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Why Do We Have Judges?

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With the Democrats in full scream over the nomination of Brett Kavanaugh to the Supreme Court, it’s worthwhile to consider just why we have courts and judges.

The earliest record of judges is in the story of the Exodus. Moses, the prophet and leader of Israel, “judged between a man and his neighbor, and made known the statutes of God and His laws.” (Exod 18:16 NAS) He was overworked, since there were many disputes. At the urging of his father-in-law, Moses appointed “able men who fear God, men of truth, those who hate dishonest gain” (Exod 18:21 NAS) as judges for these minor disputes.

These judges applied God’s laws to the disputes brought to them. This required absolute loyalty to the law and the truth (they “feared God”). They were also supposed to avoid accepting bribes. In short, they were the model of what we should expect a judge to be.

It took a long time to get from Moses to modern courts and judges. Our current system started under Henry VIII in 1178, when the king appointed five members of his household to “hear complaints and do right.” Over time, judges became more educated, and laws enacted by Parliament became a firm standard for their decisions. Even the King was bound by the law.

In the 17th century, it became clear that it was necessary to forcibly separate the functions of making law, executing law, and adjudicating disputes under the law. If the King was able to make law by decree, carry out laws he decreed, and remove judges at will, the King was the law. He could rule with a pen and a phone.

The three independent functions of government became our American separation of powers doctrine. Congress writes the laws, the President makes sure that the laws are “faithfully executed,” and the Courts apply the laws to disputes. Within that structure, we added one key element: the Constitution.

The Constitution is our highest law, and is the standard by which all other laws must be measured. A law contrary to any part of the Constitution is unconstitutional, and can properly be ignored. The question is, “By what standard do we assess constitutionality?”

The Left pushes a theory called “the living Constitution.” That is, the Constitution is subject to change as society changes, without any need for the inconvenience of going through the amendment process. As the late Justice Brennan said, judges must “give meaning” to the Constitution, implying that it has no meaning until the Court declares it. The appeal of this view is that it responds to political pressure. It turns the Courts into what the Wall Street Journal calls the Left’s “preferred legislature.”

The Right prefers an approach that is variously called “originalism” or “textualism.” That is, the Constitution is a document that had a very specific meaning when it was adopted. If we wish to apply it properly, we must understand what its text meant to the Framers. If we wish to change it, we must go through the difficult process of amending it.

That tedious process makes amending the Constitution really hard. Six amendments that were submitted to the states, including one still pending from 1789, haven’t made it. Even with a great popular push, the Equal Rights Amendment didn’t make it. This difficulty stands directly in the path to fundamentally transforming America the way the Left wants to do. So they love it when judges adopt legal theories that let them ignore the original understanding of the law. And that brings us to our next question.

What is “the Law?” Conceptually, the law is a set of principles and statutes that allow us to have an orderly society. In short, if you act in a proper manner, your actions will be lawful. But to know what is proper, you must have public standards of behavior that do not change from day to day. The easiest way for this to happen is to have recorded laws. These are specific, written documents that describe what is and is not acceptable. Short of such statutes, all of us look to what “The Average Reasonable Person” might do. Common law embodies this TARP standard, which often makes its way into written statutes.

All of us depend on the fundamental premise that law is reliably fixed. It doesn’t change when the wind blows. It isn’t necessary to bring policy preferences to the process the way a “wise Latina” might. The text of the law tells us how to (not) behave. Questions only come when the text is unclear.

Suppose that the law is whatever a particular judge decides it is. If I’m called before a racist judge because my trash talking on the basketball court offended someone, I might expect to experience harsh penalties. If the judge is a conciliator, he might take the two of us out to lunch and expect us to “get over it.” How should I know how to behave?

But if I’m taken before a judge who reads the law carefully, I’ll receive whatever treatment the law regards as just. Thus, when Congress passed mandatory sentences for crack cocaine possession that were ten times those for powder cocaine, judges who hated the law found themselves imposing the harsh sentences on lots of young black men. No “wise Latina” could get around the plain text of the statute.

The remedy for this inequity in cocaine sentencing could not properly come from the bench. Our separation of powers does not allow a judge to rewrite the law. No executive with “a pen and a phone” can do it, either. Only the legislature has the power to change laws.

How does a judge determine what a law means? The first step is to read the text. Most of the time, that’s all that’s needed. But what if the language is unclear? The President may be impeached for “high crimes and misdemeanors.” Does this term of art mean that the President must have committed an indictable offense under criminal law? President Clinton perjured himself. That was indictable and impeachable. But is Tweeting personal insults impeachable? Alan Dershowitz argues that it is not. Even researching what the Framers thought leaves us with questions.

Most laws aren’t that big a problem. But administrative law-making is a real problem. Congress has become fond of passing vague laws that will say “XYZ agency shall implement this by regulation.” And XYZ agency goes to town. Since 1984 (George Orwell, can you hear us?) the Supreme Court has let them expand their powers through a doctrine called “Chevron Deference” (Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984)). The Supreme Court declared that if an agency was not unreasonable in its interpretations of a statute, its rulings should be accepted by the Courts.

As Judge Cavanaugh notes, Chevron encourages agencies “to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.” “Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.” Administrative agencies have used it to make rules that stretch the law to the breaking point. A classic is the “Waters of the USA” rule, where a farmer who cleared brush out of a ditch was fined for “destroying wetlands.” But the statute only addresses “navigable waters.” The EPA had become a super-legislature, an unaccountable fourth branch of government that cannot be found in the Constitution.

Should the farmer have expected that his fully reasonable act of maintaining his farm would be illegal? Of course not. But when the Courts accept interpretations that fall outside the text and meaning of the law as enacted, the rule of law vanishes. Policy preferences now create “law” that no one can know and punishes even the most law-abiding.

But this is exactly what the Left demands. They have been unable to get their policy preferences translated into law. So they demand that they be allowed to transform the law to match their policy preferences. Yet at the same time, they demand that a judge be bound firmly by stare decisis.

This Latin phrase means “let the decision stand.” It says that once a question has been decided by the Courts, that decision should govern how we understand the law. The Left demands that stare decisis is crucial to a judge. And why should we argue? Stare decisis creates a stable understanding of the law so an ordinary person can know how to act. But the Left only wants stare decisis in certain areas.

Roe v. Wade is sacrosanct. No judge should ever, ever, ever consider overturning it. But where in the Constitution do we find Roe’s “right to privacy?” It’s not there. And how does a “right to privacy” excuse the destruction of unborn life? Those are real questions that aren’t answered in Roe.

But what about Dred Scott, which protected slavery, or Korematsu which legalized FDR’s imprisonment of US citizens of Japanese heritage? Those decisions were stare decesis and overturned, with nary a peep from the Left. But when Janus overturned Abood, the Left went into full cry. Why? Janus took away money that unions could use to support Democrats.

Let’s put this in simple, declarative language. The Left supports a stable set of laws when it suits their policy purposes. Stare decesis is wonderful when it protects a Leftist legal standard. But when the clear text and meaning of the Constitution won’t let them do what they want, suddenly we have to have a “living Constitution.”

Americans must have a set of laws they can understand. Those laws cannot change because some bureaucrat or judge wants a different outcome. There is a prescribed way for laws to be changed. Laws must be rewritten by Congress or the Constitution amended by the States. There is no other way for ordinary citizens to be able to obey the law.

It is crucial for judges to protect the law as written. Anything else leads to the destruction of civil order and ultimately destroys America. No judges should be allowed near any court if they do not faithfully apply the text of the law to the questions before them. Fortunately, Judge Cavanaugh has shown himself to be fully committed to the law. He deserves our support.

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Opinions

Nature, an international journal of ‘science,’ makes ludicrous political statement on sex and gender

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Nature an international journal of science makes ludicrous political statement on sex and gender

Anyone who thinks science is objective would be partially correct. Anyone who believes scientists are objective hasn’t been paying much attention lately.

Let’s look at a single paragraph from Nature, the self-proclaimed International Journal of Science. I’m not cherrypicking a single bad paragraph. It just encapsulates the lunacy being promoted in the name of this “scientific” article.

US proposal for defining gender has no basis in science

https://www.nature.com/articles/d41586-018-07238-8The proposal — on which HHS officials have refused to comment — is a terrible idea that should be killed off. It has no foundation in science and would undo decades of progress on understanding sex — a classification based on internal and external bodily characteristics — and gender, a social construct related to biological differences but also rooted in culture, societal norms and individual behaviour. Worse, it would undermine efforts to reduce discrimination against transgender people and those who do not fall into the binary categories of male or female.

Let’s start from the top and work our way down. The opinion of this “scientific” journal is that a proposed classification system designed to protect all people’s privacy and safety without the possibility for discrimination is a “terrible idea that should be killed off.” This, of course, has no basis whatsoever in the science they claim to promote. Don’t get me wrong. There are times when science and politics mix, especially when it comes to allocation of research spending. But this isn’t like saying, “Research dollars spent on curing individual types of cancer would be better used helping scientists understand the root cause of all types of cancers.” That conclusion would come from the mix of science and politics. On the topic of sex and gender, they’ve abandoned the scientific side of the argument and gone completely political.

Their next statement is incredible. “It has no foundation in science and would undo decades of progress in understanding sex.” This isn’t simply inaccurate. It’s a bald faced lie. Of course sex is based on science. In the rare cases where sex is ambiguous or indeterminable, science enables doctors to help babies move along the path of least resistance while also allowing them the ability to self-determine their sex when they are older. Exceptions can and should be made in such cases. As for undoing “decades of progress understanding sex,” this is also a politically motivated lie. The HHS proposal has absolutely nothing to do with progress understanding sex. They aren’t changing textbooks or erasing research. Again, Nature is weaponizing their scientific credentials to give weight to a purely political statement. It’s a catchy use of words that could have just as easily been written by leftist speechwriters as alleged scientists.

As for gender, we’ll give that part of the statement to them. If we are to base sex on science, then we should accept that gender is a preference. We may not agree with someone’s preference, but that’s really none of our business unless it affects us directly. Thankfully, the rules proposed by HHS pertain to sex, not gender identity.

The last sentence of the paragraph is the funny one. Any hopes the editors had of not coming across as total political hacks masquerading as scientists can be tossed out the window when we read, “Worse, it would undermine efforts to reduce discrimination against transgender people and those who do not fall into the binary categories of male or female.”

Their entire article tries to ride the scientific high horse to the leftist finish line, but they can only do so by abandoning the science they claim to uphold and embracing the politics they claim to despise. This is why their best arguments revolve around discrimination. Unfortunately for them, being their best arguments does not mean they’re good arguments.

Let’s be clear about the charges the left likes to make about discrimination. By definition, there is nothing discriminatory about basing decisions surrounding sex on the biological physical components that determine sex. In fact, it’s the only way to NOT discriminate because it puts all people on equal footing. There are no advantages given to those who choose a non-biological sex as their gender and there are no disadvantages to people who abide by the sex they were born into. But the left loves throwing “discrimination” and “bigotry” into the mix any time there’s a perceived threat to their all-encompassing supremacy over accepted cultural norms.

Political statements disguised as science hurts both sides of the coin. It confuses the politics and dirties the science. Shame on Nature for weaponizing their credentials to push a political ideology. The credibility of this “scientific” journal is gone.

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Foreign Affairs

President Trump sends the wrong message about Saudi Arabia

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President Trump sends the wrong message about Saudi Arabia

It’s no secret I am not a fan of President Trump’s temperament, style, or morals, but I’ve been honest about supporting many pieces of his agenda. I fall into the same bucket as many conservative commentators who applaud when he does right while booing when he does wrong. His statement on the Saudi Arabia situation regarding the murder of Jamal Khashoggi is worthy of more than just boos. It’s an embarrassment to the United States because it sends the wrong message to any who read it, foreign or domestic.

I’m not alone in feeling this way, though fewer conservatives than I’d like to see are willing to speak out:

Let’s look at the President’s points one-by-one.

Iran

Preisident Response to Saudi Arabia 1

He led with his strongest point: Iran. Saudi Arabia is the primary counterbalance that keeps Iran from becoming the dominant regime in the Middle East. It behooves us to keep the Saudis better equipped, which also helps bolster our economy. Keeping the Saudis ahead of Iran should have been the only thing the President highlighted as reasons to not completely end our relationship with them. But it wasn’t. He added more points to his pitch.

Business

President Responds to Saudi Arabia 2

Wrong, wrong, and wrong. This tells Americans and the world that our loyalty is for sale. If you spend enough money, you can get away with murder. It wasn’t the President’s intention to deliver such a message, but that’s exactly how it came out. The consummate salesman saw it as a benefit to include in his message as if this was a value proposition. It should have gone unsaid.

A little punishment

President Responds to Saudi Arabia 3

This part of the message says, “we did something.” It wasn’t much, but at least there’s some action being taken against those directly responsible. However, it should have been noted that this is the initial response and as the investigation continues it’s very likely we will deliver harsher punishment to others responsible. He couldn’t say that, though, because we won’t deliver any more punishment. We won’t investigate further. As far as the White House is concerned, this is done. Mohammed bin Salman isn’t getting his hand slapped, let alone any actual punishment for his evil actions.

Classic Trump

President Responds to Saudi Arabia 4

This paragraph tells us either the President wrote the statement himself or someone is excellent at mimicking him. It’s classic Trump in style and function. Say something bad about the victim but temper it by saying the victim’s affiliations had nothing to do with his decision. Then acknowledge the possibility that MBS was involved; “maybe he did and maybe he didn’t!”

He did. Despite weak protestations from the Kingdom, every piece of evidence and every action the Saudis took all point unquestionably towards MBS.

The close

President Responds to Saudi Arabia 6

The last two paragraphs were for his base. They’re intended to justify the decision and remind his supporters that he’s doing this because it’s in the best interests of the United States. It’s his closing of the sales pitch and it will work on most Republicans who embrace him.

For me, this is all a bunch of nonsense. It’s a smokescreen to keep us from seeing the reality of the situation, which can be summed up in one paragraph:

A decent ally that does lots of business with America just got a free pass because the man responsible happens to be very friendly to the administration. We are abandoning our values in the same way President Obama did on numerous occasions with his foreign policy. The message to the world is that our silence on human rights issues is for sale.

The message should have been, “We will punish MBS for murdering Jamal Khashoggi, but we will not let this bolster Iran’s foothold in the Middle East.” Instead, the message was, “It is what it is, but we need the business.” Very sad.

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Entertainment and Sports

Amazon’s Homecoming shows Sam Esmail may be the best writer-director on television

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Amazons Homecoming shows Sam Esmail may be the best writer-director on television

Fans of Mr. Robot can point to many things they love about the show. The original storyline, impeccable acting, sharp direction, and stunning twists make it fun throughout its first three seasons. But it’s with Homecoming, the Julia Roberts series on Amazon, that creator-writer-director Sam Esmail shows he’s more than just a guy with cool story ideas.

Don’t worry. No spoilers.

Before we get into Esmail, let’s get the cast out of the way. Roberts, Stephan James, Bobby Cannavale, and Shea Whigham are all perfectly cast in their roles. That’s rare for television; even Mr. Robot had a few casting miscues, but Rami Malek made up for those. In Homecoming, it’s hard to imagine anyone doing better at playing the four major characters.

Now, onto Esmail. This psychological drama is set in two different time periods that Esmail frames perfectly, literally. He shoots the past in widescreen and the present in a square frame. If anyone has ever used this clever differentiating device, that’s news to me.

But beyond his trademark camera cleverness that leans heavily on visual storytelling, Esmail does something extraordinary. He makes a somewhat interesting story premise absolutely enthralling. With Mr. Robot, it’s easy to get engulfed by the story because it’s huge. There are worldwide implications to every machination of multiple good guys and bad guys. The premise is easy to play with, and while Esmail made it his own and told the story brilliantly, the sheer magnitude of the stakes are enough to keep people interested.

With Homecoming, there aren’t insanely talented hackers taking on the biggest corporation in the world with vast criminal organizations intermingled into the plot. Instead, we have a waitress, a low-level government pencil pusher, a creepy mid-level executive, and a soldier. Esmail takes this humble premise and somehow keeps us immersed in intrigue. I can’t say much more without spoiling it, so I won’t.

Season two is already green-lit. We don’t know how well the first season did since Amazon doesn’t report viewing numbers, but the critical response has been strong, scoring a 99% on Rotten Tomatoes. Reports indicate we can expect the next installment in fall, 2019.

One note to those who will watch it – pay attention to the visual mastery. Small screen directors often overlook the nuance of the visual components of their work, but Esmail lives in the nuances. His mastery over shot selection, lighting, and a Fincheresque control of camera movements had me rewinding several scenes in order to absorb it all.

We are seeing the early stages of what could end up being a tremendous directing career. I can’t wait to see Homecoming and Mr. Robot carry on, but I’m even more excited about any new projects Esmail brings to the small screen.

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