RUTHFULLY YOURS

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

US Marshals Service arrested a Houston man for allegedly failing to repay a $1500 federal student loan that he had received in 1987. According to Paul Aker, he was arrested at his home last week by a group of seven armed deputy US Marshals. He was then taken to a local federal court, where he signed a payment plan for the nearly 30-year-old loan.

U.S. House Rep. Gene Green (D-TX) said that the federal government is recurring to private debt collectors to hunt down debtors. The collectors are obtaining judgements in federal courts and are thus enabled to seek debtors’ arrest by federal marshals. Green said “There’s bound to be a better way to collect a student debt.”

Media reports contend that federal marshals deliver between 1200 to 1500 warrants per year throughout the United States to persons who have not repaid their federal student loans.

According to a reporter for Fox 26 news, the marshals arrived at Akers’ home in “combat gear and automatic weapons.”

Aker expressed incredulity that he had to repay his loan. He said, “I’m home. I haven’t done anything. Why are there marshals on my door?” When he was brought before a federal judge in Houston, Akers said it was “mind-boggling” that he was required to make a payment agreement for the money he owed. He also claimed that he was not read out his Miranda rights nor offered any legal representation. Akers claimed that he had never received a notice of default on the loan for 30 years.

I’m sorry that the crucial importance of Justice Scalia’s now-vacant seat on the Supreme Court meant that the heated battle over filling it was already well underway while most of us, reeling from the profound loss, craved a respectable interval to console his loved ones and reflect on his epic legacy. Yet when I groused to a friend about the unseemliness of it all early Saturday evening, I was gently admonished with this thought: Antonin Scalia loved America, lived to preserve what was great about America, accomplished more in that regard than almost anyone in our history, and would have hoped that we’d follow that example — not just honor his legacy but act on it.

So right.

Thus, a few thoughts about the nomination battle that should not happen.

Of course President Obama is going to propose a nominee. It is a legitimate exercise of his authority to do so. But it is also a legitimate exercise of the Senate’s authority not to entertain the nomination. That is clear from the Constitution’s plain language and attested to by the history of Democratic obstruction of judicial nominees by senators named Obama, Clinton, Schumer, Leahy, et al.

The presumption that a president is entitled to his nominees if they satisfy basic criteria of competence and probity applies to executive-branch officers, not judges. Officers of the executive branch exercise the president’s power and are removable at the president’s pleasure, so naturally the president is entitled to deference in this area — although (a) not if the nominee has a history of misconduct (see Eric Holder), (b) not if he nominates someone who says she will support executive-branch lawlessness (see Loretta Lynch), and (c) there cannot be unilateral surrender — if Democrats reject executive nominees for philosophical reasons, Republicans would be foolish not to respond in kind.

Judicial nominations are a different matter entirely.

Even in traditional, pre-Bork times, the courts were a discrete branch of government. Judges get lifetime appointments that stretch well beyond the presidency in which they are nominated, and far from wielding the president’s power, they are often a check on the president’s abuse of that power. So clearly, even before 1987, the president would not be entitled to the kind of deference that he deserves on executive appointments.

No. 1: No nominee for the high court can get through the Senate before the election. No one.

No. 2: President Obama and the Democratic candidates for president know that. So do Republicans. All God’s children know it.
No. 3: Since the nominee will not be approved, Obama will use the opportunity to advance other goals. He will propose someone who burnishes his own progressive credentials and shows why control of the court depends on the November election. Putting Senate Republicans in an awkward position would be a nice bonus. But the target is November.

No. 4: Obama will nominate someone whose demographic characteristics help in the contests for president and U.S. Senate. That is not just his main criterion. It is his only one. The candidate could be from a purple state. Or a Latino. Or openly gay. Having finished law school would be a plus.

Hillary Clinton had endorsed forcing women to register for a draft. Now the issue is taking on new urgency. Despite the left’s anti-draft posturing, it has fond memories of its protests during the Vietnam War and it is the biggest supporter of bringing back the draft. Proposals to move to a draft army invariably come from Democrats in Congress and left-wing pundits who believe that a draft will create a higher barrier to any future conflict. Forcing women to register raises the barrier even higher.

And anything that makes it harder for the military to function properly is also part of that agenda.

But the debate over the role of women in the military is also a subset of the bigger debate about the role of our military. The military no longer exists to win wars or even to fight them.

Nobody thinks that Obama will fight China if it tries to take Taiwan or even Japan. If North Korea attacks, our people will have no air support while Kerry pleads with Kim Jong Un to allow them to be evacuated. Obama refused to provide military equipment to Ukraine. If Russian troops march into Poland, Putin knows quite well that NATO or no NATO, we won’t be there.

A global warming treaty, no matter how invalid and unenforceable, will be zealously followed by the White House to the letter. But security agreements and defense pacts are utterly worthless.

Obama is not going to stand up to any major power. That’s a given. He’ll deliver another speech explaining that they’ve isolated themselves and are on the wrong side of history. But that fighting them would only make matters worse. Unless Europe starts deporting Muslims, we are not going to be fighting any world powers or even any countries with any military capabilities worth mentioning.

The sudden death of Justice Antonin Scalia has sharpened the divide between the progressives’ idea of technocratic federal power, and the Constitution’s limited government that Scalia eloquently championed for almost 30 years. This division has a long history that transcends the failed presidency of Barack Obama.

The Democratic Party grew out of opposition to the elitist Federalists, whose president John Adams was known as “His Rotundity” for his girth and alleged aristocratic tendencies. James Madison in 1792 established the contrast between the two parties that persists to this day: the Federalists were “more partial to the opulent,” and believed that “government can be carried on only by the pageantry of rank, [and] the influence of money and emoluments.” Those who would become Democrats, Madison wrote, believed “in the doctrine that mankind are capable of governing themselves,” and he charged that power lodged “into the hands of the few” is “an insult to the reason and an outrage to the rights of man.” In short, the Democrats were about power to the people rather than to privileged elites.

Two centuries later, the Democratic Party still uses the rhetoric of democracy, and castigates the Republicans as the tools of greedy corporations and crypto-fascist plutocrats––“Wall Street” and the “Koch brothers” being the shorthand for this nefarious cabal. Yet in their policies and practices, the Democrats are now the true elitists who have narrowed government “into the hands of the few,” even within their own party. Consider the recent two presidential primaries in Iowa and New Hampshire. In the popular vote Bernie Sanders tied Hillary in Iowa and wiped her out in New Hampshire. Yet Hillary ended up with more delegates––394 to Sanders’ 44. Why? Because there are 712 “superdelegates,” Congressmen, governors, some mayors, and certain party apparatchiks. Each superdelegate is worth about 10,000 of one citizen’s vote. So much for believing “mankind are capable of governing themselves.”

Much more dangerous for the country has been the consolidation and concentration of power in the federal government, and its metastasizing regulatory agencies and expansive presidential reach, a goal of progressive ideology starting with Theodore Roosevelt. Of course, early progressives continued to use democratic rhetoric to mask this undemocratic inflation of the chief executive’s constitutional authority, and their tyrannical assaults on the people’s autonomy and freedom. Roosevelt spoke of the “triumph of a real democracy,” and Woodrow Wilson touted the “sovereignty of self-governing peoples.” Opposed to this “people” were the “sinister special interests” that “beat back the forces that strive for social and industrial justice,” as Roosevelt put it, and the “invisible empire” of “bosses and their employers, the special interests,” in Wilson’s words. Sound familiar?

At its best, the Supreme Court functions precisely as it was intended: as an antidemocratic brake on popular legislative and presidential passions when those passions do violence to the law, the Constitution, and the Bill of Rights. At its worst — and it often has been at its worst of late — it functions like Iran’s Guardian Council, a collection of black-robed faqihs and jurists that sits above and outside the political process, using its position and privilege to impose on the nation a narrow set of social values decocted from the political ether.

With the death of Antonin Scalia and the prospect of replacing him, we are faced once again with the question: Does the law mean what it says, or does it mean whatever people with power want it to mean at any given moment?

Contrary to Josh Barro and others who insist that there is no longer any live issue of principle here, only two competing political factions wishing to use the Court for their own policymaking ends, the question pressed by conservatives is now, as it long has been, what the proper role of the Supreme Court is. Consider the question of abortion. Conservatives have not sought to have the Court act as a super-legislature and enact a federal ban on abortion; rather, conservatives have insisted that the Constitution is silent on the question, that Roe v. Wade is an act of willful judicial imagination, and that the question is properly left to the states and the legislatures.

The habitual labeling of Scalia as a “conservative,” as though he were simply using the Court to do what Jeff Sessions does in the Senate or Ken Buck does in the House, is a libel. As opposed to the outcome-oriented, decision-first/reasoning-afterward approach of the Court’s Alice in Wonderland progressives, Scalia often reached decisions that annoyed conservative political activists — because the law demanded it. The Left complains that Scalia was an unthinking “fundamentalist” on the Second Amendment, without taking a moment to consider that he approached the First Amendment in precisely the same way. When conservative legislators wanted to abridge free-speech protections by passing a statute against flag burning, it was Scalia who stood in the way.

It has become an iffy idea to cross Barack Obama. After seven years, the president has created a Hugo Chávez–like deterrent landscape, intended to remind friends and enemies alike that he is perfectly willing to use the federal government’s vast power to go after those he finds politically inconvenient, while exempting those he understands to be sympathetic to his agendas.

In Freudian fashion, Obama has long joked about using the power of government in a personal way. As early as 2009, when he had been invited to give the Arizona State University commencement address but had not been granted an honorary degree, he warned of rogue IRS audits: “I learned never again to pick another team over the Sun Devils in my NCAA brackets. . . . President [Michael] Crowe and the Board of Regents will soon learn all about being audited by the IRS.” Jesting about politically driven IRS audits is always scary — scarier when life imitates art in the age of Lois Lerner.

Remember when Obama, on the Spanish-language Univision network shortly before the 2010 midterm elections, urged Latino groups to join him, in ancient tribal us/them fashion, in going after “enemy” Republicans. Instead of sitting out the election, he told them in community-organizing fashion, they should say: “We’re gonna punish our enemies, and we’re gonna reward our friends who stand with us on issues that are important to us.”

That threat recalled his 2008 campaign braggadocio about urging his supporters to bring (of all things!) “a gun” (“If they bring a knife to the fight, we bring a gun. Because from what I understand folks in Philly like a good brawl”), and “to get in their face” (“I need you to go out and talk to your friends and talk to your neighbors. I want you to talk to them whether they are independent or whether they are Republican. I want you to argue with them and get in their face”).