Hillary Clinton on the Kavanaugh Nomination to the Supreme Court

When Hillary Clinton was speaking before the American Federation of Teachers conference in Pittsburgh, she intimated that President Trump's nomination of Brett Kavanaugh to the Supreme Court is an indication that Republicans want to bring back slavery.

Aside from the irony that the GOP was historically the party that ended slavery thru President Lincoln's  Emancipation Proclamation in 1863 and passage of the 13th  Amendment in 1865, Hillary's hair on fire rhetoric is remarkable.

Instead of Mrs. Clinton continuing her loser tour around liberal circles which offered various excuses why she was beaten by Donald Trump in the 2016 election, she is focusing her wrath more firmly towards the rhetoric of "The Resistance".  Whether or not a old pol who profited off of insider deals, questionable charities and the aura of being an Elite can convince surging Democrat Socialists to support her is another story.

This is not the first time which Democrat operatives have sought to invoke slavery to advance their own campaign.  During the 2012 cycle, ex Vice President Joe Biden proclaimed "They want to put y'all back in chains" during a rally in Danville, Virginia (which was the last capital of the Confederacy).

It is uncertain in the era #WalkAway and record low black unemployment will work to get minorities to the polls in the midterms. 

On Turgid Constitutional Ignorance

In the alluvia of analysis and opinions which followed President Trump's nomination of Brett Kavanaugh for the Supreme Court, NBC New's Katy Tur attempted to ask an insightful question.

Aside from the liberal assumption embedded in the inquiry, Tur operated with an egregious error.  The Constitutional Convention was held in Philadelphia in 1787 not 1776. It seems that Little Katy did not grow up watching Schoolhouse Rock.



Maybe she should review the lesson as she might learn something.  

That simple mistake really costs her credibility.  So often we are inclined to impart wisdom on the pundits who pontificate on television.  If they get a basic civics fact wrong, why should we listen to them?

Although Katy Tur was awarded the 2017 Walter Cronkite Award for Excellence in Journalism, I think it's  Unbelievable (sic).  That may be the title of her book with her year covering Donald Trump, but now I know better how to analyze her reportage: Progressive, propagandistic, polemic and nescient. 

Rejecting Tomi Lahren's Pink Slime Pro-Choice Perspectives

In offering analysis after President Donald Trump nominated Brett Kavanaugh to be on the Supreme Court, Fox News commentator Tomi Lahren opined that conservatives seeking to overturn Roe v. Wade are effectively spitting on the Constitution.

Lahren has been outspoken in her adherence to abortion rights.  She was separated from Glenn Beck's "The Blaze TV" last year because of her inconsistent opinions about abortion.  This was sparked by an appearance on ABC's The View in which she argued that it was hypocritical to be anti-choice and be a small government conservative.    Beck insisted that he wanted to terminate Lahren for lacking intellectual integrity.

“I can’t speak for the company and why they did it, but it had nothing to do with being pro-choice...
What I have a problem with is somebody who will change their point of view or that will say absolutely crazy, red meat things, and not have any intellectual firepower to back it up. Have the intellectual integrity to be able to back things up.”

Now Lahren laments that some conservatives want a Supreme Court to carry out religious judicial activism to get rid of Roe v. Wade (1973).  Tantalizing pro-choice red meat but it like the pink slime substitute which some fast food outlets use to sell dollar menu items to a hungry public even though it causes indigestion.

Lahren assumes that any rollback of Roe would be premised on religious issues.  Even the Roe decision recognizes that government has interests in unborn life in the last trimester that is viable.  Prenatal medicine has made great leaps of advancement so viability is pushed closer to the 20th week of pregnancy.  No signs of religion in this hermaneutic. And that does not even consider the scientific fact that human life begins at the moment of conception

Pro-Choice jurisprudence currently rests on the shaky foundation of abortion as being included in a right to privacy that is within  penumbras and emanations of the Bill of Rights, as applied to states by the Fourteenth Amendment.  Justice Blackmun's holding in Roe is a quintessential example of judicial activism, legislating from the bench for the entire nation.

Conceptually, a texualist originalist led Supreme Court could rule that "the right to privacy" is not enumerated within the Federal Constitution and that the Tenth Amendment is applicable.  This would throw the abortion issue back to the states, where it resided prior to the 1973 judicial fiat.  Some states, like California and New York, would have liberal abortion laws, while other states may be more restrictive.   That sort of subsidiary jurisprudence sounds like small government conservatism.

Maybe Lahren's political science studies at UNLV did not adequately cover jurisprudence.  She seems to think that it is unconstitutional for the Supreme Court to overrule bad precedent or is judicial activism.   In his confirmation hearing to become Chief Justice in 2005, John Roberts noted that stare decisis does not hold as a legal precedent when a matter was wrongly decided.  But in Tomi Lahren's legal logic, Brown v. Board of Education (1954) that overturned the Separate but Equal standard of  Plessy v. Ferguson (1896) was just spitting on the Constitution too. 

It is lamentable that Fox News turns to Tomi Lahren for legal analysis.  In little more than a year, she has shifted her abortion rights advocacy from being premised on what she believes is small government conservatism to combating religious judicial activism.  No wonder she burned her bridge at The Blaze TV for lacking intellectual integrity. 

Some may want to consume pink slime perspectives because they are spicy tasty morsel temptations, but assuredly many leave the establishment when such dreck is  seen on the television menu.

Terry McAulliffe on the Brett Kavanaugh Nomination

President Donald Trump on Vetting SCOTUS Nominees

Antonin Scalia on the Constitution

Clarence Thomas on Universal Injunctions

Dennis Miller's SCOTUS Snark

Senator Ed Markey on Reversing the Nuclear Option

Senator Markey's promise to overturn the nuclear option is a marked departure from the partisan gamesmanship strategy that Democrat Minority Leader Chuck Schumer (D-NY) has been using against the Trump Administration. 

It should be noted, however, that Senator Markey's (D-MA) anti- Nuclear Option promise is a chimera.  The vow of overturning the nuclear option precedent anticipates the same conditions that former Senator Majority Leader Harry Reid (D-NV) when the Reid Rule blew up Senate precedent by changing the rules mid session and making the upper chamber a majority rules body. 

Considering the leftward swing of the Democrat Party and number of vulnerable Democrat Senators in the 2018 election cycle, Markey's promise rings as true as the Obamacare: "If you like your doctor than you can keep him'. 

Ben Sasse Anticipates Democrats' Knee Jerk Opposition Against Trump's SCOTUS Choice

Isn't it amazing how the "spontaneous" made for TV  crowd had pre-printed signs with Trump's Supreme Court pick Neil Gorsuch pre-printed on it.  Much like the astroturf, anticipating Senate Minority Leader Chuck Schumer (D-NY) would demonize the newly named nominee.

Keeping in character, Senator Schumer's statement about Neil Gorsuch paints the Trump High Court nominee as a neanderthal who is beholden to the President:

“Judge Gorsuch has repeatedly sided with corporations over working people, demonstrated a hostility toward women’s rights, and most troubling, hewed to an ideological approach to jurisprudence that makes me skeptical that he can be a strong, independent Justice on the Court."  

A Favorable First Amendment Slant Should Save the Redskin's Trademark

For several years, there has been a politically correct effort to force the Washington Redskins to change their name.  In fact, the U.S. Patent and Trademark Office was convinced with withdraw the NFL franchise's trademark protection in 1999 and 2014, citing that "the term redskin" as derogatory and offensive even though the USPTO had approved the mark over 80 years before. Washington Redskin's owner Daniel Synder appealed claiming that case law and the weight of the evidence had been ignored.  A federal district court agreed with the Patent Office's withdrawal of the trademark in July 2015. 

However, a Federal Appeals court handed down a ruling which may well be a game changer.  The Portland Oregon dance rock band "The Slants" won a Federal Appeals Court case which began in 2011 over their provocative moniker.  The Slants are composed of Asian Pacific Island band members and pride themselves as taking on racism presumably by embracing a name which many consider to be ethnic slander. 

The Slants

In a December 22, 2015 decision, the Federal Appeals Court ruled:

“Many of the marks rejected as disparaging convey hurtful speech that harms members of oft-stigmatized communities. But the First Amendment protects even hurtful speech...

The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks."

That ruling ended The Slant's legal Misery, but also serves as a strong indication that the Redskin's ruling will not stand. The Redskins were stripped of trademark protection because of "hurtful speech".  In addition, the Redskin's case is even stronger as the USPTO had already approved the trademark years before and then sought to yank it away.  However, because the Redskin's appeal is in another circuit, the Slant's ruling is not automatically set a precedent.  And the US Supreme Court could also overturn the Slant's First Amendment trademark protection.

But until then..

UPDATE: 01/18/2017:  The Slants get their day at the highest court in the land as Lee v. Tam reaches the Supreme Court. The justices will decide whether the government can penalize free speech which it finds offensive or if the government granting a trademark protection allows it to disassociate from ideas which the public might find offensive 

UPDATE: 06/19/2017:  In an opinion written by Justice Samuel Alito, the Supreme Court ruled 8-0 that the government can not refuse to register trademarks that are considered offensive.  The Supreme Court's ruled that the disparagement part of the trademark law, which had been a provision in effect since 1946, is unconstitutional.

Most believe that the Supreme Court's holding will hail favorably for the Washington Redskin's trademark dispute.

The Legacy of Dirty Harry and the Reid Rule on Senate Filibusters

A legacy of former Senate Majority Leader  Harry Reid (D-NV) was the effective elimination of the confirmation filibuster.  

Under the Constitution, it is the Senate's duty to confirm Executive and Judicial Branch appointments.  Senate rules allowed for confirmations with mere majorities, but needed to obtain 60 votes to cut off debate (Cloture) and preclude a filibuster.  The Cloture vote was intended to prevent endless obstructionism while still giving the minority some say in the proceedings of the Upper Chamber of Congress.

Needing to get enough votes for cloture was an incentive for Republicans to select more moderate appointees which required Senate consent.  But such Senate niceties stopped political steamrolling by Majorities who wished to exercise their unadulterated will.

When the Obama Administration sought to pack the Court of Appeals for DC (aka the DC Circuit), which is the court of authority for regulatory bodies, it ran into trouble when its candidates might not have received the requisite support for a Cloture Vote.  So then Senate Majority Leader Harry Reid, exercised "The Nuclear Option".  Exercising the Nuclear Option had been hotly debated in the preceding decade, but then Senate Majority Leader  Bill Frist (R-TN) opted not to circumvent tradition. 

Through Parliamentary legerdemain, Reid established a precedent in which he said that all judicial nominees, save Justices of the Supreme Court, would be considered on majority votes and did not have to pass the Cloture Vote threshold.  

The Reid Rule was great when one's party is in control of the Senate and the White House. But in 2017, President Donald Trump will occupy the White House and Republicans have a two seat majority in the Senate.  Incoming Senate Minority Leader Chuck Schumer thinks that he can stymie the Trump Administration through the advice and consent clause as well as any Supreme Court nominations which do not represent progressive Democrat values.  However, Schumer may well rue the Reid rule legacy from Dirty Harry Reid. 

Senator Ted Cruz (R-TX) and Salem Radio host Hugh Hewitt had an informative colloquy on the Reid Rule.

 Republicans may not moderate their choices for positions which need to be confirmed by the Senate.  Despite Harry Reid's contention that the "Reid Rule" excludes Supreme Court nominees, it is contented that avoiding Cloture for a Supreme Court nomination would simply be a second application of the Reid Rule precedent.