The strongest criticism of Judge Kavanaugh centers around his ruling in the case Klayman v. Obama, which dealt with NSA warrantless bulk data collection under the Obama administration.  Here is the text of that decision.  On the surface, the opening statement is strong evidence of his possible weakness regarding one of our most important protections provided in the Bill of Rights.

I vote to deny plaintiffs’ emergency petition for rehearing en banc. I do so because, in my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment.

In order to make an informed decision we must dig deeper into the decision and examine the basis for this ruling.  Here is how Judge Kavanaugh justifies this ruling:

The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.

As you can see from this quote, Judge Kavanaugh is basing this decision on precedent from a Supreme Court decision.  As a member of a lower court he claims he is bound by vertical stare decisis.  Here is the definition of this concept from Cornell Law School Legal Information Institute

Stare decisis is Latin for “to stand by things decided.”  In short, it is the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued… A court engages in vertical stare decisis when it applies precedent from a higher court.

This concept dates back to English Common Law and even back to Ancient Rome.  Because of this concept it is difficult to reach an informed conclusion on how he will rule once he is on the Supreme where they can set new precedent on any case.

In the Klayman v. Obama, Judge Kavanaugh goes on to say:

Even if the bulk collection of telephony metadata constitutes a search, cf. United States v. Jones, 132 S. Ct. 945, 954-57 (2012) (Sotomayor, J., concurring), the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty.  Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports

This statement bothers me a great deal.  The framers of the Constitution believed that freedom and preservation of our rights were more important than safety. It was a common theme.  Judge Kavanaugh  goes on to say:

The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.

From the text of the 4th Amendment you can see that there are no exceptions for national security.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

From this chapter of Framers Intent by Thomas K Clancy, you can see that the notion of national security and safety exceptions to the 4th Amendment are very new.  The original intent of John Adams, who wrote the article of the Massachusetts Bill of Rights which became the model for the 4th Amendment. was to make the protections as broad as possible.  Could Judge Kavanaugh have based a negative ruling in this case on different precedent and still uphold stare decisis.  Yes, he could have, because there is so much conflicting precedent on the 4th Amendment and any constitutional concept.  That is one of the main reasons why precedent is such a flawed concept, which actually violates the Supremacy Clause of the Constitution.  Relying on the actual text and plain meaning as understood during the drafting and ratification of the Constitution are far superior.

I believe that Judge Kavanaugh is weak on the 4th Amendment.  Based on his rulings on every other issue I’ve read so far, he is strong on all other issue.  Even with his weakness on the 4th Amendment, I still believe he is worth supporting for the Supreme Court.  Rand Paul also agrees.  Here is what he tweeted on the day I was writing this article:

Every time there is a Supreme Court vacancy under a Republican president, the Left panics, at least since 1973, when Roe v. Wade was erroneously decided, inventing a supposed right to abortion that is nowhere in the Constitution. With the nomination of Judge Brett Kavanaugh, the pattern continues. We all know that this panic stems from the fact that the Left, when they control the courts, uses their power to push their progressive agenda on society when they can’t win at the ballot box, so they are afraid that our side will also use the courts to push our conservative agenda in just as underhanded a way as they do. There is one critical difference, however. Conservatives do not make things up. We adhere to the Constitution so any societal change that comes from a conservative SCOTUS is actually bringing society back in line with the Constitution, not some made up progressive vision of what society ought to be.

The disingenuous tactic most often used by the Left is the concept of stare decisis, which is Latin for “to stand by that which is decided.” Practically speaking, the Left considers it to mean “Thou shalt not overturn Roe v. Wade.” And in all the sound and fury about stare decisis, they often point out that this constitutional abomination is some kind of “super precedent” that absolutely must be upheld because it has been on the books for over 45 years. You can bet that their argument that Obergefell v. Hodges (the gay “marriage” decision) can’t be overturned will be because it was just decided and SCOTUS can’t overrule itself that quickly. Convenient that two completely opposing arguments can be made for the same rule, “SCOTUS shall not overturn any decision that we like.” It’s the same tactic they use about global warming climate change, but I digress.

It turns out that Obergefell itself overturned Baker v. Nelson, which was decided in 1972, a year before Roe, so it should have been at least as strong a precedent as Roe. And Brown v. Board of Education (1954) overturned Plessy v. Ferguson, which was decided 58 years previously (1896). Just for fun, let’s take a look at Trump v. Hawaii, the “travel ban” case that was just decided this term. Aside from making liberal heads explode by ruling in favor of President Trump, the decision also overturned Korematsu v. United States (1944), the Japanese internment decision from 74 years previously. Presumably the Left agrees with everyone else that Korematsu should have been overturned.

Actually, the controlling precedent on abortion is Planned Parenthood v. Casey, from 1992. As I’ve written before, this decision should be overturned if for no other reason than to strike the execrable “Sweet Mystery of Life” passage from the American legal lexicon (don’t let the door hit you on your way out, Justice Kennedy). But is 27 years enough time to make Casey a supposed “super precedent”?

Here’s what it comes down to: The Left can use “emanations” and “penumbras” to make up constitutional rights out of whole cloth and then hide behind stare decisis, effectively claiming a ratchet effect towards their progressive vision for our country. We on the right can use the actual text of the Constitution to bring things back to where they should be. With President Trump replacing Anthony Kennedy with Brett Kavanaugh, we have an opportunity to make that happen. I’m not wishing ill on any other member of the Court, but there is a chance we will be in even better position to do so in the coming years. Let’s hope that President Trump will continue to nominate strong conservatives and that the Justices have the courage to make it happen.

Sen Harry Reid via Wikipedia

Senator Pat Geary I want your answer and the money by noon tomorrow. And one more thing. Don’t you contact me again, ever. From now on, you deal with Turnbull.

Michael Corleone Senator? You can have my answer now, if you like. My final offer is this: nothing. Not even the fee for the gaming license, which I would appreciate if you would put up personally.

The Godfather Part 2 1974

I keep reading leftists making DEMANDS concerning Judge Kavenaugh.. Well the proper way deal with these demands has been given to us by the founder of the GOP judge feast himself:  Harry Reid.

Back in 2013 there was a fight over government shutdowns. You might recall that Democrats led by Reid and Obama shut down national parks et/all to cause maximum grief to the public

The republicans in the House had the idea to pass individual spending bills to fund things like the National Parks and the VA. These bills passed with bi-partisian support in the house and if voted on in the senate would have been tough votes for Democrats and even tougher vetos for Obama. As Senator Ted Cruz said at the time

The House has passed eight other bills funding things like our veterans, funding things like the national parks, and Harry Reid has killed them…The bill that the House passed on the VA simply funds the VA. It doesn’t mention anything about Obamacare. It doesn’t mention anything about anything else. Now, for hundreds of years, the way Congress is appropriated has been one topic at a time. How is it blackmail to say we think we should fund the veterans? Do you agree? That’s a yes or no vote. Now Harry Reid refuses to let the Democrats vote on that.

Why did Harry Reid not allow votes on these bills, the answer is very simple

Because he could!

Reid knew that the only way to force him to hold votes would be public pressure and as noted in the interview quoted above the MSM did all they could to make sure no pressure would be put on him.

The GOP is in the same situation today on Democrat Demands only better.

Thanks to the end of the Judicial filibuster the Democrats have absolutely no power or leverage to enforce their demands.

Thanks to constant “Hair on Fire’ stance of the media, the media has no credibility to influence public opinion to push these demands.

Thanks to the electoral situation and the current polling, it is Senate Democrats facing re-election, not Republicans who are vulnerable over delays on votes on Kavenaugh.

Democrats are making loud noises because loud noises are all they have to fundraise on. Their demands are meaningless. The GOP has the power to ignore these demands with impunity, and should do so.

“I would not support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law….Roe v. Wade is a constitutional right that is well established.”

Thus spake Sen. Susan Collins (R-Maine), according to a CNN report.

But which Roe v. Wade decision does Sen. Collins stand by? There’s the imaginary Roe, which dictates that unregulated abortion be available throughout pregnancy. Then there’s the actual Roe, which permits states to leave abortion unregulated but also permits many laws protecting the lives and safety of mother and preborn child.

Where does Sen. Collins stand on First Amendment protections for peaceful pro-life witnesses outside abortion facilities? After all, McCullen v. Coakley is “established decision, established law.” Or does she consider peaceful pro-life witness to be an attack on abortion rights?

How about restrictions on public funding of abortion and abortion counseling? The Supreme Court OK’d such restrictions decades ago. Abortion advocates like Planned Parenthood and the ACLU Reproductive Rights Project use terms like “gag rule” to describe efforts to keep abortion providers out of taxpayers’ wallets. In the Senator’s view, do restrictions on public funding amount to “hostility” to Roe v. Wade?

Parental notification for minors’ abortions, reflection periods before abortion, informed consent laws, restrictions on mid- and late-term abortion, protections for children who survive attempted abortion: certain forms of these laws have been found consistent with Roe. Then again, PP and ACLU consider such measures attacks on abortion rights.

The pro-Roe Senator Collins could vote with a clear conscience for a jurist who supports the abortion regulations that have been approved by the Supreme Court since Roe. Such a nominee would not be hostile to the actual Roe decision, even if that nominee displeased PP and the ACLU.

Maybe one day there will be less deference to a precedent that’s inconsistent with human dignity. For now, though, we’re left with wondering what Senator Collins means by “hostility.”

Ellen writes about the life issues at Leaven for the Loaf. 

Now’s the time to celebrate the First Amendment and support independent journalism by hitting DaTipJar. Thank you!

The Supreme Court’s tortured justification for their ruling in Masterpiece Cakeshop vs. Colorado Civil Rights Commission is further proof that the Supreme Court completely abandoned the Constitution a great many decades ago.  In this earlier article I explained in detail how the Supreme Court should have ruled and why.  With this current article I was going to critique the ruling but Tech Knight beat me to the punch with his excellent article.  Instead I decided to do this particular article about the systematic failures of the Supreme Court, and propose solutions.  Actually they are not original solutions that I will propose.  The solutions originated with Thomas Jefferson and the anti=federalists.

From the very beginning, the justices of the Supreme substituted their own political opinions for the actual text and meaning of the Constitution. Over the past few decades this has gotten fare worse.  What very few know is that Supreme Court Justices substituting their own political beliefs for the meaning of the Constitution is one of the crimes covered by High Crimes and Misdemeanors, which is the grounds for impeaching a justice under the Constitution.  That was the case under English Common Law, which was the blueprint for our legal system.   Impeaching a Justice for this crime was only attempted once.  It happened very shortly after the Constitution was ratified, and it failed.  We should make it clear to our elected officials that this needs to be attempted again, and often.

In Marbury vs. Madison, way back in 1803, the Supreme Court granted itself sole jurisdiction in ruling on the constitutionality of federal laws.  The power to determine the constitutionally of federal laws is inferred in Article 3 of the Constitution, but it is never granted exclusively to Supreme Court.  In the Kentucky Resolutions Thomas Jefferson declares quite emphatically that the States have not only the power, but the duty, to declare federal laws and Supreme Court rulings null and void if the violate the Constitution.  James Madison echoed Jefferson on this point when he wrote the Virginia Resolutions.  The States need to step in immediately and restrain the out of control Supreme Court by nullifying all decisions that violate the plain meaning of the Constitution.

About a hundred years ago the Supreme Court began overturning States laws.  Their justification was the 14th Amendment.  That amendment was written only to end the harmful practices of Southern States during reconstruction.  The 14th Amendment actually forbids the Supreme Court from enforcing the provisions of that amendment.  This was because of the Dred Scott case.  The power to enforce the 14th Amendment was granted to the federal government through the formal legislative process.  The States need to tell the Supreme Court to stuff it when it tries to overturn State Laws.

Starting in the 1920s the Supreme Court began to “incorporate” the Bill of Rights down to the State and local level.  They accomplished this by distorting the 14th Amendment.  In this article I discussed the erroneous nature of the doctrine of incorporation.  Nullification of Supreme Court decisions that employ this phony doctrine is the best solution.

Thomas Jefferson and the anti-federalist pointed out that the Supreme Court was never properly restrained by the Constitution, and they proposed amendments to rectify this.  Term limits and a streamlined impeachment process that clearly states that substituting your own political beliefs is grounds for impeachment would be effective remedies.

The Supreme Court continues to run amok because so few of us truly understand the original meaning of the Constitution.  Our entire educational system propagates this dangerous notion of a living constitution, and completely distorts the original meaning, instead spreading modern progressive myths.  This needs to be corrected and the original meaning must be restored if we want to return this country to a free country, where individual rights and freedoms exist for everyone.

As the media applauded the student protests against guns, most reporters failed to understand the nature of constitutional law and the First Amendment.

Simply put, students who are not 18 years old don’t, for the most part, have many rights under the Constitution during the school day. Schools can ban websites and social media. Cellphone usage can be restricted. Free speech is limited. Moreover, those who participated in the recent protests could be legally disciplined.

But most news organizations used an advisory from the “always-ready-to-help-and-misinform” ACLU promoting the protests rather than digging into the legal issues.

DaTech3.jpgMost journalists cited Tinker v. Des Moines Independent Community School District, a U.S. Supreme Court decision from 1969 that supported a limited right for students to protest during the Vietnam war. In that case, the court found that students in public schools could wear black arm bands in protest against the war.

The court observed, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

But the opinion went much further, restricting a number of rights. School administrators could restrict protests if the actions significantly disrupted or interfered with the normal activities during school hours.

Many people, including me, would argue that the anti-gun protests did exactly that.

But many school administrators, toeing the leftist line, decided to use the protest as a “teachable moment.” A few schools in Arizona, Arkansas, and elsewhere followed the essence of the court decisions, saying that the protests were indeed disruptive.

In a dissenting opinion in Tinker, Justice Hugo Black argued that “if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.”

 Since the Tinker decision, the courts have been fairly consistent in restricting the rights of high school students. In Bethel School District v. Fraser,  a 1986 case, the U.S. Supreme Court held that a high school student’s speech that included sexual references during a student assembly was not constitutionally protected. In Hazelwood v. Kuhlmeier, the court ruled that schools have the right to regulate the content of school-sponsored newspapers. In Morse v. Frederick, the court held in 2007 that schools may restrict student speech at a school-sponsored event. Several cases have restricted the display of the Confederate flag in schools.

Somehow the ACLU memo didn’t mention these cases, and journalists, as usual, chose to follow the leftist line rather than dig deeper into the facts of the issue.

A final note: An Iowa journalist wrote an excellent column about rural America, where people blame the shooter rather than the weapon. It made sense to me.

See https://www.nytimes.com/2018/03/16/opinion/guns-gun-control-america.html

 

The ongoing conflict between an individual’s privacy and the public interest heads to the U.S. Supreme Court when the justices hear oral arguments in a lawsuit in which Microsoft refuses to turn over data in a drug case.

The U.S. Constitution does not include the actual word privacy, but the Fourth Amendment, which prevents illegal searches and seizures, has become the basis for the definition of the issue.

DaTech3.jpg

This case involves Microsoft’s dispute with federal prosecutors over whether it must provide data hosted in a storage facility in Ireland. The dispute focuses on whether U.S. courts can compel a company to turn over an individual’s data when it is held overseas.

Simply put, the decision revolves around where “the cloud” exists. Cloud technology has become worth an estimated $250 billion.

If Microsoft wins, supporters will laud the decision as a victory for privacy. If the government wins, it will be seen as a victory of law enforcement. As usual, the truth lies somewhere in between. The company knows it will lose business if it cannot guarantee privacy to customers–much like the bankers who house drug money. The government as is its want is likely to overstep the boundaries if it wins.

The case has drawn extensive interest, including numerous briefs to the Supreme Court from abroad.

The showdown is unfolding on several fronts. Legislation in Congress would partially resolve disputes over law enforcement access to private data held across borders. The bills would obligate service providers to turn material over to prosecutors under certain conditions regardless of where in the world the material is stored.

Still, some mystery surrounds the legal dispute that was argued today in Supreme Court chambers. For one, prosecutors have never identified the person who was targeted in a warrant issued by a New York District Court judge in 2013.

Prosecutors demanded that Microsoft turn over all emails and information associated with the subject’s account, and the company responded that it could not be forced to turn over information stored overseas—in this case at a data center in Dublin.

Alternatively, prosecutors outside of the United States complain about obstacles to conducting investigations of criminal suspects using U.S.-based webmail.

“The cops in Brazil and the cops in India and the cops in France, all of the cops in the world, want to issue normal evidence orders in accordance with local law and they are frustrated or stymied by American rules,” Andrew Woods, a professor at the University of Kentucky College of Law, told Tim Johnson of the McClatchy Washington Bureau.

Woods cited a hypothetical case in which a Londoner is a suspect in the murder of a fellow Brit, a crime investigated by local police.

“Everything about that case is British,” Woods said, but police “cannot go to Google and compel Google to give them content of the suspect’s email account. They have to go through the mutual legal assistance process. That is not only slow it is also an affront to British sovereignty.”

The U.S. government has struck mutual legal assistance treaties, or MLATs, with about a third of the world’s countries. The mechanism, while useful, has its flaws.

Looming behind the debate is Edward Snowden, the former National Security Agency contractor who stole secrets about U.S. surveillance programs in 2013 before fleeing to Moscow.

“In the wake of the Snowden revelations, levels of trust around the world in the American government went down,” Woods said. “American businesses ever since have been scrambling to reassure customers around the world that they resist the American government.”

The decision is expected to be announced in June.

For more on the case, see http://www.scotusblog.com/case-files/cases/united-states-v-microsoft-corp/ 

In Obergefell v. Hodges, the Supreme Court, relying on little more than the majority’s “reasoned judgement” that “liberty” as mentioned in the Fourteenth Amendment somehow encompasses the dignity of same-sex couples, created a right to same-sex marriage. As the case was being deliberated, traditional marriage supporters, including me, were concerned that creating such a right would immediately create tension (to say the least) between this newly-created right and the right to Religious Freedom and Freedom of Speech. In his dissent, Chief Justice Roberts correctly pointed out that “Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution.” In a separate dissent, Justice Thomas elaborated on what Religious Liberty actually means, pointing out that it “is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.” In an apparent attempt to mollify the dissenters, Justice Kennedy explicitly stated in his majority opinion that “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” Unfortunately, the LGBT community has done nothing but disparage us and our beliefs since.

Fast-forward two years and we’re back at the Supreme Court for Masterpiece Cakeshop v Colorado Civil Rights Commission, the case where a same-sex couple sued a Christian baker to force him to create a custom cake to celebrate their “wedding.” The baker, Jack Philips, declined to create a custom cake, but offered to sell them anything else in the store. Naturally, the couple cried “discrimination” to the Commission who claimed that Philips not only had to use his creativity and talent to create a cake to celebrate an event to which he was morally opposed, but also had to teach his staff, including members of his family, that his religious beliefs about marriage were discriminatory. The Commission’s ruling blatantly violated both Philips’ right to freely exercise his religion and his freedom of speech, and eventually led to oral arguments at the Supreme Court last week.

I’ve read the transcript of the oral arguments, and while I’m optimistic that Justices Kennedy, Thomas, Alito and Gorsuch, along with the Chief Justice, will rule in favor of Philips, I’m a bit concerned that the ruling may be too narrow to fully protect religious liberty against the same-sex “marriage” onslaught. Much of the argument focused specifically on what aspects of a wedding ceremony counted as “speech” for the purposes of the First Amendment. Trying to draw a line and putting some wedding-related activities, such as cake baking and photography on the protected side and makeup and hairstyling, for example, on the other side, is a complete red herring.

Rather, I believe and hope that the court will take a broader approach to the question of religious liberty that was touched upon by Chief Justice Roberts when he asked whether a Catholic legal aid service could be forced to represent a same-sex couple in a marriage-related case simply because they offered pro bono legal services to the community at large. The question really goes beyond just a wedding. If “decent and honorable” people believe that same-sex marriage is wrong, their “freedom of action in matters of religion generally” demand that they be able to live out their faith.

Christianity teaches that we should treat everyone with love, but it does not demand that we approve of every choice that others make. Why should there be a difference between forcing a baker to create a cake to celebrate a same-sex wedding and forcing a Catholic adoption service to place children with same-sex couples? Why does the same-sex couple’s supposed right to adopt a child supersede a child’s right to have a mother and a father or the Catholic social worker’s right to live out his or her vocation to care for orphans by placing them in healthy family environments?

In either case, the state would be forcing the subject to endorse or facilitate an event or behavior which his sincerely held religious beliefs teach is wrong. It’s really that simple. In either case, the objection is not to the fact that the person is gay. It would be discriminatory if Philips refused to sell the couple a pre-made cake or anything else in the store because they were gay, but that’s not what happened.

The Constitution says there shall be no law prohibiting the free exercise of religion or abridging the freedom of speech. I believe the Court can and should develop a doctrine that allows Christians and other decent and honorable people to avoid endorsing or participating in events or behaviors that their religious beliefs proscribe while still protecting the rights of LGBT persons against discrimination. As Justice Kennedy said in the oral argument, “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual.”

In Gill v. Whitford, democrats are challenging Wisconsin’s congressional district map, claiming that the Republican majority redrew the lines in an unconstitutional way back in 2010. The Constitution permits states to determine legislative districts, thus it is a legislative function. However, since Democrats haven’t won what they consider enough seats in Congress (i.e., all of them), they reason that there must be something wrong. It would be easy to say that what’s wrong is simply their understanding of the Constitution, but I believe there is something much more sinister going on.

In order to challenge the current district map, they have concocted something called an “efficiency index,” which Chief Justice Roberts correctly called “sociological gobbledygook” during oral arguments. The index purports to calculate the number of citizens of either party who wind up represented by a legislator of the opposite party, and Democrats are claiming that, since this calculation shows that more democrats live in districts that elected republicans than vice versa, the courts should usurp the legislative power of redistricting to create a district map that is more in Democrats’ favor.

If that were all, it would be bad enough. We have seen repeatedly over the years that it is easy to find a federal judge willing to reach beyond the Constitutional judicial role and claim jurisdiction over just about any issue, particularly when it is a matter of “fairness.” Only the Supreme Court can decide once and for all that this must remain a legislative function, but Democrats are hoping that the Court will decide on some kind of formula to control redistricting. Let’s set aside the impossibility of creating such a formula that would account for the possible future movement of citizens such that what is a Republican district today may, in less than 10 years, become a majority-Democrat district (If you don’t think this is possible, just look at New Hampshire). I believe that this entire effort is a Trojan Horse to eliminate the Electoral College.

Democrats have long hated the Electoral College, but that hate has grown to the heat of several white-hot stars since Donald Trump beat Hillary Clinton (I love writing that) last November, even while losing the popular vote. They have hated the Electoral College going back at least to the 2000 victory of George W. Bush, and have been pursuing the National Popular Vote project for many years. This project is an attempt to convince enough states to constitute a majority of the Electoral College to assign their electoral votes to the winner of the national popular vote. This is possible since the Constitution allows each state to “appoint, in such Manner as the Legislature thereof may direct” its Electoral College delegates. But the fact that this is possible doesn’t mean that it’s a good idea.

The NPVP is trying to convince enough states to appoint electors who will vote for the winner of the national popular vote. So much for Democrats bravely telling Electors to “vote their conscience” and select Mrs. Clinton. Now they want to remove any discretion from Electors and force them to vote for a particular candidate.

But here’s where the Wisconsin case comes in. If the Supreme Court decides that the “efficiency index” or some other bogus formula should be used to make representation more “fair,” then Democrats and the media (but I repeat myself) will claim that the Supreme Court has ruled that elections that fail to meet this “test” are unconstitutional. Therefore, they will claim that, since the Electoral College can lead to a situation where the “wrong” candidate is elected president, the Electoral College itself, apportioning Electors on a winner-take-all basis as they have since the beginning of our republic, is by this standard unconstitutional. What better way to try and convince states to adopt the National Popular Vote? Let us hope that the Supreme Court recognizes this case for the long-game con that it is and rejects the plaintiff’s case.

As of this writing the first real threat to the winning streak of Donald Trump has come up, namely the stalling of the house Obamacare repeal/replace bill.

As I’ve not read the bill I’ll leave it to others at my site to debate its merits but the actual problem is spitting the difference between what can be done with reconciliation (51 votes needed in the senate) and full repeal (60 votes needed in the senate).

As long as that problem is highlighted the press and the left is in a good position because unlike the Russia/wiretapping and other faux outrage/headlines of the left this is not only an actual newsworthy story but it’s an issue that voters, including those who elected Trump care about.

The media should love this because not only do they get to attack Trump and republicans but they are able to do so without making up #fakenews,  It’s a real story, so good reporting on this subject can help counter the loss of reputation that the media has done so much to earn over the decades.  It’s the type of situation where Democrats and their MSM allies are sitting pretty.

At least as long as they don’t do anything to change the situation, say something like this:

“My vote will be no and I urge my colleagues to do the same,” Sen. Chuck Schumer said in a floor speech today. And with that, Democrats have officially decided to give their base the fight it wants, a filibuster of Judge Gorsuch.

“Judge Gorsuch was unable to convince me that he’d be an independent check on a president who has shown almost no restraint from executive overreach,” Schumer said. He added that Gorsuch appeared to have a “deep-seated conservative ideology.”

This action by the left has the potential to generate the nuclear option that would end the filibuster meaning the President Trump’s supreme court justices will all pass with 51 votes, but the end of the filibuster could mean more than that, consider:

What if Mitch McConnell decides to not just go nuclear, getting rid of the filibuster for judicial nominees  for go thermonuclear and end it for everything?

Suddenly the 51 vote barrier to full repeal of Obamacare would be gone, the knot would be cut and the dilemma solved, Two Trump priorities with one stone.

Perhaps democrats haven’t thought of this, perhaps they have and decided fear of being primaries overrides that fear, or maybe they’ve even figured that some in the GOP really doesn’t want to repeal Obamacare and are daring them to do so.

But whatever their thoughts they have produced the formula that Trump can use to win this fight, and don’t think for one moment he won’t recognize it and act accordingly.

Thanks Democrats nice of you to prove that the GOP isn’t the only stupid party.


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