Tuesday, July 03, 2018

Cruising the Web

If anyone thought the battles over a Supreme Court nomination (or nowadays, any federal judicial nomination) was about anything other than pure partisanship, the reaction to Kennedy's retirement would clear that up right away. without even knowing whom Trump is going to nominate, Democrats from solidly blue states who are also contemplating running against Trump in 2020 are demanding that all Democratic senators swear an oath of fealty to opposing that nominee. Leftist groups are preparing to spend millions to demonize the nominee. It doesn't matter which name they're going to fill in with their emails soliciting donations or the ads they're going to run. As Ed Morrissey writes, this is going to interfere with their election message.
emocrats insist that they are in position to win back the trust of voters as responsible legislators in districts and states where Trump won. In nearly the same breath, they then demand absolute fealty to progressive leadership when it comes to blocking Trump’s nominees. The extent to which Gillibrand and Chuck Schumer can manipulate these red-state incumbents will prove very educational to the voters who will choose whether they return — and to voters in other areas who keep hearing claims that the Democrats are the reasonable, moderate party.

The only way to stop Trump’s nominee is to get two Republicans to vote against him or her. That’s it. It doesn’t depend on what Manchin, Heitkamp, or Donnelly do, and it doesn’t depend on what Gillibrand or Schumer do either, for that matter. Rather than recognize the fact that they’ve brought themselves to this sorry state, Democratic leadership apparently wants to eat its own in an attempt to impose its will on a process in which its will is now irrelevant. The only proper response to that is to … pass the popcorn.

As Michael Graham writes at CBS News, there is also the danger to Democratic senators up for reelection that a massive resistance effort against whomever the nominee is has the danger of going over the top and repelling independent voters. For example, what if Trump nominates Amy Coney Barrett and the Democrats repeat their anti-Catholic line of questions and criticisms that they unleashed in her confirmation hearings to the appellate court?
And to paraphrase a bit of advice from Animal House: Mad, #Woke and wacky is no way to go through the midterms, liberals.

"The ugliest year of our political lives is about to become incomprehensibly uglier, with the Left's imminent declaration of total war on Trump's nominee," says Adam J. White, research fellow at the conservative Hoover Institution. If my twitter feed is any indication, he's absolutely right. Just search "SCOTUS" and "Impeach" to see what I mean.

Even before the prospect of a conservative SCOTUS majority, progressives were already chasing Republicans out of restaurants. Now that Roe v. Wade is theoretically at risk, what will the Maxine Waters brigade do now—start throwing them out of airplanes?
op Trump and the GOP from seating a conservative on the bench....

And now, thanks to Justice Kennedy's retirement, those same Democrats have to vote against a conservative Supreme Court nominee…on the eve of an election. It's like a felon robbing a bank on his way to a parole hearing—it confirms everything they feared about you to begin with.

So maybe they don't. Maybe those Democrats cross over and give Trump bipartisan backing for a conservative court pick—which will drive the #ImpeachNow base even more crazy.

Maine's Senator Susan Collins has stated
that she won't support a Supreme Court nominee who doesn't support maintaining Roe v. Wade.
"I would not support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law," Collins said on CNN's "State of the Union."
That's fine for her; she's long been a big supporter of abortion rights and even voted against a federal partial birth ban. But I wish that abortion rights supporters would toss this malarkey about it being "established decisions." There are plenty of Supreme Court decisions that have been overturned in our nation's history. You don't even have to go through some of the infamous cases that were once considered settled law and have since been overturned, as the Daily Wire does, listing such cases as Pace v. Alabama which upheld prison sentences for mixed-race marriages or Plessy v. Ferguson which established the principles of "separate but equal."

There are more recent decisions that overturned earlier precedents. In 1944 the court ruled in Smith v. Allwright that all-white primaries were unconstitutional even though they ruled in support of the Democratic Party in Texas holding all-white primaries in 1927, 1932, and 1935.

In 1961, the Court extended the exclusionary rule on illegal searches to the states in Mapp v. Ohio, even though they'd declined to do so in 1949.

Gideon v. Wainwright, which established in 1963 a defendant's right to an attorney even if the defendant couldn't afford one overturned an earlier decision from 1942 Betts v. Brady, which had the state's responsibility to provide counsel for an indigent defendant. The reason Clarence Gideon didn't receive counsel paid for by the government was exactly because of that earlier decisions.

In 1969, the Court incorporated protection against double jeopardy to the states in Benton v. Maryland even though they refused to do so in 1937 in Palko v. Connecticut. Also in 1969, the Court's decision in Brandenburg v. Ohio which said the government couldn't punish inflammatory speech unless it was "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." That overturned a precedent from 1927, Whitney v. California, and basically did away with the "clear and present danger" principle established in 1919 in Schenck v. U.S.

Anthony Kennedy clearly didn't believe that stare decisis should determine his ruling when there were precedents he didn't like. His decision in Lawrence v. Texas in 2003 striking down anti-sodomy laws overturned a 1986 decision, Bowers v. Hardwick. His 2005 decision, Roper v. Simmons, saying that it was unconstitutional to impose the death penalty on a convicted criminal who was under 18 when he convicted the crime overturned a decision from 1989, Stanford v. Kentucky, which had upheld the death penalty for an offender who was at least 16 years old at the time of the crime.

I'm not saying that I am opposed to any of those decisions. But I can't stand people getting all on their high horses as if it is unthinkable for the Court to overturn precedents. They do it quite regularly. Just this turn in Janus v. AFSCME, the Court, with Kennedy signing on to the majority opinion overturned the 1977 case Abood v. Detroit Board of Education on the power of labor unions to collect fees from non-union members. It's not a question of whether or not precedents can be overturned, but whether a case was decided properly. If not, the Court should reverse them.

There is, of course, much value in having an established jurisprudence so people know what is constitutional and what isn't. Governments from the federal to state to local governments have to know what they can and cannot do. People need to know what their rights are. It shouldn't just be at the whim of who is sitting on the Supreme Court to know whether we're protected in the states against double jeopardy or not. But if the Court made a mistake, why should we accord that mistake such determinative value?

I'm with Justice Thomas on how to view stare decisis.
Justice Thomas’ extreme view of stare decisis has three features that distinguish him from the rest of the Court, all of which deserve attention. First, he is unflinchingly honest. If he thinks the old cases should be discarded, he says so. Second, he is thinking big and tackling the serious questions in constitutional law to which the Court has not given a fresh look in decades. Third and most fundamentally, he believes that precedent qua precedent concerning constitutional law has no value at all; he does not give stare decisis any weight. Justice Thomas’ view is, at bottom, a doctrine of constitutional stare indecisis.
Why should this be considered such an "extreme view"? Doesn't that sound like common sense? Of course, justices and observers will disagree as to what were correct decisions or not. As this essay about Thomas and stare decisis makes clear, Justice Thomas is willing to stake out positions where he is alone if he believes a precedent was wrong. If you agree with him, then that seems good and if you don't, he's a wacky extremist. I don't agree with him that the First Amendment doesn't apply to students in public schools, but I rather admire his willingness to examine previous decisions.

As Yuval Levin writes
, with the addition of one of the people on Trump's list to the Supreme Court, Justice Roberts will now become the swing justice. So it's worthwhile to examine how the Court might be different with Roberts being the one to swing decisions. Levin sees the difference as that Kennedy was making up reasoning to justify the libertarian decisions he was inclined to make while Roberts is more interested in maintaining judicial restraint.
In cases where Kennedy’s vote was in question and was decisive, the general (though not perfectly consistent) pattern was that he would swing in the direction of a vaguely libertarian understanding of individual liberty, so that litigants who wanted him on their side would seek out fact patterns and make arguments that might put them on the side of personal autonomy. But when Roberts is unpredictable, it is usually some idea of judicial restraint that is at play.

In this sense, Roberts reflects (or rather seems to share) the distinct priorities of the president who appointed him. When he talked about judicial philosophy, George W. Bush tended to elevate the idea of judicial restraint above originalism or textualism as a way of describing his thinking.
This leaning of Roberts to trying to construct more minimalist decisions will serve as a moderation on the Court's decisions.
Justice Alito’s form of judicial minimalism tends (very broadly speaking) to emphasize the space the Constitution affords to state and local self-governments and civil society and the restraint this demands of the federal judiciary when it comes to some key public controversies. For Chief Justice Roberts, the emphasis seems more often to be on protecting the legitimacy of the courts, the integrity of our system of government, and the public’s respect for both by limiting the degree to which judges take aggressive action on contentious issues....

This suggests that as Roberts becomes the Court’s key swing vote—which, as the New York Timeshttps://www.nytimes.com/interactive/2018/06/28/us/politics/supreme-court-2017-term-moved-right.html noted last week, has already begun to happen in the last couple of years and now seems likely to accelerate rapidly in Kennedy’s absence—the question of judicial activism and judicial minimalism will move to the center of how key constitutional and legal disputes are understood and discussed. Litigants who want the chief on their side in a divided court will work hard to present their desired outcomes as the less activist moves for the court.

In areas where constitutional litigation is highly strategic (the abortion debate comes to mind above all) we can expect strategists on all sides to seek out cases and pursue litigation in ways that will present their views as the less aggressive, more incremental, and more restrained of the options before the Court. The pro-life movement has been giving thought to strategy along these lines for some years now, in the hope of a turn in this direction on the Court.

Some of the key state-legislative strategies regarding abortion in recent years (particularly those championed in various states by Americans United for Life, one of the legal-strategy arms of the pro-life movement) have been pursued with the aim of enticing a particular kind of legal challenge from the abortion lobby that might enable the Court to chip away at Roe in the name of a restrained federal judicial role rather than in the name of an aggressive assertion of judicial authority. That kind of strategy could well pay dividends now.

And more generally, we might find various activists on all sides of key disputes seeking to appeal to the Chief Justice by insisting they are on the side of a restrained judiciary where until now they might have tried instead to appeal to Justice Kennedy by insisting they were on the side of personal autonomy.

Such a change would be welcome, to be sure. And it would itself be a move to the right. There is no question that a Supreme Court with John Roberts at its center would stand to the right of one with Anthony Kennedy at its center. I suspect that Justice Kennedy’s peculiar kind of personal-autonomy libertarianism has done a lot to shape the way some key arguments in our culture wars are articulated and understood, including well beyond the courts.

As the Democrats flail around for some way to recover from their own goals that allowed the Republicans to get rid of the filibuster on Supreme Court nominees, one idea floating around there is that the Democrats should vote to expand the size of the Court once they get control of Congress and the White House. Yeah, court-packing is a boffo idea that the American people will rally around. Ed Morrissey has a good defensive maneuver for Mitch McConnell. Well, as if any Democrat would have a problem of reversing a vote that they took in the throes of this cataclysmic national catastrophe, but it would be funny to see how they vote on such a proposal.

As Democrats bemoan the loss of a Republican-appointed justice who sometimes swung their way and was "independent," Debra J. Saunders turns the tables and asks where is the "independent" justice appointed by a Democratic president?
On the high-profile political decisions, the four justices appointed by Democrats pretty much can be counted on to vote as one. Independent? No, they're too high-minded to deviate.

Even when it comes to free speech.

Wednesday the court issued an opinion by Justice Clarence Thomas that ruled against the Freedom, Accountability, Comprehensive Care and Transparency Act, a California state law that required anti-abortion pregnancy clinics to post information about where women can find free or low-cost services, including abortion.

The 2015 California law violated freedom of speech as protected in the First Amendment, Thomas opined, as it forced individuals with deeply held beliefs against abortion to promote the procedure by posting a "government-scripted" speech.

The legislation should be as offensive to free speech fans as a law requiring that abortion clinics distribute anti-abortion material. And yet four justices dissented with the decision in NIFLA v. Becerra. They are Stephen Breyer and Ruth Bader Ginsburg, who were nominated by President Bill Clinton, as well as Sonia Sotomayor and Elena Kagan, who were nominated by President Barack Obama....

Kennedy agreed with Thomas, but wrote a concurring opinion to address the insidious issue of "viewpoint discrimination" and "the serious threat presented when government seeks to impose its own message in the place of individual speech, thought and expression."

Keep in mind that Kennedy, a devout Catholic, upheld Roe v. Wade in the 1992 Planned Parenthood v. Casey ruling and opposed a Texas bill to restrict access to abortion in 2016.

But with free speech at stake, Kennedy continued in his NIFLA v. Becerra concurrence: "For here the State requires primarily pro-life pregnancy centers to promote the State's own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these."

That violation of the First Amendment Kennedy could not abide.

In the coming weeks, you'll hear critics charging that Trump's pick is not sufficiently independent, that he's no Anthony Kennedy. They do not ask: Why is there no Anthony Kennedy on the left side of the big bench?
Good question.

CNN reports
on how crazy housing costs have gotten in San Francisco. The US Housing and Urban Development has now set the limits for what is considered low income to determine who is eligible for affordable housing built by developers who receive tax credits. And guess what the upper limit is? A family of four in San Francisco earning $117,400 a year is now considered in the low income range.
The formula takes into account an area's median family income, as well as its housing costs. Those who make 80% of the formula amount are considered "low income," while those earning 50% are "very low income" and those making 30% are considered "extremely low income."
In the San Francisco metro area, which includes Marin, San Francisco and San Mateo counties, an income of $44,000 or less for a family of four is considered extremely low, while the upper limit for having a very low income is $73,300.
These numbers are certainly eye-popping -- and they have been rising swiftly. In 2014, the extremely low income limit was $33,200, the very low was $55,350 and the low was $88,600.
Home prices have been rising at an impressive clip, too. The median home value in the San Francisco metro area was $947,500 at the end of April, while the median rent was $3,300 a month, according to Zillow, a real estate marketplace.
Only 15% of San Francisco county residents could afford a median-priced home in the first quarter of 2018, according to Paragon Real Estate Group. That compares to 57% in the United States overall.
On one hand, I can accept that a family earning that much can't afford housing in San Francisco, but I also don't see why the federal government should be subsidizing affordable housing for such families simply because San Francisco's crazy regulations have driven the cost of housing so unbelievably high.
Call it the consummate New Jersey compromise. Governor Phil Murphy and State Senate leader Steve Sweeney have been fighting over whether to raise tax rates on individuals or businesses, and over the weekend they decided to raise taxes on both.

Messrs. Murphy and Sweeney agreed to raise the state’s income tax on residents making more than $5 million to 10.75% from 8.97% and the corporate rate on companies with more than $1 million in income to 11.5% from 9%.

This will give New Jersey the fourth highest marginal income tax rate on individuals and the second highest corporate rate after Iowa. The corporate tax increase will supposedly last two years and then phase out over the next two years, but that’s what politicians always say.

The two Democrats claim this will do no harm because about 0.04% of New Jersey taxpayers will get smacked. But those taxpayers account for 12.5% of state income-tax revenue and their investment income is highly mobile. The state treasurer said in 2016 that a mere 100 filers pay more than 5.5% of all state receipts. Billionaire David Tepper escaped from New Jersey for Florida in 2015, and other hedge fund managers could follow. Between 2012 and 2016 a net $11.9 billion of income left New Jersey, according to the IRS.

The flight risk will increase with the new limit of $10,000 on deducting state and local taxes on federal tax returns. This is why Mr. Sweeney wanted to avoid raising individual tax rates, but Mr. Murphy insisted on it. The new Governor is another progressive who became rich working for Goldman Sachs but seems offended that someone else might also get rich.

About two-thirds of New Jersey’s $3.5 billion income outflow last year went to Florida, which doesn’t have an income tax. Meantime, the state has been bribing corporations with billions in tax credits to stay put. This year the state expects to spend $545 million on corporate welfare, and the cost could double by 2020—thus consuming the $440 million that the new tax increases are projected to raise.
But hey, they don't worry about these future problems and they'll just spend more money on pensions.

Another state having problems funding pensions is California as cities and school districts are facing dire futures when it comes to paying teachers because so much money is promised to public pensions.

Some states are sabotaging themselves through their leftist policies. The WSJ looks at the crazy tax policies that New Jersey has enacted that will drive even more wealthy people out of their state.
California property taxes, which fund local governments, are capped by the state constitution’s Proposition 13 at 1% of a home’s value and can’t rise by more than 2% annually. So although housing costs have soared since the recession—the median home price in San Francisco is $1.6 million—cities and school districts aren’t rolling in the dough.

At the same time, municipalities are getting socked with big bills from the California Public Employees’ Retirement System and the California State Teachers’ Retirement System, known as Calpers and Calstrs. For years the two funds overestimated their investment returns while underestimating their expected payouts. This helped keep local-government and worker pension costs low for a while, but now the state, cities and school districts are having to play catch-up.

School-district pension costs have more than doubled since 2013, and the state legislative analyst’s office predicts they will climb another 30% over the next two years. For every dollar cities spend on worker salaries, they have to pay 32 cents to Calpers. This effective payroll “tax” charged by Calpers will increase to nearly 50 cents on the dollar by 2024. Retirement costs already equal 44% of teacher pay in San Francisco.

Remember that silly study that found the U.S. in the top ten "most dangerous countries in the world for women"? Here is the list of the 10 worst.
The top ten most dangerous countries in the world for women, 2018:

1.) India

2.) Afghanistan

3.) Syria

4.) Somalia

5.) Saudia Arabia

6.) Pakistan

7.) Democratic Republic of the Congo

8.) Yemen

9.) Nigeria

10.) The United States of America
For some reason, Iran did not make that list. Well, let's remember what women risk their freedom to do in Iran... like take off their headcovering or dance in public. This is what bravery looks like in Iran.

Civility summer continues.
A man is accused of threatening to chop up U.S. Sen. Rand Paul and his family with an ax.

The man has been arrested. He allegedly called in the threats to Paul's Bowling Green office.

Paul mentioned the attack publicly at an event in Litchfield, Kentucky, on Monday.

"Capitol Police have issued an arrest warrant for a man who threatened to kill me and chop up my family with an axe," Paul said. "It's just horrendous that we have to deal with things like this."

I wish everyone a lovely Fourth of July! I'll be visiting my daughters and going to see the Nationals and Red Sox as well as see Hamilton. I don't know how much time or energy I'll have for blogging. I hope everyone enjoys celebrating our nation's independence.