RUTHFULLY YOURS

Supreme Court justice Antonin Scalia’s death has been a tragedy, at least for conservatives. Less obvious, though I would argue of ultimately greater importance, is that this outpouring of feeling and machinations regarding his replacement exposes a second tragedy – that the United States now edges on becoming a kritarchy, a government of judges. How else can one possibly explain the wall-to-wall media coverage on how his death might transform 5-4 victories into 4-4 stalemates or, worse, 5-4 defeats if Obama picks the next associate justice?

The political influence of judge-made law is clearly visible in everything from Obamacare to gun control, same-sex marriages, abortion, redistricting, the death penalty, immigration, campaign finance, and racial preferences in higher education. It is no exaggeration to say that the highest laws of the land now reflect the views of at least five unelected officials who are 99.9% immune to public pressure. And this power seems to be growing. Hard to believe that Scalia’s nomination to the Court was so uncontroversial that it passed the Senate by a 98-0 margin.

If one’s side has sympathetic judges, the kritarchy temptation can be irresistible, but evaluated against democratic criteria, the liabilities far outweigh the benefits. Let me offer some of the key anti-kritarchy arguments prior to discussing reversing this dangerous drift.

First, courts, regardless of whose ideology dominates, have scant control over their agenda, so those dependent on judge-made law may never have the chance to be victorious, even if one’s side enjoys a 9-0 majority. A virtual perfect storm is necessary to put an issue before a court, and even then, not necessarily in a way that permits a decisive outcome. Opponents of Roe v. Wade (1973) may never live to see it totally overturned, since abortion cases inevitably concern a variety of administrative details, not the core up-or-down issue.

Imagine that a group of us invents our own new language. Let’s say we’re eleven in all, the size of a football team that relies on hand signals and barks of “Omaha!” code to deceive the opponent and move the ball down the field. Could the government ban us from speaking our new language to each other or from using it until some FBI linguists mastered it? And all on the off chance that we might use our new language to carry out a terrorist attack, execute a massive fraud, conduct a child-porn enterprise, or commit some other heinous offense.

Could the government tell us that literature, poetry, and innovation in our new language could evolve only as ploddingly as government agents could keep up? Our collective creativity would be stifled. We’d be presumed innocent in court if we ever actually committed a crime. Could the government nevertheless decide that it must — for our own good, of course — presume us guilty in our daily lives?

Put another way: Has there been a tectonic shift in our conception of civil rights? In constitutional theory, individual rights come from our Creator. They pre-exist the Bill of Rights. Constitutional guarantees merely safeguard our rights; they do not grant our rights in the first place.

Do we still believe that? Do we have freedom of speech, or freedom to speak only what law-enforcement can monitor? Does the Fourth Amendment guarantee freedom from unreasonable searches, or afford only whatever expectation of privacy the government, not the society, decides is reasonable — and cabined by what the government is technologically capable of searching?

Let me back up for a moment, because this was supposed to be a column upbraiding Apple. The tech giant is resisting a court directive that it help the FBI gain access to the iPhone of Syed Rizwan Farook, the deceased San Bernardino jihadist who, with his wife, Tashfeen Malik, killed 14 people in San Bernardino on December 2.

Within the four corners of the case, there are many good reasons to rip Apple. The government has overwhelming probable cause to search the phone after the mass-murder attack. There is a compelling public interest in identifying other jihadists and terror plots about which the phone data may provide evidence. And in the narrow confines of this case, Apple is protecting nobody’s privacy. Farook is dead, and the phone wasn’t even his: It belongs to the municipal agency that employed him, the San Bernardino County Department of Public Health, which assigned the phone to him for work purposes. Farook waived any conceivable privacy interest by signing an acknowledgment that the SBCDPH could search the phone at any time. And the SBCDPH, which is cooperating with the FBI, consents to the search of its phone.

http://www.wsj.com/articles/greatest-democratic-judicial-hits-1455925914

Senate Democrats haven’t made much progress shaming Republicans into yielding on President Obama’s upcoming Supreme Court nominee, and no wonder. As much as they’re trying, they can’t erase their own abusive history of double and sometimes triple standards in confirmation politics.

Earlier this week we chronicled New York Senator Chuck Schumer’s faked alibi for his categorical 2007 demand that Democrats reject any George W. Bush nominee if a vacancy had emerged in his last 18 months in office. But there is so much more to recall:

• When Democrats ran the Senate from June 2001 to January 2003, they denied even a hearing before the Judiciary Committee to 32 of Mr. Bush’s nominees. When Republicans regained a 51-49 majority in the next Congress, Democrats broke the then-longstanding Senate norm of granting nominees an up-or-down vote. Before 2003, only one judicial nominee had been blocked with a filibuster, and that was the bipartisan 1968 rebellion against promoting the ethically challenged Justice Abe Fortas to Chief Justice.

Democrats applied the higher 60-vote standard to a rainbow coalition of Bush nominees, judging them not by traditional measures like experience or temperament or even “diversity.” They simply didn’t like their politics.

The targets included Priscilla Owen (a woman), Janice Rogers Brown (a black woman) and Miguel Estrada (a Hispanic). The 28-month Estrada filibuster was especially egregious because Democrats feared the smart young attorney’s ethnic background might make him formidable Supreme Court material if he served on the D.C. Circuit Court of Appeals.

• When Mr. Bush nominated Samuel Alito to the High Court in 2005, Democrats attempted to give him the same treatment. Some 25 Senators voted to support a filibuster, including Barack Obama, Joe Biden, Hillary Clinton, Harry Reid, John Kerry, Pat Leahy and Mr. Schumer. READ MORE AT SITE

“There is a new bill that is a good first step — The ICE Agent Support Act of 2016 (S 2538) will push back, blocking current immigration lawlessness. It allows ICE agents to fine illegal aliens for ignoring orders to leave the country. New financial penalties will make disregarding orders to leave more painful and will also provide a new source of funding for the agency, actually rewarding ICE for doing its job.”

The New Jersey town in which many Princeton University faculty, staff and students reside, is intentionally seeking to aid and abet illegal aliens — including those from Muslim countries — to avoid arrests by federal, state and local law enforcement, according to Ms. Elisa Neira, the executive director of the Princeton, New Jersey, Human Services Department.

Neira’s department publishes advisories in both English and Spanish that encourages illegal aliens “to remain silent” if detained by federal (Immigration and Customs Enforcement), state or local law enforcement officials. It also provides advise on setting up a plan if confronted with law enforcement.

“The accompanying illustrations are designed to evoke fear on the part of illegal alien men, women and children. For example, the officers are drawn to resemble Nazi Gestapo agents — something Democratic politicians have called ICE and Border Patrol agents. The cartoonists have crossed the line between public assistance and vilifying American cops,” said former police detective and Marine intelligence operative Sanders Van Claymont. “The eight-page government funded document resembles anti-police propaganda that’s diametrically opposed to New Jersey’s ‘Officer Friendly’ school program,” Claymont added.

When the left sputters about the importance of getting a prompt vote on an Obama nominee, let’s just remind them about Judge Priscilla Owen.

Owen was a moderate and she was highly rated. She was also no Alito, Bork or Thomas. But when she was nominated for the Fifth Circuit in the spring of ’01, Senate Democrats denied her a vote for four years until the spring of ’05. When the vote finally came up, Obama voted against her.

That’s the length of an entire presidential term. This wasn’t running out the clock on a lame duck presidency. Senate Democrats refused the “up and down vote” they’re demanding to a nominee for 4 years. They filibustered her and threw tantrums that would have embarrassed a six-year-old.

Both Owen and Estrada were originally nominated by President Bush May 9, 2001.

“They have been waiting almost two years for a vote,” White House spokesman Ari Fleischer said May 1 before the vote. “Both were rated ‘well-qualified’ by the American Bar Association. That is the highest possible rating that the American Bar Association gives. It is also, according to Democrats, the gold standard that they would use to judge whether nominees were qualified.”

Democrats also are subverting “the spoken will of the people,” Land said, noting that voters gave President Bush “an unprecedented mid-term gain in the Senate and the House” in 2002.

Instead of “bowing to the clearly expressed will of the people,” Land said, the Democrats have “carried their obstructionist tactics to new lows.”

And what crime did Owen commit?

Owen is a 10-year veteran of the Texas Supreme Court who won her last re-election campaign with 84 percent of the vote. When Bush nominated her for the federal bench, the American Bar Association’s Standing Committee on the Federal Judiciary unanimously gave her its highest rating.

On a hot day in June, the grandson of a bank president took to the floor of the Senate to denounce the daughter of sharecroppers. “I feel compelled to rise on this issue to express, in the strongest terms, my opposition to the nomination of Janice Rogers Brown to the DC Circuit,” Senator Obama said.

Born in segregated Alabama, Janice Rogers Brown had been a leftist like Obama before becoming conservative. When Obama rose to denounce the respected African-American jurist for her political views it had been almost a full two years since President Bush had nominated her in the summer of ’03.

Obama had arrived a few months earlier on his way to the White House and was eager to impress his left-wing backers with his political radicalism. He held forth complaining that Judge Janice Rogers Brown, who had gone to segregated schools and become the first African-American woman on the California Supreme Court, was guilty of “an unyielding belief in an unfettered free market.”

And he filibustered Judge Brown, along with other nominee, trying to deny them a vote.

“She has equated altruism with communism. She equates even the most modest efforts to level life’s playing field with somehow inhibiting our liberty,” he fumed.

Brown, who due to her family background knew far more of slavery than Obama, had indeed warned about the dangers of a powerful government. “In the heyday of liberal democracy, all roads lead to slavery. And we no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate — the drug of choice — for multinational corporations and single moms, for regulated industries and rugged Midwestern farmers and militant senior citizens.”

Democrats are giddy over the prospect of President Obama replacing conservative Justice Antonin Scalia with a liberal.

But Republicans are equally adamant about blocking Obama’s lame-duck appointment. “This vacancy should not be filled until we have a new president,” says Senate Majority Leader Mitch McConnell.

It’s rare that a president makes a Supreme Court appointment during his last months in office. But timing’s not the critical issue. The real outrage is the Democrats’ baseless claim that Obama’s promised nominee should have an automatic green light to the bench.

Party chairwoman Debbie Wasserman Schultz urged the Senate to move quickly, “as our founders intended,” and not be “twisted by politics.”

Hillary Clinton says any obstruction would “dishonor our Constitution.” Sorry, that’s not what the Constitution says.

Democratic presidential contender Bernie Sanders also insists it would be wrong to delay Obama’s court pick for “overtly political reasons.”

All these politicians need a history lesson. Claiming the Senate’s duty is to rubber stamp any “qualified” nominee is pure fiction.

When immigration is discussed publicly, most of the news reports and most of the statements made by politicians focus on the presence of illegal aliens in the United States while problems within legal side of the issue are ignored. Additionally, most of these discussions begin by talking about the lack of security to be found along the U.S./Mexican border while ignoring the other dysfunctional components of the immigration system.

There is no doubt that the U.S./Mexican border lacks meaningful integrity. There is also no doubt that the Mexican border must be secured- however, simply securing that border will not end the immigration crisis and not eliminate the threats posed by international terrorists and transnational criminals.

Incredibly the Obama administration has made it all but impossible for the valiant Border Patrol agents along that border to do their jobs. On February 4, 2016 the Washington Examiner posted the report, “Border agent: ‘We might as well abolish our immigration laws altogether’” in which the president of the National Council of the Border Patrol testified before a congressional hearing on the restrictions placed on the Border Patrol to make it all but impossible for them to take illegal aliens into custody or even process them for future hearings.

If a private company dumped three million gallons of toxic sludge into Colorado waterways, we’d be flooded with daily media updates for months. Yet the press has by now forgotten the disaster unleashed in August when EPA contractors punctured an abandoned mine. New evidence suggests the government isn’t coming clean about what happened.

The House Natural Resources Committee last week released a report detailing EPA’s cascade of failures that resulted in the Aug. 5 blowout of the Gold King Mine, which unloaded 880,000 pounds of metals into the nearby Animas River and other waters.

EPA planned its disastrous investigation of the mine for years, not that you’d know: The agency assumed a layout of the area that contradicted public records, including the remarkable conclusion that a drain ran near the ceiling of the mine’s entrance. This led EPA to believe that water backed up only about half the tunnel. The agency didn’t test the water pressure, a precaution that would have prevented the gusher. EPA hasn’t explained this decision, and emails obtained by the committee show the on-site coordinator knew there was “some pressure.”

The crew made more bad decisions than characters in a horror movie. About a week before the blowout, the on-site coordinator went on vacation and left instructions that his replacement seems to have ditched. For example: Don’t dig toward the tunnel floor unless you have a pump handy. The crew pressed downward without a pump and intentionally unearthed the mine’s plug. “What exactly they expected to happen remains unclear,” the report concludes. The Interior Department now euphemistically calls this series of events an “excavation induced failure.” READ MORE AT SITE