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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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Democrats

2020 hopefuls lurching leftward to appeal to radical progressive base

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2020 hopefuls lurching leftward to appeal to radical progressive base

The great primary evolution is already starting. We saw it in 2016 as every Republican candidate tried to “evolve” their views to cater to the conservative base. No evolution was more striking than candidate Trump’s, who went from supporting gun bans and partial birth abortion as a younger man to being one of the most conservative candidates during the primaries.

We’re seeing it now with the Democratic candidates and potential candidates as they try to plant their ideological flags as far to the left as possible. Former Trump pollster John Mclaughlin gave his opinion on the leftward lurch of the field, focusing on Elizabeth Warren, Cory “Spartacus” Booker, and Kamala Harris. Each has attempted to paint themselves as the radical progressive the primary-voting base desires. All of them were much more moderate in the past. Warren was even a Republican in the 1990s.

The thing that makes this trend most disturbing is that the “far left” of the past is nothing compared to the radical progressivism of today’s Democratic base. By the time the primaries really heat up, most if not all will be full-blown socialists.


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Foreign Affairs

NY Times invokes Martin Luther King Jr. to attack Israel

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NY Times invokes Martin Luther King Jr to attack Israel

When a nation the size of New Jersey is surrounded by enemies and is the subject of incessant condemnation from the United Nations, it’s natural to assume thoughtful people will take a complete look at its circumstances before deciding which side of a contentious debate to support. This is why many Americans still choose to support the nation of Israel despite mainstream media’s efforts to frame it as evil.

Unfortunately, the debate is so complex, most Americans form their perspectives based on very limited data. Passions are so strong on both sides that it often comes down to which side’s message is loudest in the ears of those deciding who to support. The Israel-Palestine debate has been ongoing since the tiny nation was first formed and ramped up greatly following the attacks on Israel in 1967 that resulted in necessary expansion.

Today, the West Bank, Gaza Strip, and Golan Heights are all considered “occupied” territories by a majority around the world, at least among those who are paying attention. Despite clear evidence that the very existence of Israel would be threatened if these lands were “returned” to the Palestinians, most of the world calls for the two-state solution as the path to peace.

On top of the disputed lands, the way that Israel maintains peace within its own lands is labeled as oppression against Palestinians living there. The core of the BDS (Boycott, Divestment, Sanctions) movement’s message is that the Palestinian people are being persecuted. To support this premise, an activist at the NY Times is invoking Martin Luther King Jr and his opposition to the Vietnam War as the roadmap by which BDS activists should muster their own courage and build more support to fight the nation of Israel.

Time to Break the Silence on Palestine

https://www.nytimes.com/2019/01/19/opinion/sunday/martin-luther-king-palestine-israel.htmlReading King’s speech at Riverside more than 50 years later, I am left with little doubt that his teachings and message require us to speak out passionately against the human rights crisis in Israel-Palestine, despite the risks and despite the complexity of the issues. King argued, when speaking of Vietnam, that even “when the issues at hand seem as perplexing as they often do in the case of this dreadful conflict,” we must not be mesmerized by uncertainty. “We must speak with all the humility that is appropriate to our limited vision, but we must speak.”

To be clear, King was opposed to a war that resulted in the deaths of 1,350,000 people, which is nearly the same amount of Arabs living in Israel currently. King was opposed to a war in which no Americans were attacked prior to us getting involved. Israel is attacked regularly from multiple groups in and out of the nation who support the Palestinian movement. King was opposed to a war that took focus and resources away from his cause.

As he said, “We were taking the black young men who had been crippled by our society and sending them eight thousand miles away to guarantee liberties in Southeast Asia which they had not found in southwest Georgia and East Harlem.”

To be fair, the author of the NY Times article, Michelle Alexander, was using his anti-war speech to demonstrate the courage King displayed as inspiration for the courage she feels BDS supporters need today. Had she left it there, then there wouldn’t be much of a need to respond. However, she continued in the article to speculate King may not have been happy with Israel back then. Worse, she implied that he could have been a supporter of the BDS movement today.

This opinion is beyond questionable. King’s motivations for not wanting to outwardly support Israel’s actions following the Six Day War were for the sake of his movement, not based on personal feelings on the matter. It made sense to not take a side in a debate in which many of his supporters of African or Middle Eastern descent may have objected.

It is becoming increasing common in the BDS movement to point solely towards the actions of the Israeli government while ignoring the reasons for these actions. They often talk about homes being bulldozed, but they ignore the fact that punitive demolitions are a result of terrorist attacks. I am not in favor of these demolitions, but I would never hide the facts to support my claims. The BDS movement realizes calling out Israel for bulldozing Palestinian homes is most effective if the reasons are never mentioned.

As pro-BDS articles go, this one was strikingly coherent. This is a bigger problem than the unhinged hate articles we often see from BDS supporters. It’s easy to see how this one-sided portrayal in a publication as strong as the NY Times that invokes an icon like Martin Luther King Jr can garner support for the movement from those who would otherwise never consider it. The article is very careful to cut off cries of antisemitism and is written for rational thinkers rather than emotional feelers.

But therein lies the problem. It invokes King and his famous speech knowing full well few will actually read it. If they take the time to read or hear it, they’ll wonder what any of that has to do with the Israeli-Palestinian conflict. The NY Times is betting on the easy odds that nobody’s going to take the time.

None of the seven reasons King gives for opposing the Vietnam War could be applied to Israel. Invoking the speech and insinuating he would have been a BDS supporter is a disingenuous attempt to equate his righteous activism to the BDS movement itself.


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Media

PolitiFact demonstrates pure partisanship declaring Trump’s physical barrier claims as “Mostly False”

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PolitiFact demonstrates pure partisanship declaring Trumps physical barrier claims Mostly False

Pulitzer Prize winning fact checking agency PolitiFact has been accused of leaning dozens if not hundreds of their fact checks to favor the Democratic perspective on most issues. In one of the most egregious examples of partisan hacking, they declared a statement made by President Trump during his televised address to the nation as “Mostly False.”

Here’s the statement: Senator Charles Schumer “repeatedly supported a physical barrier in the past along with many other Democrats. They changed their mind only after I was elected president.”

This is undeniably 100% true. It’s demonstrable that Schumer and many Democrats have supported physical barriers along the border in the recent past. Their support for changed sharply once then-candidate Trump started talking about needing a border wall, so technically speaking that portion of President Trump’s statement wasn’t entirely true. He said their support changed after he was elected, but it started changing a few months after he first entered the race.

Here’s a graph from Cato Institute that shows support from Democrats at over 40% in October, 2015, when it still seemed far fetched that he would win the nomination, let alone the general election. From that point, it took a nose dive.

Democratic Support for Border Wall

The portion of the PolitiFact article in which the author tries to justify the “Mostly False” rating attempts to distinguish between the differences in security barriers proposed by the President and accepted by Democrats in the past.

Did Democrats reverse border wall position after Donald Trump was elected?

https://www.politifact.com/truth-o-meter/statements/2019/jan/09/donald-trump/trump-democrats-reverse-border-wall-position/Schumer, along with tens of other Democrats including former President Barack Obama, voted for the Secure Fence Act of 2006, which authorized building a fence along about 700 miles of the border between the United States and Mexico. That’s the majority of the barrier in place today along the southern border.

However, the fence was mocked as a “nothing wall” by Trump in the past and was far less ambitious, both politically and physically, than the wall Trump wants to build now.

This logical gymnastics is farcical when we read the statement that is allegedly “Mostly False.” The President did not suggest nor has he ever believed the Democrats supported the type of wall he’s requesting. That’s why he was very specific in stating Schumer and the Democrats “repeatedly supported a physical barrier in the past” instead of saying they supported his wall. This is important because for a fact-checker, the details are important.

They have repeatedly judged against conservatives for the tiniest nuance in their statements to attack. But when the statement is properly worded, as the President’s was, this fact checker decided to dig into intent rather than fact checking the statement itself. He penalized the statement as being false because he reconstructed what the President said as meaning something different. This is convenient selective inference on their part. But they’re completely unbiased. Just ask them.

When even the “trusted” fact checkers are willing to abandon ethics and call an obviously true statement false for the sake of political expediency, it’s no wonder so many Americans are frustrated with the entire mainstream media mechanism.

This is why we humbly request you support us with a donation so we can try to counterbalance the horrid leftism present in mainstream media.


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