Sunday, July 25, 2021

Dangerous New …

 https://babylonbee.com/news/new-dangerous-freedom-variant-has-people-ignoring-government-edicts


Dangerous New Freedom Variant Causing People To Ignore Government And Live Their Lives

U.S.—Experts are warning of yet another new problem facing the nation: They’ve spotted a new, more dangerous freedom variant spreading among the populace. This freedom is so virulent that people infected by it feel they can ignore government edicts about masks and lockdowns.

“Usually, the freedom we see in the wild is fairly mild,” explained CDC official Hubert Pratt. “It’s just freedom to passionately express one of the approved viewpoints on social media or freedom to pick one of the three Obamacare options. But now we see people acting like politicians aren’t in charge of them at all, and it’s dangerous.”

With the new freedom variant, there’s been an outbreak of people not wearing masks, teaching their children their own values, and expressing ideas the Biden Administration would rather they not. Moreover, this freedom is highly contagious, even sometimes breaking into blue states once thought to be immune.

Experts recommend only staying on highly moderated social media sites and watching approved network news to avoid being infected. They also tell people to watch out for the signs of this dangerous freedom variant in others: masklessness, smiling, and prominent displays of the American flag.


Losing Our Liberty All at Once?

Once upon a time, and it was not so long ago, an American could recognize totalitarianism and say “Thank God we’ve escaped that.” Can we still say that?


Friedrich Hayek took one of the two epigraphs for The Road to Serfdom from David Hume (the other, like Hayek’s title, came from Tocqueville). “It is seldom,” Hume wrote, “that liberty of any kind is lost all at once.” 

Much as I admire Hume, I wonder whether he got this quite right. Sometimes, I would argue, liberty is erased almost instantaneously. 

I’d be willing to wager that Joseph Hackett, confronted with Hume’s observation, would express similar doubts. 

I would be happy to ask Hackett myself, but he is inaccessible. If the ironically titled “Department of Justice” has its way, he will be inaccessible for a long, long time. Perhaps as long as 20 years. 

Joseph Hackett, you see, is a 51-year-old Trump supporter and member of an organization called the “Oath Keepers,” a group whose members have pledged to “defend the Constitution against all enemies foreign and domestic.” (You can see how this ends already, can’t you?) The FBI does not like the Oath Keepers. They arrested its leader in January and have picked up many other members in the months since. Hackett came from his home in Florida to join the Trump “Stop the Steal” rally that took place on January 6. According to court documents, he entered the Capitol at 2:45 that afternoon. He left some ten minutes later, at 2:54. The next day, he went home. On May 28, he was apprehended by the FBI and indicted on a long list of charges, including conspiracy, obstruction of an official proceeding, destruction of government property, and illegally entering a restricted building. 

As far as I have been able to determine, no evidence of his destroying property has been made public. According to his wife, it is not even clear that he entered the Capitol. But he certainly was in the environs. He was a member of the Oath Keepers. He was a supporter of Donald Trump. Therefore, he must be neutralized. What about the Antifa and Black Lives Matter “peaceful protestors” who destroyed some $2 billion of property, killed or injured scores, and toppled countless public monuments? Take your time. 

The scary and disgusting story of what the police power of the state is doing to those who went to Washington on January 6 to exercise their supposedly constitutionally protected right to protest is being told as it unfolds in American Greatness by Julie Kelly. For her relentless and indefatigable reporting, Kelly deserves whatever the conservative version is of the Pulitzer Prize (I know, it does not yet exist). Joseph Hackett is only one of scores of ordinary citizens who have been branded as “domestic terrorists” trying to “overthrow the government” and who are now languishing, in appalling conditions, jailed as political prisoners of an angry state apparat.

Kelly is telling that story with her usual incisive thoroughness. Here, I’d like to step back and ponder that loss of liberty that Hume and, through him, Hayek spoke about. 

Hayek’s overriding concern in The Road to Serfdom was to combat the forces that were pushing people further along that road to servitude. His chief concern was unchecked state power, the motor of which was socialism. The Road To Serfdom was first published in 1944. In a new preface in 1956, Hayek noted that one of the book’s “main points” was to document how “extensive government control produces a psychological change, an alteration in the character of the people. This is,” Hayek continued, “necessarily a slow affair, a process which extends not over a few years but perhaps over one or two generations.” 

So here we are. “The important point,” Hayek said,

is that the political ideals of a people and its attitude toward authority are as much the effect as the cause of the political institutions under which it lives. This means, among other things, that even a strong tradition of political liberty is no safeguard if the danger is precisely that new institutions and policies will gradually undermine and destroy that spirit. The consequences can of course be averted if that spirit reasserts itself in time and the people not only throw out the party which has been leading them further and further in the dangerous direction but also recognize the nature of the danger and resolutely change their course.

My emphasis is on that second “if.” 

When Phillip II of Macedon threatened Sparta with all manner of dire consequences if he should invade their territory, the laconic response was that brief rejoinder, two letters in Greek (εἰ) as well as English: “If.” What are the signs that we have recognized the “nature of the danger” and are “resolutely” changing our course? 

Meanwhile, Joseph Hackett and others rot in a DC political prison. The president’s press secretary presumes to tell us what opinions may and may not be expressed on social (or any other sort) of media. If, she said, someone is excluded from one platform for wrongthink, shouldn’t he also be excluded from all the others? The obedient drones of the press sat in their seats smiling and scribbling notes. 

The powerful center of W. H. Auden’s powerful poem “The Shield of Achilles” speaks to our situation.

 A crowd of ordinary decent folk

 Watched from without and neither moved nor spoke

As three pale figures were led forth and bound

To three posts driven upright in the ground.

The mass and majesty of this world, all

  That carries weight and always weighs the same

Lay in the hands of others; they were small 

 And could not hope for help and no help came:

 What their foes like to do was done, their shame

Was all the worst could wish; they lost their pride

And died as men before their bodies died.

The great Eva Brann says that this passage offers “the most succinctly accurate account of life in a modern totalitarian state” that she knows. Once upon a time, and it was not so long ago, an American could recognize that and say “Thank God we’ve escaped that.” It’s not at all clear that we can entertain that happy conviction any longer. 


Jackie Mason, rabbi turned comedian, dies aged 93

 

Jackie Mason, the US comedian and actor, has died at the age of 93.

The stand-up was ordained as a rabbi before turning to show-business in the 1950s. He was well known for his social commentary, talk show appearances and one-man shows on Broadway.

Mason won numerous awards in his career, including a Tony Award and an Emmy for voicing Krusty the Clown's father on The Simpsons.

Comedians around the world have paid tribute to the star on social media.

"Truly one of the funniest shows I have ever seen... ever," actor Henry Winkler tweeted. "Thank you Jackie and now you get to make heaven laugh."

UK comedian Omid Djalili wrote: "Currently imagining a long queue at the Pearly Gates as St Peter makes Jackie Mason do his whole act for him. RIP Jackie."

Born Yacob Maza in Sheboygan, Wisconsin on 9 June 1928, Mason and his family moved to New York when he was five.

His father, grandfather, great-grandfather and great-great-grandfather had all been rabbis, and after college he was ordained and began leading congregations in North Carolina and Pennsylvania.

He would later tell the Chicago Tribune that a lot of non-Jewish people "would come to the congregation just to hear the sermons" because he told so many jokes. Mason turned to comedy full-time after his father died in the late 1950s.

 

 

Known for his heavy New York Jewish accent, Mason's humour was based on pun, innuendo, and sometimes politically incorrect humour.

"Eighty percent of married men cheat in America. The rest cheat in Europe," he once joked.

The comedian was a registered Republican, and later in life spoke out in defence of US President Donald Trump. He was also staunchly pro-Israel.

Mason was hospitalised two weeks ago and died at New York's Mount Sinai Hospital on Saturday.

From JFK to AOC: How the Democrat Party Turned Into a 'Neo-Maoist Movement'



of Victor Davis Hanson by Mike Miller at RedState 

Ask not what your country can do for you — ask what you can do for your country.”

“We must confront that our nation was founded by genocide and we maintain global power through neocolonialism.”

The first quote above, of course, is from John F. Kennedy’s January 21, 1961 inaugural address — and remains arguably the most famous quote in the annals of inaugural history. The second quote is from an August 2017 tweet by Rep. Ilhan Omar (D-MN) — and she’s said far worse.

Imagine flipping the script. What would happen to a Democrat lawmaker today if he or she uttered that famous admonishment from JFK — let alone actually believed it? I got this one. He or she would be excoriated on CNN (“The Most Trusted Name in News”) and PMSNBC, called every obscene name in the book on social media, and run out of town on a rail — by his or her own party.

And, if JFK had declared during his inaugural address that America was “founded by genocide” and maintains global power through “neocolonialism”? He would have immediately been declared a Communist on both sides of the political aisle, hearings would have been held in both chambers of Congress, and all hell would have broken out across the country.

The overarching question is, how the hell did we get here?

How did the Democrat Party of John F. Kennedy morph into the Democrat Party of Ilhan Omar, Alexandria Ocasio-Cortez, Nancy Pelosi, and the radical Left’s organ grinder monkey in the White House?

Victor Davis Hanson, a distinguished fellow of the Center for American Greatness, author, and Fox News contributor shared his thoughts on the Democrat Party in an op-ed posted on FoxNews.com on Saturday. “How did the Democratic Party of JFK, Bill Clinton turn into a woke neo-Maoist movement?” he asked.

“In the old days, Democrats had predictable agendas,” VDH wrote, “supposedly focused on individual rights, the ‘little guy,’ and distrust of the military-industrial complex.”

“Democrats talked nonstop about the working man. They damned high gas and electricity prices that hurt consumers. Almost every liberal cause was couched in terms of the First Amendment, whether it was the right to shout obscenities, view pornography, or bring controversial speakers to campus.

“The Supreme Court was sacred. With a liberal-packed court led by Chief Justice Earl Warren, progressive justices restrained the supposedly harebrained initiatives of hick right-wing populists.

Democratic congressmen investigated the CIA and FBI seemingly nonstop.”

Obviously, I bolded that font because today the CIA and FBI serve as virtual arms of the Democrat Party.

“Progressive political cartoonists caricatured the Pentagon’s top brass as obese, buffoonish-looking clerks with monstrous jowls. The ‘revolving door’ was a particular leftist obsession. Democrats blasted generals who retired from the military, then went straight to defense contractor boards and got rich.

“Unions were sacred. So farm union kingpins such as Cesar Chavez headed to the border to confront (or physically assault) any would-be undocumented immigrant ‘scabs.'”

And this:

Politicians such as Sen. Chuck Schumer (D-NY), and Bill and Hillary Clinton railed against the cheap labor provided by undocumented immigrants, which drove down American wages.”

Imagine that. “That was then,” VDH wrote, “this is now.”

So what the hell happened, as VDH sees it?

“Liberals became rich progressives who transmogrified into really rich hardcore leftists. Suddenly, not just millionaires but multibillionaires such as Mark Zuckerberg, Bill Gates, Jay-Z, Oprah Winfrey, and a host of other celebrities and CEOs were cool and hip.

“Deified Silicon Valley monopolists ensured that leftist candidates were usually better funded than were conservatives.

“‘Dirty money’ disappeared from Leftist invective.

“The Fortune 500 became mostly a list of billionaires who did not make their money the old-fashioned way of manufacturing, assembly, construction, farming, transportation, or oil and gas production.

The left got drunk on the idea that it now had its hands on the money and influence in America. So it systematically began targeting institutions and leveraged them not from the noisy street with empty protests but from within.”

Bingo. Leftism has metastasized within — everywhere from professional sports to corporate boardrooms — in many cases, leaving conservatives asking, “Wait — what just happened?”

And institutions once revered by the Democrat Party?

“Suddenly, the once-revered Supreme Court, now with a majority of conservative justices, became an obstacle to democracy and had to be packed or restructured.

“The First Amendment was redefined as a bothersome speed bump that slowed progress. It needlessly protected noisy conservatives and their backward values.

“The CIA, FBI and Pentagon were suddenly OK — if staffed with the right people. Their clandestine power, their chain-of-command exemption from messy legislative give-and-take and their reliance on surveillance were now pluses in the correct hands.

These institutions became allies, not enemies, and so their powers were augmented and unchecked.”

“The media glitterati were no longer to be mocked as empty suits and pompadour fools, but rather treated as useful foot soldiers in the revolution,” VDH correctly nailed. “The union shop was written off as a has-been enclave of old, white dinosaurs — an ossified, shrinking base of the Democratic Party.”

And what of the “old white dinosaurs” of the party of John F. Kennedy, Hubert Humphrey, Daniel Patrick Moynihan, and Walter Mondale?

“Traditional Democrats were seen increasingly as namby-pamby naifs who rotated power with establishment Republicans. Now with money and institutions in its hip pocket, and cool popular culture on its side, the Left would not just damn American institutions but infect them — alter their DNA and reengineer them into revolutionary agencies.”

“So here we are with a near one-party system of a weaponized fused media, popular culture, and the administrative state — confident that all Americans will soon agree to love Big Sibling,” said VDH.

Chilling stuff. Because Victor Davis Hanson is right.

But conservatives are fighting back, perhaps with more conviction than at any time in recent history.

I have said before that I believe the fight against the insidious cancer of Critical Race Theory — from parents wrecking school board members to politicians like Florida Gov. Ron DeSantis standing up and saying, “Not in my state” — can serve as a catalyst to go after other Leftist policies and initiatives.

But we must continue to bring the heat. It’s way past time for GO TIME.


How Close Are We to War With China?

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Capabilities versus intentions. That is the conundrum faced by military planners. What will your enemy do? What can your enemy do? Unfortunately, most of the glaring blunders in warfare and diplomacy revolve around decision-makers and planners focusing on what they think their adversary will do and ignoring what he can do.

One of my favorite battles, the Battle of Leuthen, fought on the outskirts of Breslau (Wroclaw), Poland, on 5 December 1757, is a classic case study. The outnumbered Prussian army of Frederick the Great approached the fortified Austrian army under Leopold Joseph von Daun in a column formation and parallel to the Austrian front line. Everyone knew the Prussians were outnumbered. Everyone knew the Austrians held the high ground. Everyone knew that it took hours for an army to shake itself out of column of march and assume an attack formation. Everyone knew that the Prussians were declining to fight a superior force in a superior position. That was comforting right up to the point where the Prussian wheeled into battalions <em>en echelon</em>, walked uphill through all the lead the Austrians could fling at them, and routed the Austrians from their entrenchments cold steel. Everyone knew the Prussians were the masters of drill and that Frederick was rarely if ever, intimidated by superior numbers and so the capabilities of the Prussians were known but discounted because their perceived intentions were so much easier to manage than their actual capabilities.

More recently, the US Navy suffered the same result for the same reason.

On August 9, 1942, the Allied squadron supporting the invasion of Guadalcanal was roundly thumped by the Japanese Imperial Navy in a night action. The official US Navy analysis of the battle identified the cause of the disaster:

“The Allied High Command, on occasions, estimated the course of action that the enemy intended to follow and then based their plans on this estimate of the enemy's intention. They did not give adequate consideration to other enemy capabilities which might adversely affect their plans. As an example, they estimated that the Japanese forces noted off Bougainville were heading for Rekata Bay and therefore overlooked the enemy capability of attacking the Savo Island Area that night. Also two of the Allied cruiser commanders (the QUINCY and ASTORIA) overlooked the enemy capability of being present in the area and estimated that the Japanese forces illuminating them were friendly. A partial result of this oversight was that they were caught by surprise and their ships were so seriously damaged that they sank within a short time.

Where is this going? Well, I think we are on the verge of being involved in a shooting war with China. Right now everyone is fixated on a possible invasion of Taiwan. Chairman of the Joint Chiefs of Staff Army General Mark Milley took some valuable time out from rousting extremists out of the force to make this pronouncement.




Milley addresses the capability of China to take Taiwan via a coup de main. In that narrow construct, it may be true (assuming Taiwan is not so rotten with ChiCom influence that it falls of its own accord and that the US and Japan can bestir themselves to react to a credible threat of Chinese military action). But is that a feasible scenario? Would China risk going to war with the US over a narrow objective which it could fail to achieve and leave the dominance of the South China Sea unsettled?



My thesis is that we are undergoing probing attacks to test our reactions and our defensive capabilities. For instance, China is incessantly probing the air defenses of potential US allies:



A Chinese aircraft carrier sortied through the Taiwan straits.



When a US military aircraft landed in Taiwan for a brief time, the Chinese government warned that foreign aircraft entering Chinese air space were subject to being shot down.



If one looks over the past year, a disturbing pattern emerges of potential actions being rehearsed to enable China to do what the Japanese did in 1941. That is, run the table on their strategic objectives, with the difference being that China could land the knockout blow that Japan was unable to administer.

It is now clear to anyone but the most thoroughly bought-and-paid-for Chinese backers in the State Department and the US media that the Wuhan virus was created in a lab run by the Chinese military. We don’t yet know if the release was accidental or “accidental,” but what we do know is that while the Chinese had quarantined Wuhan from all travel to the greater Communist China, they still permitted international flights. So, from this data point alone, the premise that the virus was deliberately released is supportable, and the virus was spread to a) gauge Western reaction to a “pandemic,” and b) economically and politically damage the West.

Over the past year, the United States has been the subject of an unprecedented number of cyber-attacks. The best known is the ransomware attack on the Colonial Pipeline, but that was just one of many. Details are here, but the trend is unsettling. The high number of such attacks in October coincides with about the time that the Wuhan virus was “accidentally” being released.

 

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Credit: blackfog.com



We don’t know there is Chinese involvement in these attacks, then again, we don’t know much about the attacks at all. The media have been quick to blame Russia because Russia’s history as a bad actor is pretty well established and a lot of people have a vested interest in blaming a rather toothless if annoying adversary, which can be ignored, rather than a very real one that might require action. It is entirely possible that China decided after its coup of compromising tens of millions of federal personnel files, including security investigations, in 2014-2015 that they needed to use cutouts for future operations.

While the press attention has focused on companies paying top dollar to get access to their data, we know that a lot of government and quasi-government sites have been attacked. What we don’t know is how many critical resources…like flood control software for the Ohio Valley…have been compromised and the breach has remained undiscovered.

Then we have other random factoids. 

In July 2020, the amphibious assault ship USS Bonhomme Richard caught fire while docked at San Diego. The ship has been scrapped. The Navy believes arson was involved. As of yet, no report on that event has been made public.



In March of this year, a Taiwanese owned container ship managed to wedge its way into the Suez Canal blocking it for six days. It snarled commerce worldwide but would have stopped the transit of US surface combatants from the Atlantic to the Pacific has we been attempting to surge forces to the Western Pacific.

We know that our intelligence networks in China have been rolled up (see my RedState post Arrested CIA Officer Possessed Names of Covert Agents), is appears that the CIA is deeply penetrated by Chinese agents, and we have the paramour of a known Chinese intelligence agent sitting on the House Intelligence Committee.

Imagine this scenario.

Instead of a headlong, Pickett’s Charge attack on Taiwan that might be rebuffed and would definitely destroy the Establishment mantra that China is a competitor and trading partner, not an adversary; another “gain of function” virus is released. This one is not something like the common cold but deadly. Covert assets inside the CIA assist Chinese intelligence services in rounding up whatever US HUMINT assets remain. As the virus causes the nations on the Pacific Rim to lockdown, malware and hacking attacks on critical US infrastructure begin to roll across the country. The upper Ohio Valley is inundated by flooding. Oil, gasoline, and electrical infrastructure grinds to a halt. Telecom networks are disrupted. Financial markets go into a tailspin. Under the smoke screen of these events, China makes its move. Imitating Japan in December 1941, China grabs all contested territory in the South China Sea and strikes US, Japanese, and Taiwanese targets. Guam is neutralized. The Philippines are given a demarche to forbid US forces from using its territory or suffer the consequences. As the US attempts to move naval assets into the theater, the Suez Canal is blocked. This time for longer than six days. Covert Chinese assets, knowing and unknowing, inside US naval facilities disable key combatants via sabotage. With no threats remaining in the Western Pacific, China turns to Taiwan. Taiwan sees it is alone and capitulates. While the US is still trying to decide on initiating a thermonuclear exchange…remember, we’re still hamstrung by the Intermediate-Range Nuclear Forces agreement we signed with the USSR (see my RedState post: Trump Announces the US Is Leaving a Treaty Russia Is Violating and You Can Guess What Happened) which deprives us of tactical nuclear weapons but allows China to have them…there is suddenly nothing left to fight about or with. Our bases on Guam are demolished. Japan is out of action. South Korea doesn’t like what it’s seeing and seeks neutrality. Taiwan is reclaimed by Communist China. The US military has no forward operating bases, and the surviving naval combatants are retreating towards Hawaii to refit.

The stuff of action novels? Sure. But think about it for a moment. Is the likelihood that all of this happening over the past year by accident any greater than the likelihood that we’ve seen a series of probes and rehearsals for a Chinese move to achieve strategic dominance in the Pacific without a full-blown war with the US. If everyone is saying that China will move to regain control of Taiwan sooner rather than later, why wouldn’t they try to run the table?

Keep in mind, we’re looking at capabilities—which we know—not intentions—which are unknowable. Also keep in mind, in the words of Ian Fleming, “Once is happenstance, twice is coincidence, three times is enemy action.” I think we have to assume we are well past three instances at this point.


Should We Reform the Supreme Court?

 


Article by Ilya Shapiro in the Cato Institute 


Should We Reform the Supreme Court?

The reason for our judicial wars isn’t that the Court is partisan or that the confirmation process is broken, but that the federal government—and thus the Supreme Court—is making too many decisions for such a large, diverse and pluralistic country.

 

(This article appeared on Newsweek on July 22, 2021.)

On Tuesday, I testified before the Presidential Commission on the Supreme Court, the body appointed in April to analyze the nascent public debate over whether and how the high court should be reformed. Although sometimes referred to as the “court‐​packing commission”—President Joe Biden created it in part to kick the can down the road on progressives’ call for adding justices—it’s both more and less than that.

Indeed, between this latest hearing and one held last month, the Commission convened 10 panels of legal scholars, practitioners and activists on issues ranging from perceptions of the Court’s legitimacy to its role in our constitutional system to term limits to docket management. All of this activity stems from the idea that there’s a problem that needs to be addressed, of course—which lawyers would call “assuming facts not in the evidence,” given that public confidence in the Court is actually higher than it’s been in a long time.

Nonetheless, I was asked to give my perspective on the process by which jurists ascend to the bench, as well as the Senate’s role in the judicial food fight. I came up with seven lessons from our long history of confirmation battles.

First, politics has always been part of the process. From the early republic, presidents have sought people in line with their own political thinking. There’s never been a golden age in which “merit” as an objective measure of legal acumen was the sole consideration. And control of the Senate is most of the ballgame. Historically, fewer than 60 percent of nominees have been confirmed under divided government, while about 90 percent have been confirmed under united government. The disparity is even more stark in presidential election years (20 percent versus 90 percent); so the 2016 blockade of Merrick Garland was certainly hardball politics—just like the 12 other Court nominees who were tabled, “postponed indefinitely” or not acted upon—but was by no means unprecedented.

Second, confirmation fights are now driven by judicial philosophy. That’s a relatively new phenomenon, because fights transcend any particular nominee. Earlier controversies tended to revolve around either the president’s relationship with the Senate or deviations from shared understandings of the factors that go into nominations for particular seats—especially geography and patronage. That dynamic is markedly different from the ideological considerations we see now. With the culmination of several trends whereby divergent interpretive theories map onto partisan preferences at a time when the parties are both ideologically sorted and polarized, it’s impossible for a president to find an “uncontroversial” nominee.

Third, modern confirmations are different because the legal culture is different. The inflection point here—as for our social and political culture—was 1968, which ended a 70‐​year near‐​perfect run of nominations. Until that point, most justices were confirmed by voice vote. Since then, there hasn’t been a single voice vote. And the inability to object to qualifications—Harriet Miers was an exception, with members of her own party prevailing on President George W. Bush to withdraw her nomination—leads to manufactured outrage and scandal‐​mongering.

Fourth, hearings have become kabuki theater. Public hearings have been around for only about a century, and it was originally seen as unseemly for the nominee himself to testify. They weren’t regular practice until the 1950s, when Dixiecrats used them to rail against Brown v. Board of Education. These days, senators try to get nominees to admit that controversial cases are “settled law”—whether Roe v. Wade from a Democrat or District of Columbia v. Heller from a Republican. And that’s before we get to “gotcha” questions or last‐​minute accusations of sexual impropriety.

Fifth, every nomination can have a big impact. The confirmation process has little to do with being a judge. As former White House Counsel Don McGahn once told me, “it’s a Hollywood audition to join a monastery.” Regardless, as the late Justice Byron White was fond of saying, every justice creates a new Court. Not all big cases would’ve turned out differently if one justice were replaced, but some would’ve—and not simply by changing the party of the president making the appointment. Moreover, vacancies have become more important in the last half‐​century because justices now serve longer.

Sixth, the hardest confirmations come when there’s a potential for a big shift. Think of it this way: Regardless of which party controlled the Senate, would there have been as big a political firestorm last fall if President Trump were replacing Justice Clarence Thomas rather than Justice Ruth Bader Ginsburg? Will the fight to replace Justice Stephen Breyer be fiercer under President Biden or a Republican president?

Seventh, the Court rules on so many controversies that political battles are unavoidable. Under the Framers’ Constitution, the Court hardly ever had to block a federal law. But as the Court let the government grow, so has its own power to police the programs that its own jurisprudence enabled. In that light, modern confirmation battles are a logical response to political incentives, to which senators are merely responding.

The ever‐​expanding size and scope of the federal government has increased the number and complexity of issues under Washington’s control, while the collection of those new federal powers into the administrative state has transferred ultimate decision‐​making authority to the courts. The imbalance between the executive branch and Congress has made the Supreme Court the decider both of controversial social issues and complex policy disputes.

But will any reforms to the confirmation process change the toxic dynamic people complain about? I’ve come to the conclusion that we should get rid of confirmation hearings altogether: They once served a purpose, but they now inflict a greater cost than any informational benefit. Nominees have voluminous and instantly searchable records, so is there any need to subject them, and the country, to a public inquisition? Or maybe senators could hold hearings in closed session, like they already do for nominees’ sensitive background checks.

In the end, all “reform” talk boils down to rearranging the deck chairs on the Titanic. And this Titanic is not the appointment process, but the ship of state. The fundamental problem is the politicization not of the process but of the product. The intense judicial debates we’ve seen over the last few decades were never really about the nominees themselves. They’re about the Court’s direction. Formalistic changes won’t do anything because it’s not a breakdown in the rules that caused the poisonous atmosphere surrounding nominations. It’s the other way around. Senators have—correctly—come to see judges as just as important as legislation, so they apply the same bare‐​knuckle political plays to them.

In the end, the only measure of the Court’s “legitimacy” that matters is the extent to which it gets the law right and applies the law correctly. The reason for our judicial wars isn’t that the Court is partisan or that the confirmation process is broken, but that the federal government—and thus the Supreme Court—is making too many decisions for such a large, diverse and pluralistic country. And that problem is far beyond anything a blue‐​ribbon presidential commission can fix.

 

https://www.cato.org/commentary/should-we-reform-supreme-court# 

 



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