous limit on the power of the government to infringe on the private right to bear arms than the current situation where we have a very maximalist clause in the Constitution which is interpreted and curtailed in all manner of ways and thus made a mockery of in real life. And since so many decent and law-abiding citizens view their right to own such weapons as rooted in the Constitution, only a Constitutional amendment would give any future ban real weight and legitimacy.

But would such a measure do anything to significantly reduce the carnage which has long been a part of daily life in America? Much would depend on the method and timescale of any recall effort after an applicable law or Constitutional amendment was passed, and one can look to the Australian gun amnesties and buy-back schemes for guidance, but it should be acknowledged that any effect would be marginal at best in the short term.

Many weapons would inevitably not be handed in and would continue to be stored insecurely or accessible to those who should not have them, while psychopaths could continue to inflict mass casualties using smaller weapons. And while in time there would almost certainly be a decrease in the deadliness of mass shooting incidents (if not in the number of incidents themselves) as more guns were handed in and the inevitable smuggling routes disrupted, opponents of the ban could always disingenuously point to any mass shooting involving a semi-automatic weapon which slipped through the net as “proof” that the whole exercise was a futile exchange of liberty for no additional safety. The benefits would be marginal, and one cannot disprove a counterfactual.

And yet clearly something must be done. America stands alone among prosperous, developed countries in terms of gun violence and mass shootings in particular, and freedom enjoyed is not so vastly greater in the United States than it is in other peer countries such as Britain to justify the carnage (though again, America’s “insurance policy” against tyranny is somewhat greater than other countries).

If not this moderate additional restriction on gas-operated semi-automatic weapons, what is the alternative? Many Second Amendment defenders rightly point to a litany of other factors which contribute toward mass shootings, from the degenerate culture and lack of accessible mental healthcare services to the ubiquity of antidepressants and other prescription medications, and more. And they are right to highlight these issues – after all, guns don’t kill people, people kill people.

But we are now faced with a choice between trying to change society and human nature, which is incredibly difficult, time consuming and unpredictable in its results, or taking steps which accept the world and human nature as they are (surely the correct conservative approach) and enact physical constraints on the ability to purchase or acquire semi-automatic or gas operated weapons, or doing both.

At this point, we need to embrace an “all of the above” solution. We should absolutely do what we can to identify instances where the lack of mental healthcare or the prescription or illegal acquisition of certain pharmaceutical drugs can impact someone’s mental equanimity to the point where they become a potential mass murderer, and thenmake sensible reforms in this sphere. We should examine our culture of violence and any role that this plays in mass shootings, and also continue to take steps to change the way that the media reports such incidents (such as by focusing less on the killer, depriving them of the posthumous fame they crave and so acting as a deterrent to potential future killersthough others disagree that this makes any difference).

But this alone is not enough. We need to take practical measures too, steps rooted in the physical world to make it harder to acquire particularly lethal weapons. And for Second Amendment advocates (of whom I still consider myself one, albeit a reformist) it might be suggested that a small tactical retreat on this issue, if exchanged for cast-iron guarantees that no further infringement will take place, is infinitely preferable to inaction and the slow build-up of public outrage which might one day boil over and result in far more draconian gun control laws.

It may sound heartless so soon after another unspeakable tragedy to consider the issue of gun control in the clinical terms of risk mitigation. But at its heart, this is the purpose of the Second Amendment – to provide an insurance policy against encroaching government tyranny. And it does no good arguing the issue from a purely emotional angle or even from the self-defence angle, when both of these approaches skirt the real Constitutional issue at stake.

At its heart, the Constitutionally-rooted argument for the right to bear arms is not about hunting, recreation or self-defence; it is about the preservation of liberty and the right of the people to protect themselves from a government which no longer serves their interests. One can argue that this is an anachronism made hopelessly out of date by advancing weapons and surveillance technology, but American founding history vindicates the right to bear arms, and the wider arc of history warns us repeatedly against allowing ourselves to believe that Western democracies have entered some permanently benign state where the interests of the people and those in power will never again be irreconcilably opposed.

This is the battleground on which the issue must be fought if we are to have any resolution to the gun control debate, because this is the only line of argument seen as valid by gun ownership advocates, and because the Constitution demands that it be so. What, in 2018, would be a more acceptable, legal and politically/logistically feasible balance between safeguarding against the low probability of encroaching government tyranny versusprotecting the presently-imperilled public interest?

That is the question we must answer.

 

Note: I am no constitutional scholar or expert in how existing gun control measures have been reconciled with the Second Amendment. If anybody has any corrections, additions or counter-arguments to what I have written, I would be grateful to hear them in the Comments.

 

Shooting At High School In Parkland, Florida Injures Multiple People

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