RUTHFULLY YOURS

The 24 hour news cycle has driven the demand for more “talking heads” that can appear on news programs to provide information, perspectives and, all too often (unfortunately), utter nonsense.

Computer programmers have an acronym, GIGO (Garbage-In, Garbage-Out), that essentially says, ‘if you begin with wrong information the results will be no less flawed’: This is the problem with polls.

Surveys and polls are not new, but today nearly every industry depends on polls, surveys and focus groups to make decisions about how to conduct business to maximize the potential for success.

Consequently, our political leaders often stake out or modify their positions on issues to parallel what pollsters claim represents the concerns of likely voters.

When the pollsters get it wrong, the people who make decisions based on those polls will also–of necessity–get it wrong.

A person running from a mob is not leading that mob. He is simply running for his life. This is, all too often, what passes for “leadership” in America today. This is why so many candidates are said to “waffle,” going back and forth on their stated positions on critical issues. They are guiding their positions on the results of polls that may not even be providing accurate information.

2016 is a pivotal year in which accustomed referents of a stable West are now disappearing. We seem to be living in a chaotic age, akin to the mid-1930s, of cynicism and skepticism. Government, religion, and popular culture are corrupt and irrelevant—and the world order of the last 70 years has all but collapsed.

Neither the president nor his would-be successors talk much about the fact that we are now nearing $20 trillion in debt—in an ossified economy of near-zero interest rates, little if any GDP growth, and record numbers of able-bodied but non-working adults. (The most frequent complaint I hear in my hometown is that the government lags behind in their cost-of-living raises in Social Security disability payments.)

No one can figure out how and why America’s youth have borrowed a collective $1 trillion for college tuition, and yet received so little education and skills in the bargain. Today’s campuses have become as foreign to American traditions of tolerance and free expression as what followed the Weimar Republic. To appreciate cry-bully censorship, visit a campus “free-speech” area. To witness segregation, walk into a college “safe space.” To hear unapologetic anti-Semitism, attend a university lecture. To learn of the absence of due process, read of a campus hearing on alleged sexual assault. To see a brown shirt in action, watch faculty call for muscle at a campus demonstration. To relearn the mentality of a Chamberlain or Daladier, listen to the contextualizations of a college president. And to talk to an uneducated person, approach a recent college graduate.

If all that is confusing, factor in the Trimalchio banquet of campus rock-climbing walls, students glued to their iPhone 6s, $200 sneakers, latte bars, late-model foreign cars in the parking lot, and yoga classes. Affluence, arrogance, and ignorance are quite a trifecta.

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