An appropriately sad appearing Old Glory for an immeasurably tragic day in the history of our Beloved Nation. May she, against all odds, as she has done many times before, again fly briskly when this exercise in Socialist self-immolation comes to an end.
I happened upon this most incisive piece by Newt Gingrich and it so clearly and vividly described how I believe so many of us are feeling right now I decided to bring it to your attention.
It is entitled, most aptly for me, at least, and I have a strong sense that it is so for many American citizens in that number of about 74 Million (who knows, really?) who voted for a second term for one of the most productive Presidents in our history “Why I will not accept Joe Biden as president“, and can be found here.
The passage which really struck me, as it so concisely describes my state of mind since I decided I had seen enough evidence (emphasis added in view of the numerous howls from the Loonocracy that there is none) to know that there was credible, provable evidence of deep and widespread fraud, follows:
As I thought about it, I realized my anger and fear were not narrowly focused on votes. My unwillingness to relax and accept that the election grew out of a level of outrage and alienation unlike anything I had experienced in more than 60 years involvement in public affairs.
The challenge is that I — and other conservatives — are not disagreeing with the left within a commonly understood world. We live in alternative worlds.
That phrase is, to put it mildly, as heavily freighted and chilling as one may use in what we all thought was our Constitutional Republic–think about those words: “We live in alternative worlds.” Although Mr. Gingrich did not specifically reference it in his article, I came away from reading it haunted by Mr. Lincoln’s words of eternal wisdom and wondering, as I have many times in the last five years but especially in the last two months, if those words are the perpetual truths many assume they are, how we can possibly stand as a Nation with this jagged tear right down the middle of our sacred fabric?
Another National treasure, Rush Limbaugh, who has our prayers every single day, made a statement recently which struck me as hard as this one did, although it simply put in words what many of us have been feeling for some time: What do we have in common with them? He cited past national emergencies when we Americans all pulled together for a common cause, with a dedication fueled by our common love for the land that we love. As Rush noted, that critical component — love for and dedication to America and the idea of America– simply no longer exists with a large segment of the electorate who voted for Joe Biden–a man described recently as “a sleazy, corrupt-to-the-bone-marrow lifelong politician, who has accomplished absolutely nothing in his 78 years on Planet Earth.” Speaking for myself, which I fervently hope I may continue to be free to do after January 20, 2021, I cannot understand the thinking of an American citizen who would vote for such a person of proven – time and time and time again–dishonesty and corruption or, as I suspect the case actually was for many, who would be so driven by such a white-hot hatred of a person that he or she would vote against President Trump even if the only choice was to vote for such a dangerously sleazy and corrupt person.
Speaker Gingrich sets the stage:
The left’s world is mostly the established world of the forces who have been dominant for most of my life.
My world is the populist rebellion which believes we are being destroyed, our liberties are being cancelled and our religions are under assault. (Note the new Human Rights Campaign to decertify any religious school which does not accept secular sexual values — and that many Democrat governors have kept casinos open while closing churches though the COVID-19 pandemic.) We also believe other Democrat-led COVID-19 policies have enriched the wealthy while crushing middle class small business owners (some 160,000 restaurants may close).
The rest of the piece, which I highly recommend be read in its entirety, continues to enumerate the many ways the world of the far-left is probably by now irreparably irreconcilable with ours and why we are truly living in two different worlds, separated by oceans of distrust, corrosive venality, dishonesty, corruption, amorality, condescension, hubris, arrogance and utter disdain for our Founding Documents, the Constitution and the Bill of Rights, upon which our beloved Nation was built.
Thus I return to the question put by Rush Limbaugh and apply it to myself, as I cannot and do not pretend to speak for others, while noting I know to a certainty that many share these views and I also know to a certainty that if there are any factual errors in any of these statements my colleagues here on Ricochet will quickly bring them to the fore.
What do I have in common with those elites in entertainment, academia and the media who spent the last four years savagely attacking not only our duly elected President, calling him every name in the book such as Hitler and Mussolini, parading around with a mock-up of his severed, bloody and gory head, and, as their designated “President” “elect” and his communications director did recently, calling us, his loyal supporters names such as “chumps” and “f (C of C)s”?
What do I have in common with those mega-rich tech oligarchs (other than the obvious, as “oligarch” I am definitely not) who think their astonishing wealth gives them the power to not only censor the extremely significant news that both Biden and his son were on the take from China and received at least $5 million from an entity controlled by our most dangerous adversary but who also think they have the power, so far totally unchecked by our less than stellar Congress, to censor the President of the United States, an act of hubris never before seen in the history of our Republic.
What do I have in common with members of the media and the far-left loon wing of the Democrat Party and some members of the Republican Party, a/k/a the Never Trumpers, who sit on the sidelines as piles of evidence are being accumulated of out-and-out election fraud in the form of affidavits sworn under penalty of perjury and other forms of documentary evidence and repeat the mantra “but there is no widespread evidence of election fraud” and cheer as Judge after spineless Judge refuses to even hear the evidence, including, most sadly, our brand new, great, good for the next half-century, “conservative” majority on the Supreme Court?
What do I have in common with those intrepid members of the media who go out to do on the scene reports while standing in front of the blazing St. John’s Episcopal Church in Washington and state, on camera, for all the world to see, with a straight face, that the scene behind him is a “mostly peaceful” demonstration? As our friend and colleague, Susan Quinn, recently observed in her excellent post “Will there be justice?”, how do these people sleep at night? How do they explain to their children why they must be so blatantly fraudulent just to make a living?
What do I, admittedly not the most devout or regular churchgoer, have in common with a person millions voted to occupy the most powerful office in the world who holds himself out to be a devout, Rosary praying, Roman Catholic, but who now, as phrased in a recent article, “supports abortion up until college graduation, if the mother finds the child inconvenient.”?
What do I have in common with a woman who used every means at her disposal to get ahead, no matte how unsavory or tawdry, and then proceeded to savagely, cruelly, immorally, attack a candidate for the High Court right in front of his wife and little daughters, and then gloated about it, and who also not only did not raise a single question about the Antifa and Black Lives Matter rioters burning down American cities across the land but who also helped raise bail money to get them out of jail, almost certainly never to be seen again by the Court system? I well and truly pray I would never have a single thing in common with such a despicable person, even if she may possibly be (probably?) the President of the United States within the next four years.
What do I have in common with a large, muscular, strong ox of a man in a Law Enforcement uniform who wrestles with a young, small mother sitting in the stands watching her son play football — without, qeulle horreur!, a piece of cloth over her face– putting her in handcuffs in front of her fellow parents (including several large men who, disgracefully, did nothing to help her) and, perhaps more to the point, what do I have in common with despicable, power-mad “leaders” like Cuomo, Wolfe, Whitmer, Murphy, deBlasio, and, sadly, many others who ordered this kind of barbaric behavior?
Would that I could have a more positive outlook as we move into a New Year, carrying so many good promises if for no other reason than not being named 2020, truly annus horribilis, but also bringing us the closest thing we have ever had to a Marxist administration. A year in which the person elected to occupy the Oval Office, the most powerful office in the world, is not in full possession of his cognitive faculties and, at times, simply does not know where he is. A year in which the Biden Administration, an oxymoronic phrase if ever there was one, will be staffed with so many Obamatons as to make it, in effect, Barack Hussein Obama’s third term, a thought which should frighten any citizen with a sentient mind.
Like so many of us, I spent the last four years on that roller coaster ride of watching in awe the boundless energy and creativity and drive and determination of one of the great Presidents in our history while almost simultaneously praying that someone would please, please shut down his Twitter account and take away his phone. I related in a post recently the one emotion one could never fully realize unless they attended one of his rallies– the pure, unadulterated outpouring of love this President’s supporters feel for him. It is a true phenomenon to see and experience for oneself.
Positive outlook? Thank you, but I think I’ll let that cup pass me by.
What in the hell are you people doing in Congress, passing a bill like this which is an insult to every citizen of the United States, especially those breadwinners with children to feed who have lost their means of making a living due to the insanities of crazy bureaucrats like Dr. Fauci and Dr. Birx, who have never missed a paycheck and who also don’t follow their own Draconian directives which are tearing our country apart. PLEASE, I implore you, give me an answer to this inquiry and not just another form letter that one of your clerks can generate with a touch of a key– I already have more of those than I need right now, thank you. THIS IS AN OUTRAGE and you are one of my representatives in the National Legislature; therefore, I expect an answer about this specific matter. With all due respect, which many of us are losing daily seeing this kind of lunacy going on, I am not at all sure how aware you and your colleagues are of the growing, building, simmering anger which many of your constituents have been feeling since the election was stolen from OUR PRESIDENT and to have to have this shoved down our throats may well represent a tipping point for many good, suffering Americans. I look forward to your response.
See new Tweets
The Stimulus Bill:
The gov’t closes the economy. You lose your job. You face eviction.
$600 for all your troubles.
Meanwhile they send:
$135 million to Burma
$85.5 million to Cambodia
$1.4 billion for “Asia Reassurance Initiative Act”
We the people need to wake up and do the work necessary to fully realize what we will have lost if the corrupt-o-crats in the sinkholes known as major Democrat run cities are successful in stealing this election from our duly elected –twice!–President. We need to study and read the readily available materials to teach ourselves the “down-and-dirty” of exactly how they (almost) pulled this off, as well as view the readily available videos of testimony such as that at the Gettysburg Legislative Hearing which leave no doubt about what was attempted by these soon to be felons. While all of this is available at the click of a mouse to anyone with an internet connection, it will be my aim in this brief message to make them even more easily accessible by setting out the links to the writings and videos I think are the most persuasive, at least in the time I have spent reviewing this nightmarish scenario.
This effort of mine is prompted, in part at least, by the results of a MRCTV poll just out which found, among other seriously chilling conclusions, that approximately 20% of those interviewed who voted for Biden would not have done so had they been aware of the scandals swirling around him and his sleazy son, Hunter Biden and their probably-illegal deals in Ukraine, China and others. As a self-confessed “news junkie”, I would be the first to admit that many, if not most, of our fellow Americans do not spend as much time on political news as we “junkies” do, and it would certainly be more healthy for me if I did not do so. However, while not judging anyone, it is incomprehensible to me that a person with a sentient mind could not have known about, for example, the Burisma Scandal in Ukraine, or about Biden’s threat, as Obama’s Vice President, to withhold a huge amount of money from that nation if it did not fire the prosecutor who just happened to be looking into his son’s “freebie” job on the Board of Burisma for which he was paid $84,000 a month for doing nothing. But, that’s just me.
Here, for example, is the conclusion from one of the many affidavits filed in Michigan by Sidney Powell– on behalf of We The People! In concluding a 9 page affidavit setting forth his findings, an eminently qualified computer engineer, Navid Keshavaraz-Nia, who was once called “the smartest person in the room” by no less than the New York Times, makes this statement which, tragically, the mainstream media simply ignores as if it did not exist:
I conclude with high confidence that the election 2020 data were altered in all battleground states resulting in a hundreds of thousands of votes that were cast for President Trump to be transferred to Vice President Biden. These alterations were the result of systemic and widespread exploitable vulnerabilities in DVS, Scytl/SOE Software and Smartmatic systems that enabled operators to achieve the desired results. In my view, the evidence is overwhelming and incontrovertible
In considering these affidavits, it is extremely important to bear in mind that all of them were given under penalty of perjury:
Pursuant to 28 U.S.S. 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge.
The following is a brief synopsis of Dr. Kershavarz-Nia, which in my most humble opinion based on many years in trial work, is going to be a serious, perhaps insurmountable, challenge for the Democrat-Media-Big Tech triumvarate to overcome:
1. Hammer and Scorecard is real, not a hoax (as Democrats allege), and both are used to manipulate election outcomes.
2. Dominion, ES&S, Scytl, and Smartmatic are all vulnerable to fraud and vote manipulation — and the mainstream media reported on these vulnerabilities in the past.
3. Dominion has been used in other countries to “forge election results.”
4. Dominion’s corporate structure is deliberately confusing to hide relationships with Venezuela, China, and Cuba.
5. Dominion machines are easily hackable.
6. Dominion memory cards with cryptographic key access to the systems were stolen in 2019.
Although he had no access to the machines, Dr. Kershavarz has looked at available data about the election and the vote results. Based on that information, he concluded
1. The counts in the disputed states (Pennsylvania, Wisconsin, Michigan, Arizona, Nevada, and Georgia) show electronic manipulation.
2. The simultaneous decision in Pennsylvania, Wisconsin, Arizona, Nevada, and Georgia to pretend to halt counting votes was unprecedented and demonstrated a coordinated effort to collude toward desired results.
3. One to two percent of votes were forged in Biden’s favor.
4. Optical scanners were set to accept unverified, un-validated ballots.
5. The scanners failed to keep records for audits, an outcome that must have been deliberately programmed.
6. The stolen cryptographic key, which applied to all voting systems, was used to alter vote counts.
7. The favorable votes pouring in after hours for Biden could not be accounted for by a Democrat preference for mailed in ballots. They demonstrated manipulation. For example, in Pennsylvania, it was physically impossible to feed 400,000 ballots into the machines within 2–3 hours.
8. Dominion used Chinese parts, and there’s reason to believe that China, Venezuela, Cuba interfered in the election.
9. There was a Hammer and Scorecard cyber-attack that altered votes in the battleground states, and then forwarded the results to Scytl servers in Frankfurt, Germany, to avoid detection.
10. The systems failed to produce any auditable results.
Here is a link to the 104 page (including 19 exhibits, one of which is 234 pages long and appears to consist of hundreds of affidavits) Complaint Ms Powell filed on your behalf and my behalf, for your review.
Some of the most startling evidence has come in the form of testimony and comments given in connection with a hearing of a Committee of the Pennsylvania Legislature held a few days ago in Gettysburg. Here is a link to the live stream of the entire hearing should you care to review it. In his podcast today, prominent analyst Dan Bongino refers to this hearing as “The election hearing that blew my mind” and that reaction is being echoed by many who have virtually attended the entire proceedings. To me, one of the most dramatic revelations was by an electronic warfare specialist, Retired Army Col. Phil Waldron, who related that in a time period of about 90 minutes, there was a questionable spike in votes of a total of almost 600,000 votes– there were gasps of shock and laughter in the audience when he revealed that of that number approximately 570,000 were for Biden and 3,200 were for Trump. One member of the audience can be very clearly heard exclaiming “Oh, My Lord” at this astonishing set of numbers. Not surprisingly, he said that this was a prime indicator of fraudulent voting.
To me, the most impressive witness, personally, was a Marine veteran, Gregory Senstrom, who had gone to sea and gone to war, and testified, as a poll watcher and data scientist, to his shock and dismay, as an American and a patriot, to what he saw on Election Night and thereafter. In making this assessment of this witness, I am making a good-faith attempt not to let my love of The Corps color my opinion of the force and weight of his testimony and I invite anyone who is interested to view it for yourself. A news article sums up his testimony thusly:
A U.S. Navy veteran and data scientist from Pennsylvania alleged this week that 47 USB cards used during the state’s Nov. 3 election have gone missing – and asserted that as many as 120,000 votes cast in the election should be called into question.
At a hearing in Gettysburg on Wednesday, poll watcher Gregory Stenstrom of Delaware County identified himself a former commanding officer in the Navy and a forensic computer scientist with expertise on security and fraud issues.
“I personally observed USB cards being uploaded to voting machines by the voting machine warehouse supervisor on multiple occasions,” Stenstrom testified. “This person is not being observed, he’s not a part of the process that I can see, and he is walking in with baggies of USBs.”
USB (Universal Serial Bus) cards are small, handheld devices that help people move data from one electronic device to another.
Stenstrom alleged the cards may have been used to add illegal votes to the state’s vote count — and claimed there was a lack of proper oversight on how state election workers handled ballots.
“In all cases the chain of custody was broken,” he said. “It was broken for the mail-in ballots, the drop-box ballots, the Election Day USB card flash drives. In all cases they didn’t follow any of the procedures defined by the Board of Delaware County of Elections.”
The witness also told lawmakers that law enforcement personnel failed to act after he reported the alleged mishandling of ballots.
“I literally begged multiple law enforcement agencies to go get the forensic evidence from the computers. It’s a simple process. It wouldn’t have taken more than an hour to image all 5 machines. That was never done despite my objections and that was three weeks ago.”
The committee also heard from a number of witnesses – voters, poll watchers, other officials– who were courageous enough to come and give live testimony as to the possibly–in my opinion probably– illegal conduct of many of the workers and election officials. A commentator had this to say about their patriotism and bravery:
Despite all the bombshells dropped in Gettysburg this week, Democrats and the news media still cling to the outlandish claim that there’s “no evidence” of vote fraud. Twitter continues to flag the president’s tweets for containing “disputed” information even when there’s nothing to dispute.
But no one can censor or dispute the credible allegations made in Gettysburg on Wednesday. Pennsylvania Republicans showed a level of courage and patriotism woefully lacking in the establishment GOP, which is ready to dispatch Donald Trump and move on with a Biden presidency. If we are indeed creeping toward a second civil war to reclaim the country, the shots fired at Gettysburg this week might, as they did in the first, represent a decisive turning point.
Another dramatic development took place late Friday evening, November 27, 2020, when Pennsylvania District Judge Patricia McCullough handed down her ruling in a case filed by a Republican Congressman, Mike Kelly, and several candidates for office in that state against the Governor and Secretary of State seeking an order enjoining them from certifying the results of the election until their arguments could be fairly heard and adjudicated. The arguments, which have the potential to be far-reaching and applicable to the other battleground states as well, are set forth in the news item excerpts below:
A group of Republican lawmakers and candidates sued the Keystone State earlier this week, arguing that the state legislature’s mail-in voting law—Act 77—violated the commonwealth’s constitution. “Petitioners appear to have established a likelihood to succeed on the merits because petitioners have asserted the Constitution does not provide a mechanism for the legislature to allow for expansion of absentee voting without a constitutional amendment,” McCullough wrote. When ruling on an emergency injunction, judges have to consider whether the party which requested the injunction is likely to win the case or “succeed on the merits.” McCullough opined that the “petitioners appear to have a viable claim that the mail-in ballot procedures set forth in Act 77 contravene” the plain language of the provision of the Pennsylvania Constitution which deals with absentee voting.
The potential impact could spring from the possible similarity of the Constitutions of the various states in which there are allegations of fraudulent conduct involved–the battleground states– which largely if not close to exclusively involved “mail-in ballots” authorized by similar legislation in all of these states. The significance of this ruling, which appears on its way to the United States Supreme Court after its anticipated reversal by the 5-2 Democrat majority Pennsylvania Supreme Court, is fully explained and discussed in a video presentation by Dr. Steve Turley which can be accessed here.
In another development in Pennsylvania the State Senator who spearheaded the Gettysburg hearings, Sen. Doug Mastriano, a retired U.S. Army Colonel with a doctorate in history and four Masters Degrees, will seek a resolution tomorrow in the Pennsylvania Legislature to the following effect:
In an interview Friday, Mastriano said he and his colleagues are considering a joint resolution—both chambers are controlled by Republicans—to name the state’s electoral slate rather than keep that authority vested in Kathy Boockvar, the appointed Democratic secretary of state. (Biden’s 20 electors are scheduled to meet in Harrisburg on December 14 at the same time electors meet in state capitals across the country.)
As if all these developments taking place in Pennsylvania are not piling up enough evidence to present a very credible case that the President– and, it follows like night the day, we the people– was fraudulently and corruptly robbed of a legitimate, possibly an overwhelming and decisive, victory in this election in a number of states, similar developments, lawsuits, appeals, hearings, etc., are taking place in a number of those states simultaneously. A hearing, apparently similar to that conducted in Pennsylvania, will be held tomorrow, Monday, November 30, 2020, in Arizona and another is being arranged in Michigan in a few days. In trying to put together as succinct as possible an overview of all the evidence citizens should have at least a basic knowledge of one is reminded of the statement of the now much-maligned Sidney Powell earlier when this process was just getting underway. She said that witness were coming forward and documents were being discovered in such a volume it was difficult to keep up with the magnitude of what they were discovering. This is clearly evident in trying to get even a slight understanding of the massive amount of statistical evidence which has been compiled about the Michigan, Wisconsin and Georgia elections, mainly consisting of a study performed by Vote Integrity entitled Anomalies in Vote Counts and their Effects on Election 2020. This study and the massive detail which supports its conclusions are, especially to a non-statistics-friendly person such as yours truly, is not for the faint of heart, but a recent news analysis entitled The Definitive Case Proving Donald Trump Won The Election is very helpful in getting a handle on some of the more astonishing findings.
The report is written in dry and academic language, filled with graphs, footnotes, and various hedges, but its implications could not be more obvious. Indeed, if the authors were less tepid, they might have fairly titled it: Joe Biden’s Victory Was Not Legitimate. And Now We Can Prove it. Because that’s exactly what the report does. It looks at election data and shows what many would expect: the states and cities that had the most suspicious circumstances on election night and into the next day are precisely where the analysis flags extreme anomalies. Summary and Background of the Report It starts out with the background on Michigan and Wisconsin — the famous “vote spikes” that were plainly ridiculous and fundamentally changed both the electoral reality and the narrative. The report reminds us of the infamous vote spikes in Michigan and Wisconsin. *** The report is based on an analysis of the difference between successive updates in each state, each of which it calls “vote updates.” In online discourse, these are often referred to as “vote dumps” or “vote batches.” It examines them across states and, controlling for how big a state is and how Democratic it is, does the following: Defines, mathematically, what a “vote spike” is Shows just how rare those are Shows how, during a five-hour period, four particularly extreme vote spikes arrived favoring Joe Biden Shows how crucial these were to Joe Biden’s election in MI, WI, and GA Most damningly, shows how Joe Biden likely would have lost these states — and the election — were these only more “spiky” than 99% of all vote dumps
To a non-numbers person, the finding which literally jumps off the page, is that these huge, “straight-up”, spikes all occurred in the same five-hour period and in all three states, the count was “stopped” to give cover for electoral fraud on the scale of hundreds of thousands of votes which were released in the middle of the night, hoping few would notice. As noted at the outset of this piece, I started this because I wanted as many Americans as possible to have a resource of current information and data (qualifier: these events are moving literally at “warp-speed”, so I can only claim currency as of the evening hours of Sunday, November 29, 2020) they could read, study, analyze, view video discussions and the Gettysburg hearing, in order to see for themselves the depth of the dishonesty, deceit, corruption and fraud to which Biden owes his electoral “victory”. One cannot really have a complete feel for how deep this rot goes without getting “into the weeds” of much of this material, but to me it is absolutely necessary that as many citizens as possible can familiarize themselves with this exercise in National theft so as to appreciate how close we are to losing our Republic–as we know, one of Dr. Franklin’s great fears. The article discussed above about the statistical study encapsulates the upshot of this entire nightmare better than any words I could possibly come up with, so here they are:
“Joe Biden’s election “victory” relied on a fraudulent counting process in the dead of night.”
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