American Thought, Law, US Constitution

Congress, Not Judges, Should Make Law

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This is worth your read if you are wondering about filling the vacant seat on the Supreme Court. mrossol

National Review –  9/22/2020 By Kevin D Williamson

Ruth Bader Ginsburg did a great many interesting and impressive things in her life, but she never did the one thing she probably really should have done: run for office. Ruth Bader Ginsburg wasn’t an associate justice of the Supreme Court — not really: She was a legislator in judicial drag.

You need not take my word on this: Ask her admirers. “Ruth Bader Ginsburg had a vision for America,” Linda Hirshman argues in the Washington Post. What was her vision? “To make America fairer, to make justice bigger.” That is not a job for a judge — that is a job for a legislator. The job of making law properly belongs to — some people find this part hard to handle — lawmakers. Making law is not the job of the judge. The job of the judge is to see that the law is followed and applied in a given case. It does not matter if the law is unfair or if the law is unjust — that is not the judge’s concern. If you have a vision for America, and desire to make the law more fair or more just, then there is a place for you: Congress. That is where the laws are made.

This distinction is an important one. As you may have noticed over the course of the summer, Americans do not agree on everything. Some of us have ideas about what is good, decent, fair, just, wise, intelligent, prudent, and necessary that are radically different from the ideas other Americans have about what is good, decent, fair, just, wise, intelligent, prudent, and necessary. Democracy is not good for very much, but democratic institutions are how we settle those disagreements. Even the antidemocratic elements of U.S. government, such as the Bill of Rights, which put certain questions beyond the reach of mere temporary majorities, came out of democratic institutions and were implemented through a democratic process. It is from that that they derive their legitimacy. Democracy has its shortcomings — mostly rooted in the fact that human beings are universally fallen and in the majority savage — but the alternative is bonking each other over the head over every disagreement.

Put another way, the alternative is might makes right — which is exactly the kind of “jurisprudence” Justice Ginsburg and others of her kind have long practiced. There isn’t a goddamned word about abortion or gay rights in the Constitution, and it is absurd to think that such rights had been hiding there, lurking in the ol’ penumbras, since the 18th flippin’ century, waiting to be discovered by a committee of progressive lawyers who somehow see the “real” Constitution that went completely undetected by the men who wrote and ratified the document we actually have. That should be obvious even to people who support abortion or gay rights or other things that have been magically discovered in the Constitution. For the New York Times, Justice Ginsburg was a “feminist icon.” And she was — but it was not her job to be a feminist icon or to impose feminist ideology — or any other ideology — on the law and on the American public, substituting her own desires and preferences for those that are the result of the actual democratic process, daft as it often is.

Justice Ginsburg’s using her position to try to impose a feminist vision on federal policy ought to be recognized for what it was: an abuse of power. If you want to rewrite the law along feminist lines, that’s a perfectly honorable project — run for Congress.

The real fissure running through the Supreme Court is not between so-called liberals and notional conservatives, but between those who believe that judges are superlegislators empowered to impose their own vision on society and those who believe that judges are constrained by what the law actually says. The latter is the position of the Federalist Society and many lawyers associated with it, and that this position — that the law says what it says, not what people with power wish for it to say — should be controversial is an excellent indicator of why faith in our institutions has eroded so deeply. “If Republicans give Ruth Bader Ginsburg’s seat to some Federalist Society fanatic, Democrats should pack the court,” reads the line over Michelle Goldberg’s New York Times column. Read that and ask yourself who the fanatic really is.

This should be obvious enough even to people who share Ginsburg’s ideology and political preferences. Maybe you think that the federal law should enshrine an unassailable right to abortion, or that the Bill of Rights shouldn’t protect the right to keep and bear arms as broadly and explicitly as it does. Many people would agree with you, and there are reasonable if erroneous good-faith arguments for those positions. But that is not what the law actually says. So, take it to the voters. In the case of abortion, that would have meant a state-by-state fight in the legislatures, which probably would have resulted in an abortion regime that is neither as permissive as the one we have nor as restrictive as abortion opponents would like, i.e., one that more closely resembles the actual position of the American electorate. (A large majority of Americans believe that abortion should be legal in the first trimester, and even larger majorities believe it should be restricted in the second and third trimesters.) In the case of gun control, proceeding legitimately would mean repealing the Second Amendment in order to impose the restrictions that progressives want but that are prohibited by the Bill of Rights. Yes, both of those would be long, hard, ugly, and frustrating fights that would almost certainly leave both sides partly unsatisfied — i.e., democracy.

It is, of course, much more tempting to get five allies on the Supreme Court to pretend that what you want is already mandated in the law, waiting to be discovered. And that was Justice Ginsburg’s specialty. Her most famous decision, outlawing the Virginia Military Institute’s single-sex admissions policy, was exactly the kind of thing you would expect from a “feminist icon” but shoddy — indeed, preposterous — as law. As Justice Antonin Scalia notes in his scathing dissent in the VMI case, other publicly funded military academies had changed their admissions policies, “not by court decree, but because the people, through their elected representatives, decreed a change.” What Justice Ginsburg was engaged in by inventing a prohibition on single-sex military academies was “not the interpretation of a Constitution, but the creation of one.”

Maybe Ginsburg was right to believe what she believed. That is irrelevant. The question is not whether VMI should have been admitting women, but whether the Constitution prohibited VMI’s policies and empowered activists such as Justice Ginsburg to replace those policies with others more to the liking of the nation’s progressive lawyers. It didn’t and doesn’t. Neither the text nor the history nor practice justified Justice Ginsburg’s decision — only her own sense of morality did. Her opinion is not legal reasoning — it is legal decoration, reverse-engineered and fitted to the decision she was committing to making for political rather than legal reasons.

Oh, but everything is political! they’ll say. I do not believe that judges are incapable of actually doing their jobs even if that means following the law to results other than the ones they would prefer — Justice Scalia’s account of the flag-burning issue is one example showing that it can be done the right way — but doing so would mean trying to do that job rather than treating the federal bench as a stage for score-settling, advantage-seeking, and constituent-servicing. If you don’t believe that judges should be constrained by the law — that power is power is power and that’s that — then you don’t have much of an argument against Donald Trump and Mitch McConnell filling this seat, which is not “Ginsburg’s seat.” And unlike Justice Ginsburg, who made up the Constitution as she went along, in this case Trump and Senate Republicans would be acting within their plain constitutional powers. In contrast to Ruth Bader Ginsburg, feminist icon, they would be doing their jobs.

The timing of Ginsburg’s death is a political inconvenience for Democrats — them’s the breaks. Trying to convert this into a question of principle is silly and dishonest. Yes, lots of Republicans said last time around that we shouldn’t confirm a justice right before an election. Lots of Democrats said last time round that we should. Handing out indictments for hypocrisy in Washington is like writing up people in New Orleans at Mardi Gras for public intoxication. Nobody doubts that the charge is a valid one, but, please, spare us the shock and sanctimony.

And after the slandering of Robert Bork, Clarence Thomas, and Brett Kavanaugh, arguing that Republicans should decline to move forward on the nomination for comity’s sake is laughable. Nobody believes for one second that if President Hillary Clinton were struggling toward an uncertain reelection campaign and Senate majority leader Chuck Schumer had the chance to confirm a new Supreme Court justice of her choosing that the Democrats would hesitate for a second. Nor have they ever shown themselves interested in replacing “conservative” justices — meaning those who are not open partisan campaigners on the model of Ginsburg — with conservatives or moderates in the name of ideological balance. The Democrats put left-wing activists on the Court when they get the chance, even if, like Elena Kagan, they have to lie their way through their confirmations to get there. Democratic complaints about political hardball after the outrageous campaign of fantastical fiction and slander directed at Kavanaugh, the anti-Catholic hatred directed at Amy Coney Barrett by Senator Dianne Feinstein (D., Calif.), etc., are beneath contempt. So is threatening to create a constitutional crisis through a Court-packing scheme if a Democratic president and Senate are elected, threatening (more) riots and (further) arson, and other attempts at extortion.

On the matter of the Court-packing endorsed by Michelle Goldberg et al., Democrats should be careful about the precedents they set. Republicans may learn slowly, but they learn. Democrats spent generations engaged in partisan gerrymandering and then suddenly got religion on that subject when Republicans got good at it. They didn’t think their slander of Robert Bork and the politicization of the nomination process would come back to bite them, but it did. Mitch McConnell believed the politics were on his side, and he was right. A Democratic Senate might reorganize the federal courts in a way that gives their party a momentary advantage — which is banana-republic stuff, but that is what Michelle Goldberg of the Times advocates, and she is not alone — but there will be a Republican majority again. There’s one now. Is that a weapon you want to put in Mitch McConnell’s hand? In Donald Trump’s hand? Because the genie doesn’t go back into the bottle.

Justice Ginsburg could have retired some time ago — and probably should have. But she believed in 2016 that Hillary Rodham Clinton was going to win the election, and so she held on. That was a political miscalculation. But that happens from time to time. Dwight Eisenhower was asked about the greatest regrets of his time as president, and he answered: “I have made two mistakes, and they are both sitting on the Supreme Court.”

Ginsburg’s legacy is not a body of legal opinions but a deformed and disfigured judiciary, one in which the American people have — with good reason — lost some measure of faith. Setting that right will be the work of a generation. And that work begins with understanding that a judge’s concern is not justice or fairness or progress but the law, and that people who want to change the law should run for office.

 

https://www.nationalreview.com/the-tuesday/ruth-bader-ginsburg-didnt-understand-her-job/?utm_source=Sailthru&utm_medium=email&utm_campaign=TUE_20200922&utm_term=Tuesday-Smart

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Democrat Party, Party Politics

What your elected democrat may do for you next!

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House Democrats will likely call for an immediate investigation. mrossol

WSJ 9/19/2020

Albany, N.Y.

Look closely at a questionable Empire State health-care policy, and you’re liable to find the fingerprints of the Greater New York Hospital Association, the hospital and health-system trade group that is one of the most influential forces in New York politics.

A case in point is the state Health Department’s directive, issued on March 25, that compelled nursing homes to accept patients who had tested positive for coronavirus. It turns out, as the Journal reported, that this ill-conceived policy was the brainchild of the nonprofit hospital association, which pitched it to Gov. Andrew Cuomo’s office shortly before it went into effect. In the name of easing a crisis for the association’s members, the Cuomo administration contributed to a disaster for vulnerable nursing-home residents, who died by the thousands.

This fatal misstep grew out of a remarkably tight political alliance between the governor and the trade group that has become increasingly bad for the state’s health. Its recent history began before Mr. Cuomo’s last election when, in March 2018, he browbeat the state’s Catholic bishops into giving up $2 billion in proceeds from the sale of a church-affiliated nonprofit health plan. The money went into a “Health Care Transformation Fund” to be spent at the governor’s discretion in an election year.

That summer the hospital group poured more than $1 million into Mr. Cuomo’s re-election campaign, which was a lot even for one of Albany’s deepest pockets. Much of the funding flowed through a loophole that would keep it secret until after his inauguration. Just before Election Day, with no advance notice, Mr. Cuomo dipped into his health-care slush fund to finance an increase in the fees paid to hospitals and nursing homes for taking care of Medicaid patients, a top lobbying priority of the hospital association.

Cuomo administration officials described it as an “across the board” boost for all facilities. But an internal Health Department analysis, obtained by the Empire Center, made clear that the rate increase was tailored to help hospital association members settle their newly negotiated contract with the health-care workers union 1199SEIU, another Cuomo ally.

By early 2019, unknown to the public, New York’s Medicaid spending was running well over its ample budget. Rather than working with the Legislature to close the gap—which might have required cutting payments to hospitals—Mr. Cuomo papered things over by secretly delaying $1.7 billion in Medicaid payments into the next fiscal year. Although the delay threw the state’s new budget out of balance, the Cuomo administration didn’t disclose what happened until weeks later, by which time the maneuver had spawned a $4 billion deficit.

Mr. Cuomo put off truly confronting the mess until early 2020, when he delegated it to a Medicaid Redesign Team of state officials and industry representatives. To lead that panel, he turned to Northwell Health CEO Michael Dowling, a member of the hospital association’s board. The other co-chairman was former 1199 chief Dennis Rivera.

Those deliberations were happening when the pandemic hit. Soon, the hospital association was pushing for help in discharging patients to nursing homes, and the Health Department quickly obliged the governor’s major donors and go-to health-care mavens.

The hospital association also successfully lobbied for a last-minute budget provision to limit sharply the ability of coronavirus victims to file malpractice suits against hospitals, nursing homes and other providers—relieving the industry of a potential hit to its finances. There’s a case to be made for liability protections in a crisis, but sending patients to nursing homes was clearly a wrong move. It wasn’t the sole cause of Covid-19’s spread in New York nursing homes, but it made a bad situation worse—as Mr. Cuomo and his aides would have understood had they sought a broader range of advice.

In August, the Greater New York Hospital Association repaid Mr. Cuomo’s favors by featuring him in TV ads touting the state’s success in controlling the pandemic and assuring the worried public that hospitals are safe to use again. New Yorkers can only wonder what their governor will do for them next.

Mr. Hammond is senior fellow for health policy at the Empire Center.

https://www.wsj.com/articles/the-hospital-lobbyists-behind-cuomos-nursing-home-scandal-11600454566?mod=opinion_lead_pos8

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American Thought, Communism, Critical Theory, Liberal Press, Losing Freedom, Racism, Social Engineering, The Left

You Will Be Re-Educated

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It probably won’t get to 1976-1980 Veit Nam levels immediately, but America is on the slippery slope, and we citizens who care about this country don’t start standing up against this insidious evil, we will bear some of the blame. (a few excerpts below). mrossol

You Will Be Re-Educated

Radical agendas require clear villains to motivate their believers to act. Alex Zamalin, author of Anti-Racism: An Introduction, claims to have identified our moment’s greatest villain: “the ordinary white American who has sometimes tepidly, conditionally, equivocally, or even shamefully agreed with the unmistakable racist.” A similar tone of unmasking hidden villains pervades projects such as the New York Times’ new podcast series about schools, Nice White Parents. In one episode, reporter Chana Joffe-Walt states, “I think the only way you equalize schools is by recognizing this fact and trying wherever possible to suppress the power of white parents.”

Once identified, white people are told they must “do the work” of ridding themselves of racist beliefs—even those beliefs they don’t know they have and so must be educated to see.  But to make people—especially stubborn people—“do the work” sometimes requires threats of coercion, which is why anti-racism’s reeducation efforts often flirt with authoritarian language and ideas while claiming little more than benevolent oversight of their presumably virtuous goal.

Writing in Politico, Kendi made this explicit: “To fix the original sin of racism, Americans should pass an anti-racist amendment to the U.S. Constitution that enshrines two guiding anti-racist principles: Racial inequity is evidence of racist policy and the different racial groups are equals.” The amendment would make what Kendi calls “racist ideas by public officials” unconstitutional. It would also “establish and permanently fund the Department of Anti-racism (DOA) comprised of formally trained experts on racism and no political appointees.”

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American Thought, Critical Theory, Racism

“Systemic racism” is a bogus description

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A very well thought and written analysis and argument against the “prevailing winds”.  mrossol

WSJ. 9/18/2020 By Harvey C. Mansfield

Systemic racism, also known as institutional or structural racism, is a new phrase for a new situation. We live in a society where racism is not, and cannot be, openly professed. To do so not only is frowned upon but will get you into serious trouble, if not yet jail, in America. Yet even though this is impossible to miss and known to all, “systemic racism” supposedly persists. The phrase describes a society that is so little racist that no one can respectably advocate racism, yet so much racist that every part of it is soaked with racism. We live with the paradox of a racist society without racists.

Systemic racism is unavowed and mostly unconscious, racist despite itself. Those who use the phrase, mostly whites, are consciously accusing their unconscious selves. To get a sense of what they mean, think of African-Americans as they are, freed of slavery and segregation but still somehow consigned to an inferior social position. Everywhere they look, they see black faces on show but white faces in charge. This is true even where they generally excel and surpass whites, as in sports and entertainment, and still more in business and academia, where they are fewer. White supremacy seems to be true in effect if not in intent. Look around and you will see it.

It is strange to describe an unconscious effect as racism, for an ism is an opinion, a doctrine, not a mere condition. A doctrine has adherents who articulate it; it cannot be held unconsciously as can a prejudice. Racist doctrine says that blacks are a naturally and inherently inferior race. To criticize the character or behavior of blacks, individually or even on average, is not racism. Criticism implies that blacks are not living up to their potential, hence that they are capable of behaving well. Criticism implies an essential equality between critics and whomever they criticize. This is contrary to racism.

Racist doctrine is not really blame of an inferior race but implies a sort of excuse. If you are innately inferior, there’s nothing you can do about it—so no blame is reasonable. Nor, from the standpoint of racism, is it reasonable for the inferior race to resent being treated as inferior; that’s all it is entitled to. It’s better to resign oneself to one’s fate, whether one is superior or inferior. That is racism, and it is contrary to the American principle that all human beings are created equal.

The idea of systemic racism proclaims that racism is unjust but exists nonetheless despite ourselves. How could this happen? It is the bad result of the behavior we regard as good. The good behavior of conscientiously striving to better oneself is joined to the bad behavior of always preferring oneself. Thus any privilege one earns and deserves is tied to undeserved privilege: A successful life if you are white comes out as white supremacy. Despite your verbal rejection of that result, the system behind your intentions brings it about.

The notion of systemic racism is designed to make you feel guilty about this if you are white. But why should you? The system did it, not you. You can’t change the system; that’s what “systemic” means. All your good intentions have existed since America began, but they are always tainted by bad consequences. The movement against systemic racism must fail. How could it succeed where Abraham Lincoln and Martin Luther King Jr. couldn’t? Systemic racism exists despite our intentions; so it can’t be cured by changing our intentions—as by protesting.

If, on the other hand, we are all responsible, then we should all behave better. If that is possible, then we don’t live in the thrall of a system. We somehow control our lives but don’t do a good job of it. We should turn a bad job into a good job. To behave responsibly, it doesn’t help to assume a systemic racism that acts against our intentions.

Yet “systemic racism” is used as an accusation, not as mere description. As accusation, though, it is no longer a system in the required sense of being beneath our awareness. It is joined to the demand for antiracism. If antiracism is possible, then all of us, whites as well as blacks, are no longer mere victims of a system.

In fact, all of us are aware of the racial question, even those who are not woke. Both sides of this matter are awake, but we differ. Our compassionate intentions run up against our fear of running other peoples’ lives, together with legitimate concern for our own well-being and our children’s, and we resolve the conflict differently, usually by partisan choice. Instead of submitting to fate, we argue our differences over justice. This is what we do and what we should be aware of doing.

Systemic racism has disadvantages as a way of thinking that outweigh the specious advantage of not having to argue about justice. It tells blacks that they are quite OK, and that it is entirely up to whites to change their thinking and their behavior. This means that blacks must allow whites to hold their future for them.

We recently mourned the passing of John Lewis, an activist for civil rights. Civil rights come from America, and to demand them is to imply that America would be OK if only it would assure for blacks what it gives to whites. But if America is tainted by systemic racism even to the principles of its founding, blacks will have to depend on the goodwill of whites and can’t call on our common patriotism. That is the implication of the slogan “Black Lives Matter.” The civil-rights movement was led by blacks, and its accomplishments were theirs, in cooperation with the governing white majority.

Systemic racism ignores the agency of black citizens, leaving them nothing to do except to protest in the streets or cheer from the sidelines. Meanwhile whites are told by the same idea that all their past efforts against white supremacy have been in vain. Nothing they have done has worked or could have worked. All along our history, the Constitution and the Rights of Man we thought we practiced and defended were nothing but the power of white men. All the heroes of both races and their sacrifices were defeated by systemic racism and went for naught. What we might do now differently from what we have done in the past is left totally unclear. More affirmative action and more subsidies—what can they do that will now help instead of hurt? Call them “reparations”—will that do any good?

Another disadvantage of the idea of systemic racism is to deny the value of prudence in politics. A democracy can react quickly if attacked, but for a transformation out of white supremacy, you have to have the support of a majority; you have to go by stages. First, assert the goal to be achieved, the principle of human equality, as was done in the Declaration of Independence. Then make a constitution so that a free country can govern itself effectively. To ratify the Constitution, it was necessary to gain the assent of the slave states.

The American founding couldn’t be perfect from the start; it had to progress toward its goal. Prudence is the faculty that deals with imperfection in order to form, as the Preamble put it, a “more perfect union.” To make progress effectively and democratically, prudence seeks and finds necessary accommodations in compromise. Not all compromises are successful, but the successful ones deserve to be accepted, and those who had the prudence to make them should be honored—not merely tolerated, let alone dishonored or canceled.

The cancel culture is a malignant growth from the idea of systemic racism. Those who cancel stop accusing themselves; they step outside of the system they denounce. After asserting the guilt of all whites, these whites give themselves a pass.

“Systemic racism” is a bogus description that issues in an accusation made in doubtful faith that contradicts itself. But it is held by many fellow Americans, so let’s not dismiss it. It’s better to treat it respectfully as a disputable opinion.

Mr. Mansfield is a professor of government at Harvard.

https://www.wsj.com/articles/the-systemic-racism-dodge-11600454532?mod=hp_opin_pos_2

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I'm serious… usually. (Martin Rossol)