Filling the Supreme Court vacancy is both critical and divisive

Presidents have the duty to nominate persons to fill federal judiciary vacancies. Each of our 45 presidents made judicial appointments, and all but four nominated at least one justice for the U.S. Supreme Court.

According to the Court’s Home page, the Supreme Court “is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.”

The controversy that arises each time a vacancy occurs on the High Court in recent years regards the second of the Court’s two functions: its role as “the interpreter of the Constitution.”

The question now at the front of the debate about the Court is – as former New Jersey Superior Court Judge Andrew Napolitano put forth in chapter 2 of his book The Constitution in Exile – given that the Court addresses “issues the Founders never dealt with, should the Court treat the Constitution as a living document, allowing judges to interpret it according to the times? Should the Court try to discern the Founders’ ‘original intent’ and apply it to these new situations and issues?”

Typical of the wild responses to all things related to President Donald Trump by the increasingly socialist political Left, the opportunity that he now has to replace retiring Justice Anthony Kennedy – the Court’s “swing vote” – has them beside themselves, issuing feverish predictions of doom and gloom.

As the Court’s swing vote, Kennedy sometimes voted with the judicial conservatives, who commonly support the original text of the U.S. Constitution, and at other times voted with the judicial liberals, for whom the Constitution’s meaning changes over time.

Now, President Trump must nominate someone to fill that vacant spot on the bench, and is expected to pick another judicial conservative in the mold of the late, great Antonin Scalia, as he did by nominating Judge Neil Gorsuch to fill the Scalia Court vacancy.

The Founders, being the brilliant humans that they were, understood that a document intended to be the backbone of a unique and superior form of government, needed to promote broad principals that outlined how the republic should function and would endure forever.

Putting the individuals who have served and will serve on the Supreme Court into perspective, Constitutional scholar Mark Levin says in his book, Men in Black: “The biggest myth about judges is that they’re somehow imbued with greater insight, wisdom, and vision than the rest of us; that for some reason God Almighty has endowed them with superior judgment about justice and fairness. But the truth is that judges are men and women with human imperfections and frailties,” like the rest of us.

With such a wide spectrum of human qualities, how can we trust important judicial decisions to the luck of the draw, the nine people sitting on the Court at any given time?

Therefore, great care must be used when selecting someone for a seat on the Court, and someone with judicial humility who will support the principals of the Constitutions should be chosen, rather than someone who will bend the meaning of the Constitution to suit some personal preference or perceived social need.

Imagine a Court with 5 (or more) from the contingent that decide cases not based on a stable set of principles, but on the passions of the day, which might be different passions 10 years hence, and likely were different passions 10 years earlier.

Under the guise of “the Founders could not possibly have imagined _____ (fill in the blank with your favorite issue),” liberal judges often make decisions based not upon Constitutional principals, but based upon their idea of what should be, or what they believe is best. The Constitution is not a “living” document; its foundational principals live on forever.

As good a blueprint for a nation as our Constitution is, its creators realized that changes may at times be needed, and it has been amended 17 times since the first ten amendments, the Bill of Rights, were enacted shortly after the states ratified the Constitution.

Within its original 4,400 words is the process for changing it. It is a difficult process, by design, so that changes would have to be very strongly supported by the states. Neither those original words nor those of the amendments authorize changes to be made by judges or by five Supreme Court Justices.

America became the freest, most desirable nation in the world by following the guidance of the Constitution. And despite the changes that have occurred in the last few decades through judicial lawmaking, America still is a great nation.

But we cannot afford to keep traveling down the road of judicial twists and turns that liberal judges create, or the nation will become unrecognizable, and just one more socialist quagmire.

So while the Left continues to rely on scare tactics to create opposition to Trump’s choice for the Kennedy vacancy, even before that choice is made or announced, the president is duty-bound to make a nomination, and will likely propose someone who appreciates and honors the guidance of the U.S. Constitution, and will not legislate from the bench. For that we should all be thankful.

America now being challenged by a crisis of integrity

 Integrity is defined as adherence to moral and ethical principles; soundness of moral character; honesty. As a society we have moral values, professional ethics and other rules that we are expected to uphold at all times and under all circumstances. When we adhere to professional ethics, the rules of life, and the body of laws, we have a desirable society that is principled, and functions smoothly and efficiently.

In today’s America, evidence of lost integrity is all around us: millions of out-of-wedlock children, people who are not needy collecting welfare benefits, frivolous or questionable lawsuits, and a long list of crimes.

And in the political realm we witness inflammatory language, protests shutting down protected free speech, media taking sides, mob violence and other outrages that have grown to epidemic proportions. These activities are strong evidence of the abandonment of basic human integrity as well as professional integrity.

An immediate danger to the nation and its people is the insanity that has evolved since the election of Donald Trump as president. Lots of people – Republicans, Democrats and the politically unaffiliated – show signs of hysteria. Many are dedicated to bringing Trump down, and seem to be devoted to a “damn the torpedoes, full speed ahead” philosophy, giving little thought to the repercussions this ill-advised path may likely produce.

Trump’s enemies say that he lit the fuse, and he undoubtedly contributed to the current atmosphere. But just because you dislike or hate Trump and his policies, does not entitle you to lie, cheat, commit acts of violence, and behave in a manner that subverts America. If you didn’t support Trump in the election there is only one sensible and honorable path for you to take: Get over it. And remember that you are an American and he legitimately is America’s president.

Three areas are very dangerous for integrity failure: News journalism, the federal judiciary and government bureaucracies.

Last week The New York Times published an editorial stating as fact that when a gunman shot Arizona Democrat Rep. Gabby Giffords in 2011, he was reacting to a political map created by Sarah Palin showing areas that were “targeted” in the coming election. That was untrue, discredited years ago, and The Times corrected its humiliating blunder. But doesn’t journalistic integrity demand that such known details be found before publication? Clearly, integrity sometimes takes a holiday at The Times.

It is very common these days for a news organization to attribute information to an “anonymous” or “unnamed” source. Sometimes, of course, a legitimate source needs the protection of anonymity. But the downside is that this tool can be overused, can be used to cover a non-credible source, or even used when there is no source at all. Add to this the tendency to exaggerate, and even create false stories, and the information upon which we all rely becomes unreliable.

If you’ve ever worked with an attorney you probably noticed how detailed legal language is, so that the exact intent of a document is clear. Yet, we find judges today who abandon the plain language of an Executive Order in favor of what they imagine was in the mind of its author in ruling in favor of a challenge to the Order. It looks as if political desire replaced judicial integrity.

And what about administrative agency employees who abandon their duty to their country, the American people they are paid to serve, and their ultimate boss, to play politics, leaking sensitive information, and even classified information in a cheap and disgusting ploy to damage a duly elected president?

Those who foolishly undermine national security because of their emotional inability to adapt to reality may someday wonder what exactly their behavior has done to their once free and wonderful country.

A lot of political hay can be made in such an atmosphere, and the beneficiaries of this are some elected public servants as well as appointed bureaucrats. Such behavior is the stuff of third-world hellholes, and the abandonment of professional and personal integrity moves America ever closer to becoming one of those.

On the one hand anti-Trumpers denigrate and belittle Trump, and on the other hand they raise him to a high level, one so great that they use it to justify abandoning near-sacred elements of their professions and common decency. It is Trump’s fault, they assert, that they indulged in behavior that is dangerous and often illegal.

Commentator Charles Krauthammer said on Fox News recently, “When you say ‘unless we stop Donald Trump, the republic will not survive,’ then that justifies anything. That’s the language, the ideology, the rationale of terrorists...” And, it produces behavior that will destroy the republic.

We cannot and must not excuse criminal behavior, like the shooting at a Republican Congressional baseball game practice earlier this month, or even the mob violence of late, as the result of foolish and inflammatory language. But it does not help diffuse the raw craving of those who consider resorting to violence when politicians speak rashly, the news media takes a partisan position, the judiciary abandons plain language in favor of political expediency, and other examples of acting outside the narrow path dictated by integrity and moral character.

Politics, not qualifications, will decide the Gorsuch nomination

Senate Democrats are doing the Stanky Legg Two-step in order to dance away from confirming a nominee to the U.S. Supreme Court who is a federal judge provably as devoted to following the U.S. Constitution and the body of federal law as any nominee in many years.

Judge Neil Gorsuch, whose record on the bench of the 10^th Circuit Court of Appeals is as nearly perfect as one can hope to achieve, is precisely the type of judge the Founders had in mind when they wrote the Constitution, a man in the mold of the late Antonin Scalia, whose vacancy he has been nominated to fill.

Testifying before the Senate Judiciary Committee, Gorsuch said his law clerks had compiled information about his ten years on the bench of the 10^th Circuit, which covers about 20 percent of the U.S. He has participated in more than 2,700 appeals, 97 percent of those cases were decided unanimously, and he was in the majority 99 percent of the time. How much more mainstream can one be?

His record clearly identifies him as a mainstream appellate judge, as has the American Bar Association, not an ideologue, or someone who plays favorites. Nevertheless, an exercise designed for confirming a qualified person to sit on the nation’s highest court has devolved into a political war.

U.S. law is a system of rules that govern behavior. Rules and laws must be followed and not following laws has penalties. In the U.S. laws are not static; they can be amended or repealed, but they must be amended or repealed through a specific process. However, some people – primarily liberal Americans – believe that this process may be circumvented by the rulings of activist judges when laws get in the way of their inclinations.

Gorsuch’s adherence to the law is the primary objection to his nomination, although some say it is also because the Republican majority in the Senate refused to take up the nomination of Judge Merrick Garland for the seat Gorsuch is now nominated for.

This, too, points to a Democrat anomaly. A principle relating to this situation arose in the U.S. Senate in 1992 when then-Sen. Joseph Biden, D-Del., who was chair of the Judiciary Committee, said on the Senate floor that filling Supreme Court vacancies “that would occur in the full throes of an election year,” must be held to a different standard. Citing “a majority of his predecessors,” Biden said that the president, George H.W. Bush, should delay naming a replacement, which would de-politicize the nomination, at least for a while.

In March of last year, “in the full throes of an election year,” President Barack Obama ignored the advice that Biden, who was then his Vice President, had offered on the matter years before and nominated Judge Garland. The Republican Senate Majority Leader, Mitch McConnell, R-Ky., however, liked Biden’s theory, and would not schedule hearings for Garland.

Democrats want judges that decide legal issues on whether their decisions fit the passions of the moment or have their preferred impact on the people, and therefore disapprove of the necessity to appoint judges that follow the Constitution and the law.

Minority Leader Sen. Charles Schumer, D-N.Y., is upset with Republicans over the Merrick Garland issue, and will therefore not vote to confirm the highly qualified and squeaky-clean Gorsuch.

He spent 20 minutes on the Senate floor urging his fellow Democrats to oppose Trump’s nominee. Gorsuch, he said, “was unable to convince me he would be a mainstream justice who could rule free from the biases of politics and ideology.” And he said that Gorsuch “is someone who almost instinctively favors the powerful over the weak, corporations over Americans,” Schumer said. “He declined to answer question after question with any substance,” he said, referring to Gorsuch’s refusal to express his political beliefs or to prejudge issues that may come before the Court.

Others have equally irrelevant objections:

** Sen. Kamala Harris, D-Cal.: "As U.S. senators, we have an obligation to also examine a nominee's legal approach and ask whether he or she considers the impact of those decisions on our society and the daily lives of our people."

** "I cannot trust that President Trump is acting in the best interest of our country or our democracy and that I cannot support moving forward with his choice for the court," said Sen. Patty Murray, D-Wash.

** Virginia Democrat and former vice presidential candidate Sen. Tim Kaine explained that, “After meeting with Judge Gorsuch and reviewing his testimony and past decisions, I’ve observed that he has repeatedly taken an activist approach to cases involving a woman’s right to make her own decisions about her health.” Kaine clearly does not understand judicial activism.

Senate Democrats threaten a filibuster to prevent a confirmation vote and ending the filibuster requires 60 votes. With 52 Republican senators, that will require the support of eight Democrats, and will be difficult to achieve.

Following the lead of former Nevada Democrat Harry Reid when he was Majority Leader, Republicans can use the “nuclear option” to allow a simple majority vote to confirm Gorsuch. Majority Leader McConnell has pledged that one way or another, Gorsuch will be confirmed.

What happens when judges abandon the Constitution and the law?

If you have read legal documents you will likely have noticed how detailed, specific and often obtuse the language is. The purpose of such language is to assure that the intent of the document is clearly set forth, and this language is well understood by lawyers.

However, despite the careful legal wording of President Donald Trump’s Executive Order (EO) temporarily suspending travel to the U.S. from seven countries with close ties to terrorism, U.S. District Judge James Robart in Washington found problems with the document last month, and issued a temporary stay. A revised second version of that EO, rewritten to avoid the objectionable parts of the first one, including removing one of the seven countries on the list, was found unacceptable by two other federal judges, U.S. District Court Judge Derrick Watson in Hawaii, and Maryland U.S. District Court Judge Theodore Chuang.

The revised document may as well have been written in the language of the Klingons, because these two judges ignored the Order itself, rejecting the travel suspension due to negative statements about Muslim immigrants Trump made during the campaign.

Even though the people who have to implement the EO must do only what it says, the judges, in their infinite wisdom, decided that what they imagine to be the thinking of the president is more important than what the document actually mandates, even though those who follow the EO will have no knowledge of what the president thinks, and therefore no obligation to implement those opinions.

Apparently, these federal judges are confused about their jobs or perhaps just don’t care about professional ethics or their sworn duties. They apparently believe that in ruling on a legal document they should ignore the actual document that is being challenged, and instead rely on speculation about the opinions of the document’s creator, and act to protect certain rights of immigrants and foreigners that the Constitution does not assign to them.

Under 8 U.S. Code § 1182(f) Congress granted the President broad discretion to suspend the entry of “any class of aliens” into the United States, and independently broad discretion over the refugee program.

That section reads: “Suspension of entry or imposition of restrictions by President - Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” This section of the law goes on to assign the Attorney General authority over activities by airlines bringing in non-citizen passengers, further assigning complete authority over entry to the country to the executive branch of the government, not the judiciary.

The law is crystal clear in its meaning, and does not provide as exceptions to the power of the President the personal opinions of federal judges or the beliefs or motives that these unelected referees ascribe to the president.

Perhaps the reason these judges didn’t want to rule on the actual language and effect of the Order is that it disagrees with their personal opinions. The Heritage Foundation’s Hans Von Spakovsky, a former Department of Justice lawyer, told Breitbart, “I don’t think [these judges] have any professional shame about it — in fact, they’re being applauded by newspaper editors for actually ignoring the law and [Supreme Court] rulings based on their own personal policy preferences.”

He notes that, despite the plain text of the law and prior Supreme Court decisions, these rulings are “destructive of the rule of law, which is the entire basis of our Republic.” This, he said, “is a very bad development that threatens our democracy … [and] it looks like it is going to get worse [because] we’re going to have more and more litigation, and it is very clear that the progressive left wants to use the courts to fight the way our democracy works,” he said, adding “I think what they doing is very anti-democratic.”

Indeed. What can be worse for a country that lives by the rule of law than to have some judges that do not follow or honor the law or the Constitution, but instead make law from the bench or twist laws to suit their personal or political preferences? That is what liberal judges do, and this behavior has reached crisis proportions.

These legal rulings raise important questions:

What is the proper response to a federal court ruling that is so plainly contrary to the law? Should the Trump administration follow a clearly illegal ruling and attempt to overturn it though a lengthy appeal process, or defy the federal courts?

What should happen to judges who issue rulings are at odds with laws and the Constitution that they are sworn to uphold?

Aren’t these judges directly responsible for any harm done to American citizens as a result of persons with the intent to do harm getting into the country by virtue of their rulings?

Judicial activism in Trump travel suspension case is dangerous

The recent hullabaloo over President Donald Trump’s temporary suspension of travel from seven Middle Eastern countries with ties to Islamic terrorism has dominated the early days of his administration. Trump’s action suspends entry to the country as his administration seeks better methods of vetting potential visitors to the U.S. for national security reasons. This incident has brought to the fore once again the high degree of activism in the federal judiciary.

Judicial activism involves interpreting the U.S. Constitution and the nation’s laws to achieve some non-legal, socially desirable leftist/liberal end favored by judges. Politics trumps the law.

The first instance of activism occurred in a federal District Court in Washington State, where Judge James Robart allowed a suit by the state’s attorney general to go forward, despite the fact that Washington State did not have legal standing to sue the federal government over Trump’s executive order. To establish legal standing a plaintiff – in this case, the whole of the State of Washington, not some individuals or some entities within the state – must demonstrate that the travel suspension would cause it irreparable harm. According to uslegal.com “irreparable harm” means that “the type of harm threatened cannot be corrected through monetary compensation or conditions cannot be put back the way they were.”

Robarts ruled that a ban on travelers from seven countries “affects the state’s residents in areas of employment, education, business, family relations and freedom to travel,” and said it also harmed the state’s public universities and tax base.

How many citizens of these seven countries actually work or attend a college or university in the state of Washington, and of that number how many are not within the borders of the United States at this time? Is it likely that there are sufficient numbers of them that their absence for another 90 days will actually cause the State of Washington – not the institutions or employers, but the state itself – irreparable harm? It is reasonable to believe that there are relatively few people in these circumstances, and that the harm would be of little significance to State of Washington.

However, in his ruling, Robart said the Washington AG had met the high burden to justify a restraining order by showing that Trump’s order was causing “immediate and irreparable injury,” and that the state had a substantial likelihood of winning its underlying lawsuit challenging the constitutionality of the travel ban.

Interestingly, U.S. District Judge Nathaniel Gorton in Massachusetts reached the opposite decision earlier the same day. He understood the law that gives the president the exclusive authority on national-security grounds to impose the temporary suspension on travel to the U.S., and that under the U.S. Constitution immigration is under control of the president, not the judiciary.

Title 8 United States Code, section 1182(f), which was enacted as section 212(f) of the Immigration and Nationality Act, is entitled “Suspension of Entry or Imposition of Restrictions by President” and states: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

That statement is clear as it can be: the president has the authority to do what Trump did. The president, not the judiciary, has both constitutional authority and statutory authority over immigration, as former President Barack Obama would say, “Period!”

The administration appealed Robart’s flawed ruling to the Ninth Circuit Court in San Francisco, and the three judges who heard the appeal predictably upheld the initial ruling, since this appellate court is notoriously liberal/activist, and has the reputation for being a federal court whose decisions are frequently overturned by the U.S. Supreme Court.

Neither Robart nor the three Ninth Circuit judges – William Canby Jr., Richard Clifton and Michelle Friedland – dealt with the actual law giving the president the authority to do what Trump did in any meaningful way. They acted outside their narrow area of authority and improperly interfered with lawful actions by the president.

Since Robart issued the temporary restraining order on February 3rd, 77 percent of 1,100 immigrants/refugees that had entered the U.S. at the time the situation was analyzed came from the seven countries in the travel suspension, a substantial increase since before the order was issued.

Perhaps none of them are terrorists or will become terrorists and commit some atrocity against Americans, but this is a prime opportunity for terrorists to get into the United States, with the blessing of four federal judges.

Constitutional law scholar and conservative talk radio host Mark Levin termed the appellate court’s decision to uphold the stay as “disgraceful” and “pathetic.” Levin points out that the court has improperly conferred due process and constitutional rights onto this class of individuals.

Judicial activism does not always create potentially dangerous situations, as this incident has, but all activism is harmful to some degree, and must end.