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Could You Repeat My Job Description?

At a forum conducted at the Newseum in the nation’s capital, Justice Elena Kagan confirmed that she doesn’t have a clue about what the difference is between being a lawyer/advocate and being a judge/neutral referee. Said the former Solicitor General: “Sometimes I think that the job doesn’t really change at all.” That’s like a baseball umpire saying his job is the same as his former job as coach of one of the teams.

In fact, Kagan explained why the job as Supreme Court Justice is even easier than being an advocate for a particular case or client: “As Solicitor General, my life was spent trying to persuade nine people and now it’s just trying to persuade eight people.” This probably explains why she sees no problem with having been an active partisan participant in the early Obamacare court cases, and then refusing to recuse herself when the cases came before the Supreme Court on which she now sits.

She wouldn’t have to do much convincing of three of her fellow Newseum panelists. They included Red Sonia Sotomayor (a wise Latina) and Ruth Bader Ginsburg (former ACLU attorney and extreme critic of the out-of-date Constitution). The third was the guest of honor—former Justice Sandra Day O’Connor. The occasion was the celebration of the thirtieth anniversary of O’Connor’s appointment to the Supreme Court, making her the first woman to sit on the court.

O’Connor was appointed by President Ronald Reagan, but this was before the Republican war one women. Just as President Dwight Eisenhower once said that appointing Earl Warren to the Supreme Court was his biggest mistake in office, President Reagan proved that even great presidents make mistakes. O’Connor voted in favor of radically altering the constitutional principle of the government taking property for public use by converting it to taking of property for a public purpose. That isn’t a minor difference in wording, but a complete perversion of the clear words of the Constitution.

O’Connor actually wrote an opinion in an affirmative action case which stated that she “didn’t know if the law was constitutional or not.” Guess she didn’t quite comprehend her job description either. If a Supreme Court Justice can’t articulate her understanding of the law and the Constitution, who can? O’Connor went all touch-feely in an opinion overturning a state sodomy statute by saying that everyone “should be free to determine his or her place in the cosmos.” Yes, Madam Justice, but what about our place in America and the role of the Constitution’s Tenth Amendment?

Kagan’s deep involvement as Solicitor General in the politics and legal maneuvering surrounding the early phases of state challenges to Obamacare is well documented. E-mails to her subordinates about how to litigate the Obamacare cases abound. In one case, her e-mail after a dismissal of one of the challenges was “we won.” Considerable testimony before the Senate Judiciary Committee expanded on those e-mails and the use of Kagan’s considerable resources and staff to defend Obamacare. All of that is perfectly acceptable and even good work for a Solicitor General. But a fair, knowledgeable and ethical Supreme Court Justice would see the clear conflict of interest and incompatibility of office in hearing cases she was deeply involved in.

Perhaps this will explain her confusion. When asked at the forum if sitting on the Supreme Court bench is still challenging for her, Kagan replied: “Oh, every day is a challenge. But, you know, for me, I had never been a judge before, and just figuring out the mechanics of the job—you know, I have these four clerks, what do I do with them? What is the best process for drafting an opinion? When do I read the briefs? Do I read them the day before, the week before?”

My answer to that is “why bother reading them at all since you were instrumental in writing briefs which are merely being rehashed in the consolidated Obamacare cases pending before your high court?” Many great Supreme Court Justices had no prior judicial experience. Lack of judicial experience is certainly not a disqualifier for a seat on the high bench if all the other positive indicators are there.

I know a great many very fine trial attorneys who would be terrible judges simply because they can't shift gears from advocate to neutral referee. Likewise, I appeared before many excellent appellate court judges who had never set foot inside a trial court and had never sat on a bench previously. And sadly, I also appeared before several trial and appellate judges who never should have been on the bench in the first place, let alone elevated to a higher court. It's called "judicial temperament." But lack of ethics should be a disqualifier at every stage.

Kagan outright lied and obfuscated when she was asked by the Senate Judiciary Committee about her personal involvement in the early Obamacare cases as well as the drafting of the original legislation. Even first year law students are taught the very distinct differences between the role of the advocate and the role of the judge (unless they took their courses from Kagan when she was a law professor at the University of Chicago or Harvard Law). It’s simple. If you were actively involved in the cases at an earlier stage as an attorney/advocate, you must not be involved in hearing and determining those same cases when they come before you as a judge.

Kagan’s refusal to recuse herself on the Obamacare cases at the Supreme Court is doubly-damnable, since she knows full well that there is no higher court to reverse her decision. That said, it is a rather routine lapse of ethics for a former member of the most corrupt administration in recent memory.

Could You Repeat My Job Description?

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Pelosi Loves Judicial Review

We’ve been tossing around the meaning of the questions and answers during oral argument at the Supreme Court in the matter of Obamacare. Some of us are feeling fairly confident that the high court might find the entirety of the law unconstitutional. Others of us feel that the insurance purchase mandate may go, leaving everything else temporarily intact. But whatever the result, we have at least one thing that should allow us to rest a bit easier. Nancy Pelosi says the Democrats will accept the ruling.

Now I gotta tell ya, in the words of Vice President Joe Biden, this is a big f-ing deal. San Fran Nan speaks for the Democrats in the House as well as the People’s Republic of San Francisco. She has now put our minds at rest by stating that her team isn’t going to grab pitchforks and torches and head for the Supreme Court building. Thank God, they’re not going to turn the premises into Red Square. And of course I always take Nancy’s word for her respect for the Constitution.

Says the Bay Area genius: “Democrats in the Congress have long believed in judicial review. We respect the third branch of government and the role they play under the Constitution, and that is a role to have the opportunity to review laws passed by Congress. This is part of our constitutional process and we respect it.” Now isn’t that a relief? Of course that made me wonder what she meant by “long believed.” Is she saying there’s a time when Democrats didn’t believe in judicial review? The lady doth protest too much, methinks. Oh, well, let’s move on.

I must admit that I find it a bit odd that the leader of a major Congressional party would find it necessary at all to announce that her faction would honor a Supreme Court decision. Isn’t that pretty much what everyone has agreed on since Marbury v. Madison back in 1803? So we’ll have to wait to see what she really means. Considering the “respect” that the Democrats in Congress and have shown for the Constitution during my lifetime, I’m going to sleep with one eye open.

Given that Pelosi (and more recently the attorney arguing in favor of Obamacare at the Supreme Court) stated that the health care law was actually about freedom, is she saying that she has no problem obeying an order that takes freedom away? Yeah, I know. A foolish consistency is the hobgoblin of little minds, but when was the last time you had to deal with anyone with a mind smaller than Pelosi’s?

Pelosi Loves Judicial Review

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Supreme Court ObamaCare Wrap-up!

It seems the individual mandate in ObamaCare is doomed. The question now is whether or not all of ObamaCare will be struck down. I originally doubted that it would be, but now I’m thinking it might be. One thing is for sure though, losing will not help the Democrats as many of them are trying to suggest.

● Thought One: Down she goes! The Supreme Court will strike down the individual mandate. Kennedy was considered the weak link for the conservative side but even he observed that ObamaCare “changes the relationship of the Federal government to the individual in a very fundamental way.” That’s lawyer speak for “unprecedented power grab.” This court will not sanction an unprecedented power grab. The mandate is toast.

● Thought Two: Incompetence. The MSM’s legal analysts should be fired for incompetence. When this lawsuit was first filed, they claimed it was “frivolous.” In legal parlance that means the arguments are so ludicrously wrong that no rational attorney could possibly make those arguments in good faith. Even as late as two days ago, these same “experts” predicted ObamaCare would win on a 7-2 vote. Now they’re despondent that ObamaCare will be beaten. To give you a sense of how wrong this is, it’s like an “expert” in aviation claiming that airplanes are too heavy to fly. . . after having flown to the interview on a Boeing. Everyone who claimed this was frivolous should be fired for incompetence.

● Thought Three: Incompetence (redux). Everyone now wants to blame the solicitor general for blowing this case. That’s wrong, and the “experts” know that. The Supreme Court does not base decisions of national significance on which side brought the better lawyer. All Verrilli’s incompetence means is that the court will do its own research into these issues. And don’t forget, “it’s own” in this case also means hundreds of legal briefs filed by friends of both sides (amicus curiae briefs). This case never hinged on the performance of either attorney. So don’t let liberals get away with pretending that the law should have been found valid if only Donald Verrilli weren’t such a moron. That is false and it’s meant to distract from the fact this law was an abuse of power.

● Thought Four: Severability. The hardest part of guessing Supreme Court decisions is guessing how far they will go. Right now, we have no way to know if the Supreme Court will strike down the entire law or just the individual mandate. They essentially have three choices: (1) strike the whole thing, (2) strike the mandate but leave the rest, or (3) strike the mandate and send the case back to the lower court to gather more evidence on what other parts also should be struck. Logic tells me, they will pick number three, but this court has proven to be bold.

Politically and legally speaking, it makes sense for the Supremes to strike the mandate and send the rest back to the lower court to gather evidence on which parts of the law rely on the mandate. Why? Because the court doesn’t like to decide things it doesn’t need to, and with the Republicans likely to control the House, Senate and Presidency after the election, the Supremes have the luxury of waiting to see how things go, i.e. Congress may do their dirty work. BUT. . . should Romney NOT win, then the 5-4 Court could end up a 4-5 Court. That fear may give this court an incentive to firmly decide as many things as possible right now -- hence, they are unexpectedly taking an affirmative action case next year.

Right now, the comments of the justices indicate they are leaning toward striking the entire thing. Scalia took the lead here and said that when you “take the heart out of the statute, the statute is gone.” His reasoning is simple: it distorts the congressional process for the court to pick and choose what survives. He also said it would be unrealistic to comb through the 2,700-page law to decide which parts were independent of the individual mandate. Liberal Justice Breyer actually echoed this when he asked the government, “What do you suggest we do? I mean, should we appoint a special master [to go through the law]?” He then placed the blame on the government for not specifically pointing out each provision which should stand. That’s usually a sign of a justice washing their hands of the case. I don’t believe Breyer will vote to strike the entire law, but this tells me he thinks the conservatives will and he is at peace with it.

Kennedy, who is viewed as the swing vote, also appears inclined to throw out the entire law. When Ginsburg said that the court should perform a “salvage job” rather than “a wrecking operation,” Kennedy retorted that doing surgery on the law would be “a more extreme exercise of judicial power.” And he said that “by reason of the court, we would have a new regime that Congress did not provide for, did not consider.” In other words, this would be court-created legislation and that is unacceptable.

The justice who concerns me a bit is Roberts. When it was argued that leaving the rest of the law in place would leave “a hollowed-out shell,” Roberts responded by saying, “but Congress would have passed part of that hollowed-out shell.” That could indicate a desire to leave the repeal up to Congress or at least get more information about Congress’s intent (i.e. send it back to the lower court for more evidence). That was the thrust of Ginsburg’s argument, that Congress must decide this, so they should leave the rest in place and let Congress fix it. But the thing about Ginsburg’s argument is that you can flip it on its head and make an equally valid argument. In other words, you can just as validly say that if Congress must make the decision, then the court should strike the law to give Congress a clean slate. That makes her argument worthless and if that’s all she’s got, then her side is out of ammo.

So while I really can’t tell you what will happen, it looks like it’s 4-4 with Roberts at bat, and I suspect he will strike the entire law because I’m not hearing a good reason not to.

As an aside, let me clarify the severability clause issue. People are claiming the absence of the severability clause means the whole law should be automatically struck down. That’s not accurate. That was the law 200 years ago -- if any portion of the law is bad, the whole thing gets struck down. That’s why people invented the severability clause, because it told courts that the legislature’s intent was to leave the rest of the law in place. Over time, the law morphed to the point that courts no longer automatically strike down whole laws. And the severability clause now is interpreted like this: if the clause is present, then the court must automatically uphold the rest of the law. But if the clause is absent, then the court MAY strike the entire law, IF the court finds that the unconstitutional piece is so vital to the intent of the legislation that the rest of the law could not continue without it -- there is no automatic striking. And we know the Supreme Court has accepted this interpretation of this missing severability clause here, because the arguments outlined above are the court working its way through the legal test of how integral this mandate is to the rest.

● Thought Five: Can’t win by losing. The Democrats are trying to put a brave face on this. They claim that losing would wipe the slate clean for the Democrats and would remove the toxic stain of ObamaCare which cost them the 2010 election. Wrong. Their ObamaCare abuse was so bad it spawned a new political party -- the Tea Party, and it led to an historic thrashing at the polls. Having the Supreme Court declare ObamaCare unconstitutional does NOT wipe away that stain anymore than being convicted of murder makes people forgive you for killing your wife. To the contrary, this will confirm to the public that the Democrats massively abused their power.

James Carville also claims a loss will help because once ObamaCare goes down, “health care costs are gonna escalate unbelievably.” Hardly. ObamaCare does nothing to restrain costs, so why would its death cause costs to rise? To the contrary, with the elimination of the taxes, requirements and restrictions imposed by ObamaCare, one would expect costs to go back down -- or more likely stay flat. Moreover, health rates are generally fixed for the year at the end of the year and won’t go up until after the election, so even if Carville is right, it won’t happen before the election. Nice try, idiot.

● Thought Six: Who are the ideologues? Finally, it’s fascinating that the left can simultaneously call the conservative justices “ideologues” as they admit that they don’t know which way three of the five justices will vote. At the same time, they ignore the fact the liberals made up their mind before they arrived and all spouted lockstep opinions. Who are the real ideologues?

Supreme Court ObamaCare Wrap-up!

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Justice Actually Can Prevail

The monster that is the Environmental Protection Agency has just received a big slapdown from the United States Supreme Court. The EPA, using its huge resources, entrenched bureaucratic mentality, seemingly endless ability to spend the taxpayers money and determination that it is a law unto itself lost a true David versus Goliath battle. A family which refused to be intimidated by Leviathan won.

I’ve written on this topic twice before, each time with the hope that this brave couple, Mike and Chantell Sackett would be able to fight on until they won their battle to re-establish the very American proposition that your land belongs to you, not to the federal government and a gaggle of environmental fascists. You can review the underlying facts of the case here: Sacketts vs EPA. So this post is actually more celebratory than the previous two.

In a nutshell, the case involves a small parcel of land which the Sacketts had purchased so they could build their dream home in the Priest Lake region of Idaho. After pulling all the proper permits and complying with all environmental regulations imposed by the local, regional and state authorities, the Sacketts began to build. After the Sacketts had graded the land, laid the foundation for the house and erected some of the walls and support structures, the EPA came in, ordered the construction to halt forthwith, and ordered the Sacketts to dismantle what construction had been done and return the land to its natural state as a protected wetland.

The idea that the land was a protected wetland came as a total surprise to the Sacketts and every agency involved except the EPA. The “wetland” amounted to a small portion of the property, not much more than a puddle, which had only come to exist as the result of an unusually wet winter and spring. It hadn’t been there before or during the permit process, and left alone, would dry up on its own eventually. No wetland flora or fauna had yet discovered the puddle. It takes the sharp eye of an EPA bureaucrat to locate such obscure ecological marvels.

This was another example of ecoweenies and federal bureaucrats finding a “problem” to act on in order to make sure that their power intimidates both the objects of the protection orders and anyone else who might dare to think of building on or near the same location. Why is it suddenly a protected wetland? The EPA’s response was “because we say it is.”

What was determined in the Supreme Court decision is that the EPA (and by inference, other federal alphabet agencies) may not prevent injured plaintiffs from challenging the power of the agency early in the proceedings. In order to win by intimidation, the EPA had issued what is called a “compliance order.” Such an order requires that the victims of that order must first comply with all the terms of the order before attaining standing to sue the agency for a reversal of the order. For a family of moderate means, that is a near impossibility.

The Sacketts would have had to pull down all the construction done so far, including re-grading the land to put it back into its “natural state.” Then, and only then, they would have been allowed to challenge the EPA’s determination that their land was a protected wetland. Assuming they won the subsequent suit (no sure thing), they would then be able to start construction all over.

As an additional bullet in the head of the Sackett’s dreams, refusal to obey the compliance order would mean they could spend their limited funds on reversing the construction, then hiring counsel to sue just to get back where they started or pay daily fines of $37,500 until they did comply. The Sacketts chose not to comply, and after unsuccessful appeals, their fines had reached nearly $1 million by the time the case got to the Supreme Court.

The argument in court revolved around the nature of the compliance order, with the issue of the questionable wetlands determination a secondary issue. The EPA contended that a compliance order is only one step in ongoing litigation to make that determination. The Sacketts argued the opposite. And the high court agreed with the Sacketts. Speaking for the unanimous court, Justice Antonin Scalia wrote that the Sacketts had the right to sue to overturn the compliance order rather than obey it at their own expense and litigate further later.

Scalia reviewed the Administrative Procedures Act on which the EPA relied, and found that a compliance order such as the one in this case is so onerous that it comprises a final order, complete with monetary fines. The order requiring the Sacketts to restore the property to its original condition was therefore subject to immediate judicial review, both under the Administrative Procedures Act and the Clean Water Act.

No need for a private citizen to bankrupt himself complying with the order before suing to overturn the agency decision only to get back to where he was in the first place before the arbitrary and crippling order was entered. Scalia added: “There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”

Justice Samuel Alito also suggested that Congress amend the Clean Water Act, the Administrative Procedures Act, and similar bureaucratic legislation in a way that would clearly and affirmatively define the limitations of compliance orders while at the same time preventing more arbitrary and capricious actions by federal agencies effectively quashing the right of private citizens to seek redress in the courts at the earliest possible time. Said Alito: “The Court’s opinion is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.”

The attorney for the Sacketts argued before the Justices that the EPA (and by inference, any other federal agency) is not above the law, nor does any such agency have the right to prevent private citizens from seeking legal redress against the agency when those citizens reasonably believe they are being treated unfairly. He further argued that private citizens should not be required to suffer crippling sanctions without being able to petition the courts to grant redress and protect private property rights pending further litigation. The Supreme Court unanimously agreed.

Although this was an important and unanimous decision, caution must be advised before determining that this battle won a war. The EPA doesn’t like being told it has limited powers, and under this administration at least, it’s likely that it ain’t over ‘til it’s over. Justice Ruth Bader Ginsburg wrote a concurring opinion which pointed out that the underlying issue of whether the Sackett’s property is or is not a protected wetland is not being determined by this Supreme Court decision.

The decision is limited to the right of a private citizen to challenge a compliance order without first having to comply with it. In other words, big government-friendly Ginsburg wanted the EPA to know that she, Justice Sotomayor and perhaps one other Justice might very well be amenable to accepting their determination that the Sackett’s property is in fact a protected wetland if the case should make its way back to the Supreme Court on that issue alone.

I’ll take my victories where I can find them. This was a major limitation placed on the power of irresponsible poorly-monitored federal agencies to harass, intimidate and threaten private citizens into surrendering to unjust federal authority. In order to win the final battle and ultimately the war, Congress must act to severely restrict the now nearly-unlimited powers of the EPA to declare private property off-limits to the citizens who own it. Now you have another reason to elect a conservative Republican majority to Congress in the upcoming general election, as well as kicking The One out of the White House.

Justice Actually Can Prevail

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The “Dangers” Of Obamacare

Obama’s Obamacare debacle continues. Not only did Obamacare rescue conservatism from disgrace, but its backlash gave us a Republican Congress. And its after effects are still coming. Indeed, even reliably liberal sources are finally noting that Obamacare may have problems. Now, in two weeks, the Supreme Court will hear the case, and all the indications are the court will strike down part of it. Let’s discuss!

In the past couple weeks, there have been a series of articles BY LEFTISTS pointing out that Obamacare may not be all it’s cracked up to be. They identify four “dangers”:

● Danger One: Obama made a big deal of promising that “if you like your current plan, you’ll be able to keep it.” Yet, according to a CBO report, under the best-case scenario, 3-5 million people will lose their current plans. Under the CBO’s worst-case scenario, this number could be 20 million people. That would be 12% of people who are currently insured.

Of course, the reality is that this will be much worse. For one thing, historically, government “worst-case scenarios” are almost always understated by a factor of five. That would mean 60% is a more likely number. And there are several reason to believe that’s the case here. The CBO scores these things using a static model, meaning they don’t take into account how people will change their behavior over time. Instead, the CBO just does the math based on how the world is today. Thus, they did not factor in the increasing costs of policies, nor did they factor in that once companies see their competitors gaining an advantage by dumping their healthcare plans, more companies will follow.

The left is trying to downplay this by saying that businesses can’t really dump their coverage without upsetting their employees -- an interesting argument for the left to make, as they regularly claim businesses don’t care about employees. But of course, this isn’t true. Employers do things for financial reasons, not sentimentality, and financially it will be stupid not to dump the healthcare plan onto the government.

● Danger Two: The Democrats promised Obamacare would reduce healthcare costs. Of course, it actually contained nothing to bring costs down, and costs have continued to soar. Recent polls show that 49% of people blame Obamacare for the rising cost of premiums! The left is whining that it’s unfair to blame Obamacare for this because Obamacare “wasn’t intended to bring down costs,” but that’s how they sold it. I guess they shouldn’t have lied?

● Danger Three: They are starting to realize the law will not pay for itself, and the cuts in Medicare which were supposed to finance it aren’t happening. Whoops. Bankruptcy, here we come.

● Danger Four: The Democrats bet heavily on the idea that “the more the public knows, the more they’ll like it.” But that’s not happening. Obamacare’s favorability sits around 41%. And the reason for this is obvious -- it hasn’t helped anyone, but its negative effects are already being seen everywhere: higher premiums, lost insurance, doctors quitting the business, higher taxes, etc. That’s the way the Democrats set it up to hide the true cost so the law could be passed. Now they are paying the price for that deception. Moreover, according to polls, in just one year, the number of people who know what the supposed benefits of Obamacare are (subsidies, can’t be turned down, etc.) has fallen by half. Basically, it’s now seen as all pain and no gain.

This is what the Democrats get for massaging the law and lying about it to get it passed. And now the law goes to the Supreme Court. In two weeks, the Court will hear the oral arguments in the case. They’ve scheduled an incredible SIX hours for oral argument over three days. They have not give a case this much time in 45 years. The implication is they plan to make a major decision, which bodes poorly for the Democrats, who will in all likelihood now lose the very thing they risked so much to pass.

Nevertheless, the left is trying to put on a brave face. Indeed, they are making all kinds of bizarre and contradictory points to explain why the various conservative justices might vote to keep Obamacare.

For example, the Washington Post argues that “Roberts is protective of the court’s reputation and sensitive to the perception that its decisions are politicized.” Thus,
he won’t want five Republican-appointed judges throwing out a law written by Democrats. Hardly. For one thing, if the Court cares about its reputation being apolitical, then it will do what it believes is correct about the law -- not what the Washington Post thinks needs to be done to please Democrats.

Moreover, this court has proven fearless at both making big decisions and making unpopular decisions. The left likes to claim that this is an “activist court” and to a degree they are right. This is not a court which respects the assertions of government that it has cart blanche power. Between this, the prior gun case, Citizens Union striking down campaign finance, and next year’s unexpected affirmative action case, this is clearly a court determined to start taking away the government’s power to control the rights the Constitution leaves to the people.

The left also argues that some of the other conservative justices might join the liberals because they have supported the use of the Commerce Clause to invade personal privacy before. Yeah, but... those were criminal cases, where conservatives have less love for the Constitution. Those also didn’t force anyone to take any affirmative actions, those laws only forbade people from doing things the Federal government wanted to make illegal. That’s a HUGE distinction.

It is interesting to note that the same leftists who are now predicting that anywhere from 1-3 of the conservative justices will jump ship are the same people who claimed that the lawsuit brought by the states was frivolous in the first place. Clearly, they had no idea what they were talking about then, and I expect they have no idea now. It seems clear to me that the Court will strike down the individual mandate, but not the rest, on a 5-4 vote.

Now here comes the part you won’t like. This COULD actually be bad for us. Here’s why. Because of the way conservatives have played the entire Obamacare debate, the public is outraged at the individual mandate, but oblivious to the rest. If the Supremes strike down the individual mandate, then the desire of the public to repeal the rest might fade. Thus, conservatives will need to pound away at the idea that the rest needs to go because it won’t work without the mandate.

On the other hand, this might actually make it easier to repeal and replace Obamacare because the public will already view the law as having been struck down by the Supremes. Thus, it shouldn’t be particularly controversial if Republicans start repealing the law’s parts piece by piece.

It’s hard to tell which way this will play. But no matter what happens, it is clear that Obamacare will continue to hurt the Democrats in November and possibly even the November after that.

● Danger One: Obama made a big deal of promising that “if you like your current plan, you’ll be able to keep it.” Yet, according to a CBO report, under the best-case scenario, 3-5 million people will lose their current plans. Under the CBO’s worst-case scenario, this number could be 20 million people. That would be 12% of people who are currently insured.

Of course, the reality is that this will be much worse. For one thing, historically, government “worst-case scenarios” are almost always understated by a factor of five. That would mean 60% is a more likely number. And there are several reason to believe that’s the case here. The CBO scores these things using a static model, meaning they don’t take into account how people will change their behavior over time. Instead, the CBO just does the math based on how the world is today. Thus, they did not factor in the increasing costs of policies, nor did they factor in that once companies see their competitors gaining an advantage by dumping their healthcare plans, more companies will follow.

The left is trying to downplay this by saying that businesses can’t really dump their coverage without upsetting their employees -- an interesting argument for the left to make, as they regularly claim businesses don’t care about employees. But of course, this isn’t true. Employers do things for financial reasons, not sentimentality, and financially it will be stupid not to dump the healthcare plan onto the government.

● Danger Two: The Democrats promised Obamacare would reduce healthcare costs. Of course, it actually contained nothing to bring costs down, and costs have continued to soar. Recent polls show that 49% of people blame Obamacare for the rising cost of premiums! The left is whining that it’s unfair to blame Obamacare for this because Obamacare “wasn’t intended to bring down costs,” but that’s how they sold it. I guess they shouldn’t have lied?

● Danger Three: They are starting to realize the law will not pay for itself, and the cuts in Medicare which were supposed to finance it aren’t happening. Whoops. Bankruptcy, here we come.

● Danger Four: The Democrats bet heavily on the idea that “the more the public knows, the more they’ll like it.” But that’s not happening. Obamacare’s favorability sits around 41%. And the reason for this is obvious -- it hasn’t helped anyone, but its negative effects are already being seen everywhere: higher premiums, lost insurance, doctors quitting the business, higher taxes, etc. That’s the way the Democrats set it up to hide the true cost so the law could be passed. Now they are paying the price for that deception. Moreover, according to polls, in just one year, the number of people who know what the supposed benefits of Obamacare are (subsidies, can’t be turned down, etc.) has fallen by half. Basically, it’s now seen as all pain and no gain.

The “Dangers” Of Obamacare

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Poor Backwards America

Since Justice Ruth Bader Ginsburg told Egyptian audiences in Cairo that nations should use models of government other than the United States Constitution for their new constitutions, a small backlash has begun to grow larger. Ginsburg prefers South Africa’s constitution (South Africa’s?!), or the Canadian basic document which contains no less than eight specific prohibitions on freedom of speech and religion.

Letting no grass grow under its feet, Politico wrote a one-sided “news” article on the subject seemingly supporting Ginsburg’s view. The Politico article is entitled: “Study: Constitution in Decline,” and takes its impetus from a study done by David S. Law and Mila Versteeg entitled: “The Declining Influence of the United States Constitution.” The study was prepared for Washington University in St. Louis, and published in the New York University Law Review. To start with, there is a substantial difference between the Constitution in decline and the decline in influence of the American Constitution overseas. But I can’t disagree with the former, and the latter is a simple fact. Citing genuine statistics, the study concludes that “the US Constitution appears to be losing its appeal as a model for constitutional drafters everywhere.”

The authors looked at 729 constitutions adopted by 188 different countries from 1946 to 2006. They found that the influence of the US Constitution peaked in the 1990s at the end of the Cold War, then declined rapidly. This seems to be counterintuitive, but the statistics hold up.

There are many reasons why this might be true. The most obvious is the misplaced emphasis on “human rights” over individual rights. This is at least partially understandable. Many of the nations adopting new constitutions have little or no experience with self-rule, freedom, or the concept of ordered liberty. They are products of either the end of colonialism or the end of oppressive dictatorships. The siren song of “human rights” makes considerable sense taken in that context.

But most of these nations also have little experience with the ideals of private property ownership, contracts, and the rule of law rather than of men. Egypt and possibly Syria would be prime examples. Get rid of that nasty military dictator, replace him with democracy, and replace one-man rule with the goal of one man, one vote, one time. Egypt is quickly becoming openly hostile to America and its institutions, and its constitution is likely to look a lot more like the Koran than the US Constitution.

Another reason which hits closer to home is the activity of the “progressives” who have, starting with Woodrow Wilson, considered the Constitution to be a roadblock in the way of gross social experimentation and central government control of daily affairs. Ginsburg’s remarks bear that out. And shortly after Ginsburg made those remarks on foreign soil, Barack Obama followed up with a political speech demeaning the Constitution as being so creaky that it was impeding his efforts to fundamentally transform America.

With a few notable exceptions, administrations of both political parties have followed the liberal progression from self-government and the rule of law to government by decree and disrespect for the separation of powers so beautifully laid out in the Constitution. The prerogatives of Congress have been overcome by executive orders and bureaucratic diktats from the executive branch, all in derogation of the specific ground rules of the Constitution.

Another (perhaps minor) factor is the very recent use of foreign law in Supreme Court decisions. Foreign law has always been an element of court decisions where international treaties are involved. But even then, the Supreme Court has often interpreted treaties which are not self-actuating solely by use of American law and the Constitution. Lately, the four liberal members of the US Supreme Court have joined with a swing vote to render decisions citing foreign law that quote air-fairy “fundamental human rights.” The favor is not being returned. Foreign courts cite American constitutional decisions at a rapidly decreasing rate.

And finally, there’s the false argument that (in the words of the study): “No evolutionary process favors a specimen that is frozen in time. At least some of the responsibility for the declining global appeal of American Constitutionalism lies with the static character of the Constitution itself.” That is the argument of the intelligentsia, but the booboisie picks it up quickly.

The arguments include “the Constitution provided for slavery” (which it didn't) and “the Constitution denied women the right to vote.” Those arguments forget a fundamental fact. The Constitution is a bedrock document, and changing it was made purposely difficult. But it is not static, nor is it frozen in time. Those things which the original document got “wrong” or didn’t address were corrected or addressed in the Bill of Rights and all the subsequent amendments. When citing the Constitution, it is unfair and just plain wrong to refer only to the original document. The Constitution, as amended, is an integrated document balancing multiple rights with multiple restraints.

Simply put, as the Founders well recognized, the Constitution provides for the maximum amount of freedom without surrender to the will of temporary majorities. That latter concept is misunderstood throughout the world, and our indigenous left plays it for all it’s worth. Any document which prevents a nation from exercising what may seem to be “the will of the people” (on any given day) will be unpopular in nations which desire pure democracy—a concept which has failed every time it has ever been tried.

Anti-Constitutional, pro-democracy advocates should read history. The Founders certainly did. And their Republic, no thanks to progressive administrations, has stood the test of time since the proclamation of the Bill of Rights. But can it survive Barack Obama and Ruth Bader Ginsburg? Why should fledgling nations respect our Constitution when a sitting Supreme Court justice and our Chief Executive Officer don’t?

Poor Backwards America

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Welcome Back Peeps! :)

Welcome back! We’ve missed you! Hopefully everyone had a nice Christmas?! Anyhoo, here’s a quick update on what you missed followed by a brief discussion of negative campaigning. This will all be on the year-end test...

Wha’d I Miss?

● The big news is that Ben Nelson (D) of Nebraska announced his retirement. This is great news for several reasons. First, I suspect Nelson had a solid chance of getting re-elected. Nelson was down in the polls, but polls this far out are unreliable because they are little more than a means of registering a protest. And come election time, people rarely look at the past but instead focus on the future. That’s where things like seniority, client services, and comfort level with candidates all come into play and Nelson scored well in those. Secondly, if Nelson had won, then the MSM narrative would have been that ObamaCare obviously wasn’t a problem with voters. This cuts that off.

● Speaking of ObamaCare, the Supremes have agreed to hear the ObamaCare case, and they’re giving it an unprecedented three hours for oral argument. Except in rare instances, each side normally gets 30 minutes.

● Still speaking of ObamaCare, there are more problems arising. Remember how the plan calls for subsidizing everyone’s healthcare? Well, it turns out the bill was written poorly and this may not be possible. Even the Obama people admit it will require a Congressional fix to solve this problem. That ain’t happening. So even if the Supremes don’t strike it down, ObamaCare may collapse under Obama/Reid’s incompetent drafting.

● Gingrich, Bachmann, Santorum and Perry all failed to get their names on the Virginia ballot. This shows a lack of seriousness as candidates which should alarm their supporters. Gingrich then doubled-down on stupid by blaming one of the people he hired to get signatures. Apparently, this individual submitted 1,200 fake signatures. . . like ACORN. But this shows Gingrich’s stupidity. First, everyone knows you hire people to cross-check the names against voter rolls. What competent candidate could let someone get away with making up 1,200 fake names? Secondly, Gingrich played too fast and loose with the rules by only giving himself about an 11% margin of error. This is stupid. Romney and Paul gave themselves 50% margins. In any event, Gingrich sued and apparently will be let on the ballot if he agrees to stop crying.

● Rick Perry also sued Virginia for not protecting him from his own stupidity. Nice conservative values there, Rick: when you don’t follow the rules and things don’t work out. . . sue. Perhaps a homosexual/teletubby conspiracy slipped Rick litigious pills? In any event, recent reports have his whining working and he too will be let on the ballot.

● American Idol Kelly Clarkson endorsed Ron Paul. While I would have preferred she picked a different Republican, I am thrilled that a young, single female in the pop music world would endorse a non-leftist.

● A new video has emerged of Gingrich praising RomneyCare when it was passed and saying it would lead to great things.

Negative Campaigning

Negative campaigning is a tricky thing. Almost everyone professes to hate negative campaigning and it’s pretty clear that truly negative campaigns backfire on the candidates who wage them. But on the other hand, negative ads do work.

In fact, negative ads can be so effective, that some blame them for bringing about the current cynical state of our politics. I understand the logic in this -- if everyone attacks everyone else, then everyone is brought down in the public’s estimation and there’s nothing positive to latch onto -- but I don’t actually buy this argument. I think the cynical state of our current politics is a reaction to the lack of clear ideological choice, deep-seated corruption in both parties, and Democrats and Republicans blatantly lying about their intentions.

But what constitutes a negative ad? The Economist just wrote a stupid little piece in which they “worried” (read: hoped to promote the idea) that the Republican candidates were becoming so negative that no one would support them in November. Interestingly, the ad they discuss is a Ron Paul ad about Gingrich which shows:

● Gingrich sitting with Pelosi “warning of the dangers of climate change”;
● Gingrich bragging about receiving “speaking fees of $60,000 a pop”; and
● A voiceover pointing out that “Gingrich once supported the individual health mandate.”

This is hardly “going negative.” These are legitimate policy questions. Does Gingrich or does he not support global warming legislation? He did before and he’s hazy on it now. That’s a pretty important issue. Gingrich claims to be an outsider, yet he’s bragging about his speaking fees at large corporate gatherings. Is it not valid to question who his supporters are? And how can Gingrich’s support for the central abuse of ObamaCare not be a policy issue? (Also, isn’t it funny that supporting a Democratic agenda is “going negative”?)

The reality is none of this is negative. Negative is false statements, distortions of records, and baseless smears hinting that someone is a racist, a harasser, a philanderer or a bigot. Negative is repeating isolated, context-less quotes from decades ago and pretending they represent a lifetime record. Negative is smearing a candidate’s family or invading their bedroom. Negative is suggesting Barry Goldwater is unstable and will start a nuclear war, suggesting Ronald Reagan is old and senile or that he cut a deal with the Iranians, and publishing fake rumors about affairs that never happened, spreading lies about military records, and springing stories about a drunk driving arrest 40 years prior. Negative is NOT pointing out that your opponent supports political policies with which you disagree.

I am not a believer in negative campaigning. I think it cheapens your victory and destroys your mandate, and positive candidates will always be better leaders. But I also think we need to stop calling the pointing out of policy disagreements negative campaigning. And we really need to stop letting the MSM spin any criticism of another candidate as negative just so they can drive the narrative that Republicans are all negative.

(P.S. Don't forget, Star Trek Tuesdays start tomorrow morning at the film site.... 9:00 AM, be there.)

Wha’d I Miss?

Negative Campaigning

● Gingrich sitting with Pelosi “warning of the dangers of climate change”;
● Gingrich bragging about receiving “speaking fees of $60,000 a pop”; and
● A voiceover pointing out that “Gingrich once supported the individual health mandate.”

Welcome Back Peeps! :)

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Two States, But The Same Travesty

Justice delayed is justice denied. That is a thought which most Americans support. But usually, we think in terms of a criminal defendant or an aggrieved civil litigant when citing that dictum. On far too many occasions, the justice is denied to the victims of a violent crime and the people of the state in which the crime occurred. So it is with a pair of unrelated prosecutions--one in California, the other in Pennsylvania.

In California, the system-gamer is one Michael Morales. In 1981, Morales was convicted of murdering seventeen year old Terri Winchell. It was a particularly brutal and vile murder. Morales bludgeoned, knifed, strangled, raped, then finally snuffed out the life of a young woman. The evidence was clear. The conviction was quick and firm. The case was appealed on procedural grounds twice through 2005. Each time, after considerable legal maneuvering, rescheduling and unnecessarily lengthy deliberation, the appeals were denied at both the state and federal levels.

After twenty-four years of delay, none of which involved a scintilla of argument that Morales was innocent, a date was set for execution of the death sentence he had so richly earned. Not so fast, said Federal Judge Jeremy Fogel. With the needle of justice in preparation for insertion into Morales's worthless hide, a last-ditch appeal was filed in 2006. The latest fad among opponents of the death penalty was to challenge the ultimate penalty as "cruel and unusual" because it is "so painful." Nobody really believes that. But liberal federal judges are able to suspend disbelief with alacrity. Fogel found that there was (get this) less than a .001 percent chance that Morales might feel some pain as he shuffled off this mortal coil. But that was enough for Fogel to order a stay of execution.

Anyone who has had major surgery and undergone general anesthesia can tell you that the doctors could have cut them in half and sewed them back together backwards, and they wouldn't have felt a thing. The same type of general anesthesia is the first injection which a condemned prisoner is given. For the patient, any possible pain would be felt after coming out of the anesthesia. In Morales's case, there was no intention that he wake up. That's why it's called the death penalty.

God forbid that the man who tortured and raped his victim before killing her should feel the slightest bit of ephemeral pain before expiring. Yes, I know, we're supposed to be "better than the violent criminal." But for crying out loud, .001 percent chance that he might, possibly, maybe feel something for a brief and fleeting moment?

Problem solved in 2008 (or is it?). Taking up the identical issue from a Kentucky case, the U.S. Supreme Court upheld the state's three-drug execution protocol. Lest there be any doubt, in 2009 the ultraliberal Ninth Circuit Court of Appeals (which includes California) upheld the protocol of the state of Arizona, which is identical to that of Kentucky's. So let's get on with the California execution, right? California's protocol has been scientifically proven to be as effective or more effective than that of Kentucky's or Arizona's. Nevertheless, the case will now be heard no earlier than September of this year. Thirty years of delayed justice and counting.

A new and different federal judge has gotten into the case. He wants to review the new, improved California protocols which are designed to be even more humane than the previous protocol. Of that, the Criminal Justice Legal Foundation says: "California's execution protocol is equal to or better than those already approved by the Supreme Court and the Ninth Circuit. There is no legitimate bases for further delay. If the judges wanted these cases to go forward, they would go forward."

About the caption photo: The case in Pennsylvania is so horrific that it has taken me some time to compose myself before writing about it. You may remember my having written previously about the case of Mumia Abu-Jamal (real name, Wesley Cook). Coincidentally, Abu-Jamal also commited his heinous murder in 1981. He was on the street watching as his brother was pulled over for a traffic violation. Waiting for the police officer to write a ticket while facing away from him, this son-of-a-b***h pulled out a concealed gun and shot the officer nearly point blank in the back, execution style. The officer managed to turn and return fire and shoot Abu-Jamal four times before dying. There were multiple witnesses. His own brother (William Cook) refused to testify for or against his brother.

Investigators found Abu-Jamal and his .38 in different locations, but matched the gun and bullets to the round pumped into Officer Daniel Faulkner, and established his ownership of the weapon. Eyewitnesses and later two hospital workers where Abu-Jamal was treated for the bullet wounds matched to Officer Faulkner's gun testified tht Abu-Jamal kept repeating "I shot the motherf****r, and I hope the motherf****r dies."

His guilt and the police/prosecution actions have been upheld on multiple occasions on appeal, only to have a new round of appeals start up, time and again. The last round, thirty years after conviction and sentencing, was aimed at the death penalty itself. By now even his cheering-section had given up on claiming he is entirely innocent, and instead claim he is the victim of a racist society which caused him to shoot the police officer.

Abu-Jamal was just too perfect a model of what limousine liberals, armchair revolutionaries and Hollywood perverts love to hold up as role models for the people. They just couldn't help loving that man of theirs. So he got plenty of legal and financial support to move his frivolous appeals along. He is a self-proclaimed Marxist, revolutionary, and former Black Panther defender of the poor and downtrodden black folks.

College students wear "Free Mumia" tee-shirts almost as often as they wear the one with their other murdering icon, Che Guevara. Among his better-known megafans are Hollywood folks like Danny Glover, Mike Ferrell, Sean Penn and Johnny Depp. That is not even close to being an exhaustive list. Of course the ACLU, the NAACP, and the Socialist Workers of America also yearn for the sight of the dreadlocked murderer outside a prison.

But here's why it took me awhile to calm down enough to write this article. Awhile back, after years on death row (often within days of execution), the appeals process had finally worn down the prosecution and the family of the slain police officer. The prosecution, along with the bereft widow and children, finally announced that they would no longer pursue the death penalty for Abu-Jamal. They just couldn't go through another decades-long appellate process that would affirm the death penalty he has dodged on appeal three times before.

In the Morales case, justice has been denied by delay. In the Abu-Jamal case it has been denied permanently. While this is truly an example of the legal dictum, there is one additional point that turns my stomach. American society has a large, depraved, and amoral segment that has no shame whatsoever. As soon as the prosecution announced its decision not to proceed with the death penalty, the murder fans cheered wildly and prepared for their next move. Not satisfied with having spared this scum's life, they are planning a rally and fundraisers to keep the process going until this lowlife walks out of prison a free man.

Their rallying cry has always been "Free Mumia." But they tie that to claiming a black man was convicted solely because of racism. Abu-Jamal himself hates mightily, and blames all of society's ills on racism. But here's the important part that makes this whole carnival freakshow so disgusting. Abu-Jamal's sentence was reversed multiple times, but always on procedure or the death penalty, never on guilt or innocence. Racism was involved, all right. It was nothing short of a racist execution of a white cop, a fact which Abu-Jamal himself has never denied in court. He has never said he was innocent, but has maintained all along that "they never proved it."

Two States, But The Same Travesty

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Fishy Environmentalism At The High Court

The Pacific Legal Foundation has prepared its pleadings asking the United States Supreme Court to reverse the decision of the Ninth Circuit Court of Appeals in Delta Smelt v. Human Reality. That's not the real title of the case, but it gets the point across. Calling it Environmentalism Gone Mad v. The Economy, Human Beings, Agriculture, et al seemed too melodramatic.

You can bring yourself back up to speed by reviewing my original article on the subject here: The Fish That Conquered California. When I wrote the original piece, I was still living in San Francisco. Since that time, I've been living right in the heart of the agricultural wasteland (and former agricultural Eden) that is the result of crazed environmentalism.

As part of the ongoing battle, hearings were recently held at the House Natural Resources Subcommittee on Water and Power attempting to determine how to curb the power of Interior Secretary Ken Salazar and EPA officials. The subcommittee was specifically addressing the issue of bureucratic-created droughts. No natural disaster has caused the greatest farmland in the world to dry up. It took green weenies, their government tools, a lot of addled politicians, and one useless fish to do that.

"Jobs President" Barack Obama has entirely ignored this cancer on the job market. California's unemployment rate is now officially at 12%+, making it the second worst in the nation. In farming towns in the formerly lush Central Valley, unemployment rates are more like 35% to a staggering 42%. Farmers have been put out of business, and thousands of workers have been put out of work. When the water restrictions protecting the previously-unheard of and totally environmentally-useless Delta smelt were first put into effect, the members of the Fresno Farm Bureau alone produced $7 billion in food. Today, that figure has shrunk by $2.3 billion.

Federal Judge Oliver Wanger was the trial judge who heard the original lawsuit filed by the local farmers. Wanger, retiring this month, was the former city attorney for the town of Mendota before being appointed to the California Superior Court for Fresno County and ultimately to the federal court by George W. Bush. Mendota's current unemployment rate is 39.5%. Wanger weighed all the facts, considered the law and precedent in a lengthy opinion, and ruled in favor of the farmers and against the green weenies and their lousy fish. The enviro-kooks then appealed to the Ninth Circuit, the most-reversed federal district court of appeals, and got the decision overturned.

Judge Wanger had ruled that federal scientists had completely ignored the balancing test of environmental matters versus human needs required by the National Environmental Policy Act (NEPA). "FWS and Reclamation have not complied with the NPA or the public policy underlying NEPA which favors protecting the balance between humans and the environment." In 2005, the federal Fish and Wildlife Service had already done a comprehensive study on the Delta smelt, and determined that it was not endangered by the water transfer facilities and machinery, and if endangered at all, it was a purely natural thing having nothing to do with the movement of water into the aqueducts. Not good enough for the green weenies.

Judge Wanger's opinion went on to say: "Federal defendants completely abdicated their responsibility to consider reasonable alternatives that would not only protect the species, but would minimize the adverse impact on humans and the human environment. The result is an issuance and implementation of a one-sided, single purpose rule that inflicts drastic consequences on California's water users, a situation NEPA prohibits." The Ninth Circuit decided instead that humans are irrelevant when it comes to strict enforcement of EPA regulations and the protection of useless fish.

If the Supreme Court grants certiorari (agrees to hear the case), there is a substantial chance that at long last, the protection of "endangered species" which play no significant role in the ecosystem may finally have to give way to human needs and even simple reality. If so, the pumps will be started up, the spigots will be opened again for the first time since early 2009, the water fill flow, the Delta smelt will or will not disappear (who cares?), jobs will return, and the American food basket will thrive again.

Author's Note: No Delta smelt were harmed during the preparation of this article--unfortunately.

Fishy Environmentalism At The High Court

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Best Beyblade Ever - Austerity

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Best Beyblade Ever - Austerity

Could You Repeat My Job Description?

Pelosi Loves Judicial Review

Supreme Court ObamaCare Wrap-up!

Justice Actually Can Prevail

The “Dangers” Of Obamacare

Poor Backwards America

Welcome Back Peeps! :)

Two States, But The Same Travesty

Fishy Environmentalism At The High Court