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.

 

Stacking Opinions

Just a few quick notes on the House Judiciary Committee hearing held today, Dec. 4.   I am not going to again go into lengthy discussion about the ridiculous nature of this Impeachment Show, but rather simply reflect on what we saw today.

First, today we saw not just opinion vs. opinion, but rather opinion based upon opinion vs. opinion based upon opinion.  That is, we had four law professors who have heard no evidence but who have heard or read opinions of others about what they feel about various actions of the President, give their legal opinions about whether those opinions they read/heard about those facts create a basis for impeachment.  Yes, it is ridiculous, isn’t it?

Let’s understand:  lawyers and especially law professors enjoy examining the law and rendering their opinions about it.  OPINION is the operative word here.  In the law, issues are issues because they have more than one possible solution.  Legal minds form opinions and put that opinion forward.  It may or may not be the opinion that will be adopted in a particular case.  Think of any simple court case.  The plaintiff or prosecution puts forth its opinion that the defendant has done something wrong.  The defense puts forth its opinion that defendant is innocent or not at fault.  Opinion vs. opinion.  A legal decision – guilt, acquittal, liability, or no liability will require fact, not opinion.

Opinions cannot be proven.  They are simply one person’s view about events.  They are not necessarily right or wrong.  As one of my law professors was fond of saying, there are no right answers, only wrong ones.  The wrong ones he referred to were those that were not well supported by facts and by clear and logical reasoning.

Legal scholars will not all agree on the meaning of a law nor on the proper resolution of a case.  This is why, for example, so many Supreme Court decisions are not unanimous.  More than one well-reasoned interpretation can be put forward.  So, while a law professor may sound very authoritative in proclaiming his or her opinion, it is not a fact, it is not a law, and it is not even necessarily correct.  If not grounded in evidence or if not soundly and logically supported, it might very well be wrong.

At the hearing today, however, we saw many Democrats asking their witnesses what was their opinion about the law (remember, that is not a definitive definition but simply one opinion about the law), then taking that law as fact, then asking the witness if the “facts” as defined by one of the earlier Intelligence Committee witnesses’ opinions, met the current witness’s interpretation of “impeachment.”  So, we have the Democrats starting with an opinion and calling it fact, then taking a professorial interpretation of law and calling it actual law, and then getting a professor to assert that the fact/opinion that he has only been told about meets his definition of law (which is really just his interpretation/opinion) and using that as a basis to impeach the President.  Yes, it really is that ridiculous.

But what troubled me today more than anything is what the appearance of these four professors told me about the future of the law and justice in this country.  Three of the four have well documented biases against the President and have been actively and monetarily involved in various campaigns against President Trump since he has been in office.  They clearly were letting their own biases color and determine their legal opinions about impeachment.  If that is what they are teaching their students, then there is little hope for the future of fairness and justice.  Witness Turley was the only one of the four who was able to render objective opinions that happened to not favor impeachment even though he himself is not a Trump supporter and is critical of many of his policies and actions.

It is that ability to divorce one’s own feelings from one’s legal analysis that is critical to justice.  To be clear, Professor Turley’s opinions are, just as those of the other witnesses, nothing more than opinion.  They are not fact.  They are not law.  But the difference is that they are based on objective examination of the relevant source materials and supported by sound legal reasoning.  While I am sure that the other professor-witnesses are also capable of such reasoning, it was fairly clear that they had not engaged in such objective analysis in this case.  There may well be logical support for their opinions, but that was lacking here because those opinions were so obviously based upon their personal hatred of President Trump. 

Professor Turley urged us all to “divide rage from reason.”  That is, there is so much hate that it is preventing the reasoned approach that is necessary for an impeachment consideration.  But it goes beyond that.  The rage, the hate that consumes the Democrats is preventing a reasoned approach to nearly anything in this country and especially to the continuation of our form of government.

So, I was deeply saddened to see the hatred overcome the three Democrat professor witnesses whose credentials should have made them able to distinguish rage from reason and hold heir personal opinions at bay while considering scholarly legal analysis, especially when that analysis may be used to affect the future of our nation and whether or not an election should be overturned.

These are legal scholars.  I expect them to understand the gravity of the undertaking when they are asked to testify about impeachment.  I expect them to understand that when they engage in scholarly discourse about the Constitution or law or past cases that they are expressing their opinions only and that they are not judges rendering decisions on facts that they have not even examined.  Yet if they are willing to accept and engage in such over biased reasoning then Lady Justice has surely lost her blindfold and the concept of a fair and unbiased hearing within the justice system is at serious risk.  This is simply not OK – for those who seek justice and for our Country which depends upon our judicial branch of government as one of the three pillars that sustain us and our freedoms.

So, the Impeachers have now built a case by stacking opinion upon opinion with no clear factual foundation.  Such a structure must surely collapse – hopefully before it takes the entire country with it.

The Impeachers also seem to be perhaps moving away from their focus group determined term of “bribery” and back toward the Mueller report – the report that took 2 years along with taxpayer dollars to investigate another ludicrous charge.  It was determined there was no obstruction there.  Yet obstruction seems to be back again.  Along with idiotic analogies to Nixon, suggestions that the President wants to be king (using the President’s minor son as the butt of a joke about this), and most anything else the President has done or said as meeting their witnesses’ opined definition of impeachment. 

Really, the only thing that is constant, the only thing that is substantiated by clear and convincing evidence, is the continuing rage and hatred of the Democrats toward Donald Trump.  It is time that everyone follows Professor Turley’s advice and “divide rage from reason.”  Then, and only then, can we move forward with the business of the country.