Category Archives: Law

Congress, Not Judges, Should Make Law

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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Mueller Team Had Lisa Page’s Phone It Claimed Was Lost

Anyone surprised that the Democrats are not clamoring for an investigation? Talk about a double-standard.  When in the past has this much evidence been “deleted”?  .. mrossol
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The Epoch Times –  Updated: September 17, 2020

An official who worked on former special counsel Robert Mueller’s Russia investigation wrote in a recently released email that he or she was in possession of an iPhone belonging to Lisa Page three days after the former FBI lawyer’s last day on the job and at a time when the device was thought to have been lost.

The special counsel’s office (SCO) and the Justice Department (DOJ) previously claimed to have no documents to show who handled Page’s iPhone after she turned it in on July 14, 2017, or who improperly wiped it two weeks later, before it could be checked for records, in violation of SCO policy.

But documents released by the DOJ on Sept. 11 tell a different story, with three officials certifying that Page turned over her phone and one claiming to have been in possession of it.

“I have her phone and laptop,” an administrative officer with the initials LFW wrote in a July 17, 2017, email to Christopher Greer, an assistant director at the DOJ Office of the Chief Information Officer (OCIO).

Beth McGarry, the executive officer at the special counsel’s office, told Greer in an email sent earlier in the day that Page “returned her mobile phone and laptop.”

On the same day, a property custodian officer, whose name is redacted in the documents, signed a form on which Page certified that she turned in her phone and the officer certified that “all government property has been returned or otherwise properly accounted for.”

The July 17 timing of the two statements and the signature is significant. The DOJ Office of Inspector General (OIG) previously concluded that there were no records of who had the phone after July 14.

The records about Page’s phone are part of a DOJ disclosure that revealed that members of the Mueller team improperly wiped at least 22 iPhones before they could be checked for records.

“These irregularities with the phones of Mueller investigators are either sloppiness or the deliberate destruction of evidence—and it’s probably not sloppiness,” Rep. Devin Nunes (R-Calif.), ranking member of the House Select Committee on Intelligence, told The Epoch Times in an email.

On July 14, Page’s last day at the SCO, McGarry met Page to fill out her exit clearance form. Page checked a box on the form to certify that she “surrendered all government-owned property, including … cellular telephones.” McGarry signed the same form but later told the OIG that “that she did not physically receive Page’s issued iPhone.”

Page told the inspector general that she “had left her assigned cell phone and laptop on a bookshelf at the office on her final day there.”

McGarry left the special counsel’s office for the private sector in March 2019, according to her LinkedIn profile.

“The DOJ OIG investigated the circumstances of the mobile phone issued to Lisa Page by the Special Counsel’s Office,” McGarry told The Epoch Times in an email, referring to the December 2018 OIG report. She didn’t immediately respond to a follow-up query about how to reconcile differences between the findings of the report and the new documents.

The OIG, which interviewed the records officer, McGarry, Page, and LFW for the report, told The Epoch Times that the new documents aren’t at odds with its findings.

“We stand by the information in our text message report about Page turning in the device on July 14,” Stephanie Logan, a senior public affairs specialist at the OIG, wrote in an email to The Epoch Times.

The report concluded that neither Mueller’s office nor the DOJ “had records reflecting who handled the device or who reset it after Page turned in her iPhone on July 14, 2017.”

Page’s phone notably never made it into the hands of the special counsel’s records officer, who told the OIG that she never received the phone to examine it for any government records that would need to be retained.

“Phone not found,” the records officer noted in a log she kept about the records on the phones assigned to the special counsel’s office staff.

The DOJ found the device more than a year later and turned it over to the OIG, which determined that all of the data was deleted from the device on July 31, 2017.

Wiped iPhones

The records officer’s log shows that Page’s iPhone wasn’t the only device to elude an examination for government records. A total of at least 22 iPhones with unique asset tags used by the Mueller team were wiped before the records officer could review the contents, according to an Epoch Times review of four inventory logs and various forms released on Sept. 11.

The Mueller team offered a number of excuses for the deletions. Two people claimed the phones wiped themselves. Others said they erased all the data by accident or had to do so because they forgot their passwords. Andrew Weissmann, a prosecutor, wiped his iPhone twice.

Mueller’s team used a total of 92 iPhones, according to the documents. Four of the phones appear in the inventory logs, but not on the records officer’s log, suggesting they were either recorded without their unique asset tag or evaded the officer entirely. One of the four phones belonged to deputy special counsel Aaron Zebley. Another belonged to Zainab Ahmad, a special counsel attorney.

One phone was partially wiped. Four phones were improperly handed over to the OCIO and wiped before the records officer’s review. As many as seven phones with no asset tags noted by the records officer were either reassigned or wiped before the officer could assess the device for records.

The pattern of questionable deletions has drawn the attention of lawmakers. Sens. Chuck Grassley (R-Iowa) and Ron Johnson (R-Wis.), the chairmen of the finance and oversight committees, respectively, sent a letter to the DOJ and the FBI last week asking for more information about what happened with the phones.

“It appears that Special Counsel Mueller’s team may have deleted federal records that could be key to better understanding their decision-making process as they pursued their investigation and wrote their report,” Grassley wrote. “Indeed, many officials apparently deleted the records after the DOJ Inspector General began his inquiry into how the Department mishandled Crossfire Hurricane.”

Crossfire Hurricane is the FBI codename for the investigation of the 2016 Trump campaign; Mueller took over the probe in May 2017.

Five months after Page left the special counsel’s office, the DOJ authorized a leak of 375 text messages between Page and Strzok, triggering a media firestorm over what the pair discussed. The initial and the subsequent releases of the texts showed that they expressed hatred for Trump and had a clear preference for his rival, former Secretary of State Hillary Clinton. Strzok told Page that “we’ll stop” Trump from becoming president, discussed an “insurance policy” in case Trump won the election, and mused about impeachment around the time he joined the Mueller team.

Page’s attorneys didn’t immediately respond to a request by The Epoch Times for comment.

The OIG discovered the biased Page-Strzok texts during an inquiry into the handling of the FBI’s investigation of the Trump campaign. After the inspector general informed Mueller of the texts in late July, Mueller removed Strzok from the Russia investigation. Former FBI Deputy Director Andrew McCabe told lawmakers that he learned of the text messages on July 27 and made the decision to remove Strzok the same day. Someone wiped Page’s phone four days later.

Strzok and Page played key roles in the FBI’s investigations of both the Trump campaign and Clinton’s use of an unauthorized email server. The OIG concluded that their bias cast a cloud over the email probe but didn’t ultimately influence the outcome of the investigation.

The OIG began looking for the phones belonging to Page and Strzok after being informed of a six-month gap in the text messages it had recovered. The inspector general received the pair’s four FBI Samsung phones in late January 2018.

On Jan. 26, 2018, Greer reached out to LFW to ask where Page’s SCO iPhone was, because the OIG wanted to speak to the official about the device.

“Yes. I know it is missing. We discovered that first,” LFW wrote back.

The DOJ tracked down the phone eight months later, in early September 2018 and handed it over to the OIG. The records officer later contacted the inspector general to find out if the phone was wiped.

“Yes that’s correct, the device had been reset to factory settings,” the OIG official wrote back.

Three months later, in December 2018, the OIG released the report on its hunt to recover additional text messages Page and Strzok sent on six phones they used, four of which were assigned by the FBI. The effort resulted in the discovery of hundreds of text messages, but none came from the special counsel’s office phones, both of which were wiped before investigators recovered them.

The following January, DOJ officials reached out to Verizon with a request for billing statements to check how many messages Page and Strzok sent on their special counsel’s office phones. Verizon responded by saying no text messages were sent, with a caveat that data did leave the device. Verizon’s report didn’t cover the most common way to send a message on an iPhone—the iMessage app—which uses an internet connection rather than the carrier’s text service.

“Both numbers did have data usage so it could mean that if any messages were sent, it could have been through some type of app but we would not know for sure from our end,” a message from Verizon stated.

Mueller concluded his 22-month investigation having found no evidence of collusion between the Trump campaign and Russia.

https://www.theepochtimes.com/mueller-team-had-lisa-pages-phone-it-claimed-was-lost-email-shows_3501024.html?ref=brief_News&utm_source=morningbrief&utm_medium=email&utm_campaign=mb

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The Astonishing Shredding of the Constitution by California-Based Judges and the Legislature

If the executive, or legislative, or judicial branch of government can suspend rights enumerated in the US Constitution “at will” than we have no “rights”; only “permissions”. mrossol

 

May 27, 2020 The Epoch Times. Thomas Del Beccaro – CONTRIBUTOR
 
 

As the nation prepares to reopen, the response to the COVID-19 crisis has taught us many lessons, not the least of which is that politicians and judges are willing to run roughshod over the Constitution if it suits their purposes.

Nowhere is that more true than in California.

Recently, a panel of 9th Circuit judges based in California, in a split opinion, upheld a ban on church services. Two judges who are sworn to uphold the law suspended the Constitution and wrote that if a “court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Meanwhile, California’s Gov. Gavin Newsom has “required” “Mortgage Payment Relief During COVID-19 Crisis.” Courts have suspended eviction and foreclosure proceedings and the legislature is considering a law that would allow “bars, restaurants and entertainment venues to renegotiate rent prices with their landlords if they’ve experienced a 40-percent drop in revenue or have limited their capacity by at least 25 percent to safely reopen their doors,” according to the Sacramento Bee.

In plain terms, our Founding Fathers would be horrified. But then again, they never imagined government spending topping 50 percent of the economy either—and that is just where we are headed with the response to COVID-19.

We would do well to remember that one of the main reasons we have a Constitution was the reaction of the post-Revolution politicians to a depression. After the Revolution, the colonies were deeply in debt and taxes were far higher than those imposed by England. Combined with lost trade and private debt, a deep recession ensued.

Debtors were suffering during those bad economic times and politicians came to their rescue by enacting various laws that permitted them to repay their debts in installments, shut down courts to prevent judgments, and printed paper money so that debtors who took out their loans in gold could pay it back with paper of lesser value.

The states were enacting laws at such a fast and furious pace that our founders saw the economic uncertainly and damage the reaction to the crisis was causing to trade across state lines and internationally. Alexander Hamilton thought Americans were “growing tired of an excess of democracy.” Others identified the problem as “a headstrong democracy,” a “prevailing rage of excess democracy,” or “democratical tyranny.”

The solution the founders fashioned, and again, a central reason we have a Constitution, was the famed contract clause. Article 1, Section 10, Clause 1 states: “No State shall . . . coin Money . . . or Law impairing the Obligation of Contracts . . .”

Keep in mind that our founders were often short and blunt with their words. They needed few words to convey that the states wouldn’t change the terms of the existing contracts by “impairing” them.

They enshrined that law in the Constitution precisely because states were passing laws that permitted debtors to get out from their debts, delay payments, or pay their debts with dubious paper money.

Who among us today thinks a state court would cite that history or that language?

As for not allowing church services, it must be said that judges sworn to uphold the Constitution can’t do so by suspending the Constitution. It is also worth remembering that the Revolutionary War was fought amid the deadly smallpox epidemic.

At the time, and to this day, there is no known cure. The mortality rate for those who contracted smallpox was 30 percent overall and 80 percent among children. Nevertheless, the founders fashioned the First Amendment that says, quite bluntly: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”

According to the two liberal judges who backed Newsom’s dubious restrictions on churches, “We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure.” The court opinion, of course, cites no evidence to back its “scientific” conclusion.

Of course, COVID-19 is nowhere near as dangerous as small pox, which was estimated to have killed somewhere between 300 and 500 million people. Such perspective, however, is lost today.

The legendary historian Will Durant once said, “History is an excellent teacher with few pupils.” It appears that many politicians and judges have missed class, too, and we are all the worse for it.

Thomas Del Beccaro is an acclaimed author, speaker, Fox News, Fox Business, and Epoch Times opinion writer, and the former chairman of the California Republican Party. He is the author of the historical perspectives, “The Divided Era” and “The New Conservative Paradigm.”

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

https://www.theepochtimes.com/the-astonishing-shredding-of-the-constitution-by-california-based-judges-and-the-legislature_3366419.html

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King’s Moral Vision Is a Threat to the Woke

WSJ 7/2/2020. Letters to the Editor.

There is a common theme between the discussions of morality and moral law in Daniel Henninger’s “Smiley Face Liberalism” (Wonder Land, June 25) and “Notable & Quotable: Dr. King” (June 25). Mr. Henninger speaks of the left’s erasure of “even the idea of a functioning consensus about morality,” concluding that in a society untethered to a shared moral baseline, no one today has moral authority. The latter quotes a portion of Martin Luther King Jr.’s powerful and timeless “Letter from a Birmingham Jail” in the context of the recent kerfuffle at UCLA, where lecturer W. Ajax Peris is under investigation for having the temerity to read King’s letter aloud in class, in which King used the n-word twice.

One suspects UCLA’s microaggression monitors have little real concern about their exquisitely sensitive students hearing Dr. King’s meaningful, historical use of a word that is heard in almost every gangsta-rap song today. Rather, it is King’s message about the foundation for a moral code that is most threatening to leftist academia’s relativism, i.e., that “just” laws must be rooted in natural law, eternal law or the law of God. As with the writers of our Declaration of Independence, which refers to the “Laws of Nature and of Nature’s God,” King declared there must be a fixed touchstone or standard against which to determine what laws are moral and just, or not. Otherwise, laws can be declared just or unjust arbitrarily, as it suits the ideology of the loudest or most powerful voice in the conversation. One can only wonder how King himself would have fared if he read his letter verbatim today in a class of those offended UCLA students.

Ed Grysavage    St. Augustine, Fla.

https://www.wsj.com/articles/kings-moral-vision-is-a-threat-to-the-woke-11593717917?mod=opinion_major_pos17

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