Saturday, July 30, 2016

The "Court Consequence" Argument

For those that have ears to hear and those that want to be able to offer the facts and truth to others concerning the Supreme Court issue. Some will dismiss this as arrogance because it makes them feel better about dismissing what I'm saying. Last Saturday morning I exposited on the Supreme Court and federal court issue. I keep reading variations of this idea that not voting for a particular candidate "guarantees losing the Supreme Court for the next 30 years". I see and hear this written and spoken by people that have no idea what they are talking about on this subject. I mean no disrespect, but some people simply don't like my frankness. I have zero expertise on mixing rocket the charge of having no idea what I'm talking about on that subject is an accurate charge....I would not take offense to that charge against me....I've not studied "mixing rocket fuel".

However, I do have a tremendous amount of expertise on the United States Supreme court and the two lower tiers in the federal court system. I teach the appellate system from the state Supreme Courts through the 94 Federal Circuit Courts, on up through the 13 Federal Circuit Courts of Appeals, into the Supreme Court of the United States. I am certainly not the final say on things of opinion, but I can certainly speak with authority on how appeals are worked through the federal judiciary system and how SCOTUS rulings are written from Majority opinions to dissenting opinions and all concurring opinions. I understand where the federal courts are today and much more importantly, exactly how we got where we are with a federal court system that is utterly untethered from its constitutional anchor.

So when armchair court quarterbacks start espousing about what is going to happen in the federal courts based on a lack of a vote for a certain candidate, forgive me if I roll my eyes a lot.

I have written and spoken extensively on this subject for the national Convention of States Project staff on the issue of how we got where we are the current state of the federal judiciary did not happen overnight.

What you need to understand...that is if you are interested in understanding the facts and truth no matter what your decision is for your vote....what you need to understand is the actual current state of the federal court system. At present count, there are over 850 members of the federal judiciary including currently 8 members of the SCOTUS and 800 + members divided up in the lower two tiers. All of those members are appointed for life barring Congressional use of removal powers embedded in Article I. Those powers simply are not used anymore. You can harangue on how they need to use them and you would find agreement with me....but reality is that the political cost has become so high....Impeachment Power will probably never be used again. A clear indicator of the need for structural change in our Constitution for those that understand this....but I digress...more on that later.

Let me move onto the real substance of what I want to say about this "court consequences" line of reasoning.

Talking to my now very close friend Claude O'Donovan the other day, Claude said something to me that I knew...but his words brought into sharper focus for me. He said to me that the "political capital" (cost if you will) for getting an originalist confirmed on the Supreme Court today is so high very high that it simply is not realistic to believe that any candidate will be able to do that....much less what we're dealing with in today's options. He nailed it.

The truth that we all need to understand....and this ties in with the Convention of States Project effort....the cold hard truth is that Washington D.C....and in this case specifically that the Article III branch Supreme Court is SO out of control, so very far out of control...and the Article I branch Congress who is supposed to "check" and balance the Article III so far out of control that there will be no more removal (Impeachment) of rogue court members. The corresponding truth is that the cost of seating a true originalist in the caliber of Scalia or Thomas is so high under the reality of the current system (not the original system) that no President, much less any of the current candidates could get one confirmed. The Republicans who hold a majority in the Senate have no stomach for a fight of that magnitude and the Democrats in the minority have shown time and time again that they will get what they want even from a Republican majority. If any of you doubt this....or don't understand what I'm saying, do some research into the confirmation hearings of a man named Robert Bork and current justice Clarence Thomas. The left unleashes all out HELL on any candidate for the Supreme Court that is a true originalist.

The candidates for the Supreme Court today that will be confirmed by a Republican president....any President....will not be in that caliber. Even my pick for the nomination Senator Cruz....would not have been able to get a Scalia or Thomas confirmed....I'm convinced he would have nominated folks of that caliber, but it is very unlikely that he would have ever gotten them confirmed.

I'm not trying to give you gloom and doom....I'm giving you truth and the cold hard facts of where the federal courts and the Congress are today. Of course the Executive branch is out of control too....but this explanation really centers on Supreme Court members and who gets nominated and confirmed.

You may not believe this....but what I'm telling you is accurate and can be seen if you will look critically. Under the current system and the current political environment, those two things will virtually block any seating of a court nominee that will do what needs to be done. The best you will get from the candidate in question will be nominees that have the veneer of originalism much like Justice Roberts....but that is a very thin veneer that will peel off under the heat lamp of a major case pertaining to the expansion of the federal Leviathan.

This is why you hear those of us repeating over and over our support and advocacy for the Convention of States Project. As much as some folks hate to hear this....because they simply do not understand all of what I just wrote....our system today is so far out of very far removed from Constitutional moorings that no election can fix it .....our system needs structural change. By structural change we mean changes to the structure of the separation of regain separation of powers. Term Limits for the Congress and probably more importantly the federal courts. Mechanisms that give the states real teeth to push back on rogue actions of the federal Leviathan in the form of supermajority provisions for state overrides of federal laws and Supreme Court decisions (see Mark Levin's "The Liberty Amendments") and resetting of the most abused portions of Constitutional text.

To sum it all up....the arguments about "court consequences" for voting or not voting for one particular candidate sound good...and have provided medicinal salve for a lot of people to get over their repulsion of one candidate....that argument does not hold up under any level of honest and scholarly scrutiny.

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