RUTHFULLY YOURS

Last week, Somali immigrant Mohamed Barry attacked with a machete patrons at the Nazareth restaurant in Columbus, Ohio. While authorities initially said they believed that Barry chose the restaurant randomly for a “lone wolf” attack, it now seems likely that the restaurant was targeted because the owner, Hany Baransi, is from Israel, and proudly displayed an Israeli flag in his window. According to Baransi, Barry asked a server a half-hour before the attack where the owner was from, and she confirmed that Baransi was from Israel.

The Tower has an exclusive interview with Baransi, a Christian from Haifa.

When asked whether he would consider removing the Israeli flag seen from his restaurant’s entryway as a precaution, Baransi swiftly rejected the idea.

“Actually I have another flag, and I am going to get a bigger flag, and I am going to get a Star of David necklace and put it on my chest, and I am going to get a tattoo,” he declared. “Honest to God, I am not kidding. They don’t scare me. We are Israelis. We are Israelis. We are resilient, we fight back.”

“We are used to these bastards,” he added. “We are used to these kinds of attacks, that they hate us just for what we are. They don’t know us, they don’t know anything about us, and they do that. You know, I don’t care if I was an Arab or not, because I am an Israeli, and if you don’t like Israelis you don’t like me.”

David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA. His latest book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law, was published in November.

In October 2013, a reporter asked Justice Antonin Scalia what he thought about the government shutdown. The gregarious justice replied, “I have a deal with the Congress. I leave them alone. They leave me alone.” He was exactly right. The monastic Supreme Court is formally isolated from the political process in all respects, but one — the appointment process. Long before they enter the marble palace, judicial nominees must run a political gauntlet that the Constitution itself has erected. The president has the duty to appoint officials — he “shall nominate . . . judges of the Supreme Court.” But the executive has this power only “by and with the Advice and Consent of the Senate.” Critically, the Senate is under no obligation to give the authority to the president.

This disjunction — the president shall nominate, but the Senate does not have to confirm — activates the very sort of structural bulwarks that the Framers hardwired into the Constitution. The Supreme Court’s unanimous 2014 decision in National Labor Relations Board v. Noel Canning reaffirmed this foundational lesson: When there is inter-branch disagreement that cannot be resolved through the political process, no nominee can be confirmed. Justice Scalia’s prescient concurring opinion in that case reminds us that senatorial refusal to confirm is not an unforeseen flaw but an intentionally designed feature of the Constitution. This is true even where it frustrates the orderly functioning of the federal government.

The case began in 2011 when Senate Republicans blocked a vote on President Obama’s nominees to the National Labor Relations Board. Without new appointees, the NLRB would lose its quorum and its ability to issue decisions. Faced with a political problem that called for a political solution, the president turned to an unconstitutional shortcut: Although the Senate had not gone on recess, Obama acted as if it had. During a 72-hour window between pro forma sessions on January 3 and January 6, 2012, the president deemed the Senate in recess and made three appointments to the NLRB.

The Supreme Court unanimously rejected the president’s legal defense of his action and found that the recess appointments were unconstitutional. But all nine justices went even further than that, specifically refuting the president’s argument that gridlock justified his breach of the separation of powers. During oral arguments, Solicitor General Donald H. Verrilli, the administration’s top lawyer, argued that the president’s decision to disregard the pro forma sessions was justified as a “safety valve” in response to “congressional intransigence.” If the president did not make the recess appointees, “the NLRB was going to go dark,” Verrilli said. “It was going to lose its quorum.”

There’s talk of Obama making a recess appointment to the Supreme Court if the Senate doesn’t act. Here though is what Justice Scalia thought of Obama’s abuse of recess appointments on the NLRB.

And as usual, he didn’t mince words.

“The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” Justice Scalia wrote.

“What does all this amount to? In short: Intra-session recess appointments were virtually unheard of for the first 130 years of the Republic, were deemed unconstitutional by the first Attorney General to address them, were not openly defended by the Executive until 1921, were not made in significant numbers until after World War II, and have been repeatedly criticized as unconstitutional by Senators of both parties.”

“Moreover, the majority’s insistence that the Senate gainsay an executive practice “as a body” in order to prevent the Executive from acquiring power by adverse possession, ante, at 14, will systematically favor the expansion of executive power at the expense of Congress.”

“In 1792, Attorney General Edmund Randolph, who had been a leading member of the Constitutional Convention, provided the Executive Branch’s first formal interpretation of the Clause. He advised President Washington that the Constitution did not authorize a recess appointment to fill the office of Chief Coiner of the United States Mint, which had been created by Congress on April 2, 1792, during the Senate’s session.”

“A statute passed by the First Congress authorized the President to appoint customs inspectors “with the advice and consent of the Senate” and provided that “if the appointment . . . shall not be made during the present session of Congress, the President . . . is hereby empowered to make such appointments during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” That authorization would have been superfluous if the Recess Appointments Clause had been understood to apply to pre-existing vacancies.”

“More fundamentally, Wirt and the majority are mistaken to say that the Constitution’s “ ‘substantial purpose’ ” is to “ ‘keep . . . offices filled.’ ”. The Constitution is not a road map for maximally efficient government, but a system of “carefully crafted restraints” designed to “protect the people from the improvident exercise of power.”

“There are many circumstances other than a vacancy that can produce similar inconveniences if they arise late in the session: For example, a natural disaster might occur to which the Executive cannot respond effectively without a supplemental appropriation. But in those circumstances, the Constitution would not permit the President to appropriate funds himself. Congress must either anticipate such eventualities or be prepared to be haled back into session. The troublesome need to do so is not a bug to be fixed by this Court, but a calculated feature of the constitutional framework. As we have recognized, while the Constitution’s government-structuring provisions can seem “clumsy” and “inefficient,” they reflect “hard choices . . . consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked.”

Even in death, he always had the last word. As debate over a possible recess appointment to the Supreme Court by Obama continues, Justice Antonin Scalia had already made the case against it.

“The court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future presidents against future Senates,” Justice Scalia wrote in his usual unsparing language in NLRB v. Noel Canning.

And, as always, he took the side of the Constitution over everything else indicting the court for casting “aside the plain, original meaning of the constitutional text in deference to late-arising historical practices”. In clear and forceful language, he warned that “the Constitution’s core, government-structuring provisions are no less critical to preserving liberty than are the later adopted provisions of the Bill of Rights” in maintaining “the “enduring structure” of constitutional government”.

To Justice Scalia, liberty meant limiting the powers of government by maintaining the Constitution. A recess appointment, the topic revived by his passing, is as grave a threat to liberty as a violation of the First Amendment. He was convinced that government breaking its constitutional chains was the true threat to liberty. Attacks on the First or Second Amendment were symptoms of that larger problem.

Often outnumbered, but never outwitted, Justice Scalia saw government as a monster that the Founders had chained with manacles made of words. His task was reforging them with his voice and pen.

Leftist judges and lawyers love to style themselves as defenders of civil rights, but their idea of civil rights is providing unlimited power to government. Justice Scalia was an actual believer in civil rights. Unlike the activist leftist judges to whom the law is merely a means to a leftist end, dressing up their usurpation of power under the mocking name of “Living Constitution”, he was an Originalist who truly fought for civil rights every time he fought for the truth of the word of the law over the power of men.

Mr. McConnell, a law professor and the director of the Constitutional Law Center at Stanford Law School, is a senior fellow at the Hoover Institution.
Antonin Scalia, who died Saturday at age 79, was the most influential Supreme Court justice of the past 30 years. Not because he had the votes. He was influential because he had a clear, consistent, persuasive idea of how to interpret the Constitution: It means what it says; it means what those who enacted it meant to enact.

And Justice Scalia was influential because he wrote opinions with verve and good sense, in prose that any American could read and understand. He was the best writer the Supreme Court has ever known—and with justices like John Marshall, Oliver Wendell Holmes and Robert Jackson, that is saying a lot. He was the court’s most withering logician. He showed us what a real judge can be, even on that most political court.

When Justice Scalia arrived at the Supreme Court in 1986, its jurisprudence had become sloppy, results-driven, plagued with fuzzy three-part tests and fuzzier four-part tests, all of them concocted by his predecessors with little basis in constitutional text. Today, the entire court—even the liberal justices—have adopted Justice Scalia’s style: close attention to text, awareness of history, analytical rigor. The Supreme Court has not announced an impressionistic multipart “test” in years. CONTINUE READING AT THE SITE

I just got the dreadful news that Justice Antonin Scalia was found dead, age 79, this morning at a Texas resort. The death of a great man is always a cause for sadness. The passing of Justice Scalia is more than that: it is a national tragedy. Of course, President Obama will nominate and try to force through a left-wing jurist to the Court. The Senate, with its Republican majority, ought to be able to defer the nomination until the administration of the next president. But note that the Senate majority leader is Mitch McConnell, not a man who is known to stand up to bullies. These are trying times for the republic. I hope my irreligious friends will forgive me for asking that we all pray for the country.

As it happens, I wrote about Scalia just a few weeks ago. I thought it might be appropriate to repeat what I said here:

January 3, 2016

“Thank God for Justice Scalia.”

I’ve often found myself muttering that exhortation in recent years. I repeated it last June, for example, when reading Scalia’s masterly dissent to Obergefell, et al. v. Hodges, Director, Ohio Department of Health, et al., the Supreme Court case that took the definition of what counts as marriage away from the states and delivered it into the hands of one man, Justice Anthony Kennedy, the Madame Blavatsky of the Bench. Kennedy looked into his crystal ball and determined that henceforth so-called “gay marriage” should be legal across the fruited plain. Why? Because, Kennedy wrote, “the Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Er, what? Had he written such nonsense, Scalia retorted, he would “hide [his] head in a bag.” “The Supreme Court of the United States,” he continued in what is one of my favorite legal footnotes, “has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Indeed. And Scalia was pointed as well as droll. You might think, or at least say when the children ask, that the United States of America is a democracy in which We, the People are sovereign. Ha, ha, ha. Really, Scalia pointed out, we are an extreme oligarchy in which “the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” all of whom went to Harvard or Yale. Feeling better?

And just yesterday, speaking at a Roman Catholic school in Metairie, Louisiana, Scalia pointed out that, contrary to some extreme secularists, government support for religion is not only justified by the Constitution but has throughout most of our history been the unspoken norm. Moreover, he argued, “one of the reasons” that the Untied States has prospered so mightily is that the American people have always done God honor. “God has been very good to us,” he said. “That we won the revolution was extraordinary. The Battle of Midway was extraordinary. I think one of the reasons God has been good to us is that we have done him honor. Unlike the other countries of the world that do not even invoke his name, we do him honor.”

Responding to the untimely passing of Supreme Court Justice Antonin Scalia, President Barack Obama declared that he will nominate a successor, breaking a nearly 100-year tradition. Both Senate Majority Leader Mitch McConnell and Republican presidential candidates have encouraged him to wait for the next president, who will be elected this November.

“I plan to fulfill one of my constitutional responsibilities to nominate a successor, in due time,” Obama declared in a statement Saturday evening. “There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.” Obama emphasized, “These are responsibilities that I take seriously and so should everyone— they are bigger than any one party, they are about our democracy.”

No lame duck president has nominated a Supreme Court justice in an election year for eighty years, a fact which both Florida Senator Marco Rubio and Texas Senator Ted Cruz mentioned in the Republican presidential debate Saturday evening.

Senate Judiciary Committee Chairman Chuck Grassley (R, Iowa) said that “it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”

“Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice,” Grassley said.

Historically, many Supreme Court nominations made in a President’s final year in office are rejected by the Senate. That started with John Quincy Adams and last occurred to Lyndon B. Johnson.

It is critically important that the Senate hold pro forma sessions, since President Barack Obama would be able to make a recess appointment to the Supreme Court if the Senate goes out of session. Currently, there is a five-day recess this week and a two-week recess scheduled for April. There have been twelve such recess appointments to the high court. A recess appointment would last until the end of the Senate’s next session.

Historically, most presidents select a nominee within a week of a Supreme Court vacancy. However, there have been several lengthy vacancies when the Senate refused to play ball with controversial presidents or controversial nominees.

President John Tyler had a particularly difficult time filling vacancies. Smith Thompson died in office December 18, 1943. His replacement, Samuel Nelson, was in office starting February 14, 1845. That’s a vacancy of 424 days. Henry Baldwin died in office April 21, 1844. His replacement, Robert Cooper, was in office starting August 4, 1846. This vacancy lasted 835 days because Tyler could not get the Senate to work with him. During Tyler’s presidency, the Senate rejected nine separate Supreme Court nominations!

Most recently, Abe Fortas resigned May 14, 1969. His replacement, Harry Blackmun, was in office starting June 9, 1970, making the gap just longer than a year.

Several pending cases were expected to be 5-4 decisions. Crucially, the immigration (DAPA) case, United States v. Texas et al., and the mandatory union dues case, Friedrichs v. California Teachers Association, and the Little Sisters of the Poor Home for the Aged v. Burwell cases on the contraception mandate accommodation.

Decisions that are tied with a 4-4 vote have no binding precedent and the decision of the lower court is upheld. This would be good in United States v. Texas et al., because the lower court’s decision was that states have standing to sue against an Obama policy that muzzles states from enforcing immigration laws.

Congress has frittered away virtually every constitutional power save one: the power of the Senate to deny presidential appointments to the federal bench. If Senate Republicans expect conservatives to ever trust them on anything, then they must decline to consider Obama’s nominee to replace Justice Scalia.

There is precedent for this. In 1968, when Republicans were a Senate minority possessing only the power of filibuster, Everett Dirksen prevented Lyndon Johnson from appointing Associate Justice Abe Fortas to replace retiring Chief Justice Earl Warren and then appointing Homer Thornbury to take Fortas’s seat as an associate justice.

Senate Minority Leader Dirksen did not run the Senate or control any Senate committees. Republicans, in fact, held only 36 Senate seats, and several of these were leftists. Yet Dirksen was able to cobble together enough senators to prevent Johnson from filling a Supreme Court office during a heated election year. The left, of course, squealed and yelled, but it lost, because Senate Republicans and a handful of Senate Democrats stood firm.

If Everett Dirksen, who was only a moderate conservative holding a very weak hand, was able to thwart LBJ, who had been Senate majority leader before he was vice president and who knew all the ropes and all the tricks of the Senate, then Senate Majority Leader McConnell clearly has the power to do the same.

In fact, all McConnell and the Republican leadership have to do is to decline to consider any nominee appointed by Obama. State clearly that the Senate is exercising its constitutional power and, unlike Obama who presumes powers he does not have, that the power to confirm or deny a presidential appointment is at the heart of the Senate’s control of the Executive Branch.

With the passing of US Supreme Court Justice Antonin Scalia we stand at a very sober moment for our nation, a moment that finds the US Constitution – and the idea of constitutionality in general – in a very fragile state. With the make-up of the US Supreme Court existing on a razor’s edge between the conflicting ideologies of Progressivism (which views the Constitution as malleable) and Constitutionalism (which sees the document at a limitation on government) what happens in the next months will serve to chart the course for our country. The two paths couldn’t be more different: one a pathway to national demise.

I am want to recall a passage from a speech that Ronald Reagan gave in 1964:

“You and I have a rendezvous with destiny. We will preserve for our children this, the last best hope of man on earth, or we will sentence them to take the first step into a thousand years of darkness. If we fail, at least let our children and our children’s children say of us we justified our brief moment here. We did all that could be done.”

Today, with the passing of Justice Scalia, the Republican and Conservative members of the United States Senate have met up with their own “rendezvous with destiny.” They will soon be presented with a nominee to the US Supreme Court from President Obama, a Far-Left Progressive who has already seated two political activists to the Court. It will be the Senate’s duty – not their option, but their duty – to deny Mr. Obama another Progressive seat on the US Supreme Court.

Progressives by their very nature believe that the US Constitution is a flawed document; something to be improved, perfected and otherwise titrated to the needs of the times. That is anathema to what the Framers intended and history bears that out. The Framers intended for the US Constitution to be the “chains” that binds government to the service of the nation, not the service to the ideological and/or the few.

Thomas Jefferson is quoted as saying:

“The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.”