Monday, July 16, 2018

Cruising the Web

Kevin Williamson has some perceptive things to say about judicial activism.
With the nomination of Brett Kavanaugh to the Supreme Court, you’re probably going to be hearing a lot of dumb things from your left-leaning friends about judicial activism, the power of precedent, and constitutional rights. A few things you’ll want to keep in mind.

Overturning a law as unconstitutional isn’t “judicial activism.” Failing to adhere to a Supreme Court precedent isn’t judicial activism either. If the law is in fact unconstitutional — meaning in conflict with the actual text of the Constitution — then throwing it out is not judicial activism: It is the Court’s duty. Likewise, if a precedent has no basis in the Constitution, then overturning it is not judicial activism: It is the Court doing its job....

Likewise, there are many legal scholars — including pro-choice ones — who believe that Roe v. Wade was a bad decision, an embarrassing act of pure judicial activism in which the justices of the Supreme Court, led by Harry Blackmun, substituted their own moral preferences for the actual letter of the law. Until fairly recently, it was common for liberal lawyers and judges to acknowledge the defects of Roe — even Ruth Bader Ginsburg has criticized the decision. Don’t expect to hear very much of that intellectual honesty now, of course: Cowardice and conformism are the rule of the day.

Most critics of Roe hold that the Constitution is in fact silent on the question of abortion. Roe is based on an inferred right to privacy that appears nowhere in the actual text of the Constitution, a right that is, as currently construed, almost infinitely plastic. The same vague right to privacy that supports Roe could just as easily be used to nullify gun laws or business regulations. Even if you support abortion rights, you should consider the possibility that Roe has no real basis in the Constitution.

On the other hand, several of the recent Supreme Court decisions hated by the Left — especially Citizens United and Heller — are based on protections that are actually specified in the Bill of Rights. The First Amendment really does protect political speech, which is what Citizens United was about. The Second Amendment really does enshrine the right to keep and bear arms, which is what Heller was about. Maybe you think the Constitution should be amended to allow for stricter regulation of political speech or to restrict firearms ownership. That’s fine — and there is a process for amending the Constitution. But, for the moment, the Constitution says what it says.
So what then is judicial activism? As Williamson tells us, it's when judges substitute their preferences for what is actually in the Constitution or a law.
Which brings us to the question of what judicial activism actually is. Properly understood, the question of whether there should be a legal right to abortion is separate from the question of whether there actually is a legal right to abortion in the text of the Constitution. It is fanciful to believe that there was in fact a constitutional right to abortion lurking in the document for nearly 200 years, unnoticed by the men who wrote and ratified it, and then discovered by Justice Blackmun et al. Judicial activism is what happens when judges abuse the power entrusted to them, choosing to act as politicians making policy rather than as judges upholding the law even when they wish the law were other than what it is.

If the Constitution is silent on abortion, then abortion becomes — as it should be — a political question to be settled through democratic processes. States will debate and propose laws restricting abortion rights or protecting them, and Congress may consider legislation of its own. The people’s elected representatives will vote on the question. There will be compromises and, one hopes, an eventual consensus. That is how social questions of this sort are supposed to be sorted out, rather than through the fiat of nine black-robed academics empowered to impose their own will on the republic at large.

The definition of “unconstitutional” isn’t “I don’t like this, and I wish it were different.” The definition of “constitutional” isn’t “I like this and want to keep things this way,” either.
That all seems so clear, but having taught this subject for 16 years now, I know that students are just attracted to using the argument that times have changed and so our understanding of the Constitution should change.

This is the best and most succinct argument against judicial activism that I've ever seen.

And this guy went to law school and used to be his state's attorney general. Amazing.
New York Gov. Andrew Cuomo pledged to sue if the Supreme Court rolls back Roe v. Wade, the 1973 ruling that made abortion legal nationwide.

Speaking to a crowd in Poughkeepsie, N.Y., on Wednesday, the Democrat said Republicans in control of the state Senate may soon lack an excuse for not codifying on the state level the protections underlined in Roe v. Wade and called on them to do so immediately.

"We now need to codify Roe v. Wade, which will actually increase the protections in New York," he said. "God forbid they do what they intend to do, which is overturn Roe v. Wade. I want to get it done before the Supreme Court does that, because I don't want any gap in a woman's right to protection, and we have a better legal case when the Supreme Court acts because I will sue when the Supreme Court acts."
I'm not sure whom he thinks he can sue if he doesn't like a Supreme Court decision. Witness how the pro-life side did not sue the Supreme Court after 1973. Instead they worked through the states to try to trim back the laws on abortion. You know - using political means to address a policy issue just like Cuomo wants to do to make sure that New York continues to allow abortions. That's what all the states would have to do if Roe were overturned. But there is no lawsuit involved. But Cuomo can go bloviate about bringing a lawsuit because he probably assumes that the audience he is targeting is just clueless and won't care that he's spouting nonsense. Sadly, he's probably right.


For all Trump's crassness in how he has handled NATO and his crude comments on America's relationship with Europe, he does have a point that it's about time that the European nations contributed more to this alliance. Michael Brendan Dougherty points out that the U.S. under Obama was making the same warning. This is not new, it's just being phrased in less than diplomatic language.
Now Gates’s prediction that patience would begin to run out is coming true, as President Donald Trump reams out the Europeans. Given the increasing exasperation of U.S. presidents, Europe should have anticipated this problem. First, the U.S. cajoled. Then, under Obama it began to warn. And now, under Trump, it bellows. The U.S. is letting Europe know that it can treat this partnership for what it’s worth.

It is time for Europe to grow up. Many of the criticisms their publics, their press, and their politicians throw at Trump and America have some merit. It’s true that Trump is undiplomatic and he can be obnoxious to allies. Many Europeans are currently advertising their revulsion at Trump’s family-separation and detention policies at the border. Those policies deserve criticism.

But, Europe is the continent whose migration policies have turned Libya into a smuggler’s paradise. It was European migration policies that tolerated the sordid Calais jungle. It was Europe that recently cut a deal with the petty tyrant Erdogan to keep migrants out. And it is Europe that is preparing to set up encampments outside its borders to deal with migrants. What do you think those will look like?
But it's so much easier to demonize the U.S. for our own problems in finding a humane way to deal with illegal immigration than to look in their own mirror.
The continent has real problems and real security challenges. It has real self-regard and sees its political union as a means of putting itself back at the center of the world’s affairs. But, in truth, it has almost no ability to project its power domestically, much less abroad. Only France seems able to maintain its sordid Africa policies.

Sometimes friendships turn toxic. And like anyone who has been enabled and enfeebled by a relationship, Europe is lashing out as it is discovering the truth about what the U.S. really thinks of it. Let it lash out for a bit. This is a partnership based on deep ties of history, civilization, and mutual interests, and one side of it really does have to grow up, and make decisions like an adult.

And while we all wish that Trump would talk differently about Putin and Russia's interference in our election, let's not pretend that Obama was some tower of strength versus Russia. Remember this is the guy who told Medvedev about the flexibility he would have after the 2012 election and ridiculed Romney's warnings about Russia being our number one geopolitical foe. Jimmy Quinn writes at NRO,
Now, whether it’s true that Russia is America’s No. 1 geopolitical foe can be debated — especially given China’s aggressive efforts to expand its reach through infrastructure projects around the world (though I would argue that Russia has taken a more active role in opposing the United States in international fora and on the geopolitical chess board). What’s clear, though, is that Barack Obama underestimated Vladimir Putin’s pretensions to imperial grandeur, hence his hot-mic moment with Medvedev in 2011: “I’ll have more flexibility after the election.”

Smug’s tweets, made partly in jest, remind us that under the previous administration, American policy towards Russia was so anemic as to enable Moscow’s meddling in Syria, Ukraine, and, eventually, the United States. In fairness to the previous administration, it’s not clear that a more assertive U.S. foreign policy would have dissuaded Putin from playing on the political fault lines that made the United States an appealing target. What is clear, though, is that Bashar al-Assad (and his friends in Moscow and Tehran) is close to winning the Syrian civil war, leaving a charnel house of a mess in his wake, and that Ukraine could have used anti-tank weapons years ago.

Some of the current president’s foreign-policy actions have disproved the previous administration’s dogmas in these areas. Punitive strikes against the Syrian regime for gassing children did not lead America toward Vietnamesque mission creep. Equipping the Ukrainians with lethal defensive aid (truth be told, Congress deserves credit for this, not the president) did not lead the United States down an escalatory spiral into war with Russia.

The absolute reversal of roles in party attitudes toward Russia, would have seemed impossible back in 2012, but the Democrats, four years after Obama won reelection, have started to see the light. Expressing concern about Russia’s influence, once unfathomable to progressives, seems to have found a resurgence in the new political context. Could it be that the furor over election interference has created a new generation of left-wing hawks? I’m doubtful. This is probably just rank political opportunism to take advantage of Donald Trump’s bizarre rhetoric on Russia, lacking sincere follow-through in terms of policy.

But as long as the Democrats want to play their faux anti-Russia game, we might as well hold them to a repudiation of Obama’s feckless policy of acquiescence and move them toward an embrace of assertive policies that hold Putin to account.
All that is true, but it would be nice if Trump could sometimes make his rhetoric on Putin and Russia indicate that Putin isn't "fine" as Trump said last week. Putin isn't fine. He's a vicious dictator who is killing his own people who criticize or oppose him. I wish that the administration would show one-half as much anger about Russian interference in our election as they do with CNN's biased reporting. As Matthew Continetti warns, I sure hope that Trump doesn't get suckered into some sort of deal with Putin.
The Russians look at ceasefires and arms control the way you and I look at dieting and nutrition: as pledges that work to one's advantage in the short term but are ineluctably broken. There is no reason to expect Russia has either the intent or even the capability to act on its promises of diplomatic comity. It's almost as if Russia can't help being the bully, especially in regions it considers important such as its near abroad and its beachhead in the Middle East, and especially when it senses an opportunity and feels emboldened. Which is how it feels right now.

No mystery why. Heading into next week's summit in Helsinki, President Trump has made plain his displeasure with NATO, his willingness to take the same personal tack with Putin ("Putin's fine. He's fine") that he did with Kim Jong-Un, his open-mindedness about the future of Crimea, which Russia annexed in 2014 ("What will happen with Crimea from this point on? That I can't tell you"), and his desire ultimately to remove U.S. troops from eastern Syria.

The move for Putin is clear: trade assurances that Iranian forces will leave Syria in exchange for American withdrawal from same; or U.S. acknowledgment of Russian sovereignty over Crimea; or reduction in stepped-up NATO military exercises; or extension of the 2010 New START Treaty; or sanctions relief; or some combination thereof.

Such a deal might tempt the president. News of a diplomatic coup has the potential to bolster an approval rating that has been drifting down since early June. Success with Russia would draw attention away from North Korean backsliding and intransigence. And a breakthrough with Putin would allow Trump to say that his years of avoiding moralistic condemnations of the Russian leader have paid off. He'd be making a grand gesture on the world stage, while thinking of the Nobel Peace Prize.

But he would be wrong to make a deal with Putin, or agree to any concessions in which reciprocity is not verifiable, concrete, and upfront. What happened in Daraa was a classic lesson in Russian diplomacy: talk bigly and nicely, then wait for the democracies to look inward and become distracted before making your next advance on the ground.


Jonathan Turley takes a common-sensical, dispassionate approach
to the news of the indictments of Russian operatives hacking the Democrats in 2016. Basically, it wasn't all that much new and it still didn't indicate any known collusion by the Trump campaign.
As for the information shared by the Russian units, it is was rather underwhelming even to the recipients. For example, Guccifer 2.0 sends a Trump associate what is described as “the turnout model for the democrats entire presidential campaign.” The Russians were eager to help, even saying in similarly stilted language, “please tell me if i can help u anyhow … it would be a great pleasure to me.” However, the recipient simply responds that the information is “pretty standard.”

Indeed, much of this effort may have been much too “standard” for some of us to admit. The continued shock and revulsion expressed by many leaders at the thought of such interference is a tad forced. The United States has intervened in foreign elections for decades, including leaking stolen documents. Not long ago, our hacking of our own allies, including German Chancellor Angela Merkel, was revealed. Many nations regularly try to influence elections and this is nothing new for the United States, either as the culprit or as the target of such efforts.

In other words, if there were a real hunt for election witches, we would find ourselves at the head of the line to the pillory.

Does that mean that the Mueller investigation is somehow invalid? Of course not. This remains an attack on our system, there is still work to be done, and we should all want the FBI to continue that work unimpeded.

With minutes of its release, the latest indictment was unrecognizable after being put through the centrifuge of the Washington spin machine. The fact is that the indictment largely confirmed what we knew. It shows an effort by the Russians to undermine Clinton and influence the election; it also shows no evidence of knowing collusion and, indeed, very limited evidence of unknowing collusion.

So, ignore the exclamations of “O Goody Ruskies.” We can be outraged by the Russian operation without being hypocrites as to our own history. Likewise, we can support the Mueller investigation without ignoring the fact that no credible evidence has thus far arisen against Trump on collusion.

In other words, if you want to find witches, start by not being chumps.


There are just so many delicious ironies in this story.
A California-based company that sells "Make America Great Again" hats similar to the official hats sold by the Trump campaign says its prices may rise in response to trade tensions with China prompted by President Trump's tariffs.

David Lassoff, who runs the company IncredibleGifts, told ABC News that prices of the hat could double from between $9 and $12 to at least $20 if he is forced to abandon his Chinese manufacturers and make the hats in the United States.

The hat, Lassoff said, is his website's best-selling item. He claims to have sold hundreds of thousands of the hat.

"We usually sell the MAGA hats for around $9 to $12. But it could go up to $20 if we had to make them in the U.S. and embroider them here," Lassoff said.


There was some gasps of outrage at the news last week that Elon Musk has donated to a PAC to elect Republicans this year. But that's what many rich people do - they donate to the party in power in order to try to get benefits. This is nothing out of the ordinary. And Musk's donations just follow his personal interests which is why he's donated to both parties.
Because Musk has become a constant fixture in the news cycle lately, his political contributors are A Thing, but it’s worth noting that he’s been giving to Republicans for years. According to data collected by Open Secrets, he’s put cash in the pockets of Republicans since 2003, when he gave $2,000 to George W. Bush during his re-election campaign. He also, at various points, put cash in the coffers of candidates like accused child sex abuser Dennis Hastert and Dana Rohrabacher, a man who believes it is okay to refuse to sell your home to a gay person. In total, he’s given about $300,000 to Republican candidates and PACs.

The thing is, over the same stretch of time Musk also gave a lot of money to Democrats. He backed John Kerry’s candidacy for president in 2004, gave to the Obama campaign in 2008 and 2012, and donated multiple times to Hilary Clinton’s presidential aspirations in 2008 and 2016. Per Open Secrets data, he gave nearly the same amount to Democratic causes between 2003 and 2018 as he did to Republican causes—at least prior to his latest round of political donations that focus primarily on Republican candidates and efforts.

Since this quarter’s generous donations to the Protect The House PAC surfaced, Musk has taken some heat for giving money to candidates who clearly do not align with some of his own personal views. For example, per Motherboard, Musk called burning fossil fuels “the dumbest experiment in history, by far.” Yet he’s giving money to a political party that generally denies the existence of climate change. Musk’s buddy Kevin McCarthy—who backed President Trump’s decision to pull out of the Paris Climate Agreement—is about as bad as it gets on the issue with just a three percent approval rate on environmental issues from the League of Conservation Voters.

That’s because whatever Musk’s personal ideology is, his political one is much simpler: Elon Musk gives money to whoever may benefit Elon Musk the most.

Republicans are currently in power, and his companies rely to varying degrees on government support. Tesla benefited from federal tax credits that could reach as high as $25,000 provided to buyers of electric cars (though that has now expired); SolarCity, now part of Tesla, is helped by a similar credit that allows homeowners to deduct 30 percent of the cost of solar panels; nearly half—more than $5 billion worth—of SpaceX contracts come from the federal government, per Real Clear Policy. At the risk of losing any of that business, it’s easier for Musk to kiss the ring than to take a stand—and business has been damn good for Musk under Trump and company.

Even on the occasions that Musk flexes some personal morality, it’s often motivated by what’s best for business. As The Ringer pointed out, he sat on a Trump advisory council for months, remaining on board even as Trump accused President Obama of wiretapping him, issued his first failed travel ban that targeted Muslims, and fired FBI director James Comey. He only departed when Trump decided to ditch the country’s commitment to the Paris climate accord—a set of standards that would benefit his companies that focus on alternative sources of energy.

Elon Musk’s political donations—like those from most billionaires in charge of massive corporations, even those in the ostensibly left-leaning Silicon Valley—are less partisan and more pragmatic, but that doesn’t make those contributions and the system of politics that encourage them any less cynical or gross.


Steven Greenhut looks at a dumb idea
out of California's legislature. I know this will shock you. Greenhut is writing about the heavy burdens that California places on people trying to earn a living, many of them low-income people who can't afford the education and certification requirements or exorbitant fees just to do a job that in former years people didn't need any sort of government imprimatur.
If you shampoo hair for pay at, say, elderly people's homes or at a salon—and haven't spent as much as $19,000 at a barbering and cosmetology school—then you are an outlaw. It's illegal to do so in California. The Board of Barbering and Cosmetology posts this Frequently Asked Question on its website: "I would like to hire a person for the sole purpose of shampooing or preparing consumers services; can I do this?" The answer: "No, only a licensed barber, cosmetologist or apprentice can wash a consumer's hair or prepare a consumer for services."

Did I mention that a shampooer needs 1,500 hours of training, whereas a first responder/emergency medical technician only needs 120 to 150 hours of training? The Morrell bill passed the full Senate with only two "no" votes, but was killed last week in the Assembly Business and Professions Committee on a 14-3 vote in spite of the fact that most of us have shampooed our own hair for years without calamity.

The hearing room was packed with students from local cosmetology schools. It should surprise no one that the main beneficiaries of the current rules are the schools that charge hefty tuitions for such training, nor should it be a surprise that the state bureaucracy (the Department of Consumer Affairs) estimated excessive fee-revenue losses if the bill became law. Those estimates are hard to fathom given how unimaginable it is that people currently go through the whole licensing rigmarole and then only use the degree mainly to shampoo and arrange hair.

But government agencies see any kind of minor regulatory rollbacks as a threat to their authority. There's always that fear of the slippery slope. There's also an economic term known as "regulatory capture." It's typical in all aspects of government for industries that are being regulated to dominate the agencies that do the regulating.
All those nice legislators who don't give a hoot about the little guy and just want to help out the schools that have probably been donating heavily to them. It reminds me of the absurd requirements that many states place on people to get certified to teach. The real beneficiaries of such requirements are the colleges that want to keep enrollment up in their education departments. I think people could learn enough to teach from a class or two on discipline and planning and then a semester or year as a student teacher. Most of the other stuff I had to take to be certified was pretty darn worthless. And just about all of it was taught by university professors who had never taught students below the college level. So I have great sympathy for these students at cosmetology schools who want some relief.


At least New Jersey is wising up to how stupid such policies are and how destructive they are of the hopes of low-income people to improve their lot.
Brigitte Nzali was stunned the first time she was slapped with a fine for braiding hair without a cosmetology license in her trendy salon in Blackwood, Camden County.

Why should she have to pay $18,000 to go to beauty school and spend 1,200 hours to learn a skill that’s steeped in African culture that requires little more than experienced, nimble fingers and a healthy dose of creativity?

“I learned how to do this from my mother. I was 11. It’s my culture. It’s my passion,” said Nzali, a stylish woman with eye-popping tresses who was born and raised in Cameroon and educated at the Sorbonne in Paris. “We don’t use any chemicals. It’s all natural, a very safe procedure.”

....Nzali can’t recall how much she’s been fined over the years, but after a few encounters with licensing agents, she decided to fight back. She spoke out against the legal requirements that tie braiders’ hands and helped persuade lawmakers to pass a bill last week — unanimously — that would free her and fellow braiders from having to obtain a state license.

Gov. Murphy is expected to sign the measure within 30 days. Twenty-five states have already enacted such an initiative, and Pennsylvania lawmakers are weighing similar action. In Pennsylvania, braiders must be licensed and must complete 2,000 hours of training in a beauty school, which covers a gamut of topics including hair styling and coloring.

In recent months, Nzali teamed up with the nonprofit Institute of Justice, which battles government overreach and abuse, and later joined with the conservative Americans for Prosperity, which also took up the cause and lobbied for a change in the law.
Why should this be a conservative issue? Don't liberals care about such individuals? Thankfully, some do.
Last week, lawmakers in Trenton voted unanimously in favor of the law change, which had been proposed by state Assemblywoman Angela McKnight, a Hudson County Democrat, in May.


Steven Hayward has a laugh at the "bright new future" of the Democratic Party - Democratic Socialism. Yeah, this is a platform to win the future.


This is a cool website looking at what percent of certain occupations are Republicans or Democrats. I'm not sure where they are getting the data from, but I don't find much surprising here.