The politics of filling vacancies on the United States Supreme Court

Lovers of the United States Constitution were deeply saddened by the passing of Supreme Court Associate Justice Antonin Scalia, a champion of the Constitution’s original meaning.

His death has triggered a political crisis and there is now great weeping and gnashing of teeth across the land over finding a replacement for him. The need to do so is constitutional, but the weeping and gnashing is political.

Scalia was a believer in the idea that words have specific meaning that should not be subject to the whims of mere mortals who think that the Constitution is rendered moot because many decades have passed since those words were carefully configured, and humanity and America has evolved, or because some ideological group finds the original language inconvenient.

The challenge is finding a suitable replacement for Scalia, who believed in textualism: reading the actual language; and originalism: understanding the written words. He and others who value the meaning of words and who honor the Founders cannot abide the concept of a “living Constitution,” a document that means only what a particular group wants it to mean to satisfy a particular desire at a given time.

Addressing the idea of changing the Constitution’s meaning for convenience or ideological preference, Scalia asked the Woodrow Wilson International Center for Scholars in Washington, D.C., in 2005, “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?”

And in his dissent in the United States v. Virginia in 1996, he wrote: “It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its members’ personal view of what would make a ‘more perfect Union’ (a criterion only slightly more restrictive than a ‘more perfect world’) can impose its own favored social and economic dispositions nationwide.”

So much of the nation’s problems result from changing the meaning of words to allow things that would appall the Founders, if somehow they were to return tomorrow to check up on how their wonderful creation is faring. Would they recognize their country? Would they want to live here? Would they feel appreciated enough to dare to walk the streets?

Walking the streets would subject them to such foreign concepts as that the term “founding fathers” is now regarded by some as a sexist phrase, even though all of the people who created the U.S. Constitution were, in fact, men. If they then passed an appliance store with a TV in the window, they might see Bernie Sanders offering Americans “free everything” in return for their votes, see Hillary Clinton barking and screaming at her audience, or observe the President of the United States routinely circumventing the U.S. Constitution, perhaps inducing chest pains, and maybe producing their second death, this time from unnatural causes.

The Supreme Court is supposed to be an impartial arbiter, using the plain language of the Constitution to guide it in rendering constitutionally appropriate rulings. A “living Constitution” that means different things at different times is no governing document at all, not so different from a compass that instead of pointing always to magnetic north may be redirected by a swarm of bees, a strong wind, or a Democrat caucus.

As Republicans and conservatives work to prevent the virtual certainty of a Barack Obama nominee who is similar in ideology to himself, Clinton or Sanders, or Justices Kagan, Sotomayer or Ginsburg, Democrats and liberals decry those efforts as unconstitutional and political, conveniently ignoring their own past behavior.

In 2007 long-time New York Democrat Sen. Charles Schumer told the American Constitution Society that if a new Supreme Court vacancy opened up during the rest of George W. Bush’s term, Democrats should not allow Bush the chance to fill it, except in extraordinary circumstances.

“The Supreme Court is dangerously out of balance,” he said. “We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.” At the time he expressed that sentiment, Bush had 19 months left in office, nearly twice what Obama has left today. During the same speech, Schumer lamented that he hadn’t managed to block Bush’s prior Supreme Court nominations.

And then there is Obama himself, who recently said he hoped "that we can avoid the political posturing and ideological brinksmanship that has bogged down this process, and Congress, in the past.”

But in January 2006, Sen. Obama joined 24 colleagues in a futile effort led by Sen. John Kerry, D-MA, to filibuster the Supreme Court nomination of Samuel Alito, explaining to George Stephanopulos on "This Week" that he would "be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values.…"

And that bastion of Constitutional behavior and Senate tradition, Sen. Harry Reid, D-NV, who was then Majority Leader, said in 2005, “Nowhere in [the Constitution] does it say the Senate has a duty to give presidential nominees a vote.”

Liberals and Democrats, stumbling down Hypocrisy Highway, in addition to trying to rewrite history, are trying to rewrite the U.S. Constitution by stacking the Court with activist jurists who allow their feelings to rule their opinions.

Hillary in South Carolina seeking to lock up the black vote

As the presidential campaigns move to South Carolina, Democrat hopefuls Hillary Clinton and Bernie Sanders seek to endear themselves to black voters. Sanders began by having tea with Al Sharpton. How will Hillary proceed?

Following her dramatic loss to Sanders in New Hampshire by a 60 percent to 38 percent margin, she hired a press aide from the Department of Education as her new director of black media to help protect and grow the early double-digit lead she held in South Carolina.

Hillary praises Obama and his presidency, all but promising that she will continue in the same vein if she can win the primary and general elections, and escape legal issues from her disastrous tenure as secretary of state. And since black Americans overwhelmingly support the Democrat Party, this might seem smart.

However, getting broad support from the black community should not be automatic or even very easy for her, given what happened in South Carolina in 2008. There, she was beaten badly by Barack Obama as she gave her all in the attempt to prevent him from becoming the first black President of the United States. Will black voters remember that?

Furthermore, the reality of the negative effects Obama’s presidency has had on the black community gives reason to think that pledging to follow his policies might be a big mistake.

Having noticed how poorly black Americans had faired in Obama’s first term, PBS’s Tavis Smiley told Fox News’ Sean Hannity in 2013, "The data is going to indicate sadly that when the Obama administration is over, black people will have lost ground in every single leading economic indicator category."

In 2014 Newsmax reported that while the national unemployment rate had dropped to 7 percent since Obama took office, the jobless rate for blacks has hardly moved, declining from 12.7 percent in 2009 to 12.5 percent, according to the Bureau of Labor Statistics. Further, the poverty rate for blacks sharply increased in 2014, rising from 12 percent in 2008 to 16.1 percent.

Median income declined by 3.6 percent for white households to $58,000, but fell 10.9 percent to $33,500 for black households, according to Census Bureau reports.

Realizing that things have not improved for black America since then, Smiley repeated his 2013 assessment last month on HuffPost Live: “Sadly – and it pains me to say this – over the last decade, black folk, in the era of Obama, have lost ground in every major economic category." Smiley said black America got "caught up in the symbolism of the Obama presidency," and made two mistakes. They did not accurately evaluate his policies, and they reacted against GOP criticisms of Obama and Republican opposition to his policies.

With these highly negative results for black Americans from the administration of the first black president of the U.S., will Hillary Clinton’s tactic of praising Obama and implying she will follow in his footsteps really work to attract the support of black Americans?

Perhaps it is with this in mind that the Department of Justice has initiated legal action against Ferguson, Missouri in the aftermath of the justified shooting death of Michael Brown in 2014. As reported by The Patriot Post, Ferguson’s City Council voted unanimously to approve the Justice Department’s settlement to reform the city’s “unjust” policing practices — but “subject to certain conditions.”

“The DOJ responded to the city’s request [to alter the agreement] by filing a lawsuit against Ferguson, just in time to agitate the black vote in the southern primaries,” the report noted, adding: “Make no mistake: Timing is everything. The DOJ’s actions will benefit Hillary Clinton throughout the southern primaries, as blacks are reminded once again of injustice. Never mind that Ferguson (and every other city in which Black Lives Matter is fomenting discord) is run by Democrats.”

There are other signs that a Hillary victory might be being engineered behind the scenes, such as in the New Hampshire primary, where despite a massive victory by Bernie Sanders, he and Hillary came away with the same number of delegates.

Last Thursday, the Congressional Black Caucus (CBC) PAC endorsed Hillary, saying she had done the most to support the Democrat Party and also to support blacks seeking office. “The partner that the CBC PAC has had over the years to elect Democrats has been Hillary Clinton,” said Rep. Gregory Meeks, New York Democrat and chairman of the CBC PAC. Hillary won the endorsement of 90 percent of the PAC, with no members voting for Sanders and some abstaining.

The CBC PAC endorsement is a definite plus for her, but if black Americans realize that Obama’s policies have worked so dramatically to their detriment, raising the black unemployment rate and pushing more black citizens into poverty, the highly desirable black vote may not accrue to her.

And things could get worse for the nation, and much worse for the black community, as Obama’s policies, which have failed to produce a recovery to the 2007 recession in seven years, have brought the country to the brink of another recession that will undoubtedly produce very unpleasant circumstances for black Americans.

Freedom to get the job you want not always possible in West Virginia

The American concept of personal freedom takes a back seat in West Virginia and other states that do not protect their citizens’ ability to get some jobs without being forced to join or pay fees to a labor union. For state governments or the federal government to allow such conditions for going to work to exist is as antithetical to the idea of individual freedom that our nation was built on as it gets.

Half of the 50 states have already embraced worker freedom and passed right-to-work laws. These laws have a positive impact on the economies and job picture for those states, and are creating jobs. And now West Virginia is poised to become the 26th state where workers are free to choose whether or not to join a union.

The state House of Delegates and Senate have both passed right-to-work legislation. The Mountain State’s Democrat Governor Earl Ray Tomblin, has vowed to veto the bill, but the Republican majorities in both houses can override that veto.

Advocates of right-to-work in the state legislature say they are not opposed to unions, per se, but do oppose state laws dictating that unions receive taxpayer and worker funds.

West Virginia and 25 other states believe that people should be free of pressure to join a union to get a job and believe that such mechanisms are deterrents to business development and job creation, and thus are harmful to the economy of states.

Characterized as pro-worker, pro-growth, pro-freedom and pro-job, abolishing forced unionization and the prevailing wage rule in the state are predicted to improve the state’s business climate, increase job opportunities for West Virginians, and help overcome the economic damage to the state’s economy brought on by the Obama administration’s war on coal.

The rub arises when a union has negotiated a contract for workers in a business, and some workers do not want to join the union. The union argues that it isn’t fair for non-union workers to benefit from union negotiations, and the union is correct about that. So then non-union workers are assessed a fee to compensate the union for their benefits.

But then that isn’t exactly fair, either, as non-union workers have nothing to say about how the union uses their money.

The solution is simple: Those workers who want to join the union should be able to do so, and to benefit from the union negotiated work conditions and wages, and those who choose not to join should not be required either to join, or to pay money to the union, and therefore would negotiate their own deal with the employer.

Labor unions evolved from workers wanting better conditions, having endured conditions that were generally unfair and even dangerous for many years. Over the years after workers became organized, however, federal and state governments put laws and rules into effect that provided protections for workers, taking on the primary role that labor organizations had been providing.

With their prime function now essentially covered by laws and regulations, labor unions had to change their focus in order to survive. They have become active and influential political organizations, using member dues and non-union worker fees for political purposes. And too often, the demands they make to attract membership frequently involve things that no sensible business would do on its own, such as demanding work rules that are inefficient and designed to increase union jobs, rather than increase efficiency and productivity. They often demand pay practices that ignore individual worker performance, basing pay on considerations other than the worker’s abilities. And they routinely protect the job of all members regardless of their performance, or the health of the business.

Despite their actions on behalf of their members, which frequently are harmful to the businesses in which their members work, union membership has declined sharply from its peak in the mid-1950s, when one in three workers belonged to a union. The decline began to accelerate in 1980, according to Economy Watch online, and today union membership is a mere 11.1 percent.

That figure includes public-sector workers, who among all workers have the least justification for union representation, given that their employers are the governments that enforce labor law. Public workers are 5 times more likely to belong to a union than their private-sector counterparts, with a union membership rate of 35.2 percent, while the private employee rate is just 6.7 percent.

Many of the demands of unions on businesses, while good for union members, make profitability more difficult for businesses, artificially raising wages and labor costs, thereby increasing the price of goods and services for everyone, including union families. 

Rather than being an adversary of management, unions could become partners, focusing on providing a better trained and more productive workforce, assisting business in succeeding, and creating jobs through natural economic methods, rather than blackmailing employers into actions that benefit only one side of the labor/management equation.

Under this scenario unions could succeed on their own merits rather than depending upon government force and political intrigue for their survival.

More arguments countering the human-caused climate change theory

Frantic over the flood of evidence that shows that climate change is a natural phenomenon and is not made significantly worse by fossil fuel use, which runs contrary to the narrative that fossil fuel use is slowly killing the planet, officials in two states have begun using government power to punish those who dare to speak against the climate change demagoguery.

The Heritage Foundation’s Hans von Spakovsky writes, “California Attorney General Kamala Harris has joined New York Attorney General Eric Schneiderman in trying to prosecute ExxonMobil for supposedly lying to its shareholders and the public about climate change, according to the Los Angeles Times. The Times reported that Harris is investigating what ExxonMobil ‘knew about global warming and what the company told investors.’”

Von Spakovsky’s article in The Daily Caller continues: “Neither Harris nor Schneiderman recognizes the outrageousness of what they are doing — which amounts to censoring or restricting speech and debate on what is a contentious scientific theory. In fact, they want not just to stop anyone who questions the global warming theory from being able to speak; they want to punish them with possible civil sanctions or even criminal penalties.” He goes on to suggest the two AGs badly need a refresher course on the First Amendment.

While trying to punish contrary opinions through government oppression is fairly new to the climate change debate, proponents of human-caused climate change have long been guilty of hiding inconvenient data, distorting and manipulating data, and ignoring a more recent and more accurate method of measuring the Earth’s temperature that does not produce “favorable” data.

For example, 37 years of satellite-based instrument measurements have provided the world's most accurate and unbiased temperature data. These measurements are free from coverage gaps and siting problems – such as artificial surfaces like concrete, asphalt, and heat sources like air conditioner exhausts – that pollute measurements of land-based instruments. Satellite measurements show no warming of the climate for 18 recent years. Despite their own satellite data, NASA advances theories based upon land-based measurements, which support the human-caused warming theory.

Mike van Biezen addressed the satellite measurement result in an article published on The Daily Wire online discussing ten of the “many scientific problems posed by the assumption that human activity” is causing climate change. In his commentary, the adjunct professor of physics, mathematics, astronomy and Earth science at Loyola Marymount University and Compton College, acknowledges things he says we know to be correct, such as that the global average temperature has increased since the 1980’s; since the 1980’s glaciers around the world are receding and the ice cap of the Arctic Ocean has lost ice since the 1980’s, especially during the summer months; and that the average global temperature for the last 10 years is approximately 0.35 degrees centigrade higher than it was during the 1980’s.

But while acknowledging that those points from 25 years ago are true, and charging that the global warming community exploits those facts to prove that human activity has caused increased temperatures, he then asserts that “no direct scientific proof or data has been shown that link the current observations to human activity.  The link is assumed to be simply a fact, with no need to investigate or discuss any scientific data.”

Among the many things he says are falsely assumed to be linked to human activity:
** Temperature records from around the world do not support the assumption that today’s temperatures are unusual
** Current temperatures are always compared to the temperatures of the 1980’s, but for many parts of the world the 1980’s was the coldest decade of the last 100+ years
** The world experienced a significant cooling trend between 1940 and 1980
** Urban heat island effect skews the temperature data of a significant number of weather stations
** The CO2 cannot, from a scientific perspective, be the cause of significant global temperature changes
** There have been many periods during our recent history that a warmer climate was prevalent long before the industrial revolution
** Glaciers have been melting for more than 150 years
** “Data adjustment” is used to continue the perception of global warming

Biezen provides scientific arguments to refute those commonly advanced ideas, and explains why they fail to demonstrate a connection to climate change from human activity, threatening the comfort and success of human-caused climate change advocates.

The American left, whose ideas routinely fall to logical counter-arguments, frequently resort to force of one sort or another to combat their opponents. Desperation clearly has set in, as evidenced by the radical and tyrannical use of government force by the California and New York AGs to silence dissent. But they and others who think they can quiet the voices of dissent should remember that the United States thrives because it protects its citizens’ right to think for themselves and make their own decisions based on their own preferences.

Whatever you believe about human activities contributing to changes to Earth’s climate, honest people of all ideological persuasions must agree that if you have to deceive the public in order to gain support for your ideas, perhaps there is something fundamentally wrong with those ideas.