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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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Foreign Affairs

The Saudi predicament requires radical changes in our foreign affairs positions

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Saudi predicament requires radical changes in our foreign affairs positions

The United States is at a foreign affairs crossroads. One of our most important allies in the most important region in the world is being led by a man that U.S. intelligence (and pretty much everybody else) believes ordered the murder of a journalist living in our nation and writing for one of its biggest news outlets. How can we reconcile between what’s right and what’s smart?

Further evidence was leaked today that Mohammed bin Salman, the Crown Prince and de facto ruler of Saudi Arabia, ordered the murder of Washington Post journalist Jamal Khashoggi in Istanbul last month. The CIA concluded this based on multiple pieces of circumstantial evidence, including phone calls intercepted between Khashoggi and Mohammed’s brother assuring Khashoggi’s safety if he went to the Saudi consulate where was murdered.

CIA concludes Saudi crown prince ordered Jamal Khashoggi’s assassination

https://www.washingtonpost.com/world/national-security/cia-concludes-saudi-crown-prince-ordered-jamal-khashoggis-assassination/2018/11/16/98c89fe6-e9b2-11e8-a939-9469f1166f9d_story.html?utm_term=.718b2d26599cThe CIA’s conclusion about Mohammed’s role was also based on the agency’s assessment of the prince as the country’s de facto ruler who oversees even minor affairs in the kingdom. “The accepted position is that there is no way this happened without him being aware or involved,” said a U.S. official familiar with the CIA’s conclusions.

Among the intelligence assembled by the CIA is an audio recording from a listening device that the Turks placed inside the Saudi consulate, according to the people familiar with the matter. The Turks gave the CIA a copy of that audio, and the agency’s director, Gina Haspel, has listened to it.

This is much more complicated than deciding whether or not to punish Mohammed. The stakes are unfathomably high, including balance of power in the Middle East, a potential oil crisis that could cripple the world economy, and the future of a peace plan between Israel and the Palestinians.

Unfortunately, what’s right and what’s smart are diametrically opposed in this situation.

What’s right?

Every ounce of evidence points to the near-certainty that Mohammed bin Salman ordered the murder of Jamal Khashoggi. He was a permanent residence of the United States who lived in Virginia and worked at the Washington Post. While not a citizen, he lawfully earned the right to fall under our nation’s protections.

The right thing to do is to condemn the Crown Prince, even if that will irreversibly damage our relationship with Saudi Arabia.

What’s smart?

Based on the current geopolitical status quo, Saudi Arabia is our best proxy to keep Iran in check in the Middle East. They are also the reason the dollar is still the world’s reserve currency despite efforts by Russia, China, and other nations to change that. This status allows the dollar to maintain artificial stability. There are many factors in play that could cripple the dollar if Saudi Arabia and OPEC started dealing in other currencies, bur national debt alone would be enough to catastrophically collapse our entire economy if the world had the means to turn its collective back on us.

Saudi Arabia and the so-called “petrodollar” is the force that maintains the illusion of stability.

The arms we sell Saudi Arabia account for a substantial chunk of revenue and jobs in the United States, but more importantly it gives them the technological edge they need over Iran. If the Saudis turn to Russia or China, our influence over the region would diminish greatly.

The smart thing to do is to sweep this under the rug. Throw symbolic punishment at some sacrificial Saudi lambs and move on.

Time for change

There is no way to do what’s right and still do what’s smart, so it would seem the White House has to pick between the two.

Perhaps they don’t. Perhaps there’s a third option.

Even if we do the “right” thing by condemning Saudi Arabia Mohammed, ties will not deteriorate immediately. There will be a wind down during which time the Saudis will be looking for other partners and the Americans will be trying to salvage the relationship.

What if we didn’t? What if we acknowledged for the first time that Saudi Arabia is more than just the country that murdered Khashoggi. Their human rights record is atrocious. They have directly or indirectly harmed the United States for years, including a significant role in terrorist attacks. They spread Wahhabism across the world. If you haven’t heard much about Wahhabism, it’s because the radical Islamic sect that drives the House of Saud is protected from media scrutiny. See Network, which only partially satirizes the influence the Saudis have on U.S. media.

Saudi Arabia is a horrible ally. They’re necessary because we’ve made them necessary, but if we drastically cut budgets and spending, the economic ramifications of a break with them would be mitigated. It’s time to make deals with nations that do not smile at us in public and subvert us in private. Nations that do not like us, including Brazil and Venezuela, could be brought under our wing to replace Saudi Arabia on the oil front. It’s unimaginable now, but we live in fast-moving times.

Also, build the Keystone XL pipeline.

As for stability in the Middle East, it’s time we go all-in with Israel. They are the only true democracy and the one nation in the Middle East we can count on to not stab us in the back. They are capable of being the check against Iran. Abandon all talks of a two-state solution, work with Israel as our primary proxy in the Middle East, and make Saudi Arabia turn to others for support.

All of this sounds dangerous because, well, it is. The dominoes that will fall when we take drastic measures against Saudi Arabia will be painful. But there’s one thing to consider before balking at this. We may be heading in this direction already. The difference is it wouldn’t be us initiating (and therefore prepared for) these changes. Saudi Arabia has been quietly seeking a better deal for decades. They haven’t found it yet, but someday they will. When that happens, they’ll pull the rug out from under us.

We should be the ones pulling the rug. If we’re not, the permanent repercussions will be devastating.

Radical change in our foreign affairs stance is long overdue. Saudi Arabia is the worst kind of ally to rely upon, not just because of Khashoggi but because of everything else they’ve done. None of this seems feasible now, but it may be the only path forward.

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Guns and Crime

Eric Swalwell gets 2020 attention by reasserting his gungrabbing agenda

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Eric Swalwell gets 2020 attention by reasserting his gungrabbing agenda

Representative Eric Swalwell (D-CA) is running for President in 2020. He hasn’t announced it, sources close to him told Politico last week that he’s running. Today, he reasserted himself into the conversation by reminding us he’s all in for a mandatory gun buyback program.

Oh, and he threatened nuclear civil war in the process.

Swalwell was being dramatic, of course. His response to people calling him out over his gungrabbing proposals was political theater at its finest. It’s actually a little impressive to see him take on prominent 2nd Amendment proponents despite making losing arguments. Lest we forget, what conservatives view as losing arguments are effective at rallying the unhinged leftist base that Swalwell hopes to get behind him.

Swalwell’s proposal is to focus on certain guns and accessories that he deems to be “military-style” and target them for confiscation, which in leftist terms is called a “gun buyback.”

Let’s discuss that for a moment. A true gun buyback is an event, usually put on by a city, that allows gun owners (legal or not) to sell their guns to the government, no questions asked. It is voluntary and often results in a decent number of guns taken off the streets. Lawful citizens have the option of getting rid of guns they no longer want while unlawful gun owners get money. It’s sometimes effective, though studies have shown lukewarm results regarding reductions in gun-related crimes.

What Swalwell is proposing is not a gun buyback. It’s compensated confiscation. When gun owners are mandated to turn in their guns or face criminal consequences, we can no longer give it cover by calling it a buyback.

This is a political ploy to plant his flag in far-left dirt ahead of announcing his presidential run. Eric Swalwell isn’t on anyone’s radar now, but stunts like this should make gun owners take notice. Leftists are getting bolder with their gungrabbing declarations.

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Foreign Affairs

Three observations about Julian Assange following charges filed against him

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Three observations about Julian Assange following charges filed against him

Wikileaks founder Julian Assange has been charged by the United States. The charges are sealed and were not intended to be released to the public yet. Now, there is plenty of speculation surrounding his future.

He has been holed up at the Ecuadorian embassy in London since 2012. He sought asylum there to avoid extradition to Sweden over rape charges. He has always asserted the charges were fabricated to get him extradited to the United States, a conspiracy theory proven no longer valid since Sweden has stopped pursuing charges.

Wikileaks’ Julian Assange has been charged in US, prosecutors accidentally reveal

https://www.independent.co.uk/news/world/americas/julian-assange-charged-us-wikileaks-prosecutors-court-filing-ecuador-embassy-a8636336.htmlThe Wikileaks founder Julian Assange has been charged under seal with unspecified offences in the US, prosecutors have accidentally revealed in an unintentional court filing.

Federal prosecutors had hoped to keep the indictment against Mr Assange a secret “due to the sophistication of the defendant, and the publicity surrounding the case”, and so that Mr Assange would “no longer evade or avoid arrest and extradition in this matter”.

There are three peculiar observations about his situation that should be noted.

  1. Sealed charges may signal the charges are related to the Mueller investigation. Most have assumed the charges are based around his leaking of classified military information and videos that started getting leaked in 2010. The timing of the “leak” might lend more to the possibility that Robert Mueller’s 2016 election interference investigation is the source. This week, Jerome Corsi said he believes he will be indicted over his association with Wikileaks. Corsi rightly “predicted” Wikileaks would release John Podesta’s emails. Did he or Roger Stone know about the emails being hacked? If so, did President Trump know as well?
  2. Ecuador hates him. If there was a honeymoon, it ended years ago. Living in the same building for six years can change a person, but it seems more likely that he really is just a jerk. Complaints have come through his stay, but they’ve ramped up recently with embassy personnel and visitors complaining about his hygiene, treatment of his cat, and a generally bitter attitude. He even sued them for violating his rights. Ecuador wants him out and these new charges might be enough to make them reverse their course. If he were extradited to the United States, a deal would probably including taking the death penalty off the table.
  3. The leak may have been intentional. Either someone is an idiot for copying and pasting information about Assange’s charges from a different document or this was supposed to get leaked. If the latter is true, the motivation could be to start pressuring Ecuador into handing him over to the United States.

Some say he’s a hero. Others call him a traitor. Whatever he is or isn’t, one thing is certain. If he ever leaves the embassy, he will be arrested.

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