RUTHFULLY YOURS

Merrick Garland, the appellate judge whom President Barack Obama has nominated to the Supreme Court, is a “moderate.” Of that we are assured by all the best people writing in all the usual venues: USA Today, Politico, the Los Angeles Times.

A moderate what?

The question may be in this instance a purely intellectual one. Garland could be the second coming of Solomon, and Mitch McConnell and his Republican colleagues would be looking to leave him locked up in the Senate basement until after the presidential elections, after which President Cruz might choose a better candidate; President Clinton, a much worse one (which would probably result in the lame-duck Senate working to confirm Garland); or President Trump, the devil knows what. The immediate case against advancing Garland’s nomination has nothing to do with Garland and everything to do with the Senate rousing itself to do its constitutional duty and check President Obama’s executive imperialism with such tools as it has at its disposal.

Carrie Severino and others have argued here that Garland is no judicial moderate, that he is a quiet left-wing activist well disposed to political efforts to undermine the Second Amendment. On that question, I defer judgment to our experts. But there is another question we ought to consider, which is whether there is any such thing as a judicial moderate.

If the expanse of your political imagination is roughly the dimensions of the New York Times, that may seem an absurd question. We hear all the time about “moderates” and “extremists” in the nation’s courts. A great deal of huffing and puffing, which no doubt dishevels the pages of a nearby copy of The Economist, insists upon the virtue and the needfulness of such moderation.

But the fundamental question that we must ask about Supreme Court nominees — all nominees to all benches, in fact — is not one of degree, which is the sort of question that the criterion of “moderateness” would apply. Instead, it is an either/or question: Does the law say what it means and mean what it says, or are judges empowered to graft private notions of justice from their own souls onto the law and the Constitution?

The late Kathryn Steinle, an innocent young woman who was gunned down and killed on a San Francisco street by an illegal alien with seven felonies and five deportations already on his resumé, is just one of many Americans who are lying in their graves today as a direct result of the “sanctuary” policies that have turned hundreds of U.S. cities into safe havens not only for lone-wolf sociopaths, but also for organized members of Latin American drug cartels, violent criminal gangs, and Islamic terrorist cells. Moreover, countless additional victims have had their psyches forever scarred, their bodies permanently damaged, and their lives all but destroyed for precisely the same senseless reason. The numbers are ugly: Of the 9,295 deportable aliens who were released after their arrest by sanctuary jurisdictions during the first eight months of 2014 alone, some 2,320 were subsequently re-arrested, on new criminal charges, soon thereafter. And before their initial release, 58% of those 9,295 aliens already had felony charges or convictions on their records, while another 37% had serious prior misdemeanor charges.

Sanctuary policies bar police and other public-sector employees in many U.S. cities from notifying the federal government about the presence of illegal aliens residing in their communities. As such, these policies defiantly give the proverbial middle finger to the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA ) that Congress passed twenty years ago to require that local governments cooperate with U.S. Immigration & Customs Enforcement (ICE). More than 200 cities nationwide currently observe formal sanctuary policies that are written as resolutions, ordinances, or executive orders. Numerous other cities, meanwhile, have implemented similar policies on an informal basis, meaning that they are unwritten but nevertheless authorized by local government leaders and obeyed by city workers. All told, approximately 340 U.S. cities administer either formal or informal sanctuary policies today.

President Barack Obama nominated Merrick B. Garland, who currently serves as Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, to replace the late Justice Antonin Scalia. The White House’s strategy was to pick someone whom they believe will be politically difficult for Republican senators to simply ignore – a stealth leftist recast as a “centrist.” The White House even created a new Twitter handle, @SCOTUSnom, to rev up activists seeking to pressure Senate Republicans into giving President Obama’s nominee, in Obama’s words, “a fair hearing and an up-or-down vote.”

The Democratic Party has lost no time making Obama’s nomination a highly charged partisan issue. All the Republicans want to do is to let the voters have their say this fall in choosing the next president before a lifetime position on the Supreme Court is filled. But Debbie Wasserman Schultz, Chair of the Democratic National Committee, insists that lame duck Obama must have his way and change the entire ideological balance of the Supreme Court for possibly decades to come. “Frankly, I’ve grown a little sick of Republicans in Congress and their antics that have ranged from simply unproductive to downright offensive,” she complained in a letter to Democrats. Somehow, in Wasserman Schultz’s fevered imagination, it is “offensive” and “obstructionism” to defer to the will of the voters in a presidential election year before making such a consequential decision.

The left’s propaganda machine will argue that Judge Garland is a centrist whom all fair-minded senators should support. The New York Times is already quoting Utah Senator Orin Hatch, who said back in 2010, when Judge Garland was being considered to fill another Supreme Court vacancy, “I know Merrick Garland very well. He would be very well supported by all sides.”

However, Senator Hatch made that statement when President Obama was looking to replace Justice John Paul Stevens’ seat. President Obama refused to take Senator Hatch’s “advice” and rejected Judge Garland. He nominated the more left-wing Justice Elena Kagan instead, whom the Senate confirmed. The ideological balance of the Supreme Court was not in jeopardy with Elena Kagan’s confirmation because she was replacing one of the more left-wing justices at that time. Judge Garland today, by contrast, would be replacing the intellectual leader of the Supreme Court’s more conservative members.

President Obama has nominated Merrick Garland, chief judge on the federal DC circuit court of appeals, as a U.S. Supreme Court justice to replace the late Antonin Scalia.

Few would describe Garland a flaming liberal, in the mold of current Justice Ruth Bader-Ginsberg, or former Justice John Paul Stevens. More likely a less flamboyant liberal, but liberal just the same, as his mentor Justice William Brennan, for whom Garland clerked in 1978-79.

Brennan was a champion of the First Amendment, perhaps Garland will follow suit.

Yet Brennan was both the ghostwriter for Justice Blackmun’s majority opinion in Roe v Wade, and as at least one commentator asserts, the author of the three worst liberal SCOTUS opinions ever.

The most notorious was Plyler v Doe in 1982, ruling that children of illegal immigrants have a right to free public education. It is hard not to see Garland’s alignment here to Brennan.

On his own, Garland has gold-plated his liberal credentials by denying the 2nd Amendment, most egregiously voting to rehear a case in which a DC ban on handguns for personal protection was overturned.

President Obama on Wednesday formally nominated Merrick Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to the U.S. Supreme Court. After studying his extensive record, the National Federation of Independent Business believes that Judge Garland would be a strong ally of the regulatory bureaucracy, big labor and trial lawyers. On behalf of the hundreds of thousands of members we represent, the NFIB opposes Judge Garland’s confirmation.

In NAHB v. EPA, Judge Garland in 2011 refused to consider a Regulatory Flexibility Act (RFA) claim by the National Association of Home Builders against the Environmental Protection Agency despite the law’s clear language. The RFA is one of the few federal statutes that explicitly require certain agencies to take into account the effect of their actions on small employers. Consider that the federal government itself estimates that the typical small business must spend $12,000 per worker annually just to be compliant with federal regulations. With Judge Garland on the Supreme Court, the EPA and other regulators would have a freer hand to impose even more costs on small businesses.

In another case, Rancho Viejo, LLC v. Norton, in 2003, Judge Garland argued that the Commerce Clause, which regulates economic activity between the states, applies to an animal species found in only one state and which has no economic value. In doing so he foreshadowed the creative reasoning that the Obama administration used to defend the Affordable Care Act in NFIB v. Sebelius. We fear that as a pivotal justice on the Supreme Court, Judge Garland could apply his elastic view of the Commerce Clause to almost anything else.

In two other cases involving the National Labor Relations Board, Judge Garland didn’t just side with the government—he argued that business owners should be personally liable for labor violations. In other words, their personal assets, including their homes and their savings, would be exposed to government penalties. What worries us is that Judge Garland has been consistently wrong on labor law. In fact, in 16 major labor decisions of Judge Garland’s that we examined, he ruled 16-0 in favor of the NLRB.

With more than 320,000 members, our organization is the country’s largest advocate for small-business owners. When we asked members on Wednesday whether they wanted to fight the Garland confirmation, the response was overwhelming. More than 90% urged us to take action. CONTINUE AT SITE

President Obama’s nomination of Merrick Garland for the Supreme Court is meant to put Senate Republicans on the spot by elevating a well-qualified 63-year-old judge not known as a progressive firebrand. Republicans aren’t likely to fall into this trap, and Judge Garland’s jurisprudence suggests they’re right—with a caveat we’ll get to later.

The common wisdom is that Judge Garland’s nomination presents Republicans with the most moderate option they’ll get from a Democratic President. Maybe, maybe not. But we can’t think of a single issue that has divided the Court on which Mr. Garland would reliably vote differently from the four liberal Justices already on the bench.
Judge Garland’s 19-year tenure on the D.C. Circuit Court of Appeals demonstrates a reliable vote for progressive causes, with the arguable exception of criminal law. Two issues in particular make the point: the Second Amendment and deference to the growing power of the administrative state.

In 2007 Judge Garland voted for a rehearing en banc after a three-judge panel invalidated Washington D.C’s handgun ban. In 2000 Judge Garland was part of a three-judge panel that allowed the FBI to temporarily keep files with information from gun purchase background checks. In his dissent, Judge David Sentelle wrote that the Attorney General was not only making “an unauthorized power grab, but is taking action expressly forbidden by Congress.”

Judge Garland has also shown a pattern of over-deference to administrative agencies including the EPA. Scotusblog’s Tom Goldstein points out that Mr. Garland has strong views on agency deference and “in a dozen close cases in which the court divided, he sided with the agency every time.”

In an especially notable case, Judge Garland dissented when the D.C. Circuit struck down the EPA’s egregious regional haze rules (American Corn Growers v. EPA, 2002). Excessive judicial deference to regulators is especially dangerous now given the Obama Administration’s unrestrained use of executive power to rewrite statutes and dare Congress to stop it. CONTINUE AT SITE

Having supported Jeb Bush, a Trump apologist I am not. However, to blame him for a mob of leftist thugs wreaking havoc at his rally in Chicago is just plain wrong. It is anti-free speech; it’s un-American. The attempt by MoveOn.Org to use paid protesters to silence Trump supporters through intimidation is consistent with the radical left’s attempt to silence those with differing opinions and views. This tactic is reprehensible, but has been used frequently. Remember the protests at Rutgers University preventing Condi Rice from speaking or the protests, at a Yale forum on free speech?

The left is not interested in having a discussion or even a heated debate with Trump or with anyone else who cannot pass the liberal litmus test. They are only interested in silencing views with which they disagree. To disagree with them is to be branded a racist or a bigot. In today’s world, this is an example of the not-so-subtle intimidation of political correctness. Indeed, the left-leaning media is complicit as MSNBC’s Rachel Maddow went so far as to blame Trump for the behavior of the mob. Stifle debate, blame the victim. This is the way the left deals with dissent.

Alternatively, a civics lesson on how to deal with dissent or differing views is exemplified by the late Justice Antonin Scalia in the United States Supreme Court’s decision in Texas v Johnson. There, Justice Scalia joined the majority ruling upholding Gregory Lee Johnson’s constitutional right to light an American flag on fire during the Republican National Convention in Dallas. The next day Justice Scalia commented, “I would send that guy to jail so fast if I were king.” While he found Johnson’s act personally and morally reprehensible, Scalia emphasized that burning the flag is a form of free speech and, therefore, a right granted to the citizens by the First Amendment.

Following Justice Scalia’s line of reasoning, we cannot allow personal judgment or bias to preclude us from allowing others to speak. Free speech is the most basic right granted to U.S. citizens; it’s what makes us Americans. We do not have to agree with conflicting opinions and, in fact, we have the First Amendment right to argue at will. But we do have an obligation to protect every person’s right to express his or her views — no matter how unpalatable we find them. While I find it remarkable that more people are not outraged by Senator Sanders’ blatant socialism or Hillary Clinton’s Benghazi cover-up, no one has the right to shut Sanders or Clinton down entirely. Despite what I think of the two candidates personally, I would defend their right to voice opinions that fundamentally conflict with my own. Intimidation of any kind has no place on the right or the left.

I think very highly of Merrick Garland, whom President Obama has nominated to fill the Supreme Court seat of the late, legendary Justice Antonin Scalia. Merrick was a voice of reason and sound judgment as a top official in the Clinton Justice Department during the Nineties when I was prosecuting terrorists. It seems hard to believe now, but our decision to charge the Blind Sheikh and other jihadists with seditious conspiracy (i.e., conspiracy to levy war against the United States) was controversial at the time. It was a real asset to have, in the front office at Main Justice, an attorney of Merrick’s skill: a trial prosecutor’s grasp of strategy and an appellate lawyer’s understanding of potential legal perils. And, besides all that, he was a very nice guy.

Moreover, while my case was a success, it amply demonstrated that federal criminal law was ill-equipped to deal with international terrorism. Judge Garland is one of the lawyers who deserves credit for the mid-Nineties overhaul of counterterrorism law. Once these new statutes were finally enacted in 1996, you could still have a vigorous policy debate over whether international terrorism was principally a law-enforcement or a national-security challenge, but you could never again complain that the legal arsenal for prosecutions was lacking.

In terms of judicial philosophy, I would have deep disagreements with Judge Garland. He clerked for and was obviously deeply influenced by Justice William Brennan, who was about as much of a polar opposite to Justice Scalia as one could be. But there is no doubting Garland’s intellect and integrity. He is not someone a conservative or constitutional-originalist president would appoint; he is, however, as good as we could get from a president of the Left. I was pleased when President Clinton nominated him for the D.C. Circuit, and pleased when he was finally confirmed in 1997.

Of course, the situation today is much different.

What has a three-quarter billion-dollar unfunded liability, is manually calculated on paper inside a Pennsylvania mountain, and costs taxpayers more money annually than the entire state budget of Florida? Answer: Federal employee pensions.

It’s national Sunshine Week across America. During this week, good-government groups advocate for open government and transparency in public spending. One area that remains hidden is federal pensions.

Imagine if you could see how much your former congressman makes in federal retirement pension? Just how many years were ‘worked?’ How much money was paid-in? How much did taxpayers finance? And, once retired, just how quickly did the congressman ‘break-even’ on their own contributions?

Even Illinois – where the state’s #1 manufactured product is corruption – has the courtesy to show taxpayers all of the gory details about pensions. The books are open on all 700,000 public retirees at every level of government.

In Illinois, this transparency has been instrumental in identifying pension abuses. For example, our organization OpenTheBooks.com found that a pair of Illinois union lobbyists who substitute taught for just one day in the public school system actually received their $1 million lifetime ‘teacher’ pensions. This happened despite a state law expressly designed to stop them. In another case, a former chief aide to previous Gov. Pat Quinn (D) was receiving an annual pension of $137,000 per year rather than the proper $20,000. A good-government pension hawk exposed the mistake and stopped the over-payments.

Many other states have public pension transparency. Citizen outrage in California drove lawmakers to pass a state law curbing a $545,000 pension to a city manager in Vernon (population 102). Now, that manager is retired on $115,000 per year – an 80 percent reduction.

Inside the cavernous, windowless, Cold War era federal complex in Pennsylvania, what mistakes has the U.S. government made while hand-calculating retirement pensions? Nobody has a clue, because the Obama administration has cited a ‘privacy’ exemption to the Freedom Of Information Act (FOIA) and refused to shine a light on federal pensions.

Two years ago, we filed a FOIA request for individual federal pension data. The Office of Personnel and Management rejected our request saying it was, “… a clear unwarranted invasion of personal privacy.” But, our request for the active salaries of 2.5 million federal employees was fulfilled, with seven-year histories. We post these salaries and bonuses (with names) at OpenTheBooks.com.

If active salaries/bonuses are subject to transparency, why would posting federal retiree pension amounts, service credits and contributions be an invasion of privacy? The same privacy law underlies both records. The Obama administration’s legal argument against revealing pension data is arbitrary.

President Obama, Bernie Sanders, and Hillary Clinton state that climate change is more dangerous to future generations than terrorism. They advocate destroying industries that have greatly improved our quality and length of life. I believe that the American people are entitled to some actual scientific facts instead of talking points. Here are some questions for the global warming bandwagon.

In the 1920s, scientists were warning that because of warming and the melting ice, coastal cities would soon disappear. Why were they wrong then, and why are the same warnings correct today? How did the Earth cool so much from 1945 to 1976 that the experts were warning about a disastrous ice age if rising CO2, rapidly increasing populations, industrialization, and fossil fuels cause warming?

According to UCAR (the Universal Corporation for Atmospheric Research) the temperature today is around 1.53 degrees warmer than 1880. Wouldn’t that be within the margin of error, especially since the Little Ice Age ended around 1800?

According to scientific studies, CO2 was much higher during the ice age – 2,000-8,000 parts per million vs. 400 today. If CO2 causes warming, why wasn’t the Earth warmer then than it is today?

Recently, the U.S. attorney general said the Justice Department is considering bringing legal action against people who will not go along on climate change caused by humans. Is it any wonder that scientists who are skeptics won’t speak out when their livelihood is threatened?

Shouldn’t the media do some simple research instead of just repeating the talking points that humans cause climate change?