Monday, March 21, 2016

Moderating either between which cheek a victim is punched upon, or the speed of your retreat, is no virtue - Judge Garland and the U.S. Senate

Regarding President Obama's nomination of D.C. Circuit Judge Merrick Garland to the Supreme Court. I know the Senate has wussed out and said that they won't consider any nominations to the Supreme Court of the United States of America, until after the election (I ranted against the Right gone Wrong here), but it'd be nice if they would give this nomination the consideration it's due - two, maybe even three hours - and then simply issue a statement, such as:
"After a brief review, it is obvious that Judge Garland has a preference for ruling in favor of regulatory agencies exercising their power over, and against, the interests and rights of the American people. He has shown a questionable lack of respect for the individual rights that are protected by the 4th & 5th amendments, and a clear hostility towards the protections of the 2nd Amendment. We therefore see no need for further consideration of this judge potentially having a seat on the Supreme Court of the United States of America, where his views could further endanger the individual rights of our citizens.
Our consent is denied, and our advice to the President, is to fuhgedaboudit.


The United States Senate. "
Alas, our Senate lacks the intestinal fortitude for such a statement, so we'll have to settle for the (hiding beneath the) blanket rejection which they've re-affirmed.

Note to my Conservative friends: I'm not saying that the Senate must vote on a nominee - ignoring a nominee is not only constitutional, but a feature, several nominees have received no consideration, let alone a vote, in the past, as the Democrats know full well, having pushed it themselves, and more than once. What I'm saying is that the GOP's position to oppose 'any nomination' to the SCOTUS, even before a nominee is made known, doesn't look to me like an example of taking a 'firm stand', it looks more like a cowardly retreat, it looks like someone seeking to flee from not just confrontation, but the fear of stating their reasoning and positions for all to see. I see it as a dereliction of, if not their constitutional duty, then at the very least as a dereliction of their moral responsibility to advise the nation of the substandard, harmful, candidates for the Supreme Court of the United States of America, which the President of the United States of America, is nominating to sit in judgment over our beleagured liberties.

Note to my Pro-Regressive friends: this is not about me disagreeing with a nomination simply because it was President Obama that made it, or about the 'impeccable reputation' which Judge Garland enjoys - he does seem to be quite a scholar and a gentlemen.

What this is about, is whether or not the ideas and judgment of the nominee, and of the President, demonstrate a respect for, and an understanding of our Constitution and of the Individual Rights it was designed to uphold and protect. And as it is my judgment, based upon the evidence of their opinions and actions of record, that they have no such respect or understanding of either, and that they have instead demonstrated a desire to disregard both in pursuit of their shared pro-regressive ideals, which are explicitly in opposition to both a written constitution and to Individual Rights as such. Nominees such as these, pose real threats to the preservation of our liberty, and to our ability to enjoy the pursuit of happiness under a sound, limited, constitutional representative form of government, securely bound down through the Rule of Law.

To say that Judge Merrick Garland, fine person though he undoubtedly is, has an undoubtedly fine legal mind, is as frustratingly uninformative about how he uses that mind, as it is to say that someone is a fine sharpshooter and leaving it at that, while withholding the knowledge of whether he is a soldier or an underworld assassin - a person should not be called a paragon of fine legal reasoning, without first knowing the purposes and principles, if any, which his reasoning skills are aimed at serving. Do those aims comport with the Constitution? IMHO, no.

Judge Garland's fine legal mind is not aimed at legal reasoning, but at legalism. He supports the idea that laws, in and of themselves, are the sufficient basis for, and justification of, other laws (what I've called the Doppelganger's Rule of Rules to rule the people by).

Legal Reasoning, on the other hand, is only achieved by proceeding from an understanding that no law is a valid law, which violates Reason, and that in respecting the reality of the nature of being human, the necessity and importance of our individual Rights become self evident, making it necessary
"... to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"
, and so become the basis of our laws, which all additional laws must integrate with. If you ignore that, or disregard that, then you devalue and disregard Individual Rights as such, let alone the defense of them.

We don't need to make an exhaustive examination of Judge Garlands judicial opinions, when a brief inspection shows them to be at odds with the understanding of the 'conservative' majority in the senate (just don't play coy when such dismissals comes back to bite us in the future). For instance, in the New York Times,
"If Judge Garland is confirmed, he could tip the ideological balance to create the most liberal Supreme Court in 50 years. Measures of ideology by four political scientists show where the justices stand in relation to one another. Judge Garland’s score is based on the score of his appointing president, Bill Clinton. This methodology is considered to be a “reasonably good predictor of voting on the Supreme Court,” says Prof. Lee Epstein of Washington University."
, a position that places him far to the left on the court, nestled snugly between Justice Ginsberg and Justice Kagan, and despite the NYT's seeing that as bringing a 'new perspective' to the court, it's a new seating chart that I'm not all that comfortable with, and there's no constitutional reason why a conservative majority should approve of that.

This is not, and should not be about jockeying for political power, but about how the law is to be interpreted and applied, and the effect that will have on our liberty. The fact is, that Judge Garland's opinions and rulings consistently show that he sees that the purpose of the court to be to uphold the interests of the state, over the interests and individual rights of the citizens, and demonstrates insufficient interest in keeping the power of the state securely within the boundaries set out for it by our Constitution, and it is for that reason, that I say his rulings, especially if elevated to the SCOTUS, would pose a grave threat to the safety and integrity of our individual rights.

For instance, this is from a SCOTUS Blog entry in 2010, that was intended to portray him in a favorable light,
"Judge Garland has strong views favoring deference to agency decisionmakers. In a dozen close cases in which the court divided, he sided with the agency every time. ."
That's a problem.

Numerous times he's voted on the side of the National Labor Relations Board, against the interests of both the employers, and the employees, in favor of the NLRB and of Labor. He's voted with the Dept Labor, with the EPA, with the FCC, the SEC, the Army, FED, Commerce Dept, and in opposition to the Freedom Of Information Act (FOIA) - and those are just the cases mentioned in an article that was written in glowing approval of his judgment, aiming to show how moderate he is.

This is what we're supposed to see as 'Moderation'? An attacker who moderates between between using the left hand and the right hand to punch you in the face with, is not being moderate. Such moderation is of no benefit to the person - We The People - who's being punched. Such 'moderates' aim only to appeal to the powerful of both the left and right, which is no virtue, it is only a progressive grinding down, of our rights, favoring giving those in power, even more power over us - that is no virtue,

In the the case of 'NRA v. Reno' in 2000, Garland refused to require President Clinton's DOJ to follow federal law and destroy the records of legally purchased firearms, intruding upon and arguably seeking to aid in the abridging of the Second Amendment's defense of the right of citizens to keep and bear arms. His lengthy defense of the attorney general's policy of retaining the records of firearms purchases for six months, despite the law saying that they must be destroyed, amounted to, as the dissenting Justice Tatel ably characterized as the protests of petulant children:
"...In no case has a court held that power has been granted to a federal agency by Congress's failure to enact a limitation to a directly contradictory statutory command.   Congress said, “destroy all records.”   Congress said, do not “require that any record ․  be recorded.”   Brady Act § 103(i), 107 Stat. at 1542.   The Attorney General asserts, “Congress did not say that I have to destroy the records immediately.   Therefore I am empowered to retain the records.”   The Attorney General's position strikes me as reminiscent of a petulant child pulling her sister's hair.   Her mother tells her, “Don't pull the baby's hair.”   The child says, “All right, Mama,” but again pulls the infant's hair.   Her defense is, “Mama, you didn't say I had to stop right now.”

I do not think that the parent's command to the child is ambiguous, nor that of Congress to the Attorney General.   I do not find the child's response reasonable;  nor is that of the Attorney General."
IOW, he went to a great deal of effort to rationalize giving govt the power to do what its functionaries desired to do with that power, despite what the law told them to do, at our expense, pecking away at our liberty, violating not only the letter of those laws, but the spirit of the 2nd Amendment and arguably the 4th amendment as well.

He also voted to retry the Heller Case,
"...But Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalia’s most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.

Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one’s own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the “[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights” in a previous case. Had Garland and Tatel won that vote, there’s a good chance that the Supreme Court wouldn’t have had a chance to protect the individual right to bear arms for several more years...."
Thankfully, in the Heller case, Justices Scalia and Thomas' opinions prevailed (BTW, in the opinion of myself and others far more suited to such opinions, Justice Thomas' opinion was the better opinion), reaffirmed the rights of the people to keep and bear arms. Justice Garland opposed, and opposes that view.

That doesn't make him a bad man, or any less the scholar and gentleman that he was before, but it does make him someone whose ideas are in direct opposition to the principles of the Declaration of Independence and the Constitution - which 'conservatives' supposedly want to conserve - it makes him someone who prefers the Pro-Regressive view that administrative 'experts' in government should hold power over the choices, rights and lives of We The People, for the greater good - as they define it, rather than as we choose to live our own lives by. That doesn't make him a bad man either, but it does make him unfit to hold a judicial chair with such great power over the laws that are supposed to uphold and protect our Individual Rights.

Our Bill of Rights were amended to the constitution, because We The People
",,,expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added,,,"
in order to prevent the federal government from infringing upon our rights and liberty, and in too many ways, Judge Garland has supported, aided and abetted, the government in encroaching upon at least three of them:
, and that's only what I came up with after only a couple hours of digging. For that reason alone he is unfit to serve on the Supreme Court, and is cause enough for the U.S. Senate to issue a statement such as I noted above.

And the failure of our Senators to make such a statement, and to list the reasons for it, is, IMHO, negligent, cowardly and despicable.