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
fuel....so 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 bit....no....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 today.....how 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 ....so 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 branch....is 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 whack....so 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
power....to 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.
No comments:
Post a Comment