FROM BRAD SMITH: As presidential electors vote today, a few thoughts: 1) it is not a “constitu…

FROM BRAD SMITH: As presidential electors vote today, a few thoughts:

1) it is not a “constitutional crisis” or an effort to “overturn the election” when a candidate challenges initial election results in court. Indeed, such challenges are part of the process, specifically provided for by law. The fact that some people think the challenges are weak on the merits is irrelevant. Al Gore did not concede defeat until well into December 2000, and even then he did not concede that he lost the election–only that George W. Bush had been “selected” president.

2) Polling in December 2016 showed that roughly half of Democrats believed–falsely and without evidence–that Russians had hacked American election tabulators and changed the results of the election.

3) The effort to get state legislatures to appoint slates of electors directly is similar to the effort, wildly popular among large segments of the Democratic Party in 2016, to convince electors to vote for a candidate who did not win their states and for whom they were not pledged–constitutionally permissible, politically catastrophic if successful, but with no chance of success;

4) In every Republican presidential win of the past 30 years–2000, 2004, and 2016–at least one Democratic House member has challenged the Electoral votes when they were counted in January.

Source: FROM BRAD SMITH: As presidential electors vote today, a few thoughts: 1) it is not a “constitu…

FLASHBACK: A ‘living Constitution’ on the right? What would it look like if right-leaning judges r…

FLASHBACK: A ‘living Constitution’ on the right? What would it look like if right-leaning judges ruled like lefties?

I immediately thought of one example from a few years ago: Judge Richard Posner published a book titled Not A Suicide Pact: The Constitution in a Time of National Emergency. Posner’s approach was based on the notion that the post-9/11 War On Terror was a fundamentally different sort of problem, and that the constitutional civil liberties doctrines developed by judges throughout the 20th Century weren’t suitable for this new world. In fact, when I interviewed Posner about his book, the idea that it was a “living Constitution” approach to the problem of terrorism and civil liberties came up in the interview.

….

Lastly, what about the Warren Court’s decisions on reproductive rights in Griswold v. Connecticut (striking down laws against birth control for married people), Eisenstadt v. Baird (doing the same for singles), and Roe v. Wade (finding a constitutional right to abortion)? These decisions were written against a background of hysteria about a “population explosion,” but now the United States — like many other countries — faces not a population explosion but a baby bust, with birth rates too low to sustain population, or to produce enough workers to fund retirement programs for the elderly. These decisions were also followed by a breakdown in family structures that continues to get worse. I can imagine a “living Constitution” conservative concluding that, whatever the logic of these decisions is, experience has shown them to be too flawed to survive.

….

But my advice to those on the left attacking originalist approaches is this: Be careful what you ask for, because you won’t like it if you get it.

Source: FLASHBACK: A ‘living Constitution’ on the right? What would it look like if right-leaning judges r…

On Soleimani’s death, the Democrats are looking to an imaginary constitution — Bookworm Room

Democrats misunderstand the Constitution when they contend that the president lacks Constitutional power to deal with a sudden attack against America. Oona A Hathaway, a professor of International Law at Yale, writes at The Atlantic that “The Soleimani Strike Defied the U.S. Constitution.” According to her, our Constitution required that Trump first seek Congressional approval…

On Soleimani’s death, the Democrats are looking to an imaginary constitution — Bookworm Room

It seems the Democrats like imaginary clauses in the Constitution. But then that’s why they’re so upset about Trump appointing judges who don’t acknowledge these invisible clauses.

Why are you so obsessed with… A Blast from the Past — The Writer in Black

Whenever folk like me object to erosion of long-held rights, people often ask why we’re “obsessed” with that right, why it’s so important. Why we’re not more worried about whatever other thing they bring up as a distraction. It’s actually not hard to understand. There is a tale I heard told about the ancient Greek […]

….

So why is RKBA so important to us?  Because you’re trying to take it from us.  The only reason you want to dismiss its importance is to make it easier for you to take it.

Through most of our history, people never really thought much about RKBA.  But when it comes down to it, of the three “unalienable rights” Jefferson called out in the Declaration of Independence–two of which are echoed again in the Fifth Amendment–every single one is meaningless without the right to defend them and without the right to effective means to defend them.  To deny RKBA is to deny right to life and right to liberty.

I would love to go back to it not being “an obsession.” For it to just be “there” with no need to worry about it.  Like air to the young man before Socrates took him to the sea.

But you won’t let me.

Why are you so obsessed with… A Blast from the Past — The Writer in Black

Senator Grassley’s Letter to Committee Democrats

For reference.

If the Democrats only cared about assaults on women when they could be used to attack Republicans, and otherwise couldn’t be bothered, I’m not sure how their behavior would be any different.

Text of letter:

Dear Colleagues:
I received your letter dated September 18, 2018, asking me not to reopen the hearing on Judge Kavanaugh’s nomination, scheduled for Monday, September 24. Dr. Christine Blasey Ford has made serious allegations against Judge Kavanaugh. She has said repeatedly that she wants to tell her story. And she has a right to be heard. Holding a hearing is in the best interests of justice and for the parties involved. This will allow Dr. Ford to make her allegations under oath, as her attorney has publicly requested. At the same time, reopening the hearing will allow Judge Kavanaugh, who has categorically denied Dr. Ford’s allegations, to address these allegations without further delay.

I understand how difficult it might be for Dr. Ford to publicly testify on this subject. I have therefore offered her many options. We’ve offered her a public hearing, a private hearing, a public staff interview, or a private staff interview. The staff is even willing to fly to California, or anywhere else, to meet her.

An open session would be a matter of public record, while a closed session will remain confidential. I certainly can understand that Dr. Ford might be distrustful of the Committee’s ability to keep matters confidential based on the Democratic members’ recent conduct, but I sincerely hope that, if she chooses to testify in a closed session, that my colleagues can see their way to plugging the leaks which have plagued this nomination and gain her trust.

Your letter requests that I demand that the FBI conduct an additional investigation into this matter. This request demonstrates a fundamental misunderstanding of the FBI background investigation process. Before nominating an individual to a judicial or executive office, the White House directs the FBI to conduct a background investigation. The FBI compiles information about a prospective nominee and sends it to the White House. The White House then provides FBI background investigation files to the Senate as a courtesy to help us determine whether to confirm a nominee. But the FBI does not make a credibility assessment of any information it receives with respect to a nominee. Nor is it tasked with investigating those matters that this Committee deems important. The Constitution assigns the Senate, and only the Senate, with the task of advising the President on his nominees and consenting if the circumstances merit. We have no power to commandeer an Executive Branch agency into conducting .ill!! due diligence. The job of assessing and investigating a nominee’s qualifications in order to decide whether to consent to the nomination is ours, and ours alone.

Second, your request ignores the fact that Dr. Ford has already made her allegations public. The purpose of the background investigation process is to compile information in a confidential manner. Confidentiality permits people to speak freely and candidly about the character and qualifications of the nominee. The White House requires the Senate to keep background investigation files private so that people can speak anonymously to investigators if they so desire. Because Dr. Ford’s allegations are in the public arena, there is no longer a need for a confidential FBI investigation.

In 1991, the FBI’ s additional investigation into Professor Anita Hill’s allegations occurred when the allegations were still non-public. When the Senate received Professor Hill’s non-public allegations of sexual harassment, then-Chairman Biden expeditiously notified the White House. (That decision sits in sharp contrast to Senator Feinstein’s decision to sit on Dr. Ford’s allegations for more than six weeks.) The White House directed the FBI to conduct a handful of interviews regarding Professor Hill’s allegations. The FBI completed the interviews within a few days. The White House turned the interview reports over to the Senate as a courtesy. The contents of one of those reports was leaked to the public soon after. The hearing was subsequently reopened five days after the allegations were made public.

We are in the same position the Committee was in after Professor Hill’s allegations were leaked. After that leak, we did not ask the FBI to conduct an investigation. Instead, we reopened the hearing and assessed the testimony that was given on our own. As in 1991, it is now up to the Senate to gather and assess the relevant evidence.

The Majority staff spoke with Judge Kavanaugh as part of the background investigation. Judge Kavanaugh immediately agreed to cooperate with Senate investigators. He sat for a transcribed interview on Monday. He understood that he was under penalty of felony, ifhe was not truthful. He fully, candidly, and unequivocally answered all questions. We have no reason to doubt the truthfulness of Judge Kavanaugh’s testimony. Judge Kavanaugh volunteered to come back for a public hearing.

As is standard practice, we invited the Minority staff to participate and ask Judge Kavanaugh its own questions, but the Minority staff declined. The Majority staff has also sought to set up interviews with Dr. Ford, Mark Judge, and two other alleged witnesses. The Minority staff is welcome to participate in the investigative process as well, but it has thus far declined.

I have scheduled the hearing continuation for this Monday because Dr. Ford, through her counsel, expressed the desire to tell her story under oath. It is my understanding that Dr. Ford has been represented by counsel in this matter for months and thus should be adequately prepared to testify. I am following the same timeline Chairman Biden did after Professor Hill’s allegations were made public. It would be a disservice to Dr. Ford, Judge Kavanaugh, this Committee, and the American people to delay this hearing any further.

Of course, we wouldn’t find ourselves in this position if we had been made aware of the allegations in a timelier manner. The Ran.king Member was aware of these allegations since July. But her staff did not ask Judge Kavanaugh about them during routine background investigation phone calls in late-August. Senator Feinstein did not ask Judge Kavanaugh about these allegations during her closed-door meeting on August 20. The Ranking Member withheld this serious information about Judge Kavanaugh from her colleagues, 64 of whom had private meetings with Judge Kavanaugh and could have asked him about the allegations directly. She did not ask about them when Judge Kavanaugh appeared before the Committee for more than 32 hours of testimony over 3 days. Nor did she attend the closed session of the hearing when members can ask Judge Kavanaugh about sensitive matters. And she did not ask any questions about these allegations among the nearly 1,300 written questions sent to Judge Kavanaugh after the hearing.

Senator Feinstein only informed the FBI of the allegations after they were leaked to the media on the eve of a confirmation vote. The proper course of action would have been to investigate Dr. Ford’s serious allegations as quickly and as thoroughly as possible, as I did as soon as these allegations were made known to me.

I’m also concerned what the recent events mean for whistleblowers, especially victims of sexual assault. Dr. Ford expressed the desire that her allegations remain non-public. I can’t emphasize how important it is to respect whistleblowers’ and victims’ desire for confidentiality. But notwithstanding her wishes for confidentiality, her allegations became public. I fear that the leaks of confidential information will discourage whistleblowers and victims from coming forward in the future.

This is but the latest-and most serious–of your side’s abuse of this confirmation process. There has been delay and obstruction of this process at every tum and with every argument available. Therefore, I will view any additional complaints about the process very skeptically.

 

Originalism

From National Review:

There is only one proper way to faithfully interpret the Constitution. And that is to ascertain the actual meaning of the words of the text, taken in their proper social and linguistic context.

That meaning must be the objective meaning — not the reader’s subjective understanding or preferred reading. And that meaning must be the original meaning — that is, the meaning the Constitution’s words and phrases would have had to reasonably informed readers of the English language at the time they were used, in context, and accounting for any specialized usages or term-of-art phrases. Any other reading is pure anachronism, a misuse of language.

This single correct method of constitutional interpretation travels under many names. I call it “original-public-meaning textualism,” emphasizing the text and the requirement that it be taken in its known, original sense. A convenient (if imprecise) shorthand term is simply “Originalism.” It contrasts, sharply, with any of a variety of progressive theories under which the Constitution’s meaning shifts, morphs, evolves, or otherwise transmogrifies to suit the needs or circumstances of the moment — and, typically, to serve the interpreter’s desired political agenda.

There are many good arguments in favor of Originalism: It is less subject to manipulation, produces greater clarity and consistency, better preserves democratic decision-making, and frequently yields better results than any other method. All of these points are true and important.

[snip]

Title IX vs the Constitution

Some people just can’t resist putting the “Twit” in Twitter.

From Advice Goddess blog:

From Rewire (in that tweet above), Shiwali Patel reports this gem about the supposedly “fair process” under Title IX for sexual assault.

…There is no inherent conflict between ensuring a fair process for survivors and a fair process for alleged perpetrators. For the record, when we advocate that schools be trauma-informed in responding to sexual violence and that schools stop and prevent sexual harassment, we are not asking the school to take away due process rights. It’s possible to advocate for both a fair process for all students and the safety of survivors of sexual violence. Take cross-examinations, for example, where institutions could ensure a fair process by allowing parties to submit questions to each other through hearing panels or investigators, yet still protect the safety of survivors by not permitting direct questioning by the accused student.
To highlight a recent case, a federal court last month held that the University of Michigan had violated an accused student’s due process rights to a live hearing and an opportunity to question the woman who filed the complaint against him. In doing so, the court “consider[ed] the emotional harm and trauma” to survivors of being directly questioned by their rapists. It concluded that the accused student had a right to question the woman who filed the complaint, but could only do so by submitting his questions to the student resolution panel or other school administrators, who would then ask the questions on his behalf.

I’m no lawyer; I’m just somebody who follows a few lawyers on Twitter; and even I knew immediately that this was, shall we say, merde du cheval.

Several lawyers chimed in pointing this out.

My comment was:

I think Ms. Lhamon’s tweet should be construed as a waiver of the right to cross-examine should she ever be in a legal dispute.