So this is what happens when the United States enters into worthless agreements sponsored by a feckless American President. This is what occurs after that American President drew a line in the sand that his enemy chose to cross – with no consequence. We face this outcome when that American President desperately relies on the Russian Federation – yes, Russia – to bail him out. This is the lesson for our future leaders when a President of the United States, with forethought, chose to rely on the words of Vladimir Putin, of all people, to ensure that the monstrous regime of Syrian dictator Bashar al-Assad would no longer chemically murder his fellow Syrians. An American President who foolishly grabbed the thin reed of a September, 2013 “Framework” agreement promising the removal and destruction of chemical weapons in Syria, all in the name of saving his own political face. Feckless American leadership.
We’ve ordered one fresh copy of “Profiles in Courage” for U.S. Senator Claire McCaskill. Her political analysis regarding the Gorsuch confirmation process is spot-on. She understands the larger war within which the Gorsuch nomination is a small (yes, small) battle. No doubt Senator McCaskill is capable of understanding and articulating the key principal from the Democrats’ perspective. But in the weakest tradition of partisanship, she sacrificed the major principles for the minor one. Senator McCaskill succumbs to partisanship.
She is a willing co-conspirator in the Democrats’ theft of the advise and consent responsibility from a long history of bipartisan respect. She, and most Senate Democrats, act as if political warfare is and should be the norm. We won’t review the history of Supreme Court nominations, other than to note that this is the first (and only) time in American history that a nominee is the victim of a solely partisan filibuster. Shame, shame, shame.
The death of the filibuster is at hand, at least for Supreme Court nominations. But slaying of the filibuster dragon requires a whole bunch of U.S. Senators to raise their hands on the Senate floor and proclaim for all to hear, “I am a hypocrite.” You’ll see why below.
This hypocrites hall of fame list includes each and every Senator, as it turns out, who has said they will filibuster the Gorsuch nomination. But before we put our Scarlet Letter around the necks of each of those likely luminaries, let’s pay homage to the scant few who stand for some principle. Any principle. To the few who understand that the business of the United States requires accommodation, compromise, and respect in order to move forward the business of the people, if only in small steps. So who populates that list?
Hat’s Off List
First and foremost, a large tip of the hat to West Virginia Senator Joe Manchin. Sure, he’s up for re-election in a State President Trump won by over 40 percentage points. And yes President Trump made his big political move to support coal the other day. Manchin may have his own personal political reasons for refusing to filibuster – can you say, political survival? But supporting a vote on the nominee is still supporting a vote, so a large tip of the old visor to Senator Manchin.
Second, a small tip of the hat to the Senate’s most senior Democrat, Vermont’s Pat Leahy, who said he’s “not inclined to filibuster” the nomination. But that “inclination” was not a final decision, even for the allegedly-principled Leahy: “I am never inclined to filibuster a [Supreme Court nominee]. But I need to see how Judge Gorsuch answers my written Qs, under oath, before deciding.” Leahy is the former Chairman of the Judiciary Committee. Having presided over two Supreme Court nominations by President Obama, he should know better.
Death of the Filibuster – The Hypocrites List
This list is a bit longer. Actually, a lot longer. So sorry, but we just report the facts, we don’t make them. The death of the filibuster is no easy matter. But we’ll start at the top and work our way down:
Senate Minority Leader Charles Schumer
The first rule for the Senator in the leadership position is to – lead. It looks like our Minority Leader also leads our hypocrites list. You be the judge. Here’s the principled Senator, in his own words:
Regarding a vote on the Garland nomination: “Our system of checks and balances requires nine Supreme Court justices. Playing politics only weakens our democracy. The Senate’s job is to hold hearings and vote on nominees. The Senate has a responsibility to give advice and consent on Supreme Court nominees and stop playing judicial politics.”
Not one to play politics with this advice and consent responsibility, here’s New York’s senior Senator now:
Regarding a vote on the Gorsuch nomination: “I say if this nominee cannot earn 60 votes – a bar met by each of President Obama’s nominees and George Bush’s last two nominees – the answer isn’t to change the rules. It’s to change the nominee.”
Editor’s Note: Excuse us, Senator Schumer, but could you point us to the Constitutional provision requiring 60 affirmative votes in the Senate for confirmation of a Supreme Court nominee. We know there are a couple of Constitutionally-mandated Senate super-majority vote necessities – treaties and impeachment come to mind – but we don’t recall the one regarding the Supreme Court.
Other Nationally Prominent Senators
The light will shine on whomever it must. Try to find the guiding principal behind the advice and consent philosophies of these leading Senators:
Bernie Sanders, Vermont, and former Presidential candidate
Regarding a vote on the Garland nomination: “I call on . . . Leader McConnell to bring the [Garland] nomination to floor of the Senate if Judge Garland is approved by the Judiciary Committee.”
Regarding a vote on the Gorsuch nomination: “I will not support Republican efforts to change the rules to choke off debate and ram the nomination through the Senate.” He supports the filibuster.
Elizabeth Warren, Massachusetts
Regarding a vote on the Garland nomination: The Senator’s tweet – “Heading to the Senate floor now to tell the @SenateGOP:#DoYourJob and give judicial nominees a vote.”
Regarding a vote on the Gorsuch nomination: “I believe Judge Gorsuch’s nomination should be blocked.”
Dick Durbin, Illinois, and Senate Minority Whip
Regarding a vote on the Garland nomination: “There’s no excuse for the Senate to ignore its constitutional responsibility – time to give Judge Garland a public hearing and a vote.”
Regarding a vote on the Gorsuch nomination: “I just announced that I’ll be voting against Gorsuch and for the filibuster – basically require 60 votes.”
Editor’s Comment: Another leading light pointing somewhere into the ether to find that Constitutional 60-vote requirement. Keep looking, Senator.
Tim Kaine, Virginia
The former Vice Presidential candidate’s views:
Regarding a vote on the Garland nomination: The Senator’s tweet – “Senate has an obligation and consitutional duty to advise and consent on the President’s [Supreme Court] nomination. It’s part of the job description.”
Regarding a vote on the Gorsuch nomination: “The way I look at it is the Supreme Court is the only position that requires you to get to a 6o-vote threshold, which means it mandates that there be some bipartisanship and that is appropriate. Life tenure. Highest court in the land. Should have to get to 60 votes.”
Editor’s Note: As we observed, there is no 60-vote threshold. The Senator is incorrect. He was referring to the Senate’s filibuster-debate cloture rule. As to “bipartisanship”, he couldn’t be more wrong. Supreme Court advise and consent should involve no partisanship at all. In theory (and in today’s world, that’s all we have left) the nominee should be considered on the merits, and that’s it.
Cory Booker, New Jersey, Talked-About 2020 Presidential Candidate
Regarding a vote on the Garland nomination: He tweeted “No Dem consoled Congress denied hearings or a vote. This shouldn’t be about partisanship but about doing their job.”
Editor’s Comment: No, Democrats would never deny a vote, Senator Booker, of course not. And you are right – this shouldn’t be about partisanship.
Regarding a vote on the Gorsuch nomination: “I’m going to oppose Judge Gorsuch every step of the way. A 60-vote threshold is not something new for Supreme Court nominees to overcome. It helps ensure that presidents seek nominees whose views are in the mainstream.”
Editor’s Comment: No, Senator, the 60-vote threshold for confirmation is something new. And we all know that “mainstream” is the code-word for “people who share my political views.” Yes, that’s certainly not partisan.
So we grew tired of publishing a full compilation. But here’s the current list of other Senators who will filibuster a floor vote on Judge Gorsuch. And in each case, they took the opposite view regarding Judge Garland.
Patty Murray, Washington
Tom Carper, Delaware
Bill Nelson, Florida
Ron Wyden, Oregon
Al Franken, Minnesota
Ed Markey, Massachusetts
Chris Van Hollen, Maryland
Martin Heinrich, New Mexico
Amy Klobuchar, Minnesota
Maggie Hassan, New Hampshire
Jeanne Shaheen, New Hampshire
Gary Peters, Minnesota
Debbit Stabenow, Michigan
Kamal Harris, California
Chris Murphy, Connecticut
Jack Reed, Rhode Island
Mazia Hirono, Hawaii
Sheldon Whitehouse, Rhode Island
Tammy Baldwin, Wisconsin
Jeff Merkley, Oregon
Bob Casey, Pennsylvania
Tom Udall, New Mexico
Death of the Filibuster – The Principle
So we’re headed to the death of the filibuster. Is that a good thing or a bad thing? Some claim its death gives us more democracy. Others fear it just grants a small majority further, and enduring, control over the lives of the minority. A fair debate.
But it’s a list of principled men and women, yes indeed, who walk the Senate’s hallowed halls. They bring us the death of the filibuster. Not because it is right or wrong to do so. But because they are pure partisans, through and through.
A stronger NATO is what we need. Especially the native Europeans, what with President Trump’s threats and innuendos suggesting reduced U.S. support. More tanks, bombers, fighters, armies – anything to push back against the hegemonic Putin. And more vital military installations – naval bases, landing strips, army stations. Yes, yes we must push back against Russian aggression. They annexed Crimea; they invaded the Ukraine and Georgia. My God, Montenegro must be next. Now’s the time to rally to their aid, before it’s too late. Plus, we’ll get their formidable military. This could be a real NATO coup.
Who’s to argue? Montenegro is certainly the most beautiful country in Europe. The glacier-formed Durmitor National Park is home to the spectacular Tara Canyon, the world’s second largest. The stunning Tara River runs through the canyon for over 30 miles.
Nothing rivals the spectacular Bay of Kotor on the Adriatic Sea. It runs 15 miles or so from the sea to the city of Kotor. Nestled on a cape separating the bay from the gulf of Risan lies the small town of Perast. Two stunning chapels rest on the two islets just past Perast.
And then there’s Montenegro’s full military complement. They’ve got almost 2,000 active duty military. But imagine if they had a draft! Sure, most of their stuff came from the old Serbia-Montenegro combo before Montenegro’s emancipation in 2006, but the stuff’s only ten years old or so.
What’s more, there’s that navy. Look, they’ve got 67 patrol boats. And the Bar Naval Base – my God, the Bar Naval Base! Sure, we’ve had the American navy. And the British and French navies. But just think what NATO’s naval complement will look like now. The heights that it can scale. No more worries for our friends on the Adriatic. The Russians will no longer be able to base their Italian night-time landing from their long-dreamed-for Montenegrin base. Lay that one to rest!
No wonder the Kremlin objects to Montenegro’s NATO inclusion. They should fear a stronger NATO. The West is so far-sighted. Deterrence is the goal, and a NATO with Montenegro is certainly stronger than one without. No way the Russians will dare further European incursions. Sure, an over-land Montenegrin attack would force them through the Ukraine, Romania and Serbia first. Who could blame them, with the prize that lurks. But not anymore!
At least not if the Montenegrins actually decide to join. Their government has pushed hard to join the club for seven years now. But their people are wise, and might not want to belong to any club that will accept them as a member. Polls show only 39% or so really want to join the club. Too much democracy might be a bad thing, so they’ll probably not be any Montenegro vote on this one. We need a stronger NATO.
So Russia beware! If President Trumpenstein approves, and the Spanish go along too, the full military might of 28 nations will be there to staunch your dream of a Montenegro coup. Viva la Montenegro!
What a glorious time to be Russian. Governed by a constitution that provides “freedom of ideas and speech” for everyone.1 And other wonderful freedoms, including a “freedom of conscience” and a “freedom of religion.” A Russian can’t “be forced to express his views and convictions or to reject them.” Thank God “censorship shall be banned.” A Russian “shall have the right to association” and “the freedom of activity of public association shall be guaranteed.” In fact “fundamental human rights and freedoms are inalienable and shall be enjoyed by everyone.” Yes, it’s a glorious time in Russia!
Oh sure, there’s the little matter that “the propaganda or agitation instigating social, racial, national or religious hatred and strife shall not be allowed.” Not to worry if a few of these terms aren’t defined. Actually, none of them are. But we Russians have a long history of trusting our leaders. We’re quite sure our freedom of speech and right to public association won’t be impaired by these couple of undefined tawdry little words. And yes, we know that our exercise of “the rights and freedoms of man and citizen shall not violate the rights and freedoms of other people.” But in government we trust. Continue reading “Glorious Time to Be Russian – Free Speech in the Moscow Springtime”
House Intelligence Chairman Devin Nunes was irresponsible and wrong. Ranking House Intelligence Committee Democrat Adam Schiff was irresponsible and wrong. The House Intelligence Committee investigation into possible Russian interference in the presidential election has become a farce. Loyalty to the Committee has been discarded. Dedication to truth-finding has been jettisoned. Congressmen Nunes and Schiff deserve each other. Will the grown-ups ever enter the room?
Nunes’ Duty – Kiss It Goodbye
No investigation can succeed where “partial disclosures” are made while the investigation is ongoing. Congressman Schiff is correct. Chairman Nunes owed an absolute duty of loyalty to his committee’s investigation and to preserving the sanctity of that investigation. He was foolish in foregoing the advice of his fellow Republican committee members who urged him to consult with Democrats before going public. An exercise of terrible judgment.
Shame on Nunes for running to his party leader, while ignoring his committee mates, with “breaking news” of conversations legally obtained possibly involving the President and/or his certain of his associates. We thought Nunes worked for the American people, not CNN or Fox News. No, Congressman Nunes, you did not “have a duty” to tell the President that intelligence reports with his name in them exist. You have an investigation to conduct. And you are its leader.
Even if the Congressman had discovered that President Obama had ordered a wiretap of President Trump, Nunes had an absolute obligation to share that information with his committee members, including the ranking Democrat, before he scrambled off to meet with the President. Surely the matter of paramount importance in that instance is the potential criminal conduct of Mr. Obama. Mr. Trump’s need-to-know of transgressions is clearly secondary. Mr. Nunes, it appears, has no sense of priorities or propriety.
Schiff’s Duty – Kiss It Goodbye, Too
Enter Congressman Schiff. He is equally guilty of violating the sanctity of an on-going intelligence investigation. Mr. Schiff succumbed to political theater and became an active participant. He acted with impropriety and irresponsibly. Mr. Schiff apparently concluded that because the Republican Committee chair acted foolishly and recklessly, he must do the same. Nunes and Schiff, it turns out, wear the same jacket.
So Congressman Schiff immediately held his own press conference. Oh sure, he chided Nunes for his lack of professionalism:
The Chairman will need to decide whether he is the chairman of an independent investigation into conduct . . . or he is going to act as a surrogate of the White House, because he cannot do both. Unfortunately I think the actions of today throw great doubt in the ability of both the Chairman and the Committee to conduct the investigation the way it ought to be conducted.
Well said, Congressman. But talk is cheap, and we suppose none of those fine words apply to you. Having thrown down the gauntlet to his compadre Mr. Nunes, Mr. Schiff raced over to Meet the Press to disclose this:
I don’t think it was deliberate on [former Director of National Intelligence James Clapper’s] part, but all I can tell you is reviewing the evidence that I have, I don’t think you can conclude that [there was no evidence of collusion between the Trump team and Russia] at all, far from it.
When asked whether there was circumstantial evidence suggesting collusion, Mr. Schiff said:
Actually, no . . . I can tell you that the case is more than that. And I can’t go into the particulars, but there is more than circumstantial evidence now . . . I will say that there is evidence that is not circumstantial, and is very much worthy of investigation.
Yes, Mr. Schiff, we agree. It is fine for you to make disclosures. It’s admirable for you to play the political game. Please tell us, again and again when you can score a few points, your opinion regarding the quality of evidence received during an on-going investigation. Take it upon yourself, as well, to speak for the Committee without consulting them. Who needs an internal Committee debate or a report when you can just fill us in as you see fit. You are free to disclose that there is evidence that is more than “circumstantial.” Perhaps you’ll let us know the source of that evidence. Or, even, if it turns out to be unreliable – we assume you’ll put on those track shoes and race over to Meet the Press then, too, right?
Nunes and Schiff – A Perfect Match
Yup, Mr. Schiff, we agree. We think your actions also “throw great doubt in the ability of . . . the Committee to conduct the investigation the way it ought to be conducted.” Bet you didn’t confer with your Republican committee mates before you made those comments to Meet the Press.
You are right about Chairman Nunes. But a good sauce for the goose is a good sauce for the gander, too.
Congressmen Nunes and Schiff – shame on you both for your conduct. You deserve each other.
The Florida Constitution provides that “[t]he legislative power of the state shall be vested in a legislature of the State of Florida.” So, does a Florida state attorney have the power to change that law? Florida prosecutor Aramis Ayala apparently thinks so. She decided that she will never seek the death penalty in any capital murder case in Osceoloa and Orange counties, where she serves.
This is not a debate about the death penalty. We assume Ms. Ayala has sincere reasons why the death penalty should never be imposed. She may find the death penalty repugnant for a variety of sound reasons. And she is certainly entitled to a forum to express her beliefs and to debate them.
Ms. Ayala holds only a public prosecutorial office in Florida. She serves in the executive branch of government. She has specific duties and responsibilities as a consequence of her office. Ms. Ayala has taken an oath as a Florida prosecutor.
But the question is simply this: does the state attorney in Osceola and Orange counties have the right or power to substitute her honest beliefs for those of the Florida legislature? Can she unilaterally change the law? Or is lawmaking the sole province of the Florida legislature? Florida Governor Scott removed her from the case we describe below. And rightly so.
The Allegations in the Murder of Police Lieutenant Debra Clayton
In December, 2016 Markeith Loyd allegedly murdered Sade Dixon, his pregnant girlfriend, in front of her family members. On January 9, 2017, Orlando Police Lieutenant Debra Clayton stopped at a Wal-Mart to buy a few items while on duty. On her way back to her patrol car another shopper approached her and told her that she had seen person matching Loyd’s description at a check-out counter. Lieutenant Clayton called in the sighting and identified that person as Loyd. While Clayton was on the radio with the dispatcher, three gunshots rang out. The call then went dead.
A surveillance camera captured the entire scene. Lieutenant Clayton approached Loyd outside the Wal-Mart. Clayton pulled out her weapon. Loyd ran and she chased. Loyd, wearing a bulletproof vest, circled around her while pulling a handgun from his waistband. He took cover behind a concrete pillar. Clayton drew her gun and headed toward the parking lot. But she was unable to reach cover before Loyd fired three shots. One shot hit her in the hip and she fell to the ground. She rolled onto her back. Loyd, instead of leaving the scene, then moved to Clayton, stood over her and fired five more shots as Clayton returned fire. One of Loyd’s shots fatally struck Clayton in the neck.
A second police officer followed Loyd as he fled. The officer tracked Loyd to an apartment complex. There, Loyd fired at the second officer, striking his vehicle but missing the officer. Loyd escaped, and was captured days later.
As described by Orlando Police Chief John Mina, “I have seen the video of Markeith Loyd executing Lt. Debra Clayton while she lay defenseless on the ground. She was given no chance to live.”
The Florida Criminal Statutes
In Florida, an individual who resists a police officer by killing the officer is guilty of murder.1 A person convicted of such a capital felony “shall be punished by death. . .”2
These statutes are straightforward. They are unambiguous. The video in Lt. Clayton’s murder (which we have not seen) apparently depicts the brutal, execution-style murder of a police officer. Loyd fled, took cover and fired at Clayton. After wounding her, he approached her while she lay on the ground, firing at he five more times until killing her. It is not a stretch to suggest that these facts support a request to a jury for imposition of the death penalty.
Prosecutorial Discretion or Abrogation of Duty? A Florida Prosecutor Run Amok
Ms. Ayala decided that she would not pursue the death penalty in the murder of Lieutenant Clayton. Whether we agree with that decision or not within the confines of the case, that’s certainly within her prosecutorial discretion.
But Ms. Ayala went well beyond the specific facts of the case of Markeith Loyd. The Florida prosecutor also announced that she would not pursue the death penalty in any other case. “I have determined that [using my prosecutorial discretion in death penalty cases] . . . is not in the best interests of this community or the best interest of justice.” As a consequence, she indicated that she intended to file a notice to withdraw the intent to seek the death penalty in all other cases within her jurisdiction that have not yet gone to trial.
Ms. Ayala believes that capital punishment is a failed policy. She believes application of the death penalty is inconsistent. She concluded that the protracted length of the appeals process deprives the victim’s families of closure. “It’s become clear that pursuing death-penalty cases is not the best interest of victims’ families or justice.”
Ms. Ayala’s policy conclusion is that “Florida’s death penalty has been the cause of considerable legal chaos, uncertainty and turmoil.” And it is true that aspects of Florida’s death penalty law, and its application, have created legal issues, even to the point of involving the U.S. Supreme Court. However, any changes to the Florida law are the sole prerogative of the legislature, subject to review by the courts.
A Florida Prosecutor Making Policy Decisions – Invading the Province of the Legislature
We listened to Ms. Ayala’s entire oral explanation behind her decision. You can hear it here. She has made wholesale policy judgments. She has determined, after thorough reflection, to eliminate the Florida death penalty law in her counties of jurisdiction.
The fact that Ms. Ayala made a detailed policy analysis to reach her conclusion of widespread application makes clear that she is not entitled to make a detailed policy analysis in the first instance. Policy decisions are the sole responsibility of the representatives of the people of the State of Florida. The Florida Constitution granted that power to Florida’s legislature. Not to lawyers employed merely to enforce Florida’s laws. Indeed,
the primary role of the State Attorney is to represent the State of Florida in the criminal court system. The State Attorney reviews criminal investigations conducted by law enforcement, decides if criminal charges are necessary and then presents the cases in criminal court.
Florida’s laws are detailed and specific regarding the powers of a state attorney.3 The legislature did not grant any policy-making powers to a state attorney.
Under Florida law the power to create a death penalty law resides with the legislature. And the power to remove that law rests with the legislature.
Ms. Ayala had a simple choice as a Florida prosecutor. Enforce the laws of the State of Florida. If her conscience prevents it, then resign. But she chose to arrogate powers that belong to the people’s representatives. Florida’s governor was right to remove her from the Loyd case. If she fails to pursue the death penalty in other appropriate cases, she should be replaced.
The Supreme Court confirmation process is hopelessly politicized. Should we confirm Gorsuch? Democrats and Republicans have jointly destroyed legitimate consideration of any nominee. They ignore what once were the traditional criteria for confirmation. Labeling and mischaracterization rule the day. A nominee from a President of one party is anathema to the other party. The opposition party, in turn, battles to the death to defeat the nominee. And they portray the nominee, whoever he might be, as a villain. He is either an enemy of the people or an enemy of free markets. A person who won’t side with “the little guy”, or one who eviscerates the Second Amendment.
The founders intended a Senate as a deliberative body. Their Senate would attract thoughtful, educated people not easily swayed by the less well-informed electorate or the temporary issue of the day. It would be positioned to dispassionately reflect, insulated from emotion. The Senate would advise on the character, capabilities and qualities of a Supreme Court nominee.
It was once and for long that way. But that is now lost, the inevitable consequence of a deep polarization. Of a fundamental vilification of our countrymen. And of a determination to put us all at each other throats for fleeting political advantage, until the next round, when our opponent surely then prevails. And then once again.
For those among us who are older, who remember a time when political difference yielded to political compromise, there is a nagging and growing despair that our younger generation learn only of hostility. Their experience is devoid of a common purpose, of a sense of community and of a common endeavor. They learn to despair of their political opposites. They find purpose only in winning for themselves, and in defeating their opponents. And they believe deeply and exclusively in faction. And to shout down their countrymen with whom they disagree, until their countrymen are silenced completely.
How Can the Senate Confirm Gorsuch?
If the American people want a Supreme Court justice who is human, humane, thoughtful and compassionate, then consider the thoughts and words of the current nominee. Should we confirm Gorsuch?
Here is a man who could have easily been nominated by a 1960’s Democrat. And if he were, most surely today’s Republicans would, to a man (and woman), line up against him. The American people are entitled to more than the simple default that a nominee of a President from one party is unacceptable to each and every Senator of the other party. And must be defeated, and if necessary destroyed.
So here are the words of nominee Neil Gorsuch. Do the philosophies embodied in these words allow any Democratic Senators to confirm Gorusch? Are not these thoughts the prerequisite to confirm Gorsuch, or anyone?
Belief in the Rule of Law
[J]udges taught me about the rule of law and the importance of an independent judiciary, how hard our forebearers worked to win these things, how easy they are to lose, and how every generation must either take its turn carrying the baton or watch it fall.
Belief in Applying the Law Impartially
[T]hese days we sometimes hear judges cynically described as politicians in robes. Seeking to enforce their own politics rather than striving to apply the law impartially. But I just don’t think that’s what a life in the law is about.
Belief in Following the Law, No Matter Where it Leads
As a judge now for more than a decade, I have watched my colleagues spend long days worrying over cases. Sometimes the answers we reach aren’t ones we would personally prefer. Sometimes the answers follow us home and keep us up at night. But the answers we reach are always the ones we believe the law requires. For all its imperfections, the rule of law in this nation truly is a wonder — and it is no wonder that it is the envy of the world.
Supreme Court Justices’ Disagreements Are About The Law, Not About Political Opinions
Once in a while, of course, we judges do disagree. But our disagreements are never about politics — only the law’s demands. Let me offer an example. The first case I wrote as a judge to reach the Supreme Court divided 5 to 4. The Court affirmed my judgment with the support of Justices Thomas and Sotomayor — while Justices Stevens and Scalia dissented. Now that’s a lineup some might think unusual. But actually it’s exactly the sort of thing that happens — quietly, day in and day out — in the Supreme Court and in courts across our country. I wonder if people realize that Justices Thomas and Sotomayor agree about 60% of the time, or that Justices Scalia and Breyer agreed even more often than that. All in the toughest cases in our whole legal system. . . .
Belief In Mutual Respect and Consideration of Different Viewpoints
[I]n the West we listen to one another respectfully, we tolerate and cherish different points of view, and we seek consensus whenever we can. My law clerks tell me that 97% of the 2,700 cases I’ve decided were decided unanimously. And that I have been in the majority 99% of the time.
Belief That Courts Apply the Laws as Made by the Congress – Courts Should Not Be the Lawgivers
When I put on the robe, I am also reminded that under our Constitution, it is for this body, the people’s representatives, to make new laws. For the executive to ensure those laws are faithfully enforced. And for neutral and independent judges to apply the law in the people’s disputes. If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk. And those who came to court would live in fear, never sure exactly what governs them except the judge’s will. As Alexander Hamilton explained, “liberty can have nothing to fear from” judges who apply the law, but liberty “ha[s] every thing to fear” if judges try to legislate too.
Belief in Applying the Law to The Facts Presented
[M]y decisions have never reflected a judgment about the people before me — only my best judgment about the law and facts at issue in each particular case. For the truth is, a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.
Confirm Gorsuch? – A Life in the Service of the Law
Written on [a judge’s] tombstone over 200 years ago was this description:
As a lawyer, he was faithful and able; as a judge, patient, impartial, and decisive;
In private life, he was affectionate and mild; in public life, he was dignified and firm.
Party feuds were allayed by the correctness of his conduct; calumny was silenced by the weight of his virtues; and rancor softened by the amenity of his manners.
These words stick with me. I keep them on my desk. They serve for me as a daily reminder of the law’s integrity, that a useful life can be led in its service, of the hard work it takes, and an encouragement to good habits when I fail and falter. At the end of it all, I could hope for nothing more than to be described as he was. If confirmed, I pledge that I will do everything in my power to be that man.
Government mandated censorship of speech in the United States is not dead yet. Not even in the 21st century. This time, a remarkable attack on free speech comes from Democratic New York Assemblyman David Weprin. Mr. Weprin introduced a bill in the New York State Assembly imaginatively crafted as the “Right to be Forgotten Act.” This one is too good to be true. We might all wish for a “right to be forgotten.” But let’s start right here.
Here’s what Assemblyman Weprin would command:
Within 30 days after a request from “an individual”:
[A]ll search engines, indexers, publishers and any other persons or entities that make available on or though the internet . . . information about the requester, shall remove information, articles, identifying information and other content about such individual, and links or indexes to any of the same, that is “inaccurate”, “irrelevant”, “inadequate” or excessive” . . .
It’s Hard to Craft Such Legislation – But He’s Done It
You might wonder what information qualifies as “inaccurate,” “irrelevant”, “inadequate,” or “excessive?” Wonder no more. Assemblyman Weprin dictates that these terms mean:
[C]ontent which after a significant lapse in time from its first publication, is no longer material to current public debate or discourse . . .
If that’s not clear enough in this remarkable attack on free speech, perhaps a few examples from the Assemblyman will clarify:
. . . especially when considered in light of the financial, reputational and/or demonstrable other harm that the information, article or other content is causing to the requester’s professional, financial, reputational or other interest. . .
Illustrating the thoroughness of his approach, Assemblyman Weprin, of course, excepted:
[C]ontent related to convicted felonies, legal matters relating to violence, or a matter that is or significant current public interest, and as to which the requester’s role with regard to the matter is central and substantial.
Financial penalties, including damages, apply to offenders who do not timely remove the referenced information.
A Lesson – How To Write Vague Statutes
Make no mistake, this is a full frontal attack on free speech. This bill, if enacted, crafts the vaguest of tests to prohibit speech whenever the government decides that a certain subject involving an “individual” should not be discussed. Sure, the strawman of an “individual” is used to impose the “forgotten” standards, but that’s an easy one. The “standards” listed in this monstrosity are, of course, no standards at all. They are vague and unenforceable. They would never withstand the severe scrutiny mandated by the Supreme Court under the First Amendment.
How is “relevancy” decided? What does “excessive” mean? By what measure is information determined as “inaccurate?” This is all so laughable except for the fact that it is actually contained in proposed legislation. By a Democrat, no less.
A Remarkable Attack on Free Speech – What Happened to Liberalism?
The purveyors of liberalism promote and protect free speech, don’t they? Just consider the many myriads of speech that this Democrat eliminates, as if they never occurred. For one, upon request all articles of historical interest would have to be removed if they are “no longer material to current public debate.” His censorship net ensnares books, scholarly works, newspapers, and more. It prohibits maintaining debates about our politicians, once the subject matters of the debates become stale. Perhaps the Assemblymen should consider distributing a little free BleachBit for anyone who ever published a word on the internet.
Assemblyman Weprin is surely a devoted student of the Sedition Act of 1797. Remember that noble attempt to squelch speech. It made criminal any oral or written speech that was “false, scandalous and malicious” against the government, the President and Congressmen. Mr. Weprin has outdone the Fifth Congress with his new remarkable attack on free speech.
So we should wipe our memory banks clean, is that right Assemblyman Weprin? Cultural amnesia, is that what you want? Or is it mass dementia that you prefer? Perhaps you should just mandate that. This “Right to be Forgotten” act should, itself, be forgotten. And quickly.
After another 30 days or so we will have to remove this article.
This Russian-U.S. hacking/spying scandal just keeps growing tentacles. There is a mounting story here. And no one is paying attention. Today’s latest move in this ongoing battle involved the U.S. Justice Department indictment of two Russians in connection with the hacking scandal involving Yahoo’s email accounts. One Russian spy charged in the Yahoo case is Dimitry Dokuchaev.