By Jim George | November 24, 2020 (26 Minutes Ago)
[Author’s note: the title assumes the reader is familiar with the nickname Rush has given to Joseph Robinette Biden for many years as a result of his hair transplant (plural?) years ago. ]
I write this out of a sense of some of the most acute and severe frustration I have ever felt in my (very, very long) life, a life which has had its fair share of many of the same frustrations we all get hit with in this old life. I must say, looking at some of the posts on Ricochet, it would appear I am hardly alone in the way I am feeling, although my sense of helplessness, for want of a better word, might come from a slightly different place.
I write this as a veteran of many years as a practicing trial lawyer, the kind of a lawyer you rarely see on the billboards or on the TV ads aimed primarily at the hospital wards in the morning hours (what a sordid way to make a living, if that’s living!), but the kind, not to get all virtue signaling about it, who actually got down in the dirty work of depositions, Motions, briefing, more Motions, and actual trials– in actual courtrooms, not movie-like sets.
I write this from that background, as well as one in which I was taught by my parents, my mentors, Law Professors, Judges, Senior Lawyers, Military Officers I looked up to for guidance and teaching, to love the Good Ol’ US of A with everything I had and to despise deep in my bones anyone who would wish it harm — in other words, “enemies foreign and domestic.” One source of my frustration tonight is that I feel, in the true sense of the word, surrounded by scores of people who not only seem to wish our Beloved Nation harm, which means they wish us harm, but who are saying it out loud — and acting on that statement.
As a lawyer of “the old school”–how could I pretend to be of any other?– a major source of my frustration is with the howling mobs of the mainstream media (who we have permitted to “call” the election for Biden, to our shame), academia, the execrable “leadership” of the Democrat Party as well as a few of our own, and even some of our own colleagues here on Ricochet who never saw a corrupt old politician or member of The Lincoln Project or The Bulwark they wouldn’t support and send money to, who profess great urgency in convincing the Trump campaign to “give up the ghost” as there is no way he can develop a path to victory.
As one who spent decades in the vineyards of the practice of trial law, I find these complaints to be, to use the most polite term possible, divorced from the real world of what it takes to develop any case, and especially a case of this monumental complexity which must be investigated, drafted, filed (in numerous jurisdictions), argued, tried in the instances where the Court sets an evidentiary hearing, appealed (especially here where there does not seem to be a Judge in the entire county willing to let these cases go forward) on an excruciatingly tiny timeframe.
But, my disdain is heightened tenfold when these complaints come from those I will refer to in a shorthand manner as “The Lincoln Project” geniuses who are wallowing in their gloating revelry at the prospect of a Harris Administration –how about we try a little realism here, for a change?– who hold themselves out to be practicing, working, licensed, lawyers, who must, if, indeed, they are what they claim to be, know a little about what is involved in putting these cases together and would be presumed to know that everyone is entitled, as an American citizen, to make whatever legal claims he or she can, in good faith, make–even, and this is what causes the break apparently, President Donald J. Trump!
Unity! they say. It is only because I honor the C of C here that I restrain myself from saying what I really feel about people who display what may be a whole new level of hypocrisy rarely seen even in the cesspool which our National Capital has become. Fortunately, our friend Dr. Bastiat has kindly provided us with a remarkable summary by an unusually well suited observer to help us understand what we are experiencing in “Fighting Words.” There, he set forth a recent essay by David Horowitz, CEO of the David Horowitz Freedom Center and Editor of its publication, Front Page and himself a former far-left radical, which every one of us should read, study, review, re-read, and study again, as it is one of the most perceptive pieces I have seen and may be likened to Mr. Jefferson’s “fire bell in the night.” @drbastiat did all of us a great service in bringing this chilling commentary to our attention, and it bears at least a cursory review here.
Here is his description of the person the Never Trumpers and the Lincoln Project groupies so proudly supported and the “party” he “leads”:
“This is not “playing” people. It is war. They are trying to kill us politically, and we need to respond accordingly, to fight fire with fire. Today’s Democrat Party is a party of character assassins and racists. Republicans know this but are reluctant to say it. That is how a pathological liar and corrupt political whore like Joe Biden can accuse the choice of 73 million Americans of being a white supremacist and also murdering 220,000 corona virus patients. That’s why Biden and his gunslingers can do so with no consequences – without so much as a wrist slap – from “moderates” and independents, who know better. The Democrats’ ability to intimidate well-meaning Americans is that great.
“Is this too blanket a condemnation? Where, then, is the Democrat who was outraged by the four-year Russia collusion hoax and the failed coup and impeachment attempts – all of which accused the president, without a shred of evidence, of treason? Where was the Democrat who dissented from the public lynching of an exemplary public servant, Justice Brett Kavanaugh, over an incident that never happened 37 years ago at a time when he was a high school kid? Where is the Democrat who has condemned the violent street criminals of Antifa and Black Lives Matter who got away with conducting the most destructive civic insurrection in American history, orchestrating mayhem and disrespect for the law that led to the murders of scores of people who happen to have been mainly black?” (Emphasis added)
But, the centerpiece of the Horowitz essay was, in my opinion, at least, his “brief vocabulary for understanding the political war that has engulfed us”:
” … When it is used by enough Americans who love their country, it will cancel the surreal universe that Democrats’ lies have imposed on us, and the war will be on its way to being won.
“Democrats are not democrats; they are totalitarians. They have declared war on the First Amendment, the Second Amendment, the Electoral College, the Senate, the Supreme Court, the election system, and the idea of civil order. They have called for the Republican President of the United States to be de-platformed and jailed. Their obvious goal is a one-party state that criminalizes dissent. To them, support for such basic necessities as borders and law enforcement are racist. If you oppose their efforts to legalize infanticide, they will condemn you as enemies of women, and if you make videos of their confessions to selling body parts of murdered infants, they will – like Kamala Harris – throw you in jail.
“Progressives are not progressive; they are reactionaries. They are out to abolish liberal value systems and create a status hierarchy where race, gender, and sexual orientation define and confine you to an unalterable place in their new social order. If you are white or male or heterosexual or religious – Justice Kavanaugh was all four – you are guilty before the fact.”
In conclusion, he gives one of the best short rebuttals to the incessant accusations of “systemic racism” I have seen, and finishes with a sad commentary on the squishy composition of Republican backbones and what we, as individual patriotic Americans need to do to combat this horde of barbarians:
“Systemic racism” is an assertion made reflexively by Democrats that is never accompanied by evidence. For good reason. Systemic racism has been outlawed in America since the Civil Rights Act of 1964. If there were actual instances of systemic racism in 2020, there would be lawsuits – plenty of them. Even making the racist assumption, which the Identity Politics crowd does make, that all white people are white supremacists by dint of their skin color, there are tens of thousands of black lawyers, prosecutors, district attorneys, attorneys general, and elected officials who would be filing lawsuits over a practice that is illegal. You never hear of massive lawsuits over systemic racism, because “systemic racism” is a myth. The myth lives because it is an indispensable weapon wielded by Democrats to advance their anti-democratic agendas and quests for power.
But the only reason Democrats are able to do this so successfully – even going so far as to justify the arson, looting and general destruction in more than 600 American cities this summer – is because Republicans, and conservatives generally, are too cowardly to confront them. This war will continue until patriotic Americans summon the courage to call Democrats the racists, liars, character assassins and aspiring totalitarians that they actually are. And to do so in so many words. Blowback works.
A similar recommendation as to what we, as individual Patriots may well be called upon to do, is found in the most recent issue of the Claremont Review of Books (very highly recommended) in which the brilliant scholar and novelist, Mark Helprin, in an essay entitled The Revolution of 2020, issued this stirring clarion call to action:
“No”is one of the most difficult yet liberating words in any language. Though it often comes at a steep price—of peace, tranquility, livelihood, and even life—it is the master key to independence and freedom. Were every American made aware of this inherent power, we would then see how much courage and character we have left. For the simplest declaration is the most potent, and sometimes it moves like wildfire.
How difficult would it be to say, when the demand comes, when the threat comes, when the command comes: No, I do not agree with your redefinitions. No, I will not do as you tell me. No, I will not say what you order me to say. No, I will not surrender my freedom of speech and expression. No, I will not accept your revolution. And I will not stand against my country.
To shamelessly “borrow” from Mr. Horowitz’ questions: where are the lawyers who care deeply about the Rule of Law who will admit that President Trump has exactly the same right to pursue every single, possible, valid, good faith claim under the law that I have or you have or your neighbor has or, yes, even Messrs Kristol and Conway and French and Goldberg and their esteemed Never Trumper colleagues have as American citizens? Where are the lawyers, other than, Thank God, such warriors as Guliani, Powell, Ellis, Wood, etc., who will stand with this American citizen until the last claim is adjudicated and the last appeal is rejected, as they would with any client they represent? Where are the citizens who will say, with Mr. Horowitz and Mr. Helprin, NO! This will not stand; and I will NOT stand against my country?
We fondly refer to our little corner of Paradise as “the bubble,” as we are surrounded here in the Westernmost reaches of the Florida Panhandle with natural beauty, delightful climate, gentle breezes off the Santa Rosa Sound, peace, silence and tranquility, and some of the most friendly people we have ever had the pleasure of meeting. As we watched wonderful places we had enjoyed visiting, like Portland, Seattle, and Chicago and places we had fallen in love with, like San Francisco, be ripped apart by savages and/or soiled by the filth of the decadent and depraved, we cozily comforted ourselves in the “sure” knowledge that, to use a phrase with sinister underpinnings, “it couldn’t happen here.”
We were wrong.
The warnings we heard from so many that you may not be interested in barbarians like Antifa and Black Lives Matter but they are definitely interested in you might well have started making a preliminary showing here after all.
Almost literally next door to our new home in “the bubble”, there is a large wildlife preserve. It is as lovely a place for a nice stroll as one can be blessed with. Recently, a very pleasant walkway was built through the width of the woods, called The Godwin Crossover, in honor of the family which donated the preserve to the local government years ago. It was a most welcome addition to the neighborhood as it affords all who come here who want to experience it and, most importantly, respect –the beauty and serenity and inspiration it offers to one and all.
A sign at both entrances proclaims quite clearly that no “motorized” vehicles are allowed. Sadly, it does not go further and spell out in words specific enough for those who are cognitively challenged that no graffiti was to be applied to the handsome beams and planks of which the Crossover was constructed.
Yesterday afternoon, on a bike ride which took me across the Crossover, I was shocked, sickened might be a better word, to see red spray paint scrawled across the side railing with the name of either one of the street thugs who graced us with their “art” or, probably more likely, an enemy they hoped to implicate in their despicable deed.
To those who may say that my reaction may be what the Bard had in mind when he wrote the words “Much Ado About Nothing” I would answer that those few ounces of red spray paint represent to me that the barbarians are not at the gate, they are through the gate, just as the mob tore down the gate to the private community in St. Louis where Mr. and Mrs. McCloskey had their beautiful home assaulted and by which they were personally threatened with serious bodily harm or worse. I am quite sure that the residents of those suburbs of Portland and Seattle and Minneapolis never dreamed their quiet and contented life of “living the dream” would be suddenly invaded by shrieking hooligans in their street and on their lawns screaming every known obscenity at them in the middle of the night because — as I write this I realize how surreal it is that this is happening in America — they are white.
Yes, I know that folks who live in bubbles should not cast petty little complaints about a little bit of spray paint. I am also painfully aware that this kind of unpleasantness pales in comparison with the myriad of serious, monumental, sea-changing events happening every day –at times it seems like every hour. I do recall, however, a very prominent and highly respected scholar named James Q. Wilson created what became known as the “broken windows policing” theory of law enforcement. That theory, put into effect by then-Mayor Giuliani of New York City, held that the full force of the law should be brought to bear on perpetrators as soon as they start even the pettiest of offenses against the public good, such as, obviously, breaking the windows out of storefronts, etc. Giuliani’s enforcement of what was at that time a very controversial approach to policing is widely credited with the rapid clean up of the filth and disorder which had theretofore ruled mid-town Manhattan. How much better off would the battle-worn citizens and small business owners of Portland be right now had they had a Mayor with that kind of courage instead of the pusillanimous and pathetic excuse of a Mayor they have had through riots which have now been going on for months?
I am sure my reaction of sickness at that grotesque defacement was at least in part a product of the anxiety we all feel about Election Day and the days (weeks? months?) of almost-certain upheaval to follow. The emotion I felt was one of real and genuine apprehension that if these petty criminals could enter and soil, even slightly, a residential area with as close to a non-existent crime rate as possible, as has been observed by many, the outcome of the election will be irrelevant. Either way, we will have hell to pay.
Long ago, in the immediate aftermath of World War I, the Irish poet W.B. Yeats warned us about days in which all control is lost. The title is The Second Coming, but the third and fourth lines speak directly to us over the century since this was written:
The Second Coming
Turning and turning in the widening gyre The falcon cannot hear the falconer; Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world, The blood-dimmed tide is loosed, and everywhere The ceremony of innocence is drowned; The best lack all conviction, while the worst Are full of passionate intensity.
Surely some revelation is at hand; Surely the Second Coming is at hand. The Second Coming! Hardly are those words out When a vast image out of Spiritus Mundi Troubles my sight: somewhere in sands of the desert A shape with lion body and the head of a man, A gaze blank and pitiless as the sun, Is moving its slow thighs, while all about it Reel shadows of the indignant desert birds. The darkness drops again; but now I know That twenty centuries of stony sleep Were vexed to nightmare by a rocking cradle, And what rough beast, its hour come round at last, Slouches towards Bethlehem to be born?
I confess I am very, deeply, gravely troubled by what may be coming our way. The eminent author Michel Anton, creator of the iconic essay The Flight 93 Election in the days leading up to the 2016 election, chose these words as a portion of the title of the first chapter of his new book about the current election, The Stakes, America At The Point Of No Return:
Be Afraid, Very Afraid
While my life experiences and long journey to this remove simply will not permit me to sound like some triggered little “pajama boy” cowering type and say “I’m afraid”, I am admitting that I am deep-in-my-bones concerned at the sheer havoc we may be facing in very short order.
Judge Amy Coney Barrett is her own woman, not the next Scalia/Alito/Thomas. She has thought her way through court business since law school, laying out her concerns and reasoning in plain print. While court opinions and law review articles can be a bit daunting, she writes clearly enough for the lay reader to understand.
Instead of accepting the pre-spun sound bytes and clipped quotes, we should look to the available complete video and writings of Amy Coney Barrett. I salute Heavy for having provided quotes with links to sources back in 2018, when ACB was under consideration to replace Justice Anthony Kennedy. A quick search on YouTube and Barrett’s Notre Dame Law School faculty page yielded a helpful set of videos and writings, outside of court opinions, with Courageous ACB in her own words.*
Summarizing ACB’s law review articles, she has thought her way through the role of courts since law school. Her first publication of note, a 1997 article, addressed one instance of people of faith living obediently to a higher authority while also participating in a system of secular law. At the time, she believed that Roman Catholic church teaching barred faithful judges from participation in death penalty cases. She concluded that judicial ethics rules allowed these judges to recuse themselves, so allowing Catholics to be faithful to both heavenly and earthly authority. The rest of her public writings flesh out her views on interpreting the Constitution and on the power of precedent.
“Applying the law as written” is a bit complicated. While Barrett clearly respects the man who gave her career a boost into the highest legal orbit, she has worked through the labels of “originalism” and “textualism.” In one article, ACB points out that “original meaning” is complicated by who was using the words at the time. She claims that legislators use words in knowable special ways, distinct from the general public of the same time. This should not be a big surprise. We all sort of know this. It matters, however, if you are anchoring your legal argument, your claim to get the law right, in a study of word use and definition at a particular time. So, should a judge, trying to faithfully apply laws as written, apply the general public’s understanding, or the usage common in the Congress that passed the law? You can see how this might matter when you think about arguments over “sex” and “gender,” for example.
Barrett advocates a practical approach to precedent that is unfaithful to written law or the Constitution. She points out that the Supreme Court not only decides whether to follow precedent in a case, it also decides which cases to hear or to reject based on the obvious precedents that would arise in a case. So, justices choose to avoid tough decisions regularly. Given human imperfection, Barrett recognizes that any given justice or legislator would be overwhelmed if they focused on challenging every single past error. So, operating in the real world, Barrett seems to advise picking battles when they may be winnable. She recognizes that part of what shapes the ability to win a battle over past court decisions is public pressure and pressure from the other branches.
Beyond the topics the general public experiences from time to time in stories about federal courts, ACB has thought through the limits of the Article III courts to govern themselves, apart from the letter of laws passed by Congress and signed by the President. In one article, Barrett suggests that the Supreme Court is limited in its power to impose common procedural rules on each federal circuit. On the other hand, she offers a possible defense of the federal courts developing a common law of procedures, filling gaps in the federal laws governing the courts.
The official transcript of the nomination announcement at the White House is now posted.** Key quotes:
I love the United States, and I love the United States Constitution.
[Justice Scalia’s] judicial philosophy is mine too: A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.
But this evening, I also want to acknowledge you, my fellow Americans. The President has nominated me to serve on the United States Supreme Court, and that institution belongs to all of us.
If confirmed, I would not assume that role for the sake of those in my own circle, and certainly not for my own sake. I would assume this role to serve you. I would discharge the judicial oath, which requires me to administer justice without respect to persons, do equal right to the poor and rich, and faithfully and impartially discharge my duties under the United States Constitution.
Writings: A review of publications gives insight into Barrett’s thinking, outside the constraints of writing a court opinion. Here is the list of publications, from Amy Coney Barrett’s Notre Dame Law School faculty page [quotations indented and my brief comments added in square brackets]:
Considering the implications of the process-based turn in statutory interpretation exposes the unappreciated textualist assumption that its prototypical ordinary reader is a congressional outsider. Because earlier debates in statutory interpretation pitted text against intent, textualists had no need to be particularly precise about the perspective they employed to determine statutory meaning. They identified their construct as a skilled user of language, typically familiar with legal conventions, but they did not say much more than that.
Process-based theories proceed from the perspective of a hypothetical legislator, and that focus requires textualists to look more closely at their own assumptions. It is clear that textualists have almost always defined the relevant linguistic community to include congressional outsiders, but they have not made that explicit. The choice to define the relevant community as including congressional outsiders is significant because it determines how elastically courts will treat language. The peculiarities of the legislative process mean that congressional insiders sometimes understand language in something other than its most natural sense. If courts employ an outsider’s perspective, those less natural readings are off the table.
Textualists must, of course, defend their choice of perspective. Scholars who advocate a focus on congressional procedure say that faithful agency requires courts to comply with Congress’s linguistic conventions. Justice Scalia’s work, which emphasizes fidelity to the text and duty to the people, offers textualists the beginning of a response. It remains to them to develop it.
The practice of assuming—without deciding—that all surrounding, unchallenged law is correct operates invisibly. It is thus hardly noticed, and the way in which it contributes to the law’s stability is underappreciated. The attention comes when the presumption is set aside. For example, the Court sometimes calls for supplemental briefing to address the issue whether a precedent that the parties did not challenge should be overruled. Or, Justices sometimes urge the overruling of a case where the merits of the precedent were neither raised nor briefed by the parties. The Court also decides how much precedent to unsettle when it decides how broadly to write an opinion: there are sometimes disputes about whether the Court should overrule a precedent outright or merely narrow it and leave the question whether it should be overruled for another day (or never).98 These choices are not best understood as choices about the strength of stare decisis. They are better understood as choices about whether to put the merits of precedent on the agenda, thereby forcing the Court to consider whether stare decisis should hold the precedent in place.
Students of stare decisis focus primarily on how stare decisis should play out once the validity of a precedent is on the table, but agenda control is equally if not more important. It also poses a distinct set of questions. For example, it is worth considering whether principle ever obligates a justice to put the question of precedent’s validity on the table sua sponte; whether duty strongly counsels a minimalist approach that avoids questioning precedent wherever possible; whether it is a matter left to the prudential judgment of each Justice; and, if it is a prudential judgment, what factors should guide the decision.
The Constitution does not require the Supreme Court to correct every constitutional error, and it does not require Congress to do so either. It permits errors to exist until an institution in a position to do so— the Court, Congress, or the President—decides that it is an opportune time to correct them. In the case of Congress, that question of timing is driven by political calculations, which are largely dependent upon pressure from the People to question what had previously seemed unquestionable precedents. In this sense, the People have power to initiate the process of correcting constitutional error—an observation consistent with the popular constitutionalist claim that the People have power to initiate constitutional change.
No constitutional theory, including originalism, needs to account for all constitutional law as it currently exists or explain how an office holder could realistically go about correcting deeply rooted errors present in existing constitutional law. Justice Scalia was right to say that originalists can be pragmatic about precedent. But that pragmatism is not, as is commonly assumed, a choice to treat erroneous precedent as law superseding the text it purports to interpret. The pragmatism is one of timing. The office holder has the discretion to decide when the timing is right to correct the error. Until then, the office holder—be it the Supreme Court through the rules of adjudication or Congress with a presumption of constitutionality—can, as it were, assume arguendo that certain settled precedents are correct.
NFIB v. Sebelius might be explained by the fact that Chief Justice Roberts has not proven himself to be a textualist in matters of statutory interpretation. Even in straight-up statutory interpretation cases, Chief Justice Roberts has found himself on the opposite side of staunch textualists like Justices Scalia, Thomas, and Alito precisely because of his willingness to depart from ostensibly clear text to better serve the statutory purpose. Indeed, Richard Re has dubbed the Roberts Court’s approach “the new Holy Trinity” after the case best known for openly prioritizing purpose over text. While the Roberts version does not expressly assert the power to depart from statutory text, Re observes that it accomplishes a similar result by considering “nontextual factors when determining how much clarity is required for a text to be clear.” This methodology, when combined with Chief Justice Roberts’ devotion to constitutional avoidance, has yielded cases like NFIB v. Sebelius.
To the extent that NFIB v. Sebelius expresses a commitment to judicial restraint by creatively interpreting ostensibly clear statutory text, its approach is at odds with the statutory textualism to which most originalists subscribe. Thus Justice Scalia, criticizing the majority’s construction of the Affordable Care Act in both NFIB v. Sebelius and King v. Burwell, protested that the statute known as Obamacare should be renamed “SCOTUScare” in honor of the Court’s willingness to “rewrite” the statute in order to keep it afloat. For Justice Scalia and those who share his commitment to uphold text, the measure of a court is its fairminded application of the rule of law, which means going where the law leads. By this measure, it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.
All of this is to say that Barnett is not alone in his skepticism of either the Roberts Court’s conception of judicial restraint or its approach to statutory interpretation. Indeed, this is a point on which those who treat the original public meaning of text as a constraint might agree, regardless whether they embrace Barnett’s Republican Constitution.
Statutory Interpretation in The Encyclopedia of American Governance (2016).
The conflict between substantive canons and faithful agency pushes textualists to think hard about whether the judicial obligation of faithful agency is unqualified. This Article has argued that the obligation is not necessarily absolute. At least when a substantive canon promotes constitutional values, the judicial power to safeguard the Constitution can be understood to qualify the duty that otherwise flows from the principle of legislative supremacy. On this view, courts are not limited to a black-and-white, yes-or-no choice about a statute’s constitutionality; they possess a limited power to push a statute in a direction that better accommodates constitutional values.
Even so, the obligation of faithful agency is modified, not overcome. A court cannot advance even a constitutional value at the expense of a statute’s plain language; the proposed interpretation must be plausible. Moreover, a canon does not justify even a limited deviation from the norm of faithful agency simply because it can be connected to some constitutional norm. A court must carefully consider the specificity of the norm at stake and whether deviation from the statute’s best reading actually advances it. When the power is exercised within these limits, the deployment of a substantive canon does not directly clash with the structural limitations on statutory interpretation and judicial review. When statutory language implicates an important constitutional value and leaves room for an alternate interpretation, it makes sense for a court to demand greater clarity from Congress by pushing the statute in ways that its language will permit. At the same time, the limits placed upon the exercise of this power adequately accommodate the norm of legislative supremacy.
What means can the states, the Congress, the President, and even private citizens legitimately employ to express disagreement with the Supreme Court? If nonjudicial actors register such disagreement, how, if at all, should the Supreme Court take account of it? These are the kinds of questions with which this Symposium grapples.
This Introduction frames these questions by pausing to reflect upon the variety of ways in which nonjudicial actors have, over time, registered their disagreement with decisions of the United States Supreme Court. Both public officials and private citizens have battled the Court on any number of occasions since its inception, and they have employed a diverse range of tactics in doing so. They have resisted Supreme Court judgments. They have denied the binding effect of Supreme Court opinions. They have sought to overrule the Court by statute or constitutional amendment. They have sought overruling in the Court itself. They have tried to discipline the Court through jurisdictional limitations or onerous procedural regulation. And they have pressured the Court by appealing to public opinion. Some of these means, like constitutional override of a disfavored opinion, are generally consistent with the notion that Supreme Court precedent is the law of the land. Others, like interfering with the enforcement of a Supreme Court judgment, represent a head-on challenge to the Court’s authority. In what follows, I will describe some notable examples of each of these kinds of protest, noting, along the way, the problems posed by each.
Procedural Common Law, 94 Virginia L. Rev. 813-88 (2008). [This is about the federal courts’ ability to regulate their own internal conduct. Procedure can affect the course and outcome of cases coming before the courts.]
Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law—common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized as procedural common law. This body of law does not fit easily into the traditional account of federal common lawmaking power, because it generally lacks certain features thought characteristic of federal common law: It does not bind state courts, it falls outside of the recognized enclaves of federal common law, and it is not entirely subject to congressional abrogation.
This Article offers a tentative account of the power of the federal courts to make procedural common law. One explanation for this power is a variation on the enclave theory advanced in the context of substantive common law: the constitutional structure preempts the state’s ability to regulate federal-court procedure, and, if Congress fails to specify procedural rules, federal courts must. This theory rings partly true insofar as it recognizes that federal-court procedure lies beyond state control. It is unsatisfying, however, insofar as it conceives of the procedural power of the federal courts as entirely derivative of and subservient to that of Congress. The Article thus considers an alternate theory: that procedural common lawmaking authority derives not from congressional default, but from Article III’s grant of judicial power. This theory has more force insofar as it accounts for the fact that the power of the courts sometimes, even if rarely, exceeds that of Congress in matters of procedure. It depends, however, on the widely assumed but largely untested proposition that federal courts possess inherent procedural authority. The Article canvasses Founding-era history to determine whether the Constitution can fairly be understood to confer this power, concluding that the historical evidence, while far from overwhelming, supports the claim that federal courts possess inherent procedural authority. Building from this notion of inherent procedural authority, the Article then sketches a theory to explain the power of the federal courts to make procedural common law.
This Article has argued that the Constitution’s structure cuts against, and history rules out, the proposition that the Supreme Court possesses inherent supervisory power over inferior court procedure. If such authority exists, it derives from the Constitution’s distinction between supreme and inferior courts. Part III claimed that it is more consistent with the Constitution’s structure to interpret the Court’s “supremacy” vis-a-vis inferior federal courts as a limit on the way Congress can structure the judicial branch than to interpret it as a source of inherent authority for the Supreme Court. Even assuming, however, that the Court’s “supremacy” functions as a grant of power to the Supreme Court, the conclusion that the Supreme Court possesses supervisory power over procedure depends upon the conclusion that this particular power is part of that grant. Part IV argued that history fails to support that conclusion. It was not until the twentieth century, when the Court rejected the notion of federal general common law, that it claimed the right to prescribe procedure for inferior federal courts. Given the recent vintage of this claim, history does not support the notion that the power to prescribe inferior court procedure is inherent in any court designated “supreme.”
The implications of this conclusion are potentially far-reaching. For example, if it lacks inherent supervisory power over inferior federal courts, does the Supreme Court have the authority to prescribe, through adjudication, rules of statutory interpretation that all federal courts must observe? Rules of issue and claim preclusion? Rules of stare decisis? Resolving these questions is a problem for another day. For now, it is enough to observe that, unless the Supreme Court acts through the federal rulemaking process, inferior federal courts may have more independence on these matters than is commonly assumed.
I argue that in the courts of appeals, as in the Supreme Court, the theory emphasizing the connection between statutory stare decisis and the separation of powers provides far more credible support for the doctrine than does a theory of congressional acquiescence. Nevertheless, even the separation-of-powers theory does not justify super-strong statutory stare decisis in the courts of appeals. To the extent that statutory stare decisis operates as a restraint on judicial policymaking, it does so based on assumptions about how Congress will react to the Supreme Court. It is both impractical and inconsistent with the system of appellate review that Congress has designed for the inferior courts to assume that Congress will respond to them in the same way. Whatever the merits of statutory stare decisis in the Supreme Court, I conclude that the inferior courts have no sound basis for following the Supreme Court’s practice.
In this Article, I argue that the preclusive effect of precedent raises due-process concerns, and, on occasion, slides into unconstitutionality. The Due Process Clause requires that a court give a person notice and an opportunity for a hearing before depriving her of life, liberty or property. Because of this requirement, courts have held in the context of issue preclusion that as a general rule, judicial determinations can bind only parties. The preclusion literature asserts that this parties only requirement does not apply to stare decisis because stare decisis, in contrast to issue preclusion, is a flexible doctrine. Yet stare decisis often functions inflexibly in the federal courts, particularly in the courts of appeals. I claim that in its rigid application – when it effectively forecloses a litigant from meaningfully urging error – correction – stare decisis unconstitutionally deprives a litigant of the right to a hearing on the merits of her claims. To avoid the due-process problem, I suggest that courts render stare decisis more flexible; specifically, I propose that courts remove rules – like, for example, the rule that one appellate panel cannot overrule another – that create nearly insurmountable barriers to error – correction. stare decisis, precedent, preclusion, due process, estoppel.
While mere identification of a judge as Catholic is not sufficient reason for recusal under federal law, the authors suggest that the moral impossibility of enforcing capital punishment in such cases as sentencing, enforcing jury recommendations, and affirming are in fact reasons for not participating.
* A play on Ruth Bader Ginsburg fans calling the late Justice Ginsburg “the Notorious RBG.”
Remarks by President Trump Announcing His Nominee for Associate Justice of the Supreme Court of the United States LAW & JUSTICE Issued on: September 26, 2020 Rose Garden 5:04 P.M. EDT
THE PRESIDENT: Thank you very much. Thank you. Thank you. I stand before you today to fulfill one of my highest and most important duties under the United States Constitution: the nomination of a Supreme Court Justice. (Applause.) This is my third such nomination after Justice Gorsuch and Justice Kavanaugh. And it is a very proud moment indeed.
Over the past week, our nation has mourned the loss of a true American legend. Justice Ruth Bader Ginsburg was a legal giant and a pioneer for women. Her extraordinary life and legacy will inspire Americans for generations to come.
Now we gather in the Rose Garden to continue our never-ending task of ensuring equal justice and preserving the impartial rule of law.
Today, it is my honor to nominate one of our nation’s most brilliant and gifted legal minds to the Supreme Court. She is a woman of unparalleled achievement, towering intellect, sterling credentials, and unyielding loyalty to the Constitution: Judge Amy Coney Barrett. (Applause.)
We’re also joined by Amy’s husband, Jesse — thank you, Jesse, very much — and their seven beautiful children. Congratulations to you all. A very special day.
With us as well are the First Lady — thank you, First Lady — (applause) — along with Vice President Mike Pence and his amazing wife, Karen. Thank you very much, Mike. (Applause.)
Judge Barrett is a graduate of Rhodes College and the University of Notre Dame Law School. At Notre Dame, she earned a full academic scholarship, served as the Executive Editor of the Law Review, graduated first in her class, and received the law school’s award for the best record of scholarship and achievement.
Upon graduation, she became a clerk for Judge Laurence Silberman on the U.S. Court of Appeals for the District of Columbia. Amy then received one of the highest honors a young lawyer could have, serving as a clerk on the Supreme Court for Justice Antonin Scalia. A highly — (applause) — a very highly respected law professor at Notre Dame wrote to Justice Scalia with a one-sentence recommendation: “Amy Coney is the best student I ever had.” That’s pretty good. (Laughter.) Justice Scalia hired her shortly thereafter.
And we are honored to have his wonderful wife, Maureen — where is Maureen? Maureen Scalia — with us today. (Applause.) Thank you. And our great Secretary of Labor, thank you very much. Thank you, Mr. Secretary. (Applause.) Very good genes in that family, I will say. Very good genes.
Before joining the bench, Judge Barrett spent 15 years as a Professor at the University of Notre Dame Law School. She was renowned for her scholarship, celebrated by her colleagues, and beloved by her students. Three times, she was selected at Notre Dame, Distinguished Professor of the Year.
When I nominated Judge Barrett to serve on the U.S. Court of Appeals for the Seventh Circuit in 2017, every law clerk from her time at the Supreme Court endorsed her and endorsed her nomination, writing, quote, “We are Democrats, Republicans, and independents…yet we write to support the nomination of Professor Barrett to be a Circuit Judge…Professor Barrett is a woman of remarkable intellect and character. She is eminently qualified for the job.”
And I can tell you, I did that too. I looked and I studied, and you are very eminently qualified for this job. You are going to be fantastic. Thank you. (Applause.) Really fantastic.
The entire Notre Dame Law facility and faculty, everybody — everybody at that school also — we got so many letters — also wrote letters of support of Amy’s nomination to the Seventh Circuit. They wrote, in effect: “Despite our differences, we unanimously agree that our constitutional system depends upon an independent judiciary staffed by talented people devoted to the fair and impartial administration of the rule of law. And we unanimously agree that Amy is such a person.”
For the last three years, Judge Barrett has served with immense distinction on the federal bench. Amy is more than a stellar scholar and judge; she is also a profoundly devoted mother. Her family is a core part of who Amy is. She opened her home and her heart, and adopted two beautiful children from Haiti. Her incredible bond with her youngest child, a son with Down Syndrome, is a true inspiration.
If confirmed, Justice Barrett will make history as the first mother of school-aged children ever to serve on the U.S. Supreme Court. That’s good. (Applause.)
To her children Emma, Vivian, Tess, John Peter, Liam, Juliet, and Benjamin, thank you for sharing your incredible mom with our country. Thank you very much. (Applause.)
Amy Coney Barrett will decide cases based on the text of the Constitution as written. As Amy has said, “Being a judge takes courage. You are not there to decide cases as you may prefer. You are there to do your duty and to follow the law wherever it may take you.” That is exactly what Judge Barrett will do on the U.S. Supreme Court.
I want to thank the members of the Senate. We have so many of them here today. Thank you very much. I see you in the audience, and you’re so proud. But I want to thank you for your commitment and to providing a fair and timely hearing. I know it will be that.
Judge Barrett was confirmed to the Circuit Court three years ago by a bipartisan vote. Her qualifications are unsurpassed — unsurpassed — and her record is beyond reproach. This should be a straightforward and prompt confirmation. It should be very easy. Good luck. (Laughter.) It’s going to be very quick. I’m sure it’ll be extremely non-controversial. We said that the last time, didn’t we? Well, thank you all very much, and thank you for being here. That’s really great. Thank you. (Applause.)
I further urge all members of the other side of the aisle to provide Judge Barrett with the respectful and dignified hearing that she deserves and, frankly, that our country deserves. I urge lawmakers and members of the media to refrain from personal or partisan attacks.
And the stakes for our country are incredibly high. Rulings that the Supreme Court will issue in the coming years will decide the survival of our Second Amendment, our religious liberty, our public safety, and so much more.
To maintain security, liberty, and prosperity, we must preserve our priceless heritage of a nation of laws, and there is no one better to do that than Amy Coney Barrett.
Law and order is the foundation of the American system of justice. No matter the issue, no matter the case before her, I am supremely confident that Judge Barrett will issue rulings based solely upon a fair reading of the law. She will defend the sacred principle of equal justice for citizens of every race, color, religion, and creed.
Congratulations again to Judge Barrett. I know that you will make our country very, very proud. Please, Amy, say a few words. Thank you very much. Congratulations. Congratulations. (Applause.)
JUDGE BARRETT: Thank you very much, Mr. President. I am deeply honored by the confidence that you have placed in me. And I am so grateful to you and the First Lady, to the Vice President and the Second Lady, and to so many others here for your kindness on this rather overwhelming occasion.
I fully understand that this is a momentous decision for a President. And if the Senate does me the honor of confirming me, I pledge to discharge the responsibilities of this job to the very best of my ability. I love the United States, and I love the United States Constitution. I am truly — (applause) — I am truly humbled by the prospect of serving on the Supreme Court.
Should I be confirmed, I will be mindful of who came before me. The flag of the United States is still flying at half-staff in memory of Justice Ruth Bader Ginsburg to mark the end of a great American life. Justice Ginsburg began her career at a time when women were not welcome in the legal profession. But she not only broke glass ceilings, she smashed them. For that, she has won the admiration of women across the country and, indeed, all over the world. (Applause.)
She was a woman of enormous talent and consequence, and her life of public service serves as an example to us all. Particularly poignant to me was her long and deep friendship with Justice Antonin Scalia, my own mentor.
Justices Scalia and Ginsburg disagreed fiercely in print without rancor in person. Their ability to maintain a warm and rich friendship, despite their differences, even inspired an opera. These two great Americans demonstrated that arguments, even about matters of great consequence, need not destroy affection. In both my personal and professional relationships, I strive to meet that standard.
I was lucky enough to clerk for Justice Scalia, and given his incalculable influence on my life, I am very moved to have members of the Scalia family here today, including his dear wife, Maureen.
I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine too: A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold. The President has asked me to become the ninth justice, and as it happens, I’m used to being in a group of nine: my family. (Laughter.)
Our family includes me, my husband Jesse, Emma, Vivian, Tess, John Peter, Liam, Juliet, and Benjamin. Vivian and John Peter, as the President said, were born in Haiti and they came to us, five years apart, when they were very young. And the most revealing fact about Benjamin, our youngest, is that his brothers and sisters unreservedly identify him as their favorite sibling.
Our children obviously make our life very full. While I am a judge, I’m better known back home as a room parent, carpool driver, and birthday party planner. When schools went remote last spring, I tried on another hat. Jesse and I became co-principals of the Barrett e-learning academy. (Laughter.) And, yes, the list of enrolled students was a very long one.
Our children are my greatest joy, even though they deprive me of any reasonable amount of sleep. I couldn’t manage this very full life without the unwavering support of my husband, Jesse. At the start of our marriage, I imagined that we would run our household as partners. As it has turned out, Jesse does far more than his share of the work. To my chagrin, I learned at dinner recently that my children consider him to be the better cook. (Laughter.)
For 21 years, Jesse has asked me, every single morning, what he can do for me that day. And though I almost always say “nothing,” he still finds ways to take things off my plate. And that’s not because he has a lot of free time — he has a busy law practice — it’s because he is a superb and generous husband, and I am very fortunate.
Jesse and I — (applause) — Jesse and I have a life full of relationships, not only with our children, but with siblings, friends, and fearless babysitters, one of whom is with us today. I am particularly grateful to my parents, Mike and Linda Coney. I spent the bulk of — I have spent the bulk of my adulthood as a Midwesterner, but I grew up in their New Orleans home. And as my brother and sisters can also attest, Mom and Dad’s generosity extends not only to us, but to more people than any of us could count. They are an inspiration.
It is important at a moment like this to acknowledge family and friends. But this evening, I also want to acknowledge you, my fellow Americans. The President has nominated me to serve on the United States Supreme Court, and that institution belongs to all of us.
If confirmed, I would not assume that role for the sake of those in my own circle, and certainly not for my own sake. I would assume this role to serve you. I would discharge the judicial oath, which requires me to administer justice without respect to persons, do equal right to the poor and rich, and faithfully and impartially discharge my duties under the United States Constitution.
I have no illusions that the road ahead of me will be easy, either for the short term or the long haul. I never imagined that I would find myself in this position. But now that I am, I assure you that I will meet the challenge with both humility and courage.
Members of the United States Senate, I look forward to working with you during the confirmation process, and I will do my very best to demonstrate that I am worthy of your support. Thank you. (Applause.)
THE PRESIDENT: Come on up, family. Come on up, family. I want to acknowledge Attorney General Bill Barr. Bill, thank you very much for being here. Chief of Staff — thank you very much, Chief. You’re doing a great job. And all of the senators — please, we really appreciate it. And I know you’re going to have a busy couple of weeks, but I think it’s going to be easier than you might think.
So, thank you very much for being here. Thank you all. Thank you all very much. Thank you. Congratulations, Amy. (Applause.) END 5:24 P.M. EDT
Count Your Blessings! Jim George By Jim George | September 23, 2020 0 COMMENTS3 UNFOLLOW
I have just taken a long walk which made me realize, anew, how much we here in our neighborhood near the water in the Pensacola area have to be thankful for and which reminded me quite forcefully what a thin thread separates us from misfortune or disaster. Here is a map showing the location of our new home (moved here a little over two years ago from Baton Rouge) and its proximity to the Santa Rosa Sound:
Hurricane Sally hit on September 16 (Happy Birthday to me—:-) ) and our home sustained no damage; those around us sustained minimal to moderate damage–mostly trees down and resultant damage but, to my knowledge, no water intrusion. As you have undoubtedly seen from the news coverage, there was severe flooding all around the area, with downtown Pensacola taking abut 2-3 feet of water, 20 barges breaking loose from their moorings with one, a crane barge, striking the new bridge over Pensacola Bay connecting to our area and Pensacola Beach and destroying one span of that bridge, and untold incidents of other damage which will take a very long time to repair and from which to recover.
We knew there was severe damage “down the hill” from us to the area fronting on Santa Rosa Sound as we had walked about one of the blocks down toward the Sound and could see the water standing a couple of days after the storm hit. But, it took walking the entire length of the street facing the Sound this afternoon to realize the almost unimaginable extent of the wind and water damage to the beautiful homes on that street. I did not have my camera with me, so the following word picture will have to do– it was like a war zone.. I’m trying not to exaggerate in the least here when I say it is like some of the photos one sees of bomb-ravaged city streets piled high with debris, furniture, toys, bicycles, all the accoutrements of what were happy family lives right up to September 15 but were destroyed in the many hours that dastardly Sally hovered over the area with up to 110 mph winds and storm surges up to 3 feet. It should be noted that almost all of these homes are built up to 2-3 levels, so the damage was to the bottom areas, although the wind did some serious damage to walls and windows on the upper levels.
We were two blocks away from this war zone and this experience has prompted me to, once again, remember that old admonition we have all heard many times but which, at times like this, really hits home: Count Your Blessings! Or, as a former priest of mine would state in closing his services:
“Life is short. We don’t have much time to gladden the hearts of those who walk this way with us. So, be swift to love and make haste to be kind.” Henri-Frédéric Amiel
Perhaps you have noted the same strange phenomenon I started seeing recently, which prompted the letter to my Congressman and Senators which follows for your perusal and, should you feel it helpful and appropriate, adaptation for transmittal to your own representatives in our National Legislature. That phenomenon is the fact that I am seeing more and more prominent calls for investigation and eventual prosecution of ANTIFA and that label is often, if not usually, followed by a catch all phrase such as the one used yesterday in the letter of 50 Members of Congress to the Attorney General calling for action against ANTIFA “and other left-wing anarchist groups…. .” Is there anyone with a functioning mind who does not know the name of the “other left-wing anarchist group” being referred to here? Why the reticence, so uncharacteristic of our governing class? As Jack Benny might have told Rochester in another time, long, long ago: “I’m thinking, I’m thinking!”
Therefore, I sat down and delivered myself of a philippic which has now gone via electronic delivery to Congressman Matt Gaetz and Senator Rick Scott. It was deemed a bit too windy for Senator Rubio’s algorithms to handle and has been delivered the old-fashioned way.
In submitting this for your review, I must add one more note and that is how much information may be found so easily and readily about the depth of the danger and treachery represented by Black Lives Matter, making the above-mentioned reticence so much more difficult to understand.
Herewith my letter, for what it’s worth:
I am directing this letter to my Congressman and Senators to express my concern that a Marxist-driven organization, Black Lives Matter, is growing, developing, expanding, becoming more and more powerful by the day and the hour, is fomenting all kinds of violence across the country, is insidiously sending its ideological tentacles throughout major areas of our popular culture and yet all I see in official discussions about the violence which has grown to unprecedented levels in the last 3 months are mentions of ANTIFA—never their principal partner in crime (for that is exactly what it is—crime), Black Lives Matter and its organizational parent, the Black Lives Matter Global Network.
In this correspondence, I will furnish links to a number of excellent analyses of this dangerous organization which have appeared only recently and will also discuss BLM’s own statements of goals and objectives on their own website—as it has been said many times, and especially in the last few months – when someone announces that they plan to hurt you, or worse, it is a very good idea to listen to them and assume they are being deadly serious. Whatever one may say about BLM, and especially its leaders, it must be admitted that they are quite open about their founding philosophy, as one of their founders, in particular, has been quoted in a video interview as saying she and one other founder are “trained Marxists.”
I will examine some of the organization’s own statements later in this letter; first, I would like to examine the general tenor I see in public statements of so many of our public officials, i.e., those officials we have elected to represent us in the National Legislature and to give voice to our concerns as we see them. In doing so, I am taking the liberty of making the following special request: I would like to receive either a written answer from each of you or a phone call in order that I may have a statement of your position on the question I am raising as, if I am wrong in my perception, I am most interested, in the utmost of good faith, in learning that fact and the reasons I am wrong. For example, while I have tried to do a good bit of reading of various articles, columns, etc., which have considered the real objectives of BLM, I have not done a thorough research of the Congressional Record and there may well be speeches in that Record of which I am unaware as of this writing. If so, I would definitely like to know about them in order that I may have the opportunity to educate myself further on this subject and what is being said about it by those we look to for such pronouncements in our behalf.
Only a few minutes before I started this letter, I learned of a letter submitted by 50 members of Congress, including my own Congressman, requesting that Attorney General Barr and the Department of Justice immediately open an investigation to identify and prosecute all individuals and groups responsible for funding and organizing the riots we are seeing all across the Nation. Here, as they so perfectly demonstrate the gravamen of my concern I am writing to express, are the first three paragraphs of their letter:
“We write to share our deep concerns regarding the ongoing violence that has gripped American cities and threatened the rule Of law across our nation, ANTIFA and other left-wing anarchist groups have unleashed a barrage of totalitarian attacks on our country in recent months, including accosting a sitting U S. Senator, hijacking peaceful rallies, organizing armed riots, destroying property, burning buildings, stealing livelihoods, and spreading hate.
“It is clear that these individuals are well-funded and supported by a national network Of left-wing activists committed to perpetrating violence and furthering anarchy in our streets. As such, we urge you to immediately open an investigation to identify and prosecute all individuals and groups responsible for funding and organizing these terroristic acts that are wreaking havoc on our nation.
“As you know, I8 US. 2101 makes it a federal crime punishable by up to five years in prison to incite a riot; organize, promote, encourage, participate in, or carry on a riot; commit any act of violence in furtherance Of a riot; or aid or abet any person in inciting or participating in a riot. Tragically, we are seeing the letter and spirit of the law being desecrated on a daily basis, as ANTIFA and other organized groups of anarchists continue to infiltrate peaceful protests and launch violent attacks against American citizens. Tragically, these activities recently turned deadly in Portland, Oregon, as Michael Forest Reinoehl, who described himself as “100% ANTIFA” shot and killed a supporter of President Trump,
One who reads that letter, as timely and admirable as it is, might be excused for asking the following question: where is there even a single mention of the other organization—the one which, by all accounts, started the rioting in Minneapolis, the one which was founded in rage at the acquittal of the person their own statement still refers to as “the killer” of Trayvon Martin, the one which burned down many of the businesses in Ferguson, MO, the one which then followed with destruction and mayhem in may other locations such as the 2015 riots in Baltimore, the one whose name and raised fist trademark we see prominently displayed in practically every riot across the country—Black Lives Matter? I ask the following as one who not only holds no brief for ANTIFA but who abhors everything they stand for and everything they do—why name just ANTIFA in that request for investigation and prosecution? Do they not want Black Lives Matter to be prosecuted as well? If not, why not? There must be a reason why such a well-known and well-recognized fomenter of destruction and burning and pillaging and thievery and hooliganism and violence is so noticeably absent from this otherwise well placed, if not way overdue, request that the Department of Justice finally do SOMEthing to identify the sources of funding for these deadly riots.
The contents of this letter serves as a fitting example of a phenomenon I have seen in many other writings lately, including books I have read on the current disruptions and attempted coups against the lawfully elected President of the United States in which there may be very specific discussions of how wretched and rotten and sickening the actions of ANTIFA are but no mention whatsoever of the other organization. One must wonder why that is and why our elected officials will not just come out and “tell it like it is” and, once and for all, start naming “the other organization” as if it has become this obvious to me, I must assume many others have noticed this “strange phenomenon” of not naming one of the two most prominent fomenters of destruction in the recent upheavals.
As one of your constituents, I specifically ask the following question, to which I request, as genuinely as I know to do so, a clear answer stating your position with regard thereto: if you have not already done so, why are you not using your “Bully Pulpit” to stand on the floor of Congress or the Senate and denounce – by name—the Black Lives Matter Global Organization and ask for an investigation of its sources of funding and organization. If you decline to do so, I would like to know the reason why. At the risk of repeating myself, I cannot for the life of me understand why no one in Congress, the place where our elected Representatives to the National Legislature gather to perform their Article I duties and responsibilities, will stand up and identify one of the two major reasons we have had so much strife in the last few months. If, indeed, this is the case, again, there must be a reason and I am entitled to know what that reason may be.
There have been a number of very comprehensive analyses published recently to which I respectfully refer you for your further study and perusal—here are just a few quotes from some of them which graphically illuminate the danger posed by this extraordinarily radical movement dedicated to the overthrow of our entire way of life.
“ … As the WashingtonExaminer’s Dunleavy reported, BLM was founded by three women who are avowed Marxists who cite as mentors and financial backers some noted communists and a domestic terrorist. Clearly, there is at least some central organizing involved in the violence, such as when police in Columbus, Ohio, interdicted a bus stockpiled with weapons. In Portland, where often-violent protests have continued for more than 100 days, police regularly confiscate body armor, stun guns, dangerous lasers, Molotov cocktails, and other injurious, possibly deadly paraphernalia.”
Two recent columns stand out in my view as most valuable resources for anyone who wishes to better understand this lethal domestic terrorist group trying to tear down the very fabric of our way of life. They are “The Racial Marxism of BLM” and “To Destroy America” and I respectfully submit a few quotes from each to give just a flavor of what we are up against and how terrifying these terrorists are not just in their aims but in what they are telling us and saying out loud as to what they plan to do to our Beloved Nation and all it stands for.
Both pieces are rich in the very long history of the development of Marxist terrorism of the type we are now facing in Black Lives Matter, such as this passage from The Racial Marxism of BLM:
“A history that should never have been forgotten has long since been lost. It is time to refresh our memories. Black Lives Matter (BLM) does not represent the old Civil Rights Movement. It does not seek equality under the law. And it does not intend to stop until it overthrows the very idea and structure of America as we’ve known it. Under increasing pressure to acknowledge the dawning reality to which Americans are increasingly waking up, Joe Biden has finally said that looting and arson are, in fact, bad. But Pandora’s box has already been opened. The Democrats’ Vice-Presidential nominee, Kamala Harris, put us on notice in June: “everyone beware—because they’re not gonna stop…everyone should take note of that…they’re not gonna let up, and they should not—and we should not.”
“What has been forgotten—perhaps because it is often purposely hidden—is that Antifa and BLM both were born from a peculiarly American form of radical and violent Marxism. The actual word used to describe this ideology is in one sense not important: understanding how those who lead and fund these groups think is what matters. In fact, as soon as one uses the word “Marxism” today, the activists and intellectuals begin scoffing in disdain.
The author then touches on the very reason I am writing this letter and it has to do with the fact that our institutions – including “politicians on the American Right”—are failing in their obligation to speak out to their constituents, and to American citizens in general, about the horrific dangers this terrorist organization represents to all of us:
“The American media—and many politicians on the American Right—have failed to point out to the American people that BLM was created and is led by radical Marxist racialists. Their heroes and teachers are the violent radicals of the 1960s and ’70s. As Murray Bessette points out in “Listen When They Tell You Who They Are“, we know this because they tell us so. They call themselves “trained Marxists.” This doesn’t mean that they merely propose left-leaning economic policies like free healthcare for all. Instead, as Bessette says, they want to destroy the family and abolish private education and private property along with the police.
He also makes crystal-clear what the real aim of these terrorists is, in no uncertain terms:
“As Peter Myers explains, “The present ascendancy of the woke Left on race is no triumph for civil rights, nor for social justice or any sort of justice, nor for democratic government,” which this movement opposes. What BLM truly wants is a new America. An America ruled by a racial version of Marxism: “a confederation of identity groups—especially of racialized identity groups—where moral authority and its ensuing social advantages are apportioned according to the relative strength of group claims to past and present aggrievement.” Jim Crow, in other words, but in reverse.
“The government, of course, will be in their hands and the laws will be ordered accordingly. BLM utterly rejects the notion of equality under the law: they wish to enact a system of law and culture in which people will be judged by their race and sexual identity, not insofar as they are equally human. As Myers points out, “the ruling principle is disintegration, not integration; discord, not harmony; war, not peace. To persist on this path is to push the republic ever closer to either dissolution or despotism.”
“And here we are. BLM and its associates, despite being the direct descendants of Marxist domestic terrorists, despite rejecting the principles of America itself, and despite holding views that are not even representative of the people they purport to represent, now have the resources and path they need to wreak the havoc they have been planning for years. They have already succeeded in causing more chaos than their intellectual parents. As ever, the Democratic Party refuses to oust or reject them from its ranks with vigor. Worse, outside of President Trump, many in the Republican Party are still too cowardly to denounce them—even as America burns.
“Our failure to stop this movement decades ago is what led us to this moment. Now, we have no choice. It is time to stop pretending that BLM and Antifa are anything other than domestic terrorist groups led by radicals who seek to rip America apart.
“Of course many if not most of those protesting today by simply marching in the streets have little understanding of the ideology driving the organizers and the worst of their trained foot soldiers. But that’s how revolutions work. BLM is what it claims to be: a racialist Marxist group that seeks to completely alter the American way of life. They have more power and resources now than any insurrectionary movement in American history. They will not stop until they are stopped.
“This should not be a partisan issue. But if our political leaders on the Right and Left continue to refuse to specifically call them out for what they are and directly oppose them, America will continue to burn. [Emphasis added]
In the second article cited above, “To Destroy America”, the author goes into the sordid – at least in this Proud American’s view – background which produced some of the founders of the current terrorist organization known as Black Lives Matter:
“In a 2015 interview, Patrice Cullors, another of the three founders, said that she and Garza were “trained Marxists.” Abdullah, of the Los Angeles BLM chapter, was born a red-diaper baby—“Raised in the 70s, in the picket lines of Oakland, by activist parents,” as the interviewer put it. Her paternal grandfather was Gunter Reimann, a member of the German Communist Party. Garza cut her organizing teeth as director of People Organized to Win Employment Rights (POWER), founded by Marxists Garth Ferguson, Patty Snitzler, Regina Douglas, Brian Russell, and Steve Williams. To Williams we owe the concept of “transformative organizing,” which insists “that effective organizing for social change cannot simply be based on an apolitical and highly specific analysis of what is possible in the short term.”
“Cullors trained for a decade as a radical organizer in the Labor/Community Strategy Center, established and run by Eric Mann, a former member of the Weather Underground, the 1960s radical faction identified by the FBI as a domestic terrorist group. The “Weathermen” explained in their 1969 foundational statement that they were dedicated to “the destruction of U.S. imperialism and the achievement of classless world: world communism.” The ties between the BLM Global Network and the Weathermen run deep. National Review’s Andrew McCarthy revealed in a recent exposé that Weather Underground supporter Susan Rosenberg, whose 1984 sentence of 58 years in prison for possession “of 740 pounds of explosives, an Uzi submachine gun, an M-14 rifle, another rifle with a telescopic sight, a sawed-off shotgun, three 9-millimeter handguns in purses and boxes of ammunition” was commuted by President Bill Clinton, serves as vice chair of the board of directors of Thousand Currents—the radical, grantmaking institution that until July sponsored the BLM Global Network. Rosenberg was also sought on federal charges that she aided the 1979 prison escape of Joanne Chesimard, a Communist now living in Cuba, and whom Cullors quotes approvingly in her bookWhen They Call You a Terrorist. (Since July, the Global Center has become “a project” of the Tides Center, another donor and supporter of the hard Left and its ideas).
Like the previous author discussed, and many others who have written on this subject recently, he concludes with a plea that politicians wake up and start speaking out about what this organization truly is:
“These are the ideological sources for what could be the largest radical movement in American history—one that could lead to real policy changes. One component is street pressure, driven by the likes of Mann and Cullors. Another takes place in plusher environments, such as Fortune 500 companies or the halls of Congress. Consultants like White Fragility author Robin DiAngelo told 184 Democratic legislators in a conference call in June that their policies hurt black lives. DiAngelo told The New York Times that “capitalism is so bound up with racism. … [it] is dependent on inequality, on an underclass. If the model is profit over everything, you’re not going to look at your policies to see what is most racially equitable.”
“Up to now, the American system has resisted socialism by offering prosperity and opportunity. Our politicians today need to understand what they’re facing from the BLM movement and what is at stake. The “white settler state” of Eric Mann’s fevered mind is in reality the American constitutional order. The imperialism that Mann, Rosenberg, DiAngelo, and others imagine is the American free-market system that has been the most successful weapon against poverty ever devised. Political leaders of either party feeling pressured to adopt BLM policies or even just mouth the rhetoric should spend some time examining the movement’s intellectual sources—and its political goals. [Emphasis added]
There are many other excellent sources of information about what this well-funded, well-organized and maniacally dedicated terrorist organization really is, some of which may be found here, here, here and here (collecting articles treating this issue).
However, in line with the admonition of several writers who have given us some of these fine works of research, what better resource could we have than what they, The Black Lives Matter Global Network, are telling us in their own words. Here, for your perusal and consideration, if you have not been thus edified before, are a few quotes from their statement of objectives—entitled “What We Believe”:
“Enraged by the death of Trayvon Martin and the subsequent acquittal of his killer, George Zimmerman, and inspired by the 31-day takeover of the Florida State Capitol by POWER U and the Dream Defenders, we took to the streets. A year later, we set out together on the Black Lives Matter Freedom Ride to Ferguson, in search of justice for Mike Brown and all of those who have been torn apart by state-sanctioned violence and anti-Black racism. Forever changed, we returned home and began building the infrastructure for the Black Lives Matter Global Network, which, even in its infancy, has become a political home for many. [It is worth noting, unless BLM has already dismantled one bedrock foundation of our American system of justice, the jury trial, George Zimmerman was, as their own statement makes clear, acquitted of all charges and thus could not, in any sense, be referred to as Trayvon Martin’s “killer”, except, perhaps, in the sense that a terrorist organization can make language say what they want it to say.]
“Ferguson helped to catalyze a movement to which we’ve all helped give life. Organizers who call this network home have ousted anti-Black politicians, won critical legislation to benefit Black lives, and changed the terms of the debate on Blackness around the world. Through movement and relationship building, we have also helped catalyze other movements and shifted culture with an eye toward the dangerous impacts of anti-Blackness.
“We are guided by the fact that all Black lives matter, regardless of actual or perceived sexual identity, gender identity, gender expression, economic status, ability, disability, religious beliefs or disbeliefs, immigration status, or location.
“We make space for transgender brothers and sisters to participate and lead.
“We are self-reflexive and do the work required to dismantle cisgender privilege and uplift Black trans folk, especially Black trans women who continue to be disproportionately impacted by trans-antagonistic violence.
“We build a space that affirms Black women and is free from sexism, misogyny, and environments in which men are centered.
“We practice empathy. We engage comrades with the intent to learn about and connect with their contexts.
“We make our spaces family-friendly and enable parents to fully participate with their children. We dismantle the patriarchal practice that requires mothers to work “double shifts” so that they can mother in private even as they participate in public justice work.
“We disrupt the Western-prescribed nuclear family structure requirement by supporting each other as extended families and “villages” that collectively care for one another, especially our children, to the degree that mothers, parents, and children are comfortable.
“We foster a queer‐affirming network. When we gather, we do so with the intention of freeing ourselves from the tight grip of heteronormative thinking, or rather, the belief that all in the world are heterosexual (unless s/he or they disclose otherwise). [Emphasis added]
Therefore, it is safe to conclude –not as a matter of opinion, but of fact based on their own statement of what they believe—that they “disrupt the “Western-prescribed nuclear family structure requirement” by “collectively” caring for one another, a statement which could not have been written more accurately by Karl Marx himself. Additionally, one is left to seriously wonder what in the world all the talk about “a queer-affirming network” has to do with the vast majority of persons of color in America today, but that is for another day.
Please, Members of Congress and of the United States Senate, I implore you as a constituent of yours, listen to what they are telling you they plan to do to our Beloved Nation. They are deadly serious about what their plans are for us. I ask that you be equally serious in your responsibility to tell the American people what they are actually facing. It is no exaggeration to say that the future of the American Republic depends on the electorate being much better informed than they seem to be at the present time about what they are facing.
Every day seems to bring new shocks to one’s sense of equilibrium and well-being and logic and it has gotten to the point where I agree with the author who referred to the effect of these horrible days as “the numbing of America.” Of course, like you, I have seen 2020 described in terms not permitted in these well-mannered precincts but which much better describe this annus horribilis we are living through now.
That said, I have just read a review of Michael Anton’s new book, “The Stakes, America At The Point of No Return”, which has shaken me to my very core, as it not only offers a dreadful outlook for our future and, much more importantly, the future of our Nation as we have known it, but furnishes solid research and documentation in support of those prognoses. Mr. Anton, it will be recalled, was the creator of the Flight 93 Election essay about the 2016 election which may well have been one of the strong motivating factors for many voters as it painted a grim, but realistic picture of what would happen if the unthinkable were to happen and we would fall under the malign rule of the most dishonest and corrupt person to ever run for President.
The review to which I refer, and which I cannot possibly recommend too highly, appeared in the Claremont Review of Books and was authored by Angelo M. Codevilla.
While I will set out a few of the highlights of Dr. Codevilla’s review, along with a few of the passages he quotes from the book, I urge anyone who is experiencing the same anxiety about the upcoming election I am sure we are all feeling to read the entire review and then order the book as it is, at this make-or-break time in the life of our Nation, “must reading.”
He makes clear that the “ruling class” will stop at nothing in its relentless drive to complete the total transformation (does that word ring a faint little bell in your memory?) of the Republic:
In his new book, The Stakes: America at the Point of No Return, Anton, now a lecturer and research fellow at Hillsdale College, again urges Americans to vote for Trump, disappointed though they may be with his performance, because they know even better than before how much this country’s ruling class would use control of the presidency to hurt us in our private and public lives for having dared to reject their mastery. Trump, imperfect as he is, is like a finger in a dike that, if removed, would loose a deluge. Anton describes how the Democratic Party-led complex of public-private power has been transforming our free, decent, and prosperous country into its opposite—and how it’s going to do to the rest of America what it has already largely accomplished in California. In the book’s final chapters, he lays out several paths that the current struggle for America’s future might take.
Anton’s commentary on the 2020 election does not belabor the obvious: it is a binary choice. The unprecedented level of opposition President Trump has faced explains, but does not excuse, some of his shortcomings. As Anton puts it: “[t]here’s little wrong with President Trump that more Trump couldn’t solve.” Then he adds what is really radically new about the 2020 election: should the Democrats win, the ruling Left—which includes just about everyone who controls American government and society’s commanding heights—is ready, willing, and eager to implement plans that would make it virtually impossible for conservatives ever to win national elections again. These plans include the importation and counting of non-citizen voters. Elections-by-mail would shift power from voters to those who count the votes, just like in Venezuela. Though reelecting Trump makes the republic’s survival possible, and preserves all manner of good options, it guarantees nothing. Trump’s defeat guarantees disaster—like in 2016, only much more so.
Observing that the ruling class, beginning in the 1930s, started pushing aside the Constitution, he quotes the following from the book as to where the real power now exists in America:
The real power…resides not with elected (or appointed) officials and “world leaders”; they—or most of them—are a servant class. The real power resides with their donors, the bankers, CEOs, financiers, and tech oligarchs—some of whom occasionally run for and win office, but most of whom, most of the time, are content to buy off those who do. The end result is the same either way: economic globalism and financialization, consolidation of power in an ostensibly “meritocratic” but actually semi-hereditary class, livened up by social libertinism.
After a fascinating passage the reviewer calls a “CT scan of the ruling class and its entourage”, he moves to a discussion of the source of the hubris of the ruling class:
They do not believe they have to worry about controlling their own violent troops because they are sure that they have nothing to fear from conservatives. That is because conservatives have continued to believe that the United States’s institutions and those who run them retain legitimacy. Conservative complaisance made possible a half-century of Progressive rule’s abuse. The War on Poverty ended up enriching its managers while expanding the underclass that voted for them. The civil rights movement ended up entitling a class of diversity managers to promote their friends and ruin their opponents. The environmental movement ended up empowering the very same wealthy, powerful folks while squeezing the rest of America into cookie cutter living and paying inflated energy prices. The feminist movement delivered divorce and abortion—far from benefiting women, it has made millions dependent on ruling class favor. The COVID-19 pandemic has had almost nothing to do with public health and almost everything to do with separating, impoverishing, and disconnecting people inclined to vote against the ruling class. As leftist judges rule, conservatives respond by appointing judges who pledge not to rule. As leftist governors establish their brand of effective sovereignty by decree, conservative ones obey court orders. So long as, and to the degree that, the illusion of legitimacy stands—so long as the Right obeys while the Left disobeys and commands—there is no end to what the Left can do because there is so little that conservatives do to fight back.
Then comes the truly chilling part, although I am sure it is not exactly new to many who have kept up with the grotesque machinations of the Democrats with riots, killings, burnings, mail ballots, and, as Lee Smith has entitled his new book, “The Permanent Coup”, it is still frightening to read such a graphic description of what is very likely coming our way starting on the morning of November 4:
600 lawyers to litigate the outcome, possibly in every state. No particular outcome of such litigations is needed to set off a systemic crisis. The existence of the litigations themselves is enough for one or more blue state governors to refuse to certify that state’s electors to the Electoral College, so as to prevent the college from recording a majority of votes for the winner. In case no winner could be confirmed by January’s Inauguration Day, the 20th Amendment provides that Congress would elect the next president. Who doubts that, were Donald Trump the apparent winner, and were Congress in Democratic hands, that this would be likelier than not to happen?
Before or afterward, were conservatives not unanimously to roll over, and were a few incidents to result in loss of life and conflict between police forces on opposite sides of the affairs, America might well experience an explosion of pent-up rage less like the American Civil War of the 19th century and more like the horror that bled Spain in the 20th.
Or, as a friend asked in a recent Letter to the Editor — “How does President Pelosi sound to you?”
I recently wrote a post about the frustration of trying to communicate with our elected representatives in Congress. In that regard, and because I feel there is a critical need –I see it as the most critical need in my lifetime — to do everything we can as citizens to help re-elect the President, I would be very pleased to receive any suggestions as to what we can do in that effort, other than send money (I’ve done that) or try to get some response from our Representatives or Senators (I’ve given up on that).
The barbarians are no longer at the gate- the images on your evening news will quickly disabuse you of that notion.
None of it had to happen. Capt. Dorn did not have to have his execution live-streamed on Facebook in the name of “justice” for George Floyd. Minneapolis did not have to be burned, with businesses which took a lifetime to build gone in a flash of flame. Statues of some of our country’s greatest heroes of human rights, men like Frederick Douglas, Abraham Lincoln, Ulysses Grant and so many others did not have to be torn down by packs of ignoramuses who had no idea who they were or what they stood for — all in the name of “avenging” the “murder” of George Floyd.
Much of this–admittedly not all–could have been avoided had the thoroughly corrupt Attorney General of the State of Minnesota, Keith Ellison, waited just a few days before “jumping the gun” and filing murder and related charges against the Minneapolis Police Officers who arrested George Floyd on May 25, 2020, before all toxicology and autopsy reports were completed. Now, as a growing number of observers and analysts are bringing to light, these officers’ lives and liberty are at peril due to the inexcusable and detestable politicization of the criminal justice system and the prosecutors –and the Court–are saddled with a very likely unwinnable case in view of the real conflicts in the evidence making “proof beyond a reasonable doubt” difficult, if not impossible.
In this discussion, I will attempt to illustrate just how glaring those inconsistencies are but in doing so, I start with one important caveat. That has to do with the popular misconception created by the combination of the premature charges with the usual ubiquitous iPhone video of “the knee on the neck” scene layered on top of the countless riots, looting, shootings, injuries, deaths, candlelight vigils, etc., all of which have rendered almost impossible any fair and reasoned evaluation of the evidence. Any doubt about the power of that deeply-entrenched narrative should be dispelled by the briefest consideration of the fact that mobs are still shouting “hands up, don’t shoot” years after that entire scenario was proven to be sheer fiction.
There have been several comprehensive analyses of the evidence weighing against guilty verdicts in these cases, with two of the best written by our colleague, @arizonapatriot, and this discussion will not plow those furrows again, except to refer to some of their findings. My thesis will be to summarize, as succinctly and dispassionately as I know how to, the various strong arguments in favor of these defendants– legal arguments, not emotional, social justice “arguments” — to illustrate the life-or-death danger of prejudgment of any case, the George Floyd case, the Jacob Blake case in Kenosha, the Michael Brown case in Ferguson. It will also be my goal to try to illustrate the dominant role played in many of these cases by he corruption of public officers who we entrust to help assure we live in an ordered society–the very antithesis of what we are seeing today in many of our cities.
The arrest occurred on May 25, 2020; Floyd expired later that day, perhaps in the ambulance on the way to the hospital, although a viewing of the video of that scene is not clear as to whether he survived that long. A full autopsy was performed the next day, but the toxicology report, the findings of which have assumed heightened importance recently, was based on a study of “Hospital Blood” drawn upon his admission to the hospital soon after the arrest.
On May 29, 2020, charges of Third Degree Murder were filed against Officer Derek Chauvin. The Attorney General of the State of Minnesota, Keith Ellison, increased that charge to Second Degree Murder later, on June 3, 2020, in a move likely designed to appease the howling mobs then busily destroying everything in sight in downtown Minneapolis in the interest of “Justice” for Mr. Floyd. The mob, like mobs since the memory of man runneth not to the contrary, continued howling and burning and looting and, as surely as night follows day, killing.
In this interim of several days , however, a development was taking place which may well mean there is no rational argument that the State of Minnesota can prove these officers guilty of these crimes “beyond a reasonable doubt.”
The autopsy report, analyzed meticulously and brilliantly by @arizonapatriot in his post of July 6, 2020, was discussed with two representatives of the Hennepin County Attorney’s Office on May 26, which meeting was memorialized in the following memo, making it crystal clear that as of the night of the arrest incident, there was no physical evidence suggesting that Mr. Floyd died of asphyxiation:
On May 26, 2020, Patrick Lofton and Amy Sweasy met with Hennepin County Medical Examiner Dr. Andrew Baker (AB) over Microsoft Teams. Also present in the MS Teams meeting were SAIC Scott Mueller and SA Mike Phill from the BCA and FBI Agents Hoffstetter, Rainer, Kane, and Melcher.
AB explained his findings from the autopsy of George Floyd. He stated that his final report
is not complete and that he must review more evidence, including video evidence, and toxicology
results before releasing a final opinion.
The autopsy revealed no physical evidence suggesting that Mr. Floyd died of asphyxiation. Mr. Floyd did not exhibit signs of petechiae, damage to his airways or thyroid, brain bleeding, bone
injuries, or internal bruising. Mr. Floyd had several external injuries, including laceration to his lip and bruising on his left shoulder and face. He also had abrasions on his fingers and knuckles as well as wrist injuries
likely associated with being handcuffed. Mr. Floyd had preexisting health conditions including heavy heart and some coronary artery disease, including at least one artery that was approximately 75% blocked.
AB sent Mr. Floyd’s blood samples to NMS Labs, who will provide full toxicology report.
AB opined that he does not have full context for Mr. Floyd’s death without reviewing more of
the evidence. He specifically avoided watching any videos associated with the case to avoid
bias during the autopsy.
As observed in an article written by a 30 year veteran of the LAPD, Jack Dunphy (his nom de cyber according to his bio) about a week after the arrest incident, another curious piece of the puzzle was revealed:
On May 28, three days after Floyd’s death, there emerged the first hint that the narrative may have been too hastily constructed and that its foundation was less than solid. The Hennepin County medical examiner issued a press release citing preliminary results from George Floyd’s autopsy. “The cause and manner of death,” it read, “is currently pending further testing and investigation.”
As the author of that article then noted, “[t]his should have given a dispassionate observer pause”, but there was to be no “pause” with these prosecutors who charged ahead in the face of what many lawyers would have regarded as bright, large red flags and filed the first charges on May 29, in an action which appears to this hopefully objective observer to be, at best, ethically and professionally questionable.
Two days after the charges were filed, the prosecutors held an evening “virtual meeting” with the Hennepin County Medical Examiner, Dr. Andrew Baker which was memorialized in the memo below:
It is important to note that this memo was only made public a few days ago (August 27, 2020) and then only in response to a Motion to Compel Disclosure in the case against one of the officers.
In other words, not voluntarily or with great fanfare, like the very public action of the execrable State AG in increasing the severity of the charge against Officer Chauvin.
The prosecutors and the State AG had to be ordered by a Court to produce information almost 3 months after the burning and looting and rioting in Minneapolis, Portland, Seattle, Chicago, St. Louis, Washington, Kenosha and the injuring and maiming and killing of scores of American citizens, including a baby boy in his stroller in Chicago.
George Parry is former federal and state prosecutor. He has had extensive experience with a section of the Philadelphia DA’s Office investigating and prosecuting the use of deadly force by police. He has written a 3-part series in The American Spectator (here, here and here) about the George Floyd case and in the third part of that series gives a rather vivid imagining of the scene as the prosecutors heard this information and considered what it had done to their case:
So there they were, staring at the just-received and damning toxicology report that blew to smithereens the whole prosecution theory that the police had killed Floyd. To their undoubted dismay, Dr. Baker, the chief medical examiner, had to concede that at 11 ng/mL, Floyd had “a fatal level of fentanyl under normal circumstances.” He also conceded that the fentanyl overdose “can cause pulmonary edema,” a frothy fluid build-up in the lungs that was evidenced by the finding at autopsy that Floyd’s lungs weighed two to three times normal weight.
This is consistent with Officer Kueng’s observation at the scene that Floyd was foaming at the mouth and, as found at autopsy, that his lungs were “diffusely congested and edematous.”
In other words, like a drowned man, Floyd’s lungs were filled with fluid. And that was the obvious and inescapable reason why Floyd kept shouting over and over again that he couldn’t breathe even when he was upright and mobile.
The memorandum ends with Dr. Baker’s devastating conclusion that “if Floyd had been found dead in his home (or anywhere else) and there were no other contributing factors he [Dr. Baker] would conclude that it was an overdose death.”
Translation: this toxicology report drives a stake through the heart of our murder case. How do we justify criminally charging these police officers and explain away our colossal screw-up?
While that should be legally sufficient to end this tragically wrongful prosecution, as the TV salesmen might say, “wait, wait, there’s more!” in the nature of a coup-de-grace, as if one would be needed. There is also a handwritten note, described and discussed by @arizonapatriot as follows:
The final evidence is a single page of handwritten notes dated June 1, 2020 (here). It does not identify the person who wrote the notes but appears to be written either by Dr. Baker or by someone recording a discussion with Dr. Baker. Here is the full text (again, my emphasis added):
Fentanyl at 11 ng/ml – this is higher than chronic pain patient. If he were found dead at home alone + no other apparent causes, this could be acceptable to call an OD. Deaths have been certified w/ level of 3.
Baker: I am not saying this killed him.
4ANPP – thinks this is non-commercial
Meth 19 ng/ml – this is relatively low, but meth is bad for your heart.
From videos I have seen, it appears like his knee is on the side of his neck, not where the structures are.
This last line is relevant to the asphyxia argument, and specifically the media narrative that Ofc. Chauvin was choking Floyd by kneeling on his neck. As noted in my June 6 post and in the first memo quoted above, the autopsy found no physical evidence of choking or other asphyxiation — specific relevant details is the lack of damage to Floyd’s trachea and hyoid bone. This is common sense. In the video, Floyd’s head is turned to the side — his right side — and Chauvin’s knee is on the right side of Floyd’s neck, presumably pressing down (with an unknown amount of force, except that it was insufficient to cause any bruising or other tissue trauma, according to the autopsy). You can’t choke someone with pressure on the side of their neck.
@arizonapatriot, with admirable and circumspect professionalism, observes that the officers in this case are “engaging in deliberate obfuscation, and I find this very troubling.”
While this evidence should —legally– finish this prosecution and free these wrongfully persecuted officers (I write the word “persecuted” advisedly on the day a Federal Court of Appeals has disgracefully extended the persecution of Gen. Flynn apparently indefinitely), there is more powerful evidence in their favor. This evidence is discussed in the second of George Parry’s series, entitled “Chauvin, Lane, Kueng, and Thao: The George Floyd Fall Guys”, and shows that every step they took in the arrest and subduing of George Floyd was in complete compliance with the Minneapolis Police Department officer training materials on how to safely properly subdue a suspect.
As I promised I would (attempt to) keep this as succinct as possible, and considering that I believe, in the utmost of good faith, that there is no way for the prosecution to overcome the challenges presented by the evidence of their own Medical Examiner, I will not cover that additional evidence in detail here. However, for those who wish to delve further into this additional source of “reasonable doubt”, it is set forth in the article cited above and also in the Memorandum Supporting Motion to Dismiss in behalf of Officer Thomas Kiernan Lane and especially the exhibits listed in the appendix.
The result of the callous and sickening corruption of the officials involved in this prosecution is best described by George Parry, a lawyer, as noted above, with a lifetime of professional experience in this field:
So where are these well-intentioned, well-trained, and dutiful public servants today? They are in jail awaiting trial on murder and aiding and abetting charges after having been universally condemned in the news media and used by neo-Marxists and opportunistic criminals across the country as a pretext to riot, loot, and burn. And, while they sit in their cells, not one Minneapolis official, from Mayor Jacob Frey to Police Chief Medaria Arradondo or any member of City Council, has come forward to acknowledge that, in subduing Floyd, these law officers were acting in meticulous accordance with the MPD training and directives designed to reduce the risk of harm to persons suffering excited delirium.
In fact, after Chauvin, Lane, Kueng, and Thao were summarily fired by the MPD, Chief Arradondo apologized to Floyd’s family and acknowledged his department’s purported role in creating “the deficit of hope” that he claims existed in Minneapolis even prior to Floyd’s death.
“I am absolutely sorry for the pain, the devastation and trauma that Mr. Floyd’s death has left on his family, his loved ones, our community in Minneapolis and certainly across the country and the world,” Chief Arradondo announced in a news conference.
For its part, the Minneapolis City Council has acted to defund and dismantle the police department.
All of this, mind you, from the very officials who are ultimately responsible for the training and directives that the defendant officers followed to the letter in their attempt to safely subdue Floyd, who was under the influence of a massively lethal overdose of fentanyl and exhibiting the unmistakable signs of the deadly excited delirium.
By their hypocrisy and cowardice, these blame-shifting public officials, desperate to preserve their political careers and places at the public trough, have tossed these police officers to the howling mob.
In this discussion, I have repeatedly emphasized the word “legally” in weighing what should be the outcome of these unjust prosecutions to distinguish from what we all suspect will be the tragic actual outcome. Here is a passage from one of the very early articles by an author who saw “the handwriting on the wall” months ago”:
Think about this for a minute. What becomes of a society in which facts do not matter? The US media, Democrat Party, white liberals, and the sorry excuse for a leftwing are so primed for “white racism” that they jumped to their desired conclusion and egged on riots and looting that resulted in massive property damage in multiple cities, some deaths, many injuries, and much damage to racial relations. Democrat mayors and governors stood down. Police and National Guard attempting to contain the violence were not supported. Even the Chairman of the Joint Chiefs of Staff and Trump’s Secretary of Defense accommodated the rioting and looting by undermining President Trump’s stand against it. Many people’s businesses were wiped out, and in most cases insurance does not cover damage from riots. The politicians and the media are responsible for the billions of dollars the “peaceful protests” cost. Those who suffered the damage should bring class action suits.
When the Minnesota police, who have been falsely charged with George Floyd’s murder, are tried, the jurors will be afraid not to convict. The story is set in stone, and too many powerful interests are committed to it. The police have already been tried and convicted in the media, and the jurors will fear going against public opinion that the media and white liberals have orchestrated. The effect on police morale and commitment will be devastating. Already police are standing down when faced with crimes committed by “people of color.” Blacks are learning that they have immunity from their violent behavior. For the criminal element, protests are profit opportunities. Expect more “peaceful protests.”
If the name O.J. Simpson comes to mind now and then it is for good reason. “Jury nullification” is a real and most pernicious reality in our legal system, and its ghost haunts the future of these horribly mistreated Officers of the Law.
I recently read an article entitled “Queen Kamala’s Imperial Aspirations” and, given my opinion of “Kah-mahla”, which can only be accurately described in a way which would instantaneously get me disciplined or impeached, or whatever happens when one violates the C of C around here, the title grabbed me. I can definitely recommend reading the whole thing, although it appears in National Review and is, therefore, just a tad more Never Trumper for my taste, but nonetheless is a good discussion of how the Presidency seems to more and more attract those of an Imperial bent, like the execrable “Queen” herself, and why we need a much stronger legislative branch than we’ve had for many years.
The part of the piece which really got my attention, as it relates to experiences of my own in trying to communicate with “our betters” in the august Halls of Congress, was the following:
So whatever your political persuasion, the best thing you can possibly do this year is to phone up your senators and your representative, preferably at least once a week, and instruct them that no matter which party holds the White House, they must grow a backbone and stop acting like a craven lickspittle of the executive branch. This country is only going to function properly if we start to care a little bit less about the parties and a lot more about the branches of government. The only sure way to avoid handing executive power to megalomaniacs such as Kamala Harris in the future is to shrink the presidency so drastically that holding it no longer appeals to them.
Here is my question: is it just me, in my naivete (the use of that word for someone of my age is laughable) thinking we still have a “representative Republic” and still believing that our representatives in the National Legislature should respond to our requests for communication as part of their job description, or is that really a totally lost cause? I would be most interested in learning what kind of experience others have had in their attempts to get their Congressperson’s or Senator’s attention long enough to get an actual answer out of them, and not just a bowl of Pablum- filled form letter which was generated by a young staffer hitting what I imagine is a well worn key on the office computer.
I have been embarrassingly unsuccessful in getting my Congressman to send anything but the aforementioned form letters — as if to rub salt in the wound, the precise same form letter in all 3 instances over the last month or two, including the last request which covered about 3-4 different areas and in which I expressly requested, in what I thought was pretty clear language, that he not respond with a form letter!
At one point, I decided I would really go bold and call my Senator’s office and ask to speak with him personally. I posed the request to the apparently-very-young staffer (I know I’m “of a certain age”–truth be known, way beyond that level, but is it just my imagination, or do they all seem to very young?) and there was a measurable pause as if he might be thinking something like “I’ve never had that request before — someone actually wants The Senator–himself!– to get on the phone with this constituent! What next? Of course, after he recovered sufficiently, I was told how very, very, very busy my representative to one of the bodies of the National Legislature was at that moment but could he/she (who knows anymore?) have the ” fill in blank of some faceless aide” call me. I declined and asked when I could expect to talk with The Senator. The answer to that question was equally unsatisfactory, to be as polite as possible.
Is it just that what I thought was my former formidable charm may be finally wearing off or could it be that many others have had similar experiences in trying to voice their concerns and opinions to their duly elected representatives in the National Legislature? If this is no longer possible, at least for some in those exalted positions in Congress, can we still, with a straight face, continue to call ourselves a Representative Republic?