Gorsuch’s credentials are too impeccable, his intellect too keen and his temperament too even to fall victim to the kind of debasement that felled Judge Robert Bork and coined an infamous phrase.It just so happens that we just finished covering the Judiciary unit in my AP Government class. For the past few years, we capped the unit with a mock Senate Judiciary Committee confirmation hearing for a fictional nominee. In the past, I picked a student to play the role of a fictional nominee and told the student to just testify as if he or she were basically a clone of Ruth Bader Ginsburg. This year, the timing was unbelievably perfect and today we held our hearings with one student in each section of my classes playing the role of Neil Gorsuch. Students played the senators and asked the "Judge Gorsuch" questions about his records, ideology, and views. Then we broke in the middle and pretended to have a panel of activists interviewed on the PBS Newshour about the judge and how the hearings were going. In preparation, the students did a lot of research and many of the kids had really gotten into watching news of the hearing. The students playing the senators told me about watching youtube videos of their senator interrogating Judge Gorsuch. It was such a kick for me to see the kids get so excited about an assignment. It's not every teacher who can hear 10th graders debating Chevron deference.
If the Gorsuch confirmation hearings have proven anything, it’s that his opponents have no powder in their guns. Try as they may, there is little in the record of Neil Gorsuch that can be faulted. His rulings have been fair, his legal mind agile, and his fidelity to the law unimpeachable.
After debriefing the students about what they thought about the real Judge Gorsuch and how the hearings were going, they all said that, even though many of them are liberals and don't like the idea of originalism, they liked Gorsuch. They felt that he came off as extremely intelligent and patient as well as just a nice guy.
Well, the Democrats have announced that they intend to filibuster the Gorsuch nomination. We'll have to see if they do indeed have 41 votes to sustain the filibuster.
David French nails it.
Let’s put it this way. If the Democrats filibuster a man as qualified as Neil Gorsuch, then the Republicans would be foolish not to exercise the nuclear option — especially when you evaluate the Democrats specious reasons for taking this extraordinary step:And if the Democrats do indeed get those 41 votes to support their filibuster of such a clearly qualified nominee, it's going to be hard for Republican senators who are sticklers for Senate traditions like John McCain and Lindsay Graham or more moderate senators like Susan Collins and Lisa Murkowski to vote against nuking the whole filibuster rule for the Supreme Court.In a Senate floor speech, Schumer said that Gorsuch “was unable to sufficiently convince me that he’d be an independent check” on Trump. He said later that the judge is “not a neutral legal mind but someone with a deep-seated conservative ideology. He was groomed by the Federalist Society and has shown not one inch of difference between his views and theirs.”
Wait just a minute . . . didn’t the Democrats in the judiciary committee just spend the last two days hammering Judge Gorsuch in part for his skepticism of executive branch power and his resistance to executive branch authoritarianism? Senate Democrats had wrapped both arms around the so-called Chevron doctrine, which mandates that courts grant great discretion to agency legal determinations. News flash: These agencies are now part of the Trump administration.
Moreover, if the Federalist Society is out of bounds for GOP nominees, I suppose affiliation with liberal academic or advocacy groups will doom future Democrats?
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Kimberley Strassel highlights what Senator Schumer is really doing when he threatens a filibuster against Gorsuch.
The slow-rolling nature of the process has nonetheless masked the extraordinary new standard Mr. Schumer is setting, and the damage to the Constitution. He’s saying that every Supreme Court nominee will now require 60 votes to be confirmed. This is a massive shift—a break with the Founders’ vision of advice and consent, and an affront to two centuries of Senate history. It’s a declaration that Democrats will permanently wield the judicial filibuster as a political weapon, robbing the president and the Senate majority of the ability to appoint, and stripping the Supreme Court of a full complement of justices.THe Democrats who worry about how their support of such a filibuster will play in 2018 are floating their version of a compromise. They say they won't filibuster Gorsuch, but reserve the right to filibuster anyone else Trump nominates. But the Republicans would be fools to buy any such deal. The onus is on the Democrats.
What makes the standard suddenly real is that Mr. Schumer can likely enforce it against his members. Never in U.S. history have we had a successful partisan filibuster of a Supreme Court nominee. In 1968 a bipartisan group of senators filibustered the proposed elevation of Justice Abe Fortas to chief justice, because he was a crook. The left edged nearer the precipice in 2006 with the attempted filibuster of Samuel Alito, but only 25 Democrats joined.
Since then, progressives have lost any fear of the electoral consequences of playing abject politics with the high court. The American Bar Association unanimously awarded Judge Gorsuch its highest possible rating. He floated through this week’s confirmation hearings. Liberal and conservative colleagues alike have praised him to the stars. Yet not a single Democrat—not even vulnerable moderates such as West Virginia’s Joe Manchin or North Dakota’s Heidi Heitkamp—has publicly supported him. Before this week’s drama had even ended, Democratic senators were queuing to oppose him.
Opposing a nominee is not the same as denying him a floor vote. But Mr. Schumer has the power to punish Democrats who don’t follow his filibuster order. And progressive groups are promising that any Senate Democrat who fails to support a filibuster will face a primary challenge. Senate sources tell me there is good reason to believe Mr. Schumer can muster the votes to block the nomination.
If Mr. Manchin and fellow Democrats want to retain the filibuster for future, justified use, that’s simple. All they need do is refrain from abusing that power against a highly intelligent, perfectly qualified nominee. This is Mr. Schumer’s mess. Either his party can clean it up, or Republicans will do it.The WSJ recommends that the Republicans respond to a filibuster of Gorsuch by following Harry Reid's example and end the filibustering of Supreme Court nominees. Schumer's excuse for filibustering Gorsuch is that he was "groomed by the Federalist Society." He thinks that, by invoking their name, he's throwing some serious shade on any nominee who had spoken or attended one of their sessions.
You’d think the Federalist Society is some secret society in a Dan Brown novel. In the real world it’s a mainstream group of 60,000 legal minds who run the conservative gamut from Borkean judicial restraint types to Scalia originalists to Randy Barnett libertarians. As far as we know their conferences are public and no torture rituals are involved.
By offering this pathetic excuse for opposition, Mr. Schumer is really saying that no one nominated by President Trump can be confirmed. Mr. Trump relied on Leonard Leo of the Federalist Society in creating the list of 21 potential nominees he made public during the campaign, one of whom was Judge Gorsuch.
Mr. Schumer also says Judge Gorsuch “was unable to sufficiently convince me that he’d be an independent check” on Mr. Trump, but no one to the right of Justice Ruth Ginsburg would meet that standard. Judge Gorsuch is a principled conservative whose originalism is likely to put him at odds on occasion with more than one President, including Mr. Trump.
Mr. Schumer is bowing to his party’s left that is demanding “resistance” to all things Trump. But this puts Trump-state Democrats like Heidi Heitkamp (North Dakota), Joe Manchin (West Virginia) and Joe Donnelly (Indiana) in a bind, and they’re already trying to squirm free. Some Democrats have been floating a deal to confirm Judge Gorsuch if Republicans agree that the next nominee must get 60 votes.
Some deal. Democrats are offering to confirm a nominee with an impeccable record who appears to have unanimous GOP support in return for Republicans giving Mr. Schumer leverage over any future confirmation.
If Mr. Schumer insists on a 60-vote standard, Republicans should force him to declare a filibuster. If he does, they should then proceed to change Senate rules and confirm Mr. Gorsuch with 52 Republicans and any Democrats who decide for the sake of re-election not to take Mr. Schumer’s dictation.
Democrat Harry Reid set this precedent in 2013 when he changed Senate rules to jam Barack Obama’s nominees onto the appellate courts. Last October Hillary Clinton running mate Tim Kaine vowed that Senate Democrats would do the same for the Supreme Court if Republicans opposed a Clinton nominee: We “will change the Senate rules to uphold the law.”
The Supreme Court was a central issue in 2016, and Republicans won the Senate and the White House. If Mr. Schumer insists on a filibuster, then Republicans have an obligation to respect their voters and confirm Judge Gorsuch anyway.
Dan McLaughlin looks back at the history of Supreme Court nominations in election years to demonstrate why the Democrats' arguments that they should rightly filibuster any nominee by Trump because of how the Republicans denied Merrick Garland a vote. What the Republicans did to Garland is not so anomalous if we regard the history of such nominations.
The Supreme Court confirmation process has been badly broken over the past three decades, and both parties have had a role in that. But the Garland nomination was a rare event in the modern Senate, because he was nominated in a presidential-election year by a president whose party did not control the Senate. Only once in U.S. history (in 1888) has the Senate acted before Election Day to confirm a justice who was nominated in the last year of a presidential term by a president of the opposing party. Three others (in 1845, 1880, and 1957) were confirmed only after the election...Election year nominations to the Supreme Court have historically been treated on partisan grounds. It matters if the opposing party to the White HOuse controls the Senate.
By contrast, the Scalia vacancy was the seventh time that the Senate has held a Supreme Court vacancy open rather than confirm an election-year nominee. Besides Obama, and the Tyler and Hayes cases mentioned above, this happened to John Quincy Adams, Millard Fillmore, James Buchanan, and Lyndon Johnson. In all these cases but Hayes’s, the failure to confirm meant that a president of a different party would make the nomination; in all but LBJ’s and Tyler’s, the incoming president would be from the same party that controlled the outgoing Senate. The Republican Congress went even further when Andrew Johnson was president: It eliminated Supreme Court seats as they became vacant, then restored them to be filled by the next Republican president. Johnson had made one nomination to a vacant seat, but the new law nullified it.
By contrast, nine election-year nominees and five post–Election Day nominees have been confirmed by the Senate when its majority was of the same party as the president. Only one president, Lyndon Johnson, has had a nominee rejected in this situation. In other words, as you’d expect, election-year nominations to the Court have usually been resolved on sharply partisan lines.
So the Senate’s refusal to act on Garland is well within historical norms, and any Democratic effort to obstruct Gorsuch as payback would break new ground and possibly trigger the end of the judicial filibuster in its entirety.There's a lot of historical data in McLaughlin's analysis over the entire history of Supreme Court nominations, but he uses actual data to refute the outrage the Democrats are demonstrating now because of the Republican Senate blocking Merrick Garland.
The Senate filibuster against legislation exists for good and valid reasons as a sobriety checkpoint for federal legislation. The 2013 abolition of the filibuster for executive nominations is likewise a welcome development, as executive appointees are merely an extension of the president and should not be defeated over mere differences with the executive branch.
But Supreme Court nominations exist in a gray area, and the importance and permanence of Supreme Court decisions drives each side to disregard norms and act to the greatest extent of its power. Lacking, for now, a workable mechanism to compel both sides to play by the same rules, there is only politics and tradition.
That tradition shows that election-year nominations really are different. Senate Republicans, in stopping the Garland nomination, may have used different tools than past Senate majorities, but they acted in accordance with the dominant Senate tradition in election-year nominations since 1828, and did not “steal” a Supreme Court seat. If Democrats want to break the process further by filibustering Gorsuch, they should be denied the fig leaf of claiming that the Garland precedent supports such a step.
The third and final avenue of attack is to complain that sure, the Senate has spiked nominees without a floor vote before, but they didn’t even give Garland a hearing. But this misunderstands the role and history of hearings. The Constitution says nothing about nomination hearings, which are a relatively modern innovation. No Supreme Court nomination received a public hearing until Louis Brandeis in 1916, and Harlan Fiske Stone in 1925 was the first nominee to appear and testify before the Senate. Harold Burton in 1945 was the last Justice confirmed without a hearing. (John Marshall Harlan II was denied a hearing when nominated after the midterm elections in 1954, although he returned, testified and was confirmed in the following Senate session in 1955.) And as any nominee (including Gorsuch) can tell you, Judiciary Committee hearings aren’t for the benefit of the nominee, they’re for the benefit of the Senators. In 2016, the Senate majority decided to leave the Scalia vacancy open, to be filled after an election they had only slim hopes of winning. No hearing would have persuaded anyone of anything. The Senate wastes enough time on pointless charades as it is.
The Senate’s refusal to consider the Garland nomination was a new packaging of the Senate’s power, and Democrats are right to complain that it was yet another step down the path of that has poisoned the confirmation process. But it was not actually unprecedented in any meaningful way for the party controlling the Senate to decide that an election year Supreme Court nomination should be set aside until after the election.
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Josh Kraushaar writes in the National Journal why Democrats are going to have trouble picking off independent and Democratic supporters of President Trump. He's basing his report off of a focus group done by Democratic pollster Stanley Greenberg in Macomb County, Michigan.
The full report should be read by any Democrat interested in forging a path back to power with Trump in office. For all the anti-Trump sentiment coursing through the country, many will find Greenberg’s findings sobering. Yes, Democrats could win a small slice of Trump voters by adopting a more economically populist message geared towards the Midwestern states. But the cultural disconnect between Trump’s voters and the opposition is so wide that it’s hard to see Democrats making compromises with this sizable, disaffected constituency.Greenberg found that Trump's supporters are not so interested in certain economic policies but the general culture in the country.
...Not a single one of the 35 Trump voters surveyed said they had any regrets about their vote for Trump, despite the swirl of controversies consuming the White House. They agreed that Trump “gives them hope” when he speaks. “They accept Trump’s version of the news and facts, and their reactions to videos of his press conferences and interviews reinforced that point,” Greenberg writes. Trump’s authenticity—the idea that he is “blunt,” “outspoken,” and “not afraid to speak out”—is a huge selling point to his base. They view Republican congressional leaders as shifty and catering to the wealthy, but view Trump’s motives as heartfelt.
He quotes extensively from voters whose economic interests may align with Democrats, but who also express a panoply of anxieties over a changing American culture. Worries about terrorism, concerns that immigrants aren’t integrating into American society, and complaints about worsening race relations all dominate the focus-group conversations—including among people who backed Obama in the past.The participants don't really like Obamacare or the Democrats. It's all very interesting, but remember that these are mostly voters who supported Obama. If Trump disappoints them, they can just as easily swing against him. Or just stay home next time.
While House Committee Chairman Devin Nunes erred in rushing to brief the President and then talk to the press about what he'd found about intelligence intercept information involving the Trump transition team being spread throughout the intelligence agencies before sharing the information with the members of his committee, the information he found out is still important. Mollie Hemingway notes how the media spun this story as a nothingburger because it didn't involve Trump's accusation that Obama had had Trump Tower wiretapped. Trump might want to pretend that this news vindicated him, but Nunes's story had nothing to do with what Trump had alleged. But it still is an important story. If you doubt that, play the "imagine if Bush had done this" game.
Imagine that President George W. Bush had listened in on Obama transition team discussions and spread that information throughout the bureaucracy. Can you imagine how outraged the entire press corps would have been? And rightly so! Abusing foreign surveillance machinery to collect and spread information on political opponents is wrong. Selectively leaking that information via a coordinated campaign to a receptive media complex in order to give an unsubstantiated impression that a political opponent is illegitimate or compromised is also not great.
If the laws and regulations guiding the collection of information by spy agencies were violated by the party in power to hurt the opposing party, that’s banana republic stuff. It matters not whether the Trump team were officially the targets, whether the targets were designed to obscure the real targets, or whether it truly was incidental collection. The effect was that members of the Trump team had their privacy invaded, and that the information gathered was disseminated and even leaked to the public by the Obama-led bureaucracy.
While the media might be laser-focused on whether Obama personally wiretapped Trump, as Trump seemed to claim in his tweets a few weeks ago, the American public is not keen on the idea that other techniques or forms of electronic surveillance were used on Obama’s political opponents. Further, the media attempts to deflect and downplay and run interference for Obama officials and other Democrats regarding this significant information reveal a journalistic complex seeking not truth nor protection of civil liberties, but partisan point scoring.
In an interview with the WSJ Thomas Sowell talked about the importance of education reform and the politics involved.
Mr. Sowell has what he calls “my reservations” about Donald Trump, but he gives the president credit for being “the first Republican who’s made any serious attempt to get the black vote by addressing problems that affect most blacks who are trying to do the right thing—such as education, which is such low-hanging fruit.” Republicans have “no reason whatever to be worried about teachers unions, because the teachers unions aren’t going to vote for them anyway,” he says. “They’re spending millions of dollars trying to get Democrats elected.”
But the good that can be done is obvious to Mr. Sowell. “The most successful schools for educating black kids have been a few charter schools,” he says. “There are literally tens of thousands of kids on waiting lists for charter schools in New York alone. You needed somebody who was going to fight to break through these caps that have been put on the number of charter schools.”
Mr. Sowell has stopped swiveling in my chair, and he looks straight at me to make his next point. “You see, in order to get these reforms, you would have to go against the dogmas not only of educators, but of the American intelligentsia in general,” he says. “The teachers unions complain that charter schools really have skimmed off the cream. Of course that’s nonsense, because people are chosen by lottery. In another sense, there’s a point there, because these are the parents who care about what’s going to happen to their kids. These people are just desperate to get into the charter schools. They don’t want to be raising a bunch of little thugs.”
If a Republican could manage to enact school choice, Mr. Sowell says, “he would have some hope of beginning the process of peeling away black votes from the Democrats. It doesn’t have to be a majority of the black vote. If there’s a narrow race for Congress, and you can reduce the black support for the Democrats from 90% to 80%, that could be the difference.”
While many moan about the swamp in Washington or mock Trump for not being able to cut the Gordian knot of partisan gridlock, Charles Krauthammer reminds us that we're witnessing the wisdom of James Madison's argument that ambition must be made to counteract ambition. We're witnessing the checks on power right before our eyes.
The strongman cometh, it was feared. Who and what would stop him?
Two months into the Trumpian era, we have our answer. Our checks and balances have turned out to be quite vibrant. Consider:
1. The courts.
Trump rolls out not one but two immigration bans, and is stopped dead in his tracks by the courts. However you feel about the merits of the policy itself (in my view, execrable and useless but legal) or the merits of the constitutional reasoning of the 9th Circuit Court of Appeals (embarrassingly weak, transparently political), the fact remains: The president proposed and the courts disposed.
Trump’s pushback? A plaintive tweet or two complaining about the judges — that his own Supreme Court nominee denounced (if obliquely) as “disheartening” and “demoralizing.”
2. The states.
Federalism lives. The first immigration challenge to Trump was brought by the attorneys general of two states (Washington and Minnesota) picking up on a trend begun during the Barack Obama years when state attorneys general banded together to kill his immigration overreach and the more egregious trespasses of his Environmental Protection Agency.
And beyond working through the courts, state governors — Republicans, no less — have been exerting pressure on members of Congress to oppose a Republican president’s signature health care reform. Institutional exigency still trumps party loyalty.
The Republican-controlled Congress (House and Senate) is putting up epic resistance to a Republican administration’s health care reform. True, that’s because of ideological and tactical disagreements rather than any particular desire to hem in Trump. But it does demonstrate that Congress is no rubber stamp.
And its independence extends beyond the perennially divisive health care conundrums. Trump’s budget, for example, was instantly declared dead on arrival in Congress, as it almost invariably is regardless of which party is in power.
4. The media.
Trump is right. It is the opposition party. Indeed, furiously so, often indulging in appalling overkill. It’s sometimes embarrassing to read the front pages of the major newspapers, festooned as they are with anti-Trump editorializing masquerading as news.
Nonetheless, if you take the view from 30,000 feet, better this than a press acquiescing on bended knee, where it spent most of the Obama years in a slavish Pravda-like thrall. Every democracy needs an opposition press. We damn well have one now.
Taken together — and suspending judgment on which side is right on any particular issue — it is deeply encouraging that the sinews of institutional resistance to a potentially threatening executive remain quite resilient.
Madison’s genius was to understand that the best bulwark against tyranny was not virtue — virtue helps, but should never be relied upon — but ambition counteracting ambition, faction counteracting faction.
You see it even in the confirmation process for Neil Gorsuch, Trump’s supremely qualified and measured Supreme Court nominee. He’s a slam dunk, yet some factions have scraped together a campaign to block him. Their ads are plaintive and pathetic. Yet I find them warmly reassuring. What a country — where even the vacuous have a voice.
The anti-Trump opposition flatters itself as “the resistance.” As if this is Vichy France. It’s not. It’s 21st-century America. And the good news is that the checks and balances are working just fine.
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Joy Pullman writes about a letter written by "30 internationally respected neuroscientists, psychologists, and educators" to advise teachers taht there is no evicence at all that teaching to different learning styles such as audiory, visual, and kinesthetic learners, had any impact to improve learning.
…there have been systematic studies of the effectiveness of learning styles that have consistently found either no evidence or very weak evidence to support the hypothesis that matching or ‘meshing’ material in the appropriate format to an individual’s learning style is selectively more effective for educational attainment. Students will improve if they think about how they learn but not because material is matched to their supposed learning style. The Educational Endowment Foundation in the UK has concluded that learning styles is ‘Low impact for very low cost, based on limited evidence’.In the education classes I had to take to get certified and periodically in professional training, the need to teach to different learning styles has been drummed into us. To tell the truth, I haven't changed how I taught in order to target different styles since I started teaching history in 1998. Before that I taught French and Russian in middle school and there were a lot more opportunities to incorporate lessons geared to different styles. But I haven't found ways to incorporate such lesson adaptations into high school A.P. history classes. It's nice to learn that my instincts have been correct. It also goes to show what I've always thought about my education classes - that there was very of use in all those classes I was forced to take.
These neuromyths may be ineffectual, but they are not low cost. We would submit that any activity that draws upon resources of time and money that could be better directed to evidence-based practices is costly and should be exposed and rejected. Such neuromyths create a false impression of individuals’ abilities, leading to expectations and excuses that are detrimental to learning in general, which is a cost in the long term.