So About Kavanaugh (UPDATED)

Last night President Trump announced Brett Kavanaugh as his pick to replace retiring Supreme Court Justice Anthony Kennedy. So what do I think about Kavanaugh?

Meh.

It is an underwhelming choice

He’s no Merrick Garland, which is good. But he’s no Neil Gorsuch, which is bad. I would have preferred Judge Don Willett from the 5^th Circuit or Judge Kethelridge of the 6^th.  Someone who be a strong advocate of personal rights and stop the erosion of the rights guaranteed in Bill of Rights (including the unenumerated ones in the 9th). Kavanaugh is not that and is very much a justice in the John Roberts mold. Read his dissent in Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir 2011) and you see how simpatico he is with Robert’s decision in National Federation of Independent Business v. Sebelius, 567 US 519 (2012).

In Seven-Sky, Kavanugh saw the mandate in Obamacare as a tax (despite everyone involved in the bill’s passage clearly stating it was not) and arguing the Court could not even consider the case until the law went into effect (post-2012 election) citing the Anti-Injunction Act of 1867. (That holds Courts cannot hear pre-enforcement challenges to the assessment and collection of taxes).

Kavanaugh is certainly not a civil libertarian and will continue upholding the steady erosion of the 4^th Amendment thanks to our continued misguided drug war. So,….wait, what? Sen Chris Murphy wants to chime in? Ok

Well, I guess, Kavanaugh won’t be that bad.

Murphy really does want to be known as the Stupidest Man in Government. There is nothing to suggest Kavanaugh is going to be striking down laws the prevent citizens from owning Surface to Air Missiles or Machine Guns. He might not even allow this assault weapon:

(UPDATE 1: David Kopel of the Volokh Conspiracy outlines Kavanaugh’s actual views on the 2nd Amendment post Heller)

On the plus side, he seems to be wary of excess regulations and may be willing to strike down the horrible, pro-bureaucrat Chevron Deference.

(UPDATE 2: Ken White, a/k/a Popehat has posted a piece suggesting Kavanaugh is a strong proponent of a robust First Amendment).

Also interestingly, since the left is swooning over an absurd, irrational fear that with Kavanaugh, SCOTUS will overturn Roe v. Wade, is the Judge’s opinion in Emily’s List v. Federal Election’s Commission, 581 F.3d 1 (D.C. Cir 2009). In that case, Emily’s List, a pro-abortion Special Interest Group, challenged the Federal Election Commission’s rules making it harder for advocacy groups to raise money for election campaigns. The decision, which came a year before Citizen’s United, struck down the FEC rules. If, as some on the left are hyperventilating, Kavanaugh is ready to strike down Roe and institute the Handmaiden’s Tale, it seems odd he would be loosening the rules to allow a pro-abortion group to raise more money.

And that is going to be the problem for the Democrats in opposing his nomination. (Well that and Chuck Schumer’s decision to die on the hill of the Gorsuch nomination- Thanks to Schumer, Trump only needs a simple majority to confirm Kavanaugh. Had the Senate minority leader kept his powder dry, the filibuster would still be in play and would have given him more leverage, especially in an election year.) While Kavanaugh has some issues, none of them appear so damaging they will preclude his confirmation. Indeed, the Democrats and their allies already made clear they were going to oppose anyone nominated on the grounds of him/her being dangerous etc:

You would think nominee XX would be more pro-woman.

One line of attack has been: Kavanaugh believes a President is above the law.

The “support” for this is a law review article. In the article, Kavanaugh sets forth some changes he believes should be made in the way the government operates. Regarding the President is above the law claim, it’s basis is found in his argument a President should be temporarily immune to lawsuits (and possibly criminal prosecution) during his term of office.

With that in mind, it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office.                                                                            (1460-1461)

Yes, that dastardly Kavanaugh is saying… Congress should pass…a law…. to give temporary immunity….?

This is the proof he believes Presidents are above the law?

Here’s a pro-tip. If Kavanaugh really believed Presidents are above the law and immune during their tenure, he wouldn’t be calling for Congress to pass a law making it so. It is quite clear he believes the current status is the exact opposite.

It should be noted the law review article was published in 2012 and based on a speech he gave October 2008 and is based on his experience in the Bush (43) White House and as a member of Ken Starr’s Special Prosecution Team during the Clinton Presidency. That’s right, Kavanaugh’s argument is based upon his time investigating a sitting president. So I seriously doubt he had Trump in mind. And the fact he is advocating something that would have prevented him from investigating a Democrat suggests maybe he didn’t have some sort of partisan motive in making this suggestion.

(And for the record, I think some of what Kavanaugh proposes has some merit. His arguments about a 180 day cap before an up or down vote on nominees has some appeal and is being taken up by others. The most recent suggestion is a law that would take effect Jan 20, 2025. That way no one would know who it would favor. I’m not as impressed with the concept of a single 6 year Presidential term. While the Founders did consider it, they ultimately decided against it.)

This is something I plan to expand on in the coming weeks, but the so-called #Resistance has really got to get some anti-psychotic meds because they have lost it.  I mean, I’m old enough to remember when claiming Sharia Law was about to imposed upon the United States was a sign of mental instability (see e.g., here and here). Now, it’s taken as a fact for what Trump is trying to do:

Democrats are doing themselves no favors by hunkering down with the Alex Jones’s of the left. And the increasingly overt anti-Catholic arguments against his nomination reveal the Left’s tolerance only extends to those who don’t disagree with them.

Nor will they impress anyone with their seriousness by ignoring Kavanaugh as some are apparently doing. (I wonder if Harris will be running around with a towel over her head).

Barring a Black Swan event, Kavanaugh will get confirmed.

And that will not cause the Earth to crash into the Sun.

Masterpiece Cakeshop: How a 7-2 Ruling Can be a Narrow Ruling

So, here I was this morning, getting ready to get back in the swing of things, blog-wise, by posting about the next of the Planetary Anthologies being published, Earth, and my story, The Silesian Treasure (available tomorrow from Amazon!) when I checked, as I always do, SCOTUSblog to see if the Supreme Court has issued any new rulings. And so of course, SCOTUS picked today to release its decision on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. That’s pretty much what everyone will be talking about today. So, thanks SCOTUS for making the book launch that much harder!

That in and of itself wouldn’t be that bad. It is, after all, news-worthy. The problem comes from partisans on both sides of the issue reading and reacting to the headline, not the opinion. To wit

• Social Liberals are developing vapors because the headlines suggest the Supreme Court is all for discrimination (with Liberal justices Breyer and Kagan getting raspberries).
• Social Conservatives are having kittens because most news reports are calling the 7-2 decision ‘limited’.

Both sides are reacting to things that are not there.

So, in order for you to pay more attention to buying my book tomorrow, I will today, explain how a 7-2 Supreme Court ruling can and is “limited”.

I. What Is This Case?

This is the (in)famous ‘Bake the Cake’ lawsuit. A little background before we go into the facts:

The underlying events occurred in 2012. This was before the Supreme Court ruled in either the Windsor case (which found portions of the Defense of Marriage Act unconstitutional) or the Obergefell decision (which struck down as unconstitutional, bans on same sex marriage). Indeed in 2012, same-sex marriages in the State of Colorado were not legal (nor were same sex marriages performed in other states recognized under Colorado law).

In the summer of 2012, Charlie Craig and Dave Mullins walked into the Masterpiece Cakeshop and asked Jack Phillips to create a wedding cake for them. Craig and Mullins were going to get married in Massachusetts (where same-sex marriages were then legal) and then have a celebration in Colorado. Phillips refused to create a wedding cake, citing his religious beliefs that marriage was solely between a man and a woman.

(brief interlude: The word create is the proper term for what was being asked. Phillips has long made it clear, and there seems to be nothing the Court record to the contrary, that he would have made any other type of cake for the couple. In fact, had they simply asked him to bake a cake, but not decorate it as a wedding cake, he would have done so happily. Therefore this was never about his refusing to “bake a cake”. It was more a refusal to “decorate a cake”. The latter just doesn’t roll off the tongue like the former).

In August of 2012 Craig and Mullins filed a discrimination complaint against Phillips with the Colorado Civil Rights Commission. The Commission found against Phillips and for Craig and Mullins. Phillips appealed to the Colorado Supreme Court, which upheld the Commission’s ruling. He then appealed that decision to the US Supreme Court. He argued the Colorado decisions violated his Freedom of Religion rights guaranteed by the US Constitution.

II. What Did the Court Decide?

The US Supreme Court this morning vacated the Colorado Supreme Court decision and Civil Rights Commission’s Determination. It found the Commission never gave Phillips a fair shake in evaluating his arguments, noting:

The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.

(All quotes come from the majority opinion)

The Commission, the Court is saying, had its finger on the scale in favor of Craig and Mullins. The commissioners were looking to punish Phillips regardless of the merits of his defense. During the first public hearing, at least two of the commissioners made comments suggesting once you enter the domain of public commerce, you have to keep your opinions to yourself. The Court noted while these comments could have been acceptable depending on the circumstances, the events at the following public hearing show the Commissioners had open animosity towards Phillips, with one saying:

“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

As Justice Kennedy’s Majority Opinion notes:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation. The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

(emphasis mine)

The majority noted there were case around the same time in Colorado,  where bakeshops were being asked to decorate cakes with anti same-sex marriage message and those bakers refusing. The Commission upheld the rights of those bakers to not participate in creating those messages. If those bakers were fine, why was Phillips’s actions not? But because the Court found the Commission, which has a judicial like authority, went into its investigation openly hostile to one party, SCOTUS said the Civil Rights Commission’s decision cannot stand.

For the reasons just described, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

That is the only thing the Court decided in today’s case. This why although the Supreme Court’s ruling was 7-2, the issue decided was one of procedural fairness instead of whether Phillips’s refusal was constitutional. This is why Kagan and Breyer voted to vacate the Commission’s decision. They are not suddenly becoming soft on same-sex marriages. They are however, making it clear, adjudicative bodies, such as Civil Rights Commissions, can’t pull a Red Queen and have the sentence first, trial later. They have to evaluate the claims of both sides fairly and impartially.

 III. What Did the Court Not Decide?

 The Court did not decide when, if ever, a merchant’s sincerely held religious beliefs can be the basis for refusing to provide a service to members of the public. Nor did SCOTUS rule whether there is a material difference between ‘baking a cake’ and ‘decorating a cake’.

It also didn’t decide whether the timing of the refusal was relevant. As noted at the beginning, when Phillips refused, same-sex marriage was not legal in Colorado. One of the arguments that was made in the Courts was because those marriages were not legal (and possibly illegal) or recognized, Phillips had some expectation to believe his view represented the prevailing legal view of the state of Colorado. That’s important because of the fines and other punishments levied on Phillips by the Commission, including having to file quarterly reports showing how un-bigoted he was now. Had the Civil Rights Commission simply said, “We know you thought what you were doing was legal, but it’s not, so don’t do it again”, you might have seen a different outcome.

IV. What Does This Mean Going Forward?

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

(Translation: We know this isn’t going away. But we’re not going to answer questions we don’t have to today).

Because the underlying questions were not answered, the issue is not resolved one way or the other. There will continue to be a number of these cases percolating through the legal system until such time as an ideal case is presented to the Supreme Court to answer those questions.

Also, now that same-sex marriage is legal across the country, any future case will be decided in that light, i.e., everyone knows what the law of the land is, so how does that interact with personal beliefs.

When will that case appear? Who knows? It depends on how eager the Supreme Court is to delve into this topic. Don’t be surprised to see a lot of test cases appear in the media with everyone trying to get the case that will answer the question. And don’t be surprised to see the Court pass on most of them. They will be looking for that certain something in order to take up the case.

V. So, What Now?

That’s simple:

1. Now you know how it is possible for a 7-2 Decision to be narrow.
2. If you’re a Social Lib, Don’t Panic. If you’re a Social Con, don’t get cocky.
3. Go out tomorrow and order Planetary:Earth at Amazon

Available Tomorrow!

 

 

(Featured image is the West Facade of the Supreme Court and is taken from the Court’s website).

 

Neil Gorsuch is the Best Libertarian Could Have Hoped For

Some thoughts on President Trump’s Supreme Court Nominee Neil Gorsuch

1. Scalia Would Have Hated Trump

This occurred to me as I watched the announcement. Donald Trump is probably the last person Antonin Scalia would want as President. Trump’s persona is seemingly opposite of how Antonin Scalia conducted himself.

2. Almost on Time

The announcement was scheduled to occur at 8 pm EDT. President Trump appeared at the podium at 8:02 PM (at least according to my cable box’s clock). It’s been a while that a Presidential announcement happened the close to the announced time.

3. Gorsuch is the Best Libertarian Option

Last May, Trump presented a list of 11 Judges he said would make a good replacement for Antonin Scalia. Neil Gorsuch was not on that list. Saying that, Gorsuch is probably the best a libertarian could hope for in a nominee. He is as skeptical of Federal Power as Scalia was, including government action criminal law and Fourth Amendment Issues. He believes in a plain reading of the Constitution. He is even more Scalia than Scalia as Gorsuch believes the Chevron Test is probably too deferential to Federal Agencies. This would suggest Gorsuch would reduce the role of the Federal Government and restore more power to the states, allowing them to once again be Justice Brandeis’s “Laboratories of democracy”

What’s interesting is if you read the profile of Gorsuch on SCOTUSBlog by Eric Citron and Andrew Hamm, you get a view that is very different from the profile by Reason’s Damon Root. Whereas Hamm suggests Gorsuch has a nuanced view of issues such as Euthanasia, Root seems to find Gorsuch’s views mean he is staunchly ant-abortion. These are two very different readings of the same works and I’m not sure how you reconcile them.

Root’s colleague, Jacob Slocum, view is similar to mine, “If Gorsuch’s judicial philosophy is in fact similar to Scalia’s, libertarians could do a lot worse.”

Is Gorsuch the prefect libertarian justice? No. But Trump is not a libertarian. And sometimes, a half a loaf is better than no loaf.

4. Sorkians Should Be Happy

You don’t know what a Sorkian is? These are people who own copies of Aaron Sorkin’s Guide to Virtue Signaling. They can quote all manner of Sorkinese statements from The West Wing, The Newsroom, Sportsnight, etc. which generally espouse an enlightened view of Americana that lines up perfectly with Progressive Ideology (and often laments how misguided non-Democrats are). As it relates to the nomination of Judge Gorsuch,The West Wing episode “The Supremes” has President Bartlett nominate a conservative justice and a liberal justice to maintain a mythical balance of ideologies on the Court. If that is ideal Sorkian Supreme Court, then Gorsuch is a perfect fit. His judicial views are consistent with those of Justice Scalia. When he sits, the Court will have the same ideological make up as it did for the entirety of the Obama Presidency.

A. Democrats Are in A Bind

Chuck Schumer, within minutes of Gorsuch’s nomination, already announced he was voting against the Judge, employing the Grouch Marx “I’m Against It” reasoning. Democrats are threatening to filibuster the nominee in retaliation for the Republicans filibustering the nomination of Garland Merrick. This puts the Democrats on shaky ground for a number of reasons:

          B. The Next Presidential Election Is in Four Years.

The Republicans refusal to consider Garland was based on very sound principle: There was a general election in a few months. That election would decide the future direction of the Country. Let the people indicate which direction they preferred and then that President could nominate a suitable justice.

What is the Democratic argument? We just had an election, but let’s wait four years to see if the people change their mind? What if they reelect Trump? Then the argument would be… what? “Ok, best three out of four?”

           C.There Are More Democratic Senators Than Republicans Up for Reelection in 2018

The Senators (also known as “Class I” Senators) who are up for election next year were last in an election race in 2012, the year Obama was reelected. As a result, the Democrats have more seats to protect than the Republicans. There are 21 Democratic Senators, 8 Republicans (9 if Jeff Sessions in confirmed as Attorney General. Alabama would have a special election to fill his remaining term), and two Independents (though both Bernie Sanders (VT) and Angus King (ME) who caucus with the Democrats) whose seats are up for election.

Of those seats, the Democrats have what are considered “safe” seats in 12 races. (I would note Massachusetts is listed a safe Democrat seat. I think that is debatable. Elizabeth Warren is not that popular within Massachusetts. And if Governor Charlie Baker (R) ran against her, he could defeat her). That would mean they have to defend 10 seats in contested elections. Republicans have 6 safe seats (and probably 7 if you include Alabama). Which means if the GOP held all their safe seats and lost the two contested races (Arizona and Nevada), they would still hold their majority, 51-49.

Of those 10 contested seats Democrats have to hold, 8 are in states won by Trump in 2016, 1 by Clinton (New Jersey), and the split in Maine (though Maine is probably safely Democrat).

If the Democrats want to retake the Senate, they need to hold all of these seats. So, there is going to be a lot of pressure on many of these Senators to listen to the voters of their states and let Trump have his nominee. Rejecting or worse, filibustering could be politically damaging. Already West Virginia Senator Joe Manchin III has indicated he will not support a filibuster.

          D. “They Did It First” Argument Doesn’t Impressive Everyday Americans

This is what Schumer is essentially arguing “The Republicans blocked our nominee, so we get to block theirs.” It sounds childish. And the American people will generally tolerate a lot of crap from their elected officials, but generally do not put up with them acting like 3 year olds.

          E. Do You Want This Fight Now?

As noted above, Gorsuch’s ascension to the Supreme Court will restore the status quo ante Scalia’s death. Nothing changes. Do Democrats really want to waste their powder on this battle?

Consider Ruth Bader Ginsburg. The Notorious RBG is 83 years old and in less than ideal health. Many Progressives spent the last couple of years trying to convince her to retire from the Court to allow Obama to appoint a Progressive replacement. There is a decent chance she may retire (willingly or for health reasons) in the next couple of years. If that happens, Trump’s pick would alter the balance of the Court away from progressives even more.

If Schumer follows through on his threat to filibuster Gorsuch into oblivion, there will be a lot of pressure on Majority Leader McConnell to use the nuclear option and abolish the filibuster on Supreme Court nominees. At that point, the Democrats would no leverage when it comes to the potential nomination of a Ginsberg replacement. Look at the battle over the President’s cabinet picks. The Democrats have no leverage on the nominations because they have no ability to block anyone. (Thanks Harry Reid!).

5. What Does This All Mean?

It means it’s Showtime!