Thursday, February 28, 2019

Conservatives Continue to Hammer Themselves in the Left's 'Long Game'

A friend of mine brought an article to my attention, with the catchy title of "Roberts And Kavanaugh’s Death Penalty Betrayal Again Shows Why Conservatives Never Win The Long Game On Judges". Attention getting, eh? With a title like that, of death, betrayal and long games, you might expect to learn something about the story behind the case, presumably starting with what it's all about. What we learn about it, is that the SCOTUS recently:
"...summarily reversed the Texas Court of Criminal Appeals' determination that Mr. Moore "did not have intellectual disability and consequently was eligible for the death penalty...."
, and that is all, repeat all, of the information mentioned about the actual case itself. Curious. If what's happening with a case in the Supreme Court is important enough to post on to the general public, shouldn't there at least be some mention of the nature of original case made, such as what crime was committed, which rights and laws were originally violated in it? Even just a quick aside, on the way to making another point, as the AP did here:
"...The justices ruled 5-3 on Wednesday in favor of inmate Vernon Madison, who killed a police officer in 1985. His lawyers say he has suffered strokes that have left him with severe dementia...."
I can't help but wonder what sort of view of The Law a person has, that when communicating the importance of a case to those who are unfamiliar with it, that they find the original crime and punishment of that case to be of little importance, even irrelevant to the story? The author of that post, Josh Hammer (the latest in a long line of 'Conservative!'s to sport the bow-tie look), surely knows far more about the particulars & processes of the law than I ever will, as  his blurb notes that he's clerked for a Judge on the U.S. Court of Appeals, Fifth Circuit, and for the Senate Judiciary committee, and much more... including this:
"Josh graduated from Duke University, where he majored in Economics, and from the University of Chicago Law School"
Law School and Economics. Huh. That caught at my attention a bit... snagging on a fragment of a useless memory, where Oliver Wendell Holmes Jr. once wrote in the Harvard Law Review, envisioning a future of lawyers as "...the man of the future is the man of statistics and master of economics..." - of course Holmes was not only not a conservative, he was one of the original Pro-Regressive anti-conservatives to sit on the Supreme Court. Huh. Well, be that as it may, you might still think that having graduated from two prestigious colleges would've helped Hammer to clarify the nature of the case he's posting about. Nope, that skill seems to have been left out of his education. From Josh, we learn nothing of what crimes were committed, nothing about who was wronged, what individual rights were violated, or what injustices were perpetrated, or otherwise claimed before the SCOTUS. What sort of 'intellectual disability' was it that Mr. Moore was claiming, and why? Nope. And nothing substantive about what the issues in question were and are, not even what the death penalty is for (murder? kidnapping?), or what the circumstances or extenuating circumstances, if any, were. That seems like a lot to find irrelevant.

Hammer does however have lots to say about the technical and political aspects of this case. Of the technicalities, he tells the reader of its movement through the courts: when it was originally tried, and retried; of fealty to stare decisis norms; that precedents were set, and precedents were ignored; a 'per curiam' opinion was given (not what that is, or what opinion was given in it, just that something was improperly handled); he tells us who dissented, concurred or reversed their opinions, or gave none at all; he notes that binding and non-binding stuff happened, and so on and so forth. On the political aspects of the case, he focuses upon viewing it through a particularly partisan lens to the point that he even expresses his disgust with Republicans failing to " to end sycophantic judge-worship...". Seriously? The Right is often accused of many things, but 'sycophantic judge-worship' isn't one I often hear - and what does it mean? He doesn't say. If you drill into and through a few layers of his links, you might begin to get some sense of what he means by that (using federal and state legislation to reduce the scope of judicial rulings, together with a POTUS taking an Andrew Jackson approach to the judiciaries rulings: "John Marshall has made his decision; now let him enforce it"), but the casual reader of this post is given no clue about what he meant by any of that, other than, obviously, the 'badness' of Republican Nominated Judges failing us.

In short, he tells us loads and loads about the particulars and processes and operational technicalities of the law that were, or perhaps weren't, followed, but nothing at all about the original details of the case, the arguments for, or against it, or how those many technicalities led it to being raised at the Supreme Court, and serve the cause of Justice being done, and all of that lack of information is packaged here to hype an agenda which largely remains unclear. This post isn't a one-off for him; while there are exceptions, it's common for him to take this approach in his posts, and he is not the only conservative today to be taking it, and it's that wider norm, more than Hammer himself, that my comments are being directed towards here. Focusing on the technicalities of law might be appropriate for a journal for law nerds, but the fact that this was posted on the Daily Wire for the general public's consumption, means that those unexplained technicalities of law are going to be driven forward under the power of the post's partisan political sizzle alone, which I think tells us something about how a successful conservative lawyer views the law today, and how they think the public should view the law: keenly focused upon particulars, processes and points scored, rather than on the principles and purposes which those processes were (originally) supposed to serve.

That, IMHO, is a symptom of the very problem that Hammer is ranting about (and is exacerbating), and points towards just what sort of long game he's playing -  whether or not he's aware of whose game it is that he's playing in (I have my doubts), is another and deeper issue.

He hammers on through his lens:
"...what is not particularly enjoyable is to watch the legal conservative movement beclown itself time and time again by nominating — and placing institutional and political capital behind — judges who more often than not deeply disappoint conservatives."
How conservative of a legal perspective is it, to show little or no concern for communicating the substance of a case (again: Murder? Kidnapping? Causes? Pleas?) to an audience, or even what meaning the SCOTUS decision had for this and other similar cases, but instead concerns itself only with the technical processes and aspects of the SCOTUS decision that ran afoul of his partisan expectations of the judges involved? That approach seems far less concerned with making an argument from first principles, than with making a utilitarian case for a 'greater good' that tilts right. Is it now a conservative legal perspective to
essentially accuse 'Republican nominated judges' of being disloyal to the positions and expectations of the political party that nominated them?

Don't mistake me - I fully understand getting furious over unjustifiable SCOTUS decisions, I frequently do so myself, but I do so when the judgments on the merits of a case, are flagrantly unconstitutional towards the letter and spirit of the law - not because they are at odds with the current political preferences of 'The Right'. With that in mind, here's a question that seems important to consider here:
  • Is a Republican someone with an expectation and desire for judges rendering Justice with Lady Justice's blindfold securely in place, by appointing judges that will uphold and apply the Constitution in a manner that is compatible with how our Founders understood the concepts it was framed to embody?

  • , or,
  • Are Republicans those who expect judges on the bench to peak under Lady Justice's blindfold so as to be taking into account loyalties to the political preferences of those who appointed them, when formulating their judicial *opinions* on Constitutional questions? .
Who doesn't see that the latter option must lead to kangaroo courts? And if we do get (more) of such courts, will it really matter if they tilt right? For awhile? It should be disturbing to see someone who claims to revere the Constitution, advocating for such a thing, but how much more disturbing is it to see someone doing that, without realizing that they are? What is becoming disturbingly clear, is that we are not faced with a problem of 'Republican nominees' deliberately betraying the constitution, but of 'Republican nominees' treating it exactly as it is currently expected that an educated person should.

If that seems outrageous to say, consider Hammer's listing of 'infamous Republican appointees' to the Supreme Court:
"...Harry Blackmun, who authored the murderous atrocity of Roe v. Wade, was a Republican judicial nominee. John Paul Stevens, a leftist lion for decades on the Supreme Court, was a Republican judicial nominee. Anthony Kennedy, who did more than anyone to disingenuously codify the homosexual rights agenda into the Fourteenth Amendment, was a Republican judicial nominee. The infamous turncoat David Souter was a Republican judicial nominee.
Alas, Chief Justice John Roberts was a Republican judicial nominee. And — take some deep breaths, judicial supremacists — Justice Brett Kavanaugh was a Republican judicial nominee...."
You'll get no argument from me against how bad their opinions have been. But there's something you should consider about these 'infamous jurists': These decisions of theirs have stretched across the course of decades, displaying a fixation upon processes, with language that elaborately burrows into, under, and through convoluted legalistic gimmickry ("...penumbras, formed by emanations...") of terms, juggled precedents and sociological concerns, to rationalize those conclusions for the 'greater good' which they fully intended to make all along, rather than as conclusions that were reached by reasonably following where a concern for rendering Justice might have led them to (you need look no further than Robert's legal gyrations to permit Obamacare).

Do you not see a resemblance between their approach to 'The Law', and Hammer's own approach to recounting the case he's ranting on about? His attention, like the Justices he despises is, focused upon the particulars, the technicalities, the partisan aims and legalistic processes of the law, with little or no concern shown for addressing what individual rights had been wronged, injustices committed, and how best to put things aright. Both Hammer, and the Justices he despises, are more intent upon putting partisan decisions up on the scoreboard, than upon seeing to it that Justice is being served in accordance with our Constitution.

Decisions such as those, and the heightened concern for convoluted processes serving political positions, are akin to the complaints of a Technologist of social engineering, intent upon jiggering the necessary gears and accelerators of societal action in an effort to produce a desirable outcome. That perspective upon the law is one that is very compatible with the Utilitarian and Positivist views of a Jeremy Bentham ("...natural and imprescriptible rights, rhetorical nonsense,—nonsense upon stilts..."), and of an Oliver Wendell Holmes jr. (as in his arguing for forced sterilization: "...society can prevent those who are manifestly unfit from continuing their kind..."), who viewed 'The Law' as a technology to be applied in order to achieve socially useful outcomes, which in one form or another, is how law is taught in our finest colleges and universities today, to thousands of law school students just like Josh Hammer, in the hopes that they too will become men "...of statistics and master of economics...".

Unfortunately for those who think of themselves as being 'Conservative', the Positivist philosophy of law is entirely alien to that school of thought known as Natural Law, which as developed through the likes of Cicero, Edward Coke, and William Blackstone, had directly informed our Founders view of the law as expecting Justice to be blind to the station and circumstances of those who come before it, requiring instead a system of laws dedicated to upholding and defending everyone's individual rights, equally so, before the law. These views represent very different, opposed, philosophies, and it is extremely important to remember that 'The Law' is "Applied Philosophy", and if that surprises anyone, it shouldn't, as it has been the historical norm for most of the last 3,000 years of Western Civilization - what has changed in the last hundred and fifty or so years, is what philosophies are being applied through the law, and why. And uncomfortably for many a 'conservative' today, those Utilitarian and Positivist views of the law, which sought a future of lawyers as "...the man of statistics and master of economics...", were devised with the express purpose of undermining, supplanting, and replacing the understanding of natural law which our Founders framed our Constitution through, and those views have dominated our law schools for well over a century now.

Maybe you are beginning to see the problem that I'm seeing here? The real and persistent problem with the judiciary and our 'Republican judicial nominee's to it, has less to do with the failure of judicial nominees to remain 'true Republicans', than with the likelihood that they are the inevitable consequences of being and behaving as 'true Republicans' are currently being 'educated' to think, believe, and behave as today. What's worse, if we continue educating 'Republicans' to believe that law and economics alone are a sound basis for understanding, interpreting and applying our Constitution through, we will continue getting the very same unconstitutional results.

You don't need to take my word on this, just look at the overwhelming evidence that Hammer himself has presented us with in his listing of infamous judicial nominees! Their behavior has been consistently proven out over the course of decades, with 'Republican nominees' who had been expensively trained and equipped to understand and apply constitutional law, in the 'very best' colleges and universities that America has to offer, and it has been that very education and the expectations inherent in them, that has utterly failed to equip them to understand and apply constitutional law, in a manner that is compatible with how our Founders understood and framed our Constitution to operate.

If you don't think that is plainer than Hammer's fist shaking before his own face, ask yourself which is easier to believe:
  • That everyone of those (once) respected Republican jurists, were all along secret political double agents/traitors, which a vast left-wing conspiracy succeeded in inserting into the nominations of one Republican President after another, to sit on the Supreme Court of the United States of America?
  • Or that as a result of their educations, those (once) respected Republican jurists made very predictable decisions which reflected how they were 'educated' to view the law, and its place in society?
There should be no mystery in how these nominees have behaved on the bench, as the core of their judicial reasoning comes from how they are being 'educated' in philosophically rootless colleges like Duke, and even the University of Chicago (yes, even their once decent Core Curriculum, has fallen), where their primary 'educational' guidance comes through the Heads or Tails tossing of the same philosophic coin of 'Pragmatism'/'Post-modernism', rather than through a consistent worldview derived from first principles. Students educated through that modernist philosophical coin-toss, naturally come to understand Economics, Law, Political 'Science!', Humanities and so forth, as separate and distinct disciplines serving unrelated processes and purposes in society - which is a poor foundation for building a rule of law upon. Whatever hash of 'principles!' & social affiliations may once have led them to call their own coin toss and identify as 'Republicans', will almost certainly turn up Tails on some future toss, as their circumstances change - just look at Hammer's list of justices! We bet our worldview on a coin toss, and then complain when it 'somehow' fails to go 'our way'!

Those conservatives who think that modern schooling, from K-12 to College, both public and private, is somehow screwing up only 'The Left', and not 'The Right' as well, invite charges of criminal negligence - our posterity, if any, will almost certainly think so, and would likely cite as Exhibit A: That a person graduating from two universities, with degrees in Economics and Law, could somehow come to the idiotic conclusion that the best way to confidently predict how jurists would interpret the constitution once seated upon the Supreme Court, would be to look, not to an understanding of their more fundamental philosophical beliefs (or lack of them), but to their current (rootless) partisan political positions and affiliations. Madness!

And yet 'Republicans' such as Hammer wail on, that:
"How many betrayals from Republican-nominated Supreme Court Justices will it take to finally convince conservatives that the judicial deck is systemically stacked against us in such a way that we will simply never ultimately prevail?"
I've got a question for Hammer and those who share his perspectives:
How many claims to have been betrayed by them will you continue to make, while you continue to send your 'best and finest' to be educated in philosophies of law which are explicitly opposed to those concepts which our constitution was derived from?!
Who's betraying who here?

Look at the technical list of causeless reasons given for why the courts are broken, which Hammer believes confirms why 'we' will 'simply never ultimately prevail'. It begins its analysis in the 1960's (Dude, Oliver Wendell Holmes Jr. was dismantling the Constitution a full sixty years before the 1960's - wake up and smell the damn coffee!), and lists one pointless unintegrated policy and 'political reality' after another, as being the 'causes' of our present constitutional brokenness, and advises us that the judiciary is lost to the 'Republicans', and that 'we' should cut our losses and,
"... sign legislation permanently taking the ball of the political game out of the courts’ hands by exercising Article III Section 2 and narrowing their jurisdiction..."
, and of course he adds the oh-so original remedy, that we need to 'Solve the problem wholesale and follow the Constitution'. Really? Sorry if repeating this again bursts anyone's bubble, but that is what we are already doing! Look around you: This world we are living through today, is the result of our Constitution being strictly followed and applied as it is currently being taught and understood to those on both the Left and the Right! Whether judges interpret the Constitution as a 'Living Document', or as a pragmatic tool of 'Legal Technology', are opposing views of the same damned coin of pro-regressive philosophy. And in response to that deeply ingrained threat, their 'long game' plan is to have Congress employ an easily reversible political tactic?! Good lord, save us from such abysmally pragmatic short range thinking (OTOH, giving that Article III Section 2 power to a representative majority of the States... that could make some real and lasting changes, but again, that'd mean looking past politics, and into the meaningful structures of the law).

What nearly everyone on the Left and on the Right (and especially the Libertarians) understand the Constitution to mean, has been learned through the lens which men like Oliver Wendell Holmes Jr. fashioned for the people of 'the future' (us) to view it through, becoming "...the man of statistics and master of economics...", which, as Holmes well understood, has little or nothing to do with the concepts that the framers understood while framing our Constitution. It should come as absolutely no surprise to anyone that most 'conservative' judges of the last century, never having developed a sound understanding of the concepts which our Founders' framed our Constitution through, don't apply our Constitution as our Founder's understood it! Those 'Republican' students who do seek an 'original understanding' of the Constitution, in law schools which revere men like Oliver Wendell Holmes Jr., from sources other than the materials and conceptual understanding which the Constitution's principles were originally derived from, they too will learn to understand it through the philosophic coin toss of 'Pragmatism'/'Post-modernism', and become the Textualists and Originalists of today who are but Positivists who tilt to the right.

An 'Original Understanding' of the Constitution, isn't going to be found in 'economic liberties', it isn't going to be found in 'the text' of the Constitution alone, and it isn't going to be found by looking through cases and newspaper clippings from centuries ago for 'evidence' of what this or that word referred to in the late 1790's, as today's 'Originalists' do. As such, and not surprisingly, when those habits, affiliations and circumstances which once tilted those jurists to 'The Right' are altered by a good stiff political wind of change, they are very likely to find themselves tilting in the other direction. It is in the nature of holding particulars as ideals (given that both Pragmatists & Post-Modernists vilify Principles & principled thinking - what do you suppose they're seeking after in a future of students as 'a man of statistics'?), that any 'principles' formed upon such ground will be rootless and easily tipped in any wind. The one sure bet we can make, is that as their coin is tossed into the air again at some future moment of judgment, it will be called differently than the 'Conservative!'s had expected - and the Hammers of the world will wail in surprise.

Where the hell does surprise come in to play?! With the notable exception of Justice Clarence Thomas, our oh-so modern 'conservatives' (on and off the bench) accept and practice the opposing school of law that was explicitly devised to undermine, sideline and replace the understandings of law with which our Founders wrote our Constitution. Republican appointed judges don't need to be opposed to our Constitution's 'original understanding', to render judgments at variance with it, they only need to not have in their minds those deeper concepts that it was formed from. What is in their minds when they go to sit down on the bench of the judiciary today, is the pragmatic, anti-conceptual school of 'Positivist Law', which all of their years of education has instilled into them. How can anyone be surprised that the coin tosses of their judgments, aren't dependably conservative? The Left hasn't 'ultimately prevailed' simply by convincing the judiciary to accept the policies they've advanced, but by using our 'educational system' to see to it that that 'original understanding' never had the opportunity to put down roots in their student's minds, so that all that is left to oppose the Pro-Regressive Left today, are the rootless fancies and sentiments of philosophically disarmed traditionalists. And as every casino knows, the odds on a long game of 'coin tosses', are ever in their favor.

It's not only not hard to find evidence of this absence I'm speaking of, there is a prime example that is plain as day in Hammer's post, and in the 'ultimately fail' reference just mentioned, as both authors speak reverently of Judge Bork. In case you don't recall, that'd be the same Judge Bork who famously referred to the 9th Amendment as having no more meaning than 'an inkblot on the Constitution'. Let's be clear: what that doesn't tell you about Judge Bork, is that he was a Leftist - he certainly was not, and it certainly doesn't tell us that he meant to betray the Constitution - I've no doubt that he'd rather have cut his right hand off. But what that should tell you, and me, and Hammer, about Judge Bork, is that he didn't understand the essential concepts that drove the Founders to formulate and ratify the 9th Amendment, which should tell us that that understanding was not present in his judicial judgment - unless of course, you think that those of the Founders' era who wrote and ratified the 9th Amendment, intended it as a means of splattering the Constitution with meaningless inkblots!

If we ever want to have a judiciary who interprets and applies our Constitution in a manner that is compatible with how it was understood when written, then we need to see to it that those who are educated, and especially those who are educated in the law, are educated through an understanding of our Constitution which someone from our Founders era would recognize, and which would not have them looking at you as if you don't understand a thing they wrote! To do that, at the very least, we need to rediscover an understanding of how the concepts of natural law were developed and used, over the course of Western Civilization, from the time of Socrates, through Aristotle, Cicero, Aquinas, Coke, Locke, Blackstone, and our Founders themselves - and not just for what that understanding would mean for the law, but for our lives. If you don't have that understanding, then you can be sure that simply peppering your pragmatically modern judgments with quotes and factoids from the past, and wailings about the present, is going to do nothing to repair how our Constitution is understood and applied today - that is what we are doing today!. As Hammer so harrumphingly notes, 'Republicans' are failing today - so are we really supposed to continue educating ourselves in the same way, while expecting different results? Does that seem like a sane plan to you? Unless we repair how we learn to consider the concepts that the constitution was formed from (and yeah, that means philosophy again), we are going to continue misapplying it in exactly the same way as we do today.

Keep in mind, the Pro-Regressive Left doesn't need 'Republican appointed judges' to be bad people betraying us, they don't need them to be unwise, they don't need them to consistently oppose the constitution, all the Pro-Regressive Left needs of them, is for their absence of understanding to show itself in a critical judgment, once in a while. That is how 'progress' has been made over the last century, which is what controlling our educational system has enabled them to count on. which has led us to where we are today, one step at a time. That is the real 'long game' that is being played, and the Pro-Regressive Left has been the only one who's even been in the game.

Our schools today, K-12 and College, public and private, teach the history and philosophy of Western Civilization (to the extent they do at all) as disintegrated factoids, and even as as actual evils, which are useful only in the passing of quizzes and tests, having nothing to contribute to their ability to pursue lives worth living (or what such lives would be). It cannot be understood in that way, and it cannot be appreciated in that way, and it cannot lend any meaning to our lives, when taught in that way. As a result... we get to experience the constant 'surprise!' of intelligent people who've formed decisions without even knowing what essential knowledge they never knew anything about, and who then wail their continual surprise and dismay as their 'side' fails to prevail.

If you want to 'Make America Great Again', you really ought to focus your attentions upon what it is that led (and still leads) America to betray its greatness in the first place: Modern Education. In its theory and practice, whether in public schools or private (with very, very, few exceptions), that is the source of our absence of understanding. Without that understanding, we are left to attepmt to make 'progress' based upon little more than the strength of a coin toss, and the only choices that will ever provide us to choose from, are the likes of Josh Hammer, who'd like to use the law to 'fix us', or those such as Alexandria Ocasio-Cortez, who would like to use the law to transform us.

The real long game depends upon our tossing that damn coin across the river and getting ourselves out of the Pragmatic/Post-Modernist coin tossing game altogether. Do that first, and we may have a real shot at restoring America to the greatness that is still very much present in its original understanding.


Reg T said...

Put that to some snappy music and you'll have a hit.
Seriously though, Hammer paints with too broad a brush. Conservatives had little hand in President Trump's choices. Neither of those gentlemen appointed to SCOTUS is a conservative, and neither is President Trump, so no big surprise.

Trump has nominated and appointed numerous people to his cabinet, various agencies, and the courts who most conservatives believe were poor choices, from a Constitutional conservative viewpoint. His choices for Attorney General suck mightily from a conservative point of view. Neither of them have shown much interest in supporting the Constitution, especially the Bill of Rights. The same for Gorsuch and Kavanaugh. I was hoping Kavanaugh would show more spine, instead of trying to prove that the Democrats were wrong about him being a conservative.

Hammer should have a fair grasp on how little influence conservatives have with anyone in Congress, and in spite of Trump's heart being in the right place, they don't have that much influence with him, either.

We - speaking of conservatives such as myself - understand "bump stocks" are inconsequential toys which none of us would miss terribly. But we also understand how foolish and dangerous it is to allow an agency to 1) make rules with the power of law, and 2) allow bureaucrats to _re-define_ important definitions affecting our rights.

The Left has been busy for many years re-defining terms and words to please themselves and weaken conservative positions, but when such re-defining significantly affects our personal, individual rights, possessed without a need for governmental permission, we find ourselves in a danger zone. Once a bureaucracy tests the water and discovers they can get away with re-defining the characteristics or limits of one right, they will certainly push harder, re-defining others, modifying and changing the meaning of the Constitution, depriving us of due process, robbing us of habeas corpus, and providing big, central government with the tools to defeat us, and to eventually tyrannize us.

That is the issue, which trees Hammer misses in the forest of judicial minutiae. If he is a real conservative, he needs to learn to focus.

Van Harvey said...

Reg T said "...The Left has been busy for many years re-defining terms and words to please themselves and weaken conservative positions..." Very true. And there's much in your comment that I'd go along with, but that's not the issue I was trying to point out in this post. I also wasn't trying to point out how aware or pure or effective some conservatives are (or aren't).

What I was and am concerned with in this post, is that many (most?) conservatives today are busily seeking to conserve the concepts of Law and of the Constitution, which Pro-Regressives redefined them as being, over a hundred years ago. And so when modern day 'progressives' propose a bullet to our constitutional head, conservatives respond with "That's simply uncalled for! Hemlock has traditionally been an acceptable alternative, why must you be so violent!".

Being 'Conservative' is not enough. Conservatives really need to re-examine what it is that they wish to conserve, and why, or else they're going to conserve our constitution into oblivion.

P.S. Sorry so late in replying.