The Real Nightmare (it’s not Justice Barrett)

The hysteria over Amy Coney Barrett is misplaced.

Justice Barrett will not destroy the environment, take away your healthcare and leave you to die, turn all women into “handmaidens”, return us to the days of segregation, or any of the other horribles that the Democrats would have you believe.

Instead, being an originalist/textualist Justice Barrett will read, interpret, and apply the text of written law and Constitution.  She will not deal in policy or legislation which is not the role of the judicial branch.  She has made it clear, in both her Senate testimony and in her actual rulings on the 7^th Circuit Court of Appeals that she takes her role as a judge seriously and with integrity; she does not decide cases as she might personally prefer, but is there to do her duty and to follow the law wherever it may take her.

If we were still taught civics and government in our schools everyone would know, and most would understand this.  (I would note that the blogs I wrote earlier this month – Oct 12, 13, 15, 22 - addressing the hearings on the Barrett nomination address many of the relevant concepts of role of judge and judiciary.  I will not repeat those detailed discussions here.)

Sadly, we are not taught and most do not know, let alone understand, these things.

But, what is sadder still is that Democrat politicians, most notably in this instance Democrat Senators including the Senator-VP candidate, are making repeated misstatements and mischaracterizations about the role of a judge or justice, about the judicial branch of government, and about Justice Barrett and her record.

And, even sadder is that people accept and believe these Democrat untruths without question.   Political rhetoric used to be aimed at one’s opponent, not at our system of government.  Yet now the Democrats aim their rhetoric at our system itself.

The Democrats lie when they say this appointment was illegal.  Democrats lie when they say the position of the Republicans on this nomination was inconsistent with their position on the Garland nomination (it was not; in both cases their actions reflect the will of the people who elected them).  Democrats distort the concept of originalism/textualism in a way intended to instill fear in the people. 

Democrats misconstrue the role of the judiciary in an additional attempt to instill fear and, more frighteningly, in a way to justify their intent to completely destroy the independence of our judicial branch of government by either packing the court with political operatives or completely altering the term of Justices. 

The people may be ignorant of what the Democrats are doing because it seems that few today really understand the non-political role of the judiciary in our governmental system; they may be ignorant of how this judiciary along with the other two branches and their checks and balances on one another are essential for our form of government.

But the Democrats know exactly what they are doing.  They are fomenting irrational fear and with it hatred of our government as it exists.  Why?  Not just to win this election, but to gain support for their goal of irretrievably altering it and with that alteration irreversibly ending America as we know it.

We can’t have a crash course in American Government for the entire nation.  All we can hope is that the voting public are able to see through the lies of the Democrats. 

Political rhetoric is fine, and we should expect our politicians to engage in it.  But when that rhetoric becomes a narrative of lies about our very form of government, lies that are designed to take hold in a populace largely uneducated about our governmental system, then we should all be very afraid. 

The nightmare scenarios that the Democrats like to present are nothing compared to the end of the American democratic republic that has been and continues to be a shining beacon not only to we the people but to all of the world.

 

 

Reflections for the Election

I am less than 3 years shy of having spent three-quarters of a century as an American.  I can still remember when I turned 21 and was able to vote for the first time.  I walked several blocks through a pretty seedy part of Detroit to reach my polling place and proudly cast my ballot.  Since that day I have voted in every election – not just presidential or midterm, but local things like schoolboard, etc.  I truly believe it is my responsibility as an American to do so, and I proudly cast each and every ballot.

Today I want to reflect on how this election is different and why, beyond any discrete issue, it is so important to the future of America.  This year it is absolutely crucial that voters understand not just for whom, but more importantly for what they are voting.

I have always been interested in politics – one of my earlier memories is my father allowing me to stay up to watch the nomination of Eisenhower for president.   Growing up there were many political discussions in my family; one thing they always included was the need to be well informed in order to properly carry out the Constitutional duty of voting.  I always try to follow that principle even though it is much more difficult in today’s world.

For most of my life I have been able to rely on a fair and objective media to keep me informed.  For most of my life I had a high respect for the media and its First Amendment right (and responsibility) to gather information and inform the people.  (My second law review publication while still in law school dealt with the First Amendment and specifically with freedom of the press and a reporter’s ability to gather news.) 

The press is sometimes referred to as the Fourth Estate which denotes its influence in the political system.  It has enormous power to frame and advocate political issues.  Until recently it, for the most part, did this in a fair manner.   But that has changed.

Today we live in a world of narrative rather than fact.  People select a narrative that is pleasing to them and support its authors without regard to the factual support or lack thereof for that narrative.  Because the news media now also takes that approach, it is no longer the source for fair and objective factual information. Even the alleged media fact checkers disagree based on bias. It has become more and more difficult for those who seek the facts (not interpretation of or opinions based on them) to find what they are seeking.  That alone affects the nature of this election.

My belief and my personal education about various candidates in the past always led me to the conclusion that they all wanted essentially the same future for America – a betterment and closer approach to the ideals embedded within the Constitution.  The various politicians and political parties may have had different ideas about how to accomplish that, but all those different paths had the same goal in mind and the same underlying respect if not love for America and its founding principles.

When I protested for civil rights and to end the war in Vietnam, I was not protesting against my country or its form of government.  Rather, I was protesting about specific policies within that government.  The protests were a means to an end – a way of making our country better, but not completely different.  In law school, when discussing those protests, one of my Constitutional Law professors noted that many wrapped themselves in American flags, not out of disrespect, but out of respect for the country that allowed us to speak our minds in this way.  That flag, representing America, was the shield that protected our freedom of thought and our ability to speak our views.

In the past voters looked at the planks of a party’s platform – what did each party intend to do for America?   It has always been unlikely that someone would agree with every plank of any party’s platform and so, in past years, informed voters would generally choose the platform and party with which they had more in common.  In the end, the voter knew that both parties had the same interest – a better America – at heart, and that they would listen to and follow the will of the people to get there. There was a unified respect for and pride in our country and that held us together.  Our goals were the same.

That is not so today.  Today there are two very different goals that include starkly different views of what America is and what it should be.  This year’s election is ultimately not about the specific planks in a platform.  This election requires the voter to go beyond the planks and specific policies to see the fundamental and dissimilar view that each party has of and for America.

Looking at various aspects of our nation’s culture and government, the two parties have contrasting views of what should be, many of which I have discussed in prior posts.  These include but are not limited to:  the individual vs. identity groups; self-reliance and self-determination vs. large government control; protection of inherent individual rights as outlined in the Constitution vs. rights created by the government that controls (or takes away) those rights; representative government giving voice to all vs. pure majority (mob) rule which silences the voice of the minority; equal opportunity vs. equal result for everyone; creating opportunity vs. maintaining an underclass of hopeless individuals; rule of law vs. rule by emotion and personality; capitalism vs. socialism.

The bottom line is that the Republican party is generally satisfied with the current governing structures of America.  While they would work to improve them and with that the lives of all Americans, to move ever closer to the aspirations that define America, they would not fundamentally change them.

In contrast, the Democrats generally no longer respect those structures.  They believe the very nature of our country and its governing bodies must fundamentally change. To reach their goals, to create the America that they envision, rather than improving current structures the Democrats would dismantle them and turn them into something else entirely.  

To achieve many of its goals, the Democrats must ignore aspects of our Constitution and cannot continue with our three separate but equal branches of government.  The Democrat vision provides much less voice to the people and much more to the control of the party and its government.  This would require removal of an independent and non-political judicial branch – hence the Democrat plan for Court-packing to create enough political judgeships so that their party would never lose a political case.  It would require more secure control of a Democrat voting bloc in the Legislative branch – hence their plan to create 2 new states giving a larger seat count to Democrats in the House and the Senate.  And it requires an assured voting bloc for those things over which the people maintain control – hence create 11 million new voters indebted to their party by giving unqualified citizenship to 11 million illegals. 

Of course, these may be short lived goals – there could come a time that these Democrat blocs would turn Republican.  But if the Democrats are able to seize control then they can make enough significant changes that a shift against them would make no difference.  If they do it right, the Constitutional guarantees that protect us will no longer have any force.  

And that is why this election is so very different.  The question of what kind of healthcare we will have pales against the question of whether we will have America as we know it or not.  This is why it is so important that people become educated about the true facts behind what each party seeks, and why it is so frustrating that we can no longer count on the media to inform us. 

Yet every voter must find a way to look beyond the surface beauty of the Democrat narrative to see the real and sometimes not so pretty consequences that lie beneath.  Some may prefer the Democrat narrative and be able to ignore the inconvenient facts that the Democrats and the media are not disclosing.   They may eagerly await a dismantled and different country.  

Personally, I love America with all its warts and blemishes.  I love its Constitution and its form of government, its rule of law.  It is a place where we can truly become the full individual that we are meant to be.  This is the America that I want my descendants to experience.

It is essential that people recognize the two different Americas that are on the ballot and truly know and understand for what they are voting.    This election is different because we are not voting about which way we will get to the same place, but rather to which place we are going. 

I ended yesterday’s post with a personal statement about my vote this year.  I repeat it here:

As I have said before, I am not a member of any political party and have voted for both Republican and Democrat candidates in the past.  But this year I believe that America’s future is fully dependent on our vote.  Because I believe in our Constitution and our Democratic Republic, because I value our democracy and how it allows every individual to determine his or her own beliefs and values and allows each of us to speak freely those beliefs while requiring tolerance of those who hold different views, because I believe that Democrat policies will truly weaken if not destroy many of the crucial foundations of our society, for those reasons and more I am voting Republican this year, and I urge everyone who holds America dear to do the same.

The Photos That Prove They Don’t Care

Today, as the Senate Judiciary Committee convened to vote to advance Judge Barrett’s nomination to the full Senate, the Democrat members of the Committee did not show up.  Instead, they placed photos in their empty chairs.

The photos were of people they had previously used as campaign props during their (laughable) questioning of Judge Barrett.    These were the photos that they used as back drops while they called Judge Barrett a liar and a threat.  These were the photos to which they pointed when they claimed that Judge Barrett, if confirmed, would somehow and seemingly singlehandedly not only deny them and all of us any health care, but also return us to some sort of Dark Ages. 

These same photos were behind the Democrats when they refused to use their time during the Barrett questioning to actually ask Judge Barrett questions relevant to her qualifications to become a Supreme Court Justice.  These were the photos that they pointed to as they recited campaign rhetoric about healthcare and abortion and civil rights.  These were the photos that the Democrats used to try to instill fear into the American people.

While claiming that they cared about the people in the photos, the Democrats pointed to them as part of their theater of fear mongering.  Do the Democrats really care about these people?  I don’t know.  What I do know is that they tend to use individual stories to prop up their own sweeping and misleading rhetoric.

What I do know is that despite the pretty and perhaps emotion invoking photos and personal stories behind them, the Democrats have contempt for the American people, for the Constitution of the United States of America, and for our form of government.

Today, the Democrat Senators had a job for which the American people elected them and for which we the taxpayers pay them.  That was to show up at the Committee meeting of the Judiciary when they are members of that Committee.  

Contrary to what they would have the American people believe, this meeting and indeed this entire nomination process is not a sham.  It is a constitutionally mandated part of our government.   The appointment of a Supreme Court Justice is serious business that these Senators were elected to conduct.  Let them grandstand on their own time.

The Democrats can present all the political theater that they want.  The bottom line is that they are shirking their duties.  (And if you want to understand the facts about why this nomination is not a sham and is perfectly in line with our history, our Constitution, and the will of the people, you can read my previous 3 blog posts about the hearings)

The Democrat stunts during this nomination process present one example of the Democrat contempt for the American people and the rule of law, but, while this process displays in high definition the Democrats’ true colors, it is not by any means the only example.

If you have been reading this blog for the past three and three-fourth years you are aware of example after example of the Democrats' refusal to accept the will of the people when it is not what they want.  It began with their refusal to accept Donald Trump as the legitimate President of the United States.  That has continued throughout his presidency as they try one after another means of removing him from office and hence overturning the will of the people. 

The Democrats have shown us that they do not care about the will of the people and will not think twice about thwarting it if it stands in the way of their power.  They do not respect the institutions and offices of our government.  They are willing to ignore, indeed shred, the Constitution if that is what it takes.  They are also willing to use people and their photos as props if that is what it takes.

The Democrats have shown us that they believe that those with whom they disagree, those who do not fit their preconceived mold for women or Blacks or any of their many identity groups as well as those who hold value systems or beliefs that they disdain such as conservatives (and especially conservative people of color and women)  do not deserve our Constitutional freedoms such as speech or worship.  To Democrats it is acceptable to silence and hate those with diverse views.

If you have read my blog for the past few years you have read about various forms of governments including socialism and its failures.  You have read about how socialist programs, programs that sound laudable and may actually be intended to help one or another group, how those programs actually harm the individual by creating a dependent subclass.  Such subclasses are used by those in power as a means of retaining their own power.

You have read about how the progressive programs of the Left will actually deny us the freedoms that we hold dear.  They will severely weaken if not remove our right to think for ourselves and each determine our own destiny.  They show a disregard for the individual humanity of each of us.

The Democrats’ rhetoric about Judge Barrett and her nomination process is based on lies, misinformation, and mistruths.  This should not surprise us since that pretty much describes everything that comes from the Democrats these days. 

The Democrats build narratives on facts that are at best incomplete and more likely do not even exist.  They along with their media handmaidens suppress information and facts that are harmful to their narrative.  The list is long, beginning with the Russian hoax and its falsified FISA warrents and continuing to the present with the suppression of credible facts about Joe Biden’s use of his vice presidency for personal and family gain.  (NPR justifies not reporting the story as “not wanting to waste viewer’s time”; I still believe that viewers can and should decide for themselves what is a waste of their time.)

Politicians of course always try to make a case for their policies.  But that case should not be based on mistruth.  Yet, this approach of denying the truth about our system of government is on full display by the Democrats in the Barrett hearings. 

I suspect that the Democrats who did not show up today actually do know what their responsibilities are, that they do know that the Supreme Court is not a political branch (at least not unless/until they succeed in making it so by their Court-packing scheme). 

I suspect that the Democrats know that our form of government requires, and our freedoms depend upon a judiciary that is not political.  Justice requires the ability to put one’s personal agenda aside.  That is what the Democrat Senators should do when considering a new Justice.  Yet, their goal seems to not be justice, but rather a political ally dressed in the black robe.

The empty seats this morning, the photos intended to pull on our heartstrings, the lies about Judge Barrett and the nomination processes, these all show a callous contempt and disrespect on the part of the Democrats for the American people.  Those of us who are not bamboozled by their rhetoric need to put an end to it the one way that we still can – by casting our vote on November 3.

This is an important election.  The status of our democracy and with it our individual freedoms are on the ballot.  See this morning’s photos for what they really are – a picture of the Democrat disdain for America and Americans.

***

As I have said before, I am not a member of any political party and have voted for both Republican and Democrat candidates in the past.  But this year I believe that America’s future is fully dependent on our vote and because I believe in our Constitution and our Democratic Republic, because I value our democracy and how it allows every individual to determine his or her own beliefs and values and allows each of us to speak freely those beliefs while requiring tolerance of those who hold different views, because I believe that Democrat policies will truly weaken if not destroy many of the crucial foundations of our society, for those reasons and more I am voting Republican this year, and I urge everyone who holds America dear to do the same.

 

 

Judge Barrett Hearing, Days 3 & 4

Days 3 and 4 of these hearings followed in the same mode as the previous days. 

Judge Barrett continued to display an exceptional knowledge of the law and also continued to follow both precedent and ethical requirements that she not comment on  policy or on any case or hypothetical that might come before her, either in her current position on the 7^th Circuit or if confirmed to SCOTUS.

The Democrats continued to ignore the purpose of the hearing – to determine Judge Barrett’s qualifications for justice of SCOTUS – and instead continued to present policy, fear mongering, and campaign rhetoric.  This was true for both the questioning that occurred on Day 3 and the witness presentations on Day 4. 

Day 4 began with political maneuvering by Democrats in an attempt to stop or stall the nomination proceedings.  This failed, and the committee vote is scheduled for 6 days forward (as is standard for all such nominations).  This time allows the Senators time to review all documents put into evidence (or, in the case of Justice Kavanaugh’s hearing, to seek or try to manufacture damning evidence; hopefully they will not repeat this here).

Day 4 also included presentations from outside witnesses.  First came the American Bar Association which gave Judge Barrett the highest rating possible.  This followed review of her writings, both academic and judicial on the 7^th Circuit as well as interviews with members of the legal profession and others who have some relevant information about this nomination. 

The ABA found Judge Barrett’s integrity impeccable.  I note this because of the many implications from Democrats that she is either a liar or some sinister plant by the President or by right-wing organizations.

Following the ABA's presentation, each side provided 4 witnesses  These followed the same mold as the actual senators' questioning on Days 2 and 3.  The Republicans presented legal professionals including a retired judge, a law professor, one of Judge Barrett's former law clerks, and a clerk to the Supreme Court who related her own interactions with Judge Barrett while a student a Notre Dame.  All spoke to Judge Barrett’s qualifications as a justice.  The former student, a blind woman, also spoke to Judge Barrett’s compassion.

The Democrats, in typical form, presented witnesses who did not speak to judicial qualifications but instead furthered the fear mongering of what would  allegedly happen if Judge Barrett is confirmed.  Their witnesses were activists – for expansion of Medicare, for civil rights, for abortion rights and for Obamacare.  Their consistent message was that Judge Barrett is somehow a threat to “the vulnerable.”

I would note that really no one, even a judge himself or herself, can predict how they will rule in a particular case.  Judges, at least good ones, are not partisans or activists when they put on the black robe.  Rather, they will consider the specific facts of the case before them, apply the law as it exists at the time of the dispute, and through a solid legal reasoning process will arrive at their conclusion.  Because cases that come before courts, and especially before the Supreme Court, are highly contested and policy charged, there is often more than one reasonable position, and justices with differing judicial philosophies will often arrive at the same conclusion in a particular case.

What offends me is not that the Democrats have their policy views or that they prefer an activist judiciary.  It is that they attempt to distort a hearing on the nomination of a justice to the Supreme Court of the United States of America into arguments about the policy and issues that the legislative body should be addressing.  The members of this committee know full well that they should be looking at the prospective judge’s judicial qualifications, not whether or not she holds their policy views.

Judge Barrett’s qualifications are impeccable.  Unattackable.  So, the Democrats are trying to present to the American people a fully false picture of her and of what a judge does.  They are campaigning. And as a taxpayer and a voter and a citizen, I am offended by this.

A few things require particular note.  First is the term “originalism” as it refers to a judicial philosophy.  Judicial philosophies range from more activist to more restrained.  These terms - various judicial philosophies - do not necessarily correspond to political philosophies such as liberal or conservative.

The Democrats would have the people believe that originalism is some sort of draconian horror.  Originalism like textualism simply means giving primary weight to the text and structure of a document – Constitution or statute; the idea is that the Constitution means no more or less than what it meant to those who originally wrote and ratified it.  With that context in mind, it will be interpreted and applied to a current situation.  

"Originalism" is not some hyperliteralism which will not recognize the evolution of society along with judicial precedent.   Despite what the Democrats might want you to believe, the term “originalism” does not signify an intent to return the country to the 18^th or 19^th or even the 20^th century.

Like the Constitution, enacted laws are general – they do not refer to a specific case but to general rules that govern our behavior.  They represent the will of the people.  A judge deals with a specific case in controversy.  That is, in simple terms, there are particular people on each side of dispute.  When the dispute comes before the judge, the judge must decide that case, and can only decide that case.  The judge does not make general policy but applies the existing law to the specific facts of the case and resolves the dispute between the existing and specific parties.

An easy example:  If a statute says it is a crime to drive a motor vehicle while intoxicated, that addresses a general circumstance.   The prohibition, written by the legislature, reflects the will of the people who voted for the legislators who enacted the law.  Now assume that one day Mr. X, who is undisputedly intoxicated, is sitting in his green Subaru on the side of the freeway with his engine running.  That is a specific situation which might fall under the general law. 

If the police cite Mr. X he might come to court and argue that he was not "driving" because he was stopped on the side of the road.  The statute does not define driving, so the judge faced with this dispute will have to read the statute and determine if sitting on a roadway with a car running but not moving constitutes driving under the statute. That part of the general rule is ambiguous in this situation.  The judge must decide this to decide Mr. X’s case.  The judge however cannot rewrite the statute, cannot say  that driving intoxicated should not be illegal, or that Subaru drivers should be exempt, or that the statute also includes bicycles and Segways.    

The judge will look at the statute and its intent and apply it to this specific fact situation.  If the judge decides that these specific facts constitute driving then that will become precedent for future specific cases.  When Ms. Y is intoxicated and stopped on the side of a busy roadway in her red Mustang with the engine running, this precedent will now guide us to the conclusion that she was driving for purposes of the statute.  If the legislature does not like this decision, if they think an unmoving but running car should not be seen as driving under this statute, it is they who can amend the statute.

Judges look at the law relevant to a particular situation and apply that law to the specific facts of a specific case.  Obviously Supreme Court cases involve far more complex issues and policy concerns than the simple example above.  But the principle is the same.  A judge takes the existing law which is general in its language and applies it to specific facts involved in a specific controversy between specific people.  

Often the general language of a statute or of the Constitution must be interpreted to determine if or how a provision applies to the specific case. Different judicial philosophies will determine how a judge goes about this process. But there is a difference between interpretation and actually creating new law.  Judges should not make policy or create new law if for no other reason than that they, unlike the other two branches of government, are not elected and therefore not accountable to the people.

The Democrats also keep returning to their old saw of how this hearing is illegitimate, a sham, and somehow betraying the will of the people.  It is not.  This is just another of their histrionic scare tactics.  One more time let me explain the obvious.

In 2016 the people elected a President whose term of office began in January of 2017 and runs until January of 2021.  In 2018 (notably after the Kavanaugh hearings and his confirmation to SCOTUS) the people in the midterm elections created the current makeup of the Senate.  The current Senate is in place until January of 2021.  The current SCOTUS vacancy occurred in 2020, within these terms of office.  It is these people who are responsible to react to the vacancy and that is what they are doing. 

The Garland vacancy occurred within different circumstances but is entirely consistent with what is happening now and what has happened throughout history. The Garland nomination occurred when the Senate majority was Republican but the President was a Democrat.  Responding to their electorate, that Senate did not move forward with a nomination made by the executive of the opposing party. 

Historically there have been 29 SCOTUS openings in an election year.  Of those, 19 were when the President and the Senate were of the same party.  Of those 19, 17 were confirmed.  The other 10 openings occurred when the President and Senate were of differing parties.  Of those 10, only 2 were confirmed.  What this tells us is that both the failure of the Garland nomination to move forward and the holding of the Coney Barrett hearings this week are consistent with the mainstream of our nation’s history and with the concept of the elected officials responding to the will of those who elected them. 

The Democrats don’t want Judge Barrett on the court.  That does not mean that they can cut short the legitimate term of the President and of the currently serving senators. Perhaps the people will elect Democrats for the next term (which does not begin until January 2021).  If they are elected, I suspect they will not want their terms cut short.

Elections have consequences.  This is so even if the Democrats would prefer they didn’t and even though they seem to spend most of their time trying to overturn the will of the people.

It is clear the Democrats do not like Judge Barrett’s personal beliefs,   But beyond that I find especially demeaning their repeated implications that she cannot possibly have a mind of her own but rather will simply do as told.  I don’t know if this is their view of conservatives, or of women, or of both, but whatever it is, it is certainly offensive.

Judge Barrett is imminently qualified to be a Supreme Court Justice.  There is truly no question on that. A review of her opinions and judgements while serving on the 7^th Circuit Court of Appeals reveals that she is actually quite mainstream while proving to be a deep and thorough researcher and thinker and a clear and thorough writer.  She is not the crazy person out to single handedly return us to the Dark Ages that the Democrats would have us believe she is.

The Democrats want to attach Judge Barrett’s personal conservative views with which they disagree to how she would rule as a judge. As I noted above, I don’t think anyone can begin to guess how a judge would rule.  Both originalist/textualist and more liberal justices with other judicial philosophies often come to the same conclusion in a case. But the Democrats seem to be interviewing for an activist, not a justice.

Unlike the Democrats, I don’t really care about Judge Barrett’s personal life.  What little I know of it I respect; I also suspect that while she and I would have some things in common there are also many things about which we would disagree.  But she is not nominated to be my friend just as she is not nominated to be a policy advocate. 

Judge Amy Coney Barrett is nominated to be a Justice.  While I fully anticipate that she will reach some conclusions and write some opinions with which I disagree, I also expect that her legal reasoning behind her judgments will be impeccable.  And it is just that which we all should ask for and expect from a justice.

 

 

Amy Coney Barrett Hearing, Day 2

Not much new at today’s hearing.  Mostly it was just a more of the same waste of time.

We learned, many times over, that Judge Barrett will follow the law and the Constitution as written, meaning she will interpret and apply but not rewrite or make policy or decide cases based on her personal beliefs.  We learned a bit more about the Constitution and our 3 branches of government – things we should have learned in 8^th grade civics.   We learned that Judge Barrett is incredibly knowledgeable about the Constitution and the role of the judiciary and of individual judges.

I think that 30 minutes per senator was far too long.  The Republicans, who seemed to be the only ones asking questions relevant to whether or not Judge Barrett was qualified to be a Supreme Court Justice, could complete their questioning in about 15 minutes (the remainder of their time was usually used to correct misstatements from across the aisle).  The Democrats, who sometimes asked not even one question, used their 30 minutes to continue their stump speeches and fear mongering from the day before. 

As a member of the legal profession I am appalled by the Democrats’ attempts to mislead the public about the role of the judiciary and the place of our courts in our judicial system.   As a woman I was insulted by the Democrats’ apparent belief that Judge Barrett is incapable of having independent thoughts and judgement.

Just a few of the more disturbing Democrat presentations.  First, they refused to acknowledge the fact that no judge may comment on cases that are or may come before them.  When Judge Barrett followed the rule and refused to comment, they tried to twist this into something sinister.

Democrats also refused to accept the fact that the judicial branch of our government is not a policy or law-making body.  Perhaps they just don’t understand.  But their repeated attempts to engage Judge Barrett in policy discussions were properly met by her assertion and reassertion that it would be against the canons of judicial behavior for her to so engage.  Again, they tried to turn these very appropriate answers into something sinister, to make her out as some tool of Trump who was just evading and lying about her real agenda.

Another misconception repeatedly put forth by the Democrats is that Ruth Bader Ginsburg must be replaced with a judge holding Ginsburg’s same more activist judicial philosophy, that it would be inappropriate to replace her with a conservative justice.  Do they not understand that we do not have liberal and conservative seats on the Court?  Judges, because they do not engage in policy, do not merit political labels.

The Democrats revealed that they still do not understand what Court packing is.  They argue that filling an existing vacancy is Court packing.  Using a typical Democrat tactic, they accuse the Republicans of doing that which in reality the Democrats are doing or are threatening.  It is a Democrat proposal to pack the Court with new positions geared to turn the Court into a policy making body that would rubber stamp their policies without any accountability to the people.  Nominating Judge Barret to fill an existing position is not Court packing.

Similarly, the Democrats continue to assert this whole nomination and confirmation process is illegal.  The President and the Senate are doing what they can, indeed what they are required to do when a SCOTUS vacancy occurs.  Yet the Democrats continue to call the process illegitimate.

The Democrats continually tried to twist and muddy Judge Barrett’s words.  At one point Republican Hawley had to read Judge Barrett’s actual words from the Cantor v. Barr opinion to reveal the many distortions that had been put forward by the Democrats in their speeches and questions. 

The Democrats regularly and seemingly intentionally distorted law and Judge Barrett’s words in an attempt to convey a picture of someone who would single handedly destroy healthcare, women’s rights, gun control, and whatever else they might have on their mind. 

The Democrats revealed either an unacceptable lack of knowledge about judicial processes for individuals sitting on the judiciary committee or, what is more likely, they intentionally muddled policy and emotion to create a misleading picture of how the courts function and the actual duties and powers of a sitting justice. 

They also continued their milk carton presentations in which they used pictures of folks from their districts with one or another hardship.  They would use these to attempt to stimulate some emotional response while lecturing Judge Barrett that if she did not understand and rule as they saw fit that she would destroy these people.  And some further implied that such destruction was Judge Barrett's actual goal.

Several Democrats refused to believe that Judge Barrett was capable of thinking for herself rather than just parroting her mentor Justice Scalia.   Others implied or even called her a liar, not because there was any suggestion whatsoever that she was lying, but rather because she was simply not giving the Democrats the answers that they wanted.  They don’t want someone to apply the law as written, they want someone who will do as they say.  And Judge Barrett’s honest and judicially appropriate answers were deflating their parade of the horribles that they were claiming she would bring upon us.  So, they just called her a liar.

Perhaps the worst was Sen. Whitehouse who presented a series of charts to prove “The Scheme” (that was actually the wording of one of his posters) in which he presented an entire conspiracy theory of how Judge Barrett is just some tool of some Republican deep state, deep money.  This 30-minute attack on Judge Barrett was not based on anything relevant to her, but simply a made-up slur against her because he did not like her or her opinions.  And, again, it took a Republican to get things back on track as Sen. Cruz returned us from Whitehouse’s focus on "fancy conspiracy charts" back to “just the facts.”

The Democrats do not like that Donald Trump happens to be President when Justice Ginsburg’s death created a SCOTUS opening.  But he is.  And he nominated a highly qualified judge.  The Democrats don’t like that either.  They can’t attack Judge Barrett’s qualifications, so they seek to distort her role and fear monger emotions to turn public opinion not only against her but against the President and entire Republican party.  They have no case so they turn to their standard tactics of misinformation and hate.

And there will be another day of it tomorrow.

 

Notes from Amy Coney Barrett Hearing Day 1

 It’s like watching two separate events.  The Republicans are talking about the nominee, the role of a justice, and the Constitution.  The Democrats are talking about health care, fear mongering, and giving stump speeches.

If you want to understand the purpose of the hearing, listen to Ted Cruz’s opening remarks LINK.  If you want to understand the Constitutional and historical why, listen to Ben Sasse’s opening remarks LINK.

Following are a few other important notes covered by these and other Republicans, but worth repeating because of the incorrect presentations by Democrats and media, reflecting either an unacceptable misunderstanding of our country and its history or an intentional effort to mislead the public.

Historically there have been 29 SCOTUS openings in an election year.  Of those, 19 were when the President and the Senate were of the same party.  Of those 19, 17 were confirmed.  The other 10 openings occurred when the President and Senate were of differing parties.  Of those 10, only 2 were confirmed.  (Ted Cruz and Mike Crapo reiterated these statistics in their remarks). 

What this tells us is that both the failure of the Garland nomination to move forward and the holding of the Coney Barrett hearings this week are consistent with the mainstream of our nation’s history.  It is not hypocritical.  It is not some anti-Constitutional move. 

Indeed, in both instances the Senate carried out the will of the people.  The people voted in 2016 and 2018 and will vote again by 11/3 of this year.  The terms of those people currently in office do not expire before their possible replacements are elected and confirmed.  (As Ruth Bader Ginsberg said, A president is elected for 4 years, not less)

The current Senate and the President were elected by the people and are expected to carry out their jobs.  That is what they are doing and that is also what they did in 2016 when Garland was appointed. 

The Supreme Court is not a political body.  It is a check on our other two political bodies – the Executive and the Legislative branches.  It is those bodies that are elected by and answer to the people – they carry out the will of the people.  In our system of checks and balances, the Congress legislates, and the Executive enforces those laws. 

The Court, on the other hand, does not answer to the people.  It answers to the Constitution and the Law as it holds the other two branches in check. 

The Court decides actual cases before it; while the decision on a particular case creates precedent, the Court’s decision itself cannot go beyond the specific issues presented by the case before it. 

The court does not legislate or create policy.  That is not its job.  Its job is to interpret and apply existing law, not to create it.  While justices are appointed and confirmed by political bodies, their duties on the Court are apolitical.  It is a distortion of reality when the Democrats try to create a view of the Court as a necessarily political body.

This leads to some thoughts on Court-packing, something threatened by the Democrats as punishment if the Senate goes through with its constitutional responsibilities to advise and consent on the President’s nomination to fill an existing vacancy on the Court.

Court packing is decidedly political and would destroy the Supreme Court as we know and with that our separation of three branches of government that is an essential part of the government that we hold so dear and which is a shining beacon of freedom to the rest of the world.

Court packing is when a political party puts additional justices on the bench to ensure that the Court will act as a rubber stamp to the policies put forward by that party.  Essentially the court becomes a super legislator but one with no checks and one that is not responsible or accountable to the people.  Rather, its constituency becomes the political party.

It is also important to understand that filling an open vacancy is not Court packing.  The elected President appoints, the Senate confirms.  The President and Senate were put into their roles by the voters.  The voters knew that when they voted for a Republican they were likely to see judicial appointments of individuals with a more conservative judicial philosophy and that is exactly what we have seen as President Trump has filled a number of vacancies throughout the federal court system. 

Democrats are more likely to appoint individuals with a more liberal judicial philosophy.  That is one of the differences between parties that we the people consider before we vote.  But this vacancy occurred when we had duly elected Republicans in the Executive and Senate.  They are carrying out the will of the people by moving forward with this nomination.

The upcoming election has nothing to do with this nomination.  Whoever is in office after the winners of the November election are installed into their offices will have the right to handle whatever vacancies occur during the full term of their office.  Not before.  Not after.  During.  The Amy Coney Barret nomination along with the vacancy she is nominated to fill occurred during the term of Trump and this Senate.  It is not court packing to fill that vacancy 

It seems that the Democrat strategy for this hearing (today at least) is to talk about health care which has nothing to do with the judge’s qualifications.  They are appealing to emotions and fear.  Why?  Because they know this judge is fully qualified (the American Bar Association ranked her “well qualified” based on her integrity, professional competence, and judicial temperament).  But the Democrats seem to think it will be effective to convince the American people that Judge Barrett is out to somehow kill us all. 

Democrats would have you believe that a justice is an activist who can and does change laws and make laws.  They may think that is true, they may want that to be true, they may try to make that true by packing the court, but that is not what a judge properly does.

Let’s be clear about what a judge does.  She decides actual cases and controversies before her based on the law and the constitution.  That’s what a good judge does.  The decision might or might not agree with a judge’s personal views.  That is as it should be under our Constitution.

A judge may not comment on an actual case that might or will appear before her.  The questions to and comments about a judicial nominee should focus on her judicial philosophy, her understanding of the Constitution and a justice’s role in it. 

While the Democrats’ stories may be emotionally compelling, they have nothing to do with the qualifications of Judge Barret to be a justice on the Supreme Court.  They are nothing more than a political stunt.  But, then, that’s all they have – they can’t attack Judge Barrett’s qualifications. 

Sadly, the Democrat speeches sound the same as all their speeches for the past 4 years – fear mongering, distortions, and misstatements of fact.  No substance, no responsiveness to their obligations to the American people and the Constitution.  Just stonewalling against any legitimate actions taken by a President whom they despise.

Lies and Deceit Are Not a Debate

 Now that the Oct. 15 debate has been cancelled, the Commission on Presidential Debates and we the people have a little more time to think before the next debate format is finalized.

What we should have learned from the first presidential and the only vice-presidential debate begins with wondering why even bother to hold debates when:

•  No one answers questions, in part because
•  Two minutes is not enough time to even begin to answer questions about complex issues;
•  The answers of one side, consistent with their campaign techniques, are based on lies, half-truths, misstatements, and deceit;
•  The objectivity of the moderator is at best questionable.

Let’s unpack some of the above.  First, it is rare to get a clear answer to a question.  Now there are several reasons for this.  One is that the candidates don’t want to turn off any potential voters.  Another is that they don’t want the voters to know the answer (for example, Biden/Harris refusing to answer questions about their intent to pack the Supreme Court). 

But, even if they wanted to give a clear answer, it is hard to do so within the time structures of the debates.  You can’t just answer a complex social or international issue “yes” or “no”.  Such answers require complex explanations underlying the yes or no.  It is impossible to give such explanations in two minutes or less and if one tries to do so it is more than likely that the incomplete explanation will be used against them by the media and/or their opponents.

The limited rebuttal time does not really allow a candidate to challenge his or her opponent when that opponent bases an answer on falsehoods.  If there is a limited (usually 1 minute or less ) time for rebuttal, that is insufficient to explain why the answers of the opponent are deceitful and to cite the necessary facts and authority that prove the deceit. 

It is very frustrating, not to mention unfair, to see an opponent be allowed to base an entire answer on a lie and then see the other participant be left unable to rebut.  This sometimes leads to interruptions (yes, all 4 candidates have interrupted their opponent) as the one faced with the lies tries to set the record straight.

Because of the lack of time to actually address and explain issues, the candidates are left to repeat tired campaign slogans and party lies.  How many times do we have to hear the thoroughly debunked assertion that Trump has not condemned white supremacist groups?  Or the tired out of context and proven lie from Charlottesville asserting that he said the KKK were good people? 

Wouldn’t we all like to hear positions on issues instead?  But the debate format makes that nearly impossible.

And let’s not forget that this is a media event.  The media likes show.  I thought the absolute best comment about the presidential debate came from Sen. Ted Cruz who said that the “raucous debate” reminded him of Detroit Pistons Basketball when the team was known as the “Bad Boys.”  He said, "It kind of reminded me of the Detroit Pistons basketball in the 90s where there were a lot of hard fouls, there were a lot of missed shots. But at the end of the day, I doubt the debate changed the election in any fundamental way."  That’s a pretty good summary of what was a worthless debate, but a pretty good show.

We also must think about the moderator.  It seems that it is the moderator who determines the topics and writes the questions.  These moderators are TV personalities, journalists, etc.  They are people with strong political opinions.  And those opinions, their biases, are clearly apparent in the questions themselves and in the behavior of the moderator. 

The bias seems to have become clearly apparent in the behavior of the moderator who would have hosted the Oct. 15 debate – prior support for Biden and tweets about the upcoming debate with a staunch Trump critic (tweets that he conveniently claims were the result of a hack). 

In the first presidential debate, the moderator effectively became a participant when he took it upon himself to argue with the President.  The moderator’s job is to ask the questions, let the candidates answer, and let the people make their own judgements.

Lack of necessary fairness can be more subtle.  In the VP debate it appeared that Pence ran over his time far more than did Harris.  But, those who actually timed the debate noted that the moderator asserted “time up” to Pence at exactly the 2 min. mark while regularly allow Harris to run over for 15 or more seconds before telling her that her time was up.

So, the committee has more time than it thought until the next debate.  Perhaps they could actually do something to turn the apparently final debate into something meaningful for the voters.  What might they do:

•  Change the structure entirely so that the debate is about issues.  If the debate is 90 minutes, give 30 minutes each to 3 issues.  Treat those three issues like a real debate.  For example, if the issue is going to be healthcare, the opening question might be:  Explain the extent to which you believe the government should be involved in providing health care, why you believe that is the best policy, and how your position/plan would actually affect the citizenry.  Give each candidate an opening of 6 minutes to give a basic answer, then each has a 3 minute rebuttal, then each can ask the other a question for which there are 2 minutes allowed for response, another set of 2 minute questions, and then each gets a 1 minute conclusion.

• With the above structure, the moderator’s primary function would be to keep time and keep it fairly.  Aside from stating the opening question, the moderator should not be asking questions or arguing with the candidates.

• The debate Commission should be the one to come up with the topics and the opening question and it should be objective and even handed so as not to give either candidate an advantage or disadvantage.  I would suggest that the questions should be drafted and/or reviewed by individuals with leanings to both the Left and the Right.

• This should be a stand-up debate.  The candidates should be told in advance the general nature of the topics.

A debate following the above structure might be less exciting than a debate with a lot of fireworks, less exciting than a Pistons game in the 90s, but it would be far more informative for the voters who are electing a President and not a point guard.

Just a thought.