Thursday, March 23, 2017

Cruising the Web

Will Baude posts at the Volokh Conspiracy about why Supreme Court nominees refuse to answer questions about issues that might come before the Court at some point in the future. He points out that senators could change this practice.
The reason that nominees do not give more in-depth answers about how they would rule in given cases, or whatever else, may simply be that they have no incentive to do so. In today’s political configurations, there are very few Senators who both 1, will vote against a nominee because he or she didn’t answer enough questions, and 2, would likely vote for that nominee if they got honest answers. In other words, I doubt that the Senators actually care whether nominees answer their questions, or at least they do not care enough to reward nominees they otherwise oppose, or to punish nominees they otherwise support.

I’m quite open to moving to a norm where nominees are expected to tell us much more than they currently do (though perhaps in a different format than the current theater). But if the Senators do not care, who can be surprised that the nominees follow suit?
I still don't think that nominees should say how they would rule on hypothetical cases that might come before the Court. A good judge would decide based on the specific details of any individual case. Do we really want nominees who would give answers as if they have stock responses for a case on issues such as abortion, campaign spending, or religious freedom without caring what the individual details are? I certainly don't.

The senators have enough information looking at how Judge Gorsuch has ruled in the past. There are plenty of cases and opinions out there for them to base their decision on. And let's face it, it would not matter at all how Gorsuch answered any of these specific questions.

Paul Crookston links to Judge Gorsuch's answer
to Dianne Feinstein's question as to whether originalism was in conflict with equal protection of the law. His answer is powerful and demonstrates that he doesn't have to answer on a specific issue in order to let us see what time of character the man has.
It would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law. The point of originalism, textualism, whatever label you want to put on it — what a good judge always strives to do, and I think we all do — is strive to understand what the words on the page mean. Not import words that come from us, but apply what you, the people’s representative, the lawmakers, have done. And so when it comes to equal protection of the law, for example, it matters not a whit that some of the drafters of the 14th Amendment were racists, because they were, or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That’s what they wrote. And the original meaning of those words John Marshall Harlan captured in his dissent in Plessy. An equal protection of the laws doesn’t mean separate in advancing one particular race or gender — it means “equal.” And as I said yesterday I think that guarantee — equal protection of the law’s guarantee in the 14th Amendment, that it took a civil war for this country to win – is maybe the most radical guarantee in all of the constitution, and maybe in all of human history. It’s a fantastic thing, and that’s why it is chiseled in Vermont marble above the entrance to the Supreme Court of the United States.

Senator Grassley made a good point
about the hypocrisy of the Democrats who pretend to be so worried that a justice appointed by Donald Trump would be subservient to the president.
Grassley also pointed out it is telling that the same people who have so loudly demanded that Gorsuch demonstrate his independence from President Donald Trump are the ones demanding Gorsuch tip his hand on a whole host of issues that could come before him—such as voting rights, the Second Amendment, abortion, and even the controversial travel order that’s currently being litigated.

The WSJ highlights
what Judge Gorsuch said about freedom of speech.
Rhode Island limelighter Sheldon Whitehouse on Tuesday took to badgering Judge Gorsuch about some $10 million in “dark money” that is being spent on advertising to support his confirmation. He demanded to know if the appellate judge believes these dollars are “corrupting our politics.” Progressives like Mr. Whitehouse want to ban anonymous political spending, the better to harass and intimidate opponents from participating in politics. Recall the IRS attacks on Tea Party groups, or the Wisconsin John Doe raids against conservative activists.

Judge Gorsuch offered the Senator a tutorial on free speech. “The First Amendment, which I’m sworn to uphold as a judge, contains two competing messages,” he explained. On the one hand, Congress has the right to pass legislation requiring more disclosure in political spending. On the other hand, the Supreme Court has an obligation to ensure that such disclosure doesn’t “chill expression.” He cited in particular the 1958 Supreme Court decision, NAACP v. Alabama, that protected donors to the civil-rights group from disclosure in the Jim Crow era.

This is reassuring. In recent decades, the High Court with the honorable exception of Justice Clarence Thomas has been too willing to tolerate mandated donor disclosure, even as evidence mounts that activists and prosecutors have used it to target and shut down political opponents. A return to the NAACP standard would be an enormous boon to free speech and political participation.

Mr. Whitehouse complained that Judge Gorsuch wouldn’t recognize his “simple” point that money in politics is corruption. “I don’t think this is simple stuff at all. I think this is hard stuff,” the judge replied. Justice Thomas may soon have a new ally on the bench.
These days when people lose their jobs if they dared to contribute money to an unpopular cause such as opposing same-sex marriage, it is no small thing for a Supreme Court justice to be concerned about the impact of some financial disclosure of contributions.

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Politico reports that Democrats in the Senate are thinking of trying to get some sort of deal for not filibustering Gorsuch's confirmation.
The deal Democrats would be most likely to pursue, the sources said, would be to allow confirmation of Gorsuch in exchange for a commitment from Republicans not to kill the filibuster for a subsequent vacancy during President Donald Trump’s term. The next high court opening could alter the balance of the court, and some Democrats privately argue that fight will be far more consequential than the current one.

If Democrats move ahead with the plan — it’s still in the early discussion phase — it would require buy-in from some Republicans, but not necessarily Majority Leader Mitch McConnell (R-Ky.) or his top deputies. At least three rank-and-file GOP members would have to pledge not to vote to unilaterally change the Senate rules through a majority-only vote later in Trump’s term — the so-called nu-style" clear option.
Perhaps there are a few squishy Republican senators who would go along with such a one-sided "Gang of 14-style" deal. Gorsuch is going to get confirmed and the Democrats are going to filibuster the next nominee whoever it is. With their anger over what happened to Merrick Garland, they could well filibuster any Trump nominee for the rest of his presidency. And here is one of the ideas that the Democrats are discussing.
In addition to talk of getting a GOP commitment on the next court vacancy, two other, less realistic options are also being discussed.

One would be an agreement to confirm Gorsuch in exchange for moving all judicial nominees back to the 60-vote requirement. Republicans are unlikely to agree, given that they are in the majority and have more than 100 lower-level vacancies to fill.

Another ambitious possibility: Some Democrats want to confirm Gorsuch only with an agreement that another justice retire and is replaced with Garland. The idea has almost no chance of success. But it’s being pushed by Sen. Tom Udall (D-N.M.), who said that there’s too much “distrust” in the Senate to believe Republicans are willing to make a deal on a future vacancy, so they must make a deal now on Garland.
So would any Republican senators fall for such a "Tails I win; Heads, you lose" proposal. It might be a good sign that they banded together to block Garland's hearings last year. Why would they surrender that advantage this year? And why allow the Democrats to negotiate a return to the filibuster now that there is a Republican president set to make lots of judicial nominations?

It is funny that the Democrats are worried about how their leftist base is going to react to their not doing something to somehow block Gorsuch's confirmation. Having witnessed Congressional Republicans letting the tail wag their dog for years, it's funny to see the Democrats in the same predicament.

Daniel Henninger reminds us
of how the Obama administration took actions almost to ensure that there would be leaks of classified intelligence. We know this because of a New York Times story from a few weeks earlier. There are legitimate problems with the Obama administration's actions, but Trump's stupid tweets have overshadowed those actions.
The details of a March 1 New York Times story deserve to be repeated with as much manic intensity as news sites report the repudiation of Donald Trump’s claim that Mr. Obama wiretapped Trump Tower.

Well, he didn’t, but Mr. Obama did plenty else. This is the lead sentence of that Times story:

“In the Obama administration’s last days, some White House officials scrambled to spread information about Russian efforts to undermine the presidential election—and about possible contacts between associates of President-elect Donald J. Trump and Russians—across the government.”

This is what they did: “At intelligence agencies, there was a push to process as much raw intelligence as possible into analyses, and to keep the reports at a relatively low classification level to ensure as wide a readership as possible across the government—and, in some cases, among European allies.”

Earlier, on Jan. 12, the Times also reported that Attorney General Loretta Lynch signed rules that let the National Security Agency disseminate “raw signals intelligence information” to 16 other intelligence agencies.

That is, the Obama administration put in motion the tsunami of anonymously attributed stories that is engulfing and disabling America’s government today.

They knew the drill. In 2011 the Obama White House leaked details of SEAL Team Six’s assassination of Osama bin Laden within hours of the operation. They politicized the SEALs and commoditized leaking, just as they now have politicized and undermined public confidence in U.S. intelligence agencies.

Mirror No. 2 reflects the face of Donald Trump, who took a legitimate complaint about all this and then, via tweets and public statements, put himself and then his presidency at war with 17 intelligence agencies. The no-surprise result is pretty ugly.

As well, Mr. Trump brought on Paul Manafort and Roger Stone, who’ve built mansions on the foreign-connections swamp, and former Defense Intelligence Agency director Mike Flynn, who fantastically sat at a table in 2015 with Mr. Putin to celebrate RT, Russia’s primary external propaganda arm. No wonder someone took a look.

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Robert Tracinski explains why it is a good thing that Trump's budget seeks to end federal spending on the arts. First of all, we don't need to be funding a lot of the stuff that gets funded through these organizations.
The reason these specific government programs are considered so necessary to the Left—and so repugnant to the right—is actually pretty obvious. Everyone knows it. Government funding for art and ideas is a giant slush fund for the political and cultural left. Nobody has any doubt what political spin PBS and NPR are going to put on their news coverage. (“NPR” is practically a synonym for self-important upper-middle-class liberalism.) The National Endowment for the Humanities is yet another subsidy for the universities, which have become miniature one-party states. And a review of grants from the National Endowment for the Arts reveals numerous examples of politically tinged art that ranges from the tendentious to the downright propagandistic—from the Environmental Film Festival and “climate change-themed public art installations” to a play about anti-gun lesbians.

Needlessly to say, no such funds go to pro-Second Amendment plays or celebrations of traditional marriage or—God forbid!—movies expressing skepticism about global warming. Everybody knows this is how it works, so spare us the hyperventilation. If you make public art partisan, you can’t complain when it becomes a partisan issue.
He reminds us of how artists freed themselves from the limitations imposed on them by wealthy patrons, rulers, and popes. It is not such an awful thing to return to the culture before the LBJ Great Society created the Corporation for Public Broadcasting, the NEA, and NEH. It isn't as if culture didn't exist before 1965.
Money is not the problem. The problem is the absence of any real conviction that the top achievements of Western Civilization are important enough to pass on. A smattering of federal funding is not going to make up for the death of the highbrow and for things like the mass abandonment of classical music.

In the mid-1950s, “The New York Metropolitan Opera’s Saturday afternoon radio broadcast drew a listenership of 15 million out of an overall population of 165 million.” Today, on selected Saturday afternoons you can go see The Met Live in HD at theaters across the country. I go to them regularly, and I am always disappointed to find that there is hardly another person there under the age of 50, even in a university town.

That may seem a bit like the collapse of Roman civilization, but it didn’t start with Donald Trump, and it has little to do with the flow of federal funds. We are a wealthy and educated society, more so than ever before in our history. Yet too many people treat support for culture the way they treat charity for the poor: not as something they personally need to do, but as something that ought to be done out there somewhere with somebody else’s tax money by a government bureaucrat.

If we wanted to pay for high culture, there could be an enormous market for it and plenty of money for its private support. If that isn’t happening, that’s because our high culture has been abandoned by the supposed cultural elites, who are too busy writing BeyoncĂ© thinkpieces. For them to complain that culture is dying because the feds aren’t doing something about it comes across as crocodile tears.

If we’re concerned about the survival of culture, we don’t need political slush funds like the NEA, the NEH, and the Corporation for Public Broadcasting. We need our own attention and effort. Culture, like charity, begins at home.

Maxine Waters has been making noise about impeaching Donald Trump. Yeah, as if that is going to happen with a Republican-led House. Even beyond that political reality, Waters is not the person who should be the point person on ethics charges.
During the height of the 2008 fiscal crisis, Waters helped arrange a meeting between the Treasury Department and top executives of a bank where her husband was a shareholder. Using her post on the House Financial Committee as leverage, she called Treasury Secretary Henry Paulson personally, asking him to meet with minority-owned banks.

When Treasury followed through, there was only one financial institution present: OneUnited. Had that bank gone under, the New York Times reported, Waters' husband would've lost as much as $350,000. Luckily for the Waters family, OneUnited received a cool $12 million in bailout funds.

After three years of special investigation, the ethics committee eventually ruled that Waters didn't technically break any rules. But that ruling came after unearthing her more than questionable family business practices, like making her grandson, Mikael Moore, her chief of staff.

Officially the committee ruled that Moore went behind the congresswoman's back to continue to lobby for special treatment. At best, that shows that Waters runs a haphazard office. At worst, it suggests she deliberately took steps to avoid prosecution.

Either way, Waters isn't in a position to tweet lectures about the conduct of any politician. Democrats would be wise to avoid her advice.

Glenn Reynolds has a theory
of why Americans are rejecting the advice of experts as argued by Thomas Nichols' book, The Death of Expertise. As Reynolds points out, experts don't have a good track record in a lot of areas.
Well, it’s certainly true that the “experts” don’t have the kind of authority that they possessed in the decade or two following World War II. Back then, the experts had given us vaccines, antibiotics, jet airplanes, nuclear power and space flight. The idea that they might really know best seemed pretty plausible.

But it also seems pretty plausible that Americans might look back on the last 50 years and say, “What have experts done for us lately?” Not only have the experts failed to deliver on the moon bases and flying cars they promised back in the day, but their track record in general is looking a lot spottier than it was in, say, 1965.

It was the experts — characterized in terms of their self-image by David Halberstam in The Best and the Brightest — who brought us the twin debacles of the Vietnam War, which we lost, and the War On Poverty, where we spent trillions and certainly didn’t win. In both cases, confident assertions by highly credentialed authorities foundered upon reality, at a dramatic cost in blood and treasure. Mostly other people’s blood and treasure.

And these are not isolated failures. The history of government nutritional advice from the 1960s to the present is an appalling one: The advice of “experts” was frequently wrong, and sometimes bought-and-paid-for by special interests, but always delivered with an air of unchallengeable certainty.

In the realm of foreign affairs, which should be of special interest to the people at Foreign Affairs, recent history has been particularly dreadful. Experts failed to foresee the fall of the Soviet Union, failed to deal especially well with that fall when it took place, and then failed to deal with the rise of Islamic terrorism that led to the 9/11 attacks. Post 9/11, experts botched the reconstruction of Iraq, then botched it again with a premature pullout.

On Syria, experts in Barack Obama’s administration produced a policy that led to countless deaths, millions of refugees flooding Europe, a new haven for Islamic terrorists, and the upending of established power relations in the mideast. In Libya, the experts urged a war, waged without the approval of Congress, to topple strongman Moammar Gadhafi, only to see — again — countless deaths, huge numbers of refugees and another haven for Islamist terror.

It was experts who brought us the housing bubble and the subprime crisis. It was experts who botched the Obamacare rollout. And, of course, the experts didn’t see Brexit coming, and seem to have responded mostly with injured pride and assaults on the intelligence of the electorate, rather than with constructive solutions.

CNN tackles the big questions facing the country today.
CNN on Wednesday morning aired a segment questioning whether President Trump is "afraid of stairs" and even asked the White House for an answer.

The segment on CNN's "New Day" and reported by national correspondent Jeanne Moos dovetailed on British news outlets and Vanity Fair magazine, which made light of Trump's January White House meeting with British Prime Minister Theresa May, where the two were seen holding hands in an irregular way.

Moos said she had become "slightly obsessed with watching President Trump watch his step" ever since having heard a rumor that he has a phobia of stairs and ramps.

Moos said CNN asked the White House for comment on the issue and was told by a spokesperson, "No offense, but this is an absurd question."
I have no idea if Trump is afraid of steps or not, but I have sympathy for him if he does. I'm a decade younger than Trump, but there are times when I find myself taking care as I come down steps so that I don't fall. Is that such a bizarre thing for a 70-year old man to do?

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For some mysterious reason Variety has chosen Chelsea Clinton for a "Lifetime Impact" award for philanthropy. Leftists keep trying to make Chelsea a thing. Alan Smithee reminds us of all the jobs and money that Chelsea has received without any apparent accomplishment to deserve any of it. She was hired for $120,000 for her first job at a hedge fund with a $100,000 signing bonus at age 26. Most of her jobs have come from Democratic donors or those who sought to benefit from the connection to her parents. NBC hired her at an annual salary of $600,000 with no background in broadcasting. Why should anyone care about this woman? What has she ever accomplished that wasn't showered on her due to her parents? And now there is talk about her entering politics. Ugh! Are voters really pining for another Clinton?

Ace has the perfect headline for this story.
Nobel Prize Committee: No One Can Top Our Giving the Nobel Prize to Obama For Doing Nothing
Variety Magazine: We'll Take That As a Challenge

This is what liberals think about allowing college students hearing speakers with whom they disagree.
Six professors at Wellesley College sent an email to members of campus imploring the community not to invite controversial speakers who might upset certain students—speakers like Northwestern University Professor Laura Kipnis, the noted critic (and victim) of the Title IX bureaucracy.

The professors' statement is incredible. If their position was accepted by the college, it would demolish the entire foundation of higher education.

"There is no doubt that the speakers in question impose on the liberty of students, staff, and faculty at Wellesley," wrote the professors in their email.

To be clear, they are saying that extending a platform to any speaker whose ideas might be disliked by some member of the community is essentially a violation of the member's rights. Remedying this injustice requires not inviting such speakers and ignoring the rights of campus members who might actually like to hear a contrary perspective for once.

The professors go on to lament that the harms to students—"harm" being synonymous with offense in this instance—could have been avoided if only the people inviting controversial speakers had comprehended the likelihood of offense being given, and not moved forward with the invitation on that basis.
Robby Soave at Reason writes about this position which came about after some Wellesley students made a video criticizing Kipnis's talk at their school.
[C]onsider what these professors are doing: they are ceding total power to students who claim to be victimized by opinions they don't like. In their view, it is inappropriate for members of campus to invite a speaker whose views are not accepted by 100% of the student body. It is also inappropriate for a university professor to tell students that they are misguided about something.

If an institution of higher learning actually surrendered on these two issues, there would be no point to continue operating. There would be no point to having classes at all. Students would be paying for their own affirmation, rather than any kind of education.
Kipnis had a very thoughtful response.
"I find it absurd that six faculty members at Wellesley can call themselves defenders of free speech and also conflate my recent talk with bullying the disempowered," Kipnis told FIRE in an email. "What actually happened was that there was a lively back and forth after I spoke. The students were smart and articulate, including those who disagreed with me."

"I'm going to go further and say — as someone who's been teaching for a long time, and wants to see my students able to function in the world post-graduation — that protecting students from the 'distress' of someone's ideas isn't education, it's a $67,000 babysitting bill."

Soave also links to this story from Hampshire College where a student assaulted members of a visiting women's basketball team because they dared to braid their hair in cornrows.
The charges stem from a Jan. 27 incident at Hampshire College’s Robert Crown Center. According to court documents, Figueroa approached members the Central Maine Community College women’s basketball team and ordered them to remove braids from their hair citing “cultural appropriation.”

....When the players did not comply and began to leave the building, Figueroa allegedly initiated a fight towards one of the players. At the same time, another unknown Hampshire College student pulled the hair of a visiting women’s basketball player causing her to fall to the ground, according to court documents.

While the player was on the ground, police allege that Figueroa kicked and stepped on the player causing injury.

Another Maine player attempted to protect her fallen teammate but Figueroa “grabbed her by the head and threw her to the ground,” according to court documents.

The second player suffered scratches and other marks.

As coaches broke up the fight, Figueroa attempted to punch at the Maine students and “was screaming swears and racial slurs,” according to court documents.
Think of this student's behavior - she attacked a player simply because she didn't like the player daring to wear braids. When students feel that violence is a legitimate response to some imagined sin of cultural appropriation, we are indeed in a sorry situation.