RUTHFULLY YOURS

One political trope of modern judicial politics is to declare a conservative nominee “out of the mainstream.” The line is never applied to progressive nominees because to the media the mainstream is by definition progressive. Expect to hear more of this about Supreme Court nominee Neil Gorsuch, albeit without evidence to back it up.

According to an analysis by Jeff Harris at Kirkland & Ellis, Judge Gorsuch has written some 800 opinions since joining the Tenth Circuit Court of Appeals in 2006. Only 1.75% (14 opinions) drew dissents from his colleagues. That makes 98% of his opinions unanimous even on a circuit where seven of the 12 active judges were appointed by Democratic Presidents and five by Republicans. Add the senior judges, who hear fewer cases, and the circuit has 11 Republicans and 10 Democrats.

Judge Gorsuch is known on the Tenth Circuit as a strong writer and consensus builder, and the pattern extends to his participation in opinions by other judges. Judge Gorsuch has heard roughly 2,700 cases and dissented in only 35—1.3%.

Not many of his cases have ended up at the Supreme Court, but when they have his analysis has been routinely upheld by the Justices. Of at least eight cases considered by Mr. Gorsuch that were appealed to the Supreme Court, the Justices upheld his result in seven. In four of those the decisions were unanimous.

Among those was a government speech case on whether a town had to accept a Utah church monument in a public park next to an existing monument of the Ten Commandments (Pleasant Grove City, Utah et al. v. Summum). Judge Gorsuch voted to reconsider the court’s ruling against the town and the Supreme Court agreed. In another, Judge Gorsuch joined a ruling that Oklahoma prevent Texas from taking water from Oklahoma. The Supreme Court agreed. (Tarrant Regional Water District, Petitioner v. Rudolf John Herrmann).

The emperor Augustus who oversaw the transition from the nonstop civil war of a collapsing republic to the Principate — with all the good and bad that such a transition entailed — was fond of quoting the Greek aphorism “Make haste slowly” (σπεῦδε βραδέως / Latin: festina lente).

That seeming paradox of advocating both speed and caution was actually no contradiction at all. The adage instead reminded leaders that swift change can proceed only with careful forethought and deliberation, the same way that a swift crab scurries boldly across the beach but does so well protected in his shell.

The classical message is that to effect change, the agent must first anticipate from where and why furious opposition will arise — and then how best to preempt it and turn it against the opponent. Key to the strategy of change is to remind citizens that the present action is a corrective of past extremism, a move to the center not to the opposite pole, and must be understood as reluctantly reactive, not gratuitously revolutionary. Such forethought is not a sign of timidity or backtracking, but rather the catalyst necessary to make change even more rapid and effective.

Take Trump’s immigration stay. In large part, it was an extension of prior temporary policies enacted by both Presidents Bush and Obama. It was also a proper correction of Trump’s own unwise and ill-fated campaign pledge to temporarily ban Muslims rather than take a pause to vet all immigrants from war-torn nations in the Middle East.

Who would oppose such a temporary halt?

Obviously Democrats, on the principle that the issue might gain political traction so that they could tar Trump as an uncouth racist and xenophobe, and in general as reckless, incompetent, and confused. Obviously, the Left in general sees almost any restriction on immigration as antithetical to its larger project of a borderless society run by elites such as themselves. Obviously Republican establishmentarians fear any media meme suggesting that they are complicit in an illiberal enterprise.

Perhaps the Trump plan was, first, to ensure that radical Islamist terrorists and their sympathizers do not enter the U.S., as they so often enter Europe; second, to send a message to the international community that entry into the country is a privilege not an entitlement; and, third, symbolically to reassert the powers of assimilation, integration, and intermarriage as we slow and refine legal immigration. (The U.S. currently has about 40 million foreign-born residents, or a near record 14 percent of the population; one in four Californians was not born in the United States.) If this was the Trump-administration strategy, then it might have preempted criticism in the following manner with a supplementary communiqué:

1) We wish to extend and enhance prior presidential temporary directives that slowed and monitored unchecked immigration and visitation into the United States from war-ravaged regions in Middle East, by providing a brief breathing space of 90–120 days to ensure we can catch up and properly vet newcomers. In the past, the Obama administration has astutely identified “countries of concern” that might pose problems in visa applications. We wish to refine and calibrate such precedents to ensure the safety of the American people as the displaced-persons crisis in the Middle East expands. We wish to avoid indiscreetly and recklessly admitting persons into our country about whom we have no accurate background information.

2) This act is necessary because we plan to continue prior administrations’ policies of admitting refugees, but we cannot fairly and judiciously screen an anticipated 50,000 entrants this year without allotting proper time and consideration that was often lacking under former policies.

3) This temporary hold on admittances shall not affect those who were previously vetted through the issuance of green cards or those foreign nationals who — as translators, guides, and intelligence operatives — in time of war bravely and at risk to themselves helped the United States military at war.

4) Although the number of current travelers inconvenienced by the issuance of this order will be small, we will do all in our power to clarify implementation of the policy and to expedite problems affecting those in transit at the time of this executive order’s issuance.

Had the administration announced something like the above before or as the edict was issued, and followed up on its provisions, it would have preempted most criticisms and rendered them shrill from the get-go.

Former Labor Secretary Tom Perez appears to be gaining on Rep. Keith Ellison of Minnesota in the increasingly fractious race for the chairmanship of the Democratic National Committee.

That things are bad out there for Democrats is part of South Carolina party chairman Jaime Harrison’s stump speech. “We like to say, if Jesus Christ came back and ran in some of these districts as a Democrat, he couldn’t win.”

The jihad-friendly Ellison is still considered to be the frontrunner over Perez who joined the chaotic contest in December, the month after Ellison launched his own campaign to become the public face of the Democratic Party. Ellison is reportedly leading Perez and all the other DNC candidates in fundraising. The 447-member DNC is scheduled to choose its next chairman Feb. 23 in Atlanta.

The travelling freak show that is the DNC’s caravan of candidate forums is part of the ongoing meltdown among Democrats in deep denial that Donald Trump beat Hillary Clinton. Democrats are doubling down on the rampant anti-white racism and identity politics that marked the past eight years of incessant race-baiting and guilt-tripping by former President Obama.

The DNC doesn’t support free speech. DNC chairman candidate Vincent Tolliver was kicked out of the race by interim DNC chairman Donna Brazile for speaking truth to power regarding Islam. He got into hot water at a candidates’ forum on Saturday for saying Ellison should not become DNC chief because he is “a Muslim” and “being gay is a direct violation” of Islamic law. “In some Muslim countries being gay is a crime punishable by death.” Brazile said the comments were “disgusting.” Tolliver told Breitbart News he intends to sue over this “violation of my First Amendment right.”

From conservatives’ point of view the race between the two leading candidates could be likened to Operation Barbarossa: both sides represent abhorrent ideologies that aim to strangle freedom. Both Ellison and Perez are proudly, fiercely radical, race-baiting, class-warfare-loving, community-organizing lawyers owned by the labor unions.

Both are onboard with the DNC, which officially endorses the racist, terroristic Black Lives Matter movement whose paranoid radical left-wing members accuse police nationwide of systemic anti-black racism and brutality against black suspects. In 2015 the DNC, the party’s governing body, adopted a resolution accusing American police of “extrajudicial killings of unarmed African American men, women and children.” In a recent candidates’ forum, Ellison said would-be murderer Trayvon Martin had been “executed.”

Perez, the outspoken champion of illegal aliens, comes across in speeches as more sophisticated and articulate – and at least superficially reasonable – compared to Ellison. Ellison, with his ties to the Nation of Islam and other fringe groups, is significantly more abrasive, in-your-face, and arguably threatening in the eyes of the average voter. Both have close ties to the HAMAS front group, the Council on American-Islamic Relations (CAIR).

Endorsements have been stacking up for the two candidates.

Perez has been endorsed by Rep. Filemon Vela Jr. (Texas) along with four governors – former DNC Chairman Terry McAuliffe (Virginia), John Hickenlooper (Colorado), Gina Raimondo (Rhode Island), and John Bel Edwards (Louisiana). The United Food and Commercial Workers International Union, United Farm Workers, International Association of Fire Fighters, and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry also support Perez.

Ellison has been endorsed by Senate Minority Leader Chuck Schumer (New York), Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.), Reps. John Lewis (Georgia) and Tulsi Gabbard (Hawaii), and Minnesota Gov. Mark Dayton. The AFL-CIO, AFSCME, Communications Workers of America, and UNITE HERE also back Ellison.

The seeming surge in fatal shootings by police officers has become one of America’s most divisive issues in recent years. From Ferguson to Baton Rouge, from North Charleston to Minneapolis, from Charlotte to Chicago, communities have been rocked by protests and demonstrations after local police officers shot and killed people, many of them minorities, some completely unarmed. Images of some of the most egregious cases have shocked the national conscience.

As the former chief of internal affairs for the New York Police Department for almost two decades, I was personally involved in the investigation of hundreds of these incidents, including such controversial cases as the 1999 shooting of the unarmed West African immigrant Amadou Diallo and the 2006 shooting of Sean Bell. Perhaps no one knows better than I do that some cops, when using their weapons, make mistakes, disregard their training, succumb to panic or even act with outright malice.

But I also know that, despite the impression often created by TV news and social media, not all but many law-enforcement agencies have dramatically reduced the number of officer-involved shooting incidents.

The NYPD is a case in point. Consider the numbers. In 1971, the first year that the department began compiling detailed data on police shootings, officers shot 314 people, 93 of them fatally. Two decades later, in 1991, the number of NYPD shootings had decreased to 108, with 27 fatalities—a significant reduction but still a disturbingly high number. By 2015 (the last year for which complete official statistics are available), the number of people intentionally shot by NYPD cops had plummeted to 23, with eight resulting in a fatality—a reduction of more than 90% over the previous 4½ decades.

Let me put that in context. In a city of 8.2 million people—and in a police department of more than 35,000 armed officers who in 2015 responded to more than 66,000 calls involving weapons—NYPD cops shot and killed eight criminal suspects. All of these individuals had prior arrest histories, five were carrying a gun or pellet gun, one was stabbing an officer with a knife, and two were violently struggling with cops to avoid arrest.

All of a sudden the press is filled with stories about Republicans supposedly retreating from their promise to repeal and replace ObamaCare. Liberals are claiming vindication and conservatives are getting nervous, but the stampede to declare failure is premature. The orderly transition to a more stable and affordable health-care system is merely beginning.

As with much else in the Donald Trump era, people should avoid rushing to conclusions. Too much significance is attributed to Republicans adding the word “repair” to their vocabulary, as if this represents a policy change. The insurance markets really do need repair, and doing nothing isn’t realistic amid ObamaCare’s downward spiral.

Likewise, the GOP retreat in Philadelphia last month was contentious, according to leaked audio, but debating the merits of different ideas is how political parties form a strategy. Republicans now recognize that they can’t blame President Obama for insurance disruptions, even if his Administration caused them. They also increasingly understand that they’ve been handed an armed bomb and need to be careful and serious when defusing it.

The exchanges are ailing and fragile—beset by high and rising premiums and a wave of insurer exits. The Health and Human Services Department announced Friday that final enrollment on the federal exchanges for 2017 dropped by about 400,000 from last year. “In spite of the best intentions of Washington and the industry, the intended goals of the ACA have not been achieved. Millions of Americans remain uninsured, and still lack access to affordable health care,” Aetna CEO Mark Bertolini said on an investor call, expressing the business consensus.

Uncertainty is inevitably priced into premiums, and benefits and rates for 2018 started to be designed and set months ago. They’ll be approved by regulators in the spring, so Mr. Trump’s HHS nominees, Tom Price and Seema Verma, need to move fast to bring more predictability to the markets.

One of the President’s first acts was to sign an executive order to “waive, defer, grant exemptions from, or delay” rules that burden individuals, states and business in order to “create a more free and open health-care market.” The specifics are waiting in an HHS proposed rule about “market stabilization” now under review by the White House budget office.

This rule likely includes short-term measures to deregulate ObamaCare’s most onerous provisions. Technical reforms could be immediately reflected in lower premiums. These include relaxing the essential benefits mandate or the price controls that limit how much rates can vary from person to person. The Obama HHS turned the individual mandate into swiss cheese, creating “special enrollment periods” that allow people to dip in and out of insurance at will. Ensuring continuous coverage may be a priority.

Another useful interim change to reduce gaming would be to shorten the ObamaCare “grace period,” a 90-day window that requires insurers to cover consumers who aren’t paying their premiums. A McKinsey study found one of five exchange enrollees stop paying at some point during the year, and half of them re-enrolled in the same plan the next year, availing themselves of three months of “free” coverage.

Congress could also help stabilize the exchanges by suspending the 10-year $145 billion tax on the insurance industry. The costs will be passed on to consumers in higher rates, which is why Congress and the Obama White House agreed to a one-year suspension for 2017. Oliver Wyman estimates that another delay would offer immediate premium relief of 3% for 2018. This would buy some goodwill amid debates about who owes who what in various ObamaCare reimbursement programs.