Presidential Elections: The Longest Lasting Consequences

There are many issues for voters to consider in any presidential election. However, the longest-lasting legacy of any president must be among the most important. Most presidential decisions can be changed a few years down the road but there is one exception: Supreme Court Appointments.

The Supreme Court is effectively the last word, accountable to no-one. Five justices form a majority on that court, giving them the closest thing we have in this country to dictatorial power. Indeed, at times they do seem to have dictatorial powers. Their decisions stand, and the voters have no means of changing those decisions.

Voters must consider carefully what kind of justices the next president is likely to appoint. That president will probably appoint at least three new justices. Obama's two appointees, Sotomayor and Kagen, will likely remain on that court for decades, as will those three new justices. If the new appointees are similar to the Obama appointees, that will give them decades of absolute majorities on that court, the ability to impose unchangeable rulings on the people.

So which candidate is most likely to appoint good justices, rather than leftist sycophants? Certainly not either of the democratic candidates. Clinton or Sanders would appoint leftists to that court. Trump? That is essentially unknown, the only hints we have are his history of supporting things like condemnation of private property to give it to other private entities, and federally controlled health care. The probabilities do not look good, it is doubtful that he would appoint defenders of constitutional freedom to any court.

Of course there are always a lot of unknowns in electing a president. However, I believe that the candidate most likely to appoint good justices is Ted Cruz. Of all the candidates, he is most committed to the constitution. Voters must consider that when deciding how to cast their ballots.

Replacing Justice Scalia

With the untimely death of Supreme Court Justice Antonin Scalia, we can expect a major discussion (near war might be a more appropriate description) about his replacement. The statists are salivating over the possibility of another justice such as Sotomayor or Kagan, justices who would rubber stamp big, intrusive government. Freedom lovers, on the other hand have reason to fear such a new justice. There is little doubt that President Obama will try to put another of their ilk on the court; the only hope for liberty is the Senate.

Supreme Court justices have lifetime tenure, barring retirement or impeachment – and we have never impeached one of them. Each is effectively one fifth of a dictatorship since five justices can make a rule from which there is no appeal.

We must get the right people on that court.

Sadly, in recent years the biggest absence in the Senate has been Republican backbone. Republicans won big in the 2014 election, primarily on the basis of voter opposition to Obama's overreach. Yet they have failed to use their majority to block that overreach. Indeed, earlier they could have blocked Sotomayor and Kagan. They had the votes, along with reason to believe those two would be exactly the kind of justices they have turned out to be. Yet the Republicans acquiesced like a drunk giving in to the offer of another drink. Checks and balances were AWOL.

Our senators take an oath to defend the Constitution. They have not only a right, but a sworn duty to reject any prospective judge who is likely to weaken that Constitution. That duty is especially important when they consider Supreme Court appointments. They must insist on the following requirements before they approve any judge:

Absolute integrity
Commitment to Constitution and Law
Subordination of Personal Belief to Law and Constitution
Intellectual ability
Knowledge of law and Constitution
The inner strength to stand up for what is right.
(Detail and reasoning behind those requirements is found on pp132-134 of my book, Freedom or Serfdom?).
There must be no compromise on those requirements. Any prospective justice who fails in even one of them is not qualified to occupy the bench.

Hiring a Supreme Court Justice - Reprise

With the impending retirement of Justice Stevens from the Supreme Court, I’m going to post a re-working of something I posted here before. The selection of his replacement is so important to our freedom and way of life that I believe it justifies some repetition.

I ask all readers to contact their senators and urge them to commit to oppose any court nominee who fails to meet the criteria set forth below.

Hiring decisions can be difficult or relatively simple, depending on the nature of the job. It can be easy to hire someone to pick up litter in a park; almost anyone can do that. Even if the person hired does a poor job no long-term damage is done and it’s easy to replace him. However as the job gets more complex, the difficulty of finding the right person increases, as does the potential damage he can do. A corporate chief executive officer can ruin a company in a hurry. Furthermore there are not many people available who can and will do the job right. For that reason companies looking to hire a CEO usually take a long time and carefully evaluate potential candidates.

The hiring of a justice of the Supreme Court is more important than hiring a corporate CEO, maybe even more important than hiring a president of these United States. Justices receive lifetime appointments and are essentially accountable to nobody. A vote of five justices decides a case, making it the law of the land. There is no appeal. That makes each justice effectively one fifth of a dictatorship. It is a position of extreme trust and with the ability to do a lot of damage. This is not a position for which we can take a chance and replace the person in a few years if we don’t like the outcome. Selection of justices has to be done right, and done right the first time.

That means we should not just make sure there is no evidence against a potential justice. We must make certain that the person is qualified. This is not a criminal trial in which the appointee is innocent until proven guilty. Instead all candidates should be considered unqualified until shown beyond reasonable doubt to be qualified. The burden of proof is on the candidate and his or her supporters. I repeat here the five requirements I regard as mandatory for such justices:

1. Absolute integrity.
2. Commitment to the constitution and constitutional law.
3. Ability to subordinate personal belief and preference to the constitution and the law.
4. Intellectual ability to weigh issues and to decide wisely based on evidence, fact, and logic.
5. Sound knowledge of the law and the constitution.
Those should be requirements of any judge but especially of those on the high court since there is no appeal from their decisions. These criteria are critical to a good judiciary and I believe their importance is in the order listed.

Integrity: We must have integrity in any government official but especially in judges. Without integrity, other ability becomes a means to abuse the powers of office. A corrupt judge with great ability will use that ability for his own benefit and against the good of the country. We’ve had one justice (Abe Fortas) who resigned in a bribery scandal, we do not need another.

Commitment to Constitution and Law: Justices must be committed to our constitutional form of government, and to constitutional law. We have a representative republic with carefully crafted protections against abuse of power and the court must uphold that form of government. Substitution of its own wisdom for the constitutional law of the land would put the court the position of a dictator. Legislation should be left to senators and representatives who are accountable to the voters; the court is not a super-legislature.

Subordination of Personal Belief to Law and Constitution: Justices must subordinate their own beliefs and desires to law and constitution. One mark of a good judge is to set aside personal preference and judge according to the law. To do otherwise would again be putting himself in the position of dictator, imposing his own will on the electorate. We need justices who can say, "I dislike this law. I think it is dumb. However it is the law and it is constitutional so I must let it stand." Justices must recognize that they are "hired hands," employed to serve the people according to the "contract" set forth in the constitution. They may think that a law is stupid, and in this they may be right. However they must recognize that voters and their representatives have a right to make laws, even stupid laws.

Intellectual Ability: Justices must have the intellectual wherewithal to deal with the issues they will face. This seems obvious. Not only are the issues themselves often complex, but there are smart lawyers arguing each side. A justice must be able to consider all aspects of a case, cut through the intellectual fog, and decide on the basis of fact, logic, law and constitution.

Knowledge of Law and Constitution: Judicial nominees must have a sound knowledge of the law and the constitution. They must know and understand the basis on which they are to decide.

The president must reject the temptation to appoint justices who will advance a political agenda, instead seeking those who meet the above requirements. Justices should be judges, not politicians.

You will notice some characteristics missing in the above requirements. I have said nothing about having a balance between races, sexes or any other such thing. We don't need female judges and we don't need male judges. We don't need black judges, white judges, yellow judges, or brown judges. We just need judges who can and will do the job as it should be done, be they male or female; black, white, brown or yellow.

We should all contact our senators and urge them to carefully evaluate the beliefs and judicial qualifications of any nominee. If the nominee fails to meet, beyond reasonable doubt, any of those criteria, he or she should be rejected.

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New Haven – Who Won?

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In view of the Supreme Court decision in the New Haven firefighter case, I’m going to postpone the continued discussion of factual analysis. Instead I’ll discuss the New Haven case while it is still fresh.

The typical news headline in this case is that the white firefighters won. While true, that merely scratches the surface. There are many more winners than just a few firefighters. In fact I would argue that nearly everyone in the U.S., black, white, or any other skin color is a winner and that there are few if any real losers. True, there will be many who complain about loss of what they see as a deserved “helping hand.” However that “helping hand” is counterproductive in the long term.

First on the long list of winners in this case are members of the public who might need help from the fire department. They have more assurance that the commander of any fire-fighting unit will be competent to do his job. The firefighters are likely to be better organized and trained than they would under a less-qualified officer. The person trapped in a house fire or injured in a traffic accident will benefit directly from this improvement. This applies not only to New Haven, but across the country as well.

Second, millions of young people will have greater assurance that their study will pay off as they prepare for the careers of their choice. The New Haven ruling tells government agencies that merit and qualification, not skin color should determine hiring and promotion. It is likely that this non-discrimination will extend to non-government employers as well. This decision is likely to strike a blow against the de facto quota system that has come to exist in this country.

Third, minorities will benefit in at least two ways. First, as hiring and promotion become more merit based there will be less suspicion that the minority employees got their jobs because of skin color. Sadly, many competent people have been tarred with the same brush as those who got their positions as a result of the quota system. Those competent and dedicated employees will be more respected and have more self esteem as the system of preferences dies off.

The second way minorities will benefit is that they will be encouraged to develop their natural talents instead of relying on preferences. I recall the case of a secretary in our department many years ago. She had ability and could have been an excellent employee. Instead she did not apply herself and when threatened with discipline would say in effect, “You can’t fire me, I’m a black woman and you need me for the numbers.” Eventually she left the company, taking her attitude with her. It’s impossible to say for certain how much that attitude had to do with this next but it probably played a factor. Sadly I later saw her picture in the paper, sentenced to jail for dealing drugs.

“But wait,” someone says. “What about the minority firefighters denied promotion? Weren’t they harmed?” I would say that they were not. It is true that they may have had to live on a lower salary than had they been promoted. However salary is not the only or even the most important consideration in job satisfaction. Most people like to feel that they are productive in their employment. Promotions or hiring for preferential reasons militate against that, a person who got his job because of his skin color is unlikely to have the same satisfaction as will someone hired and retained because of his work.

If an employee thinks he can get promoted because of his skin color, he is likely to depend on that skin. However if he is confident that promotions are merit-based, he is likely to work harder and study harder to become more qualified. That will increase his satisfaction with his job and his life. For that reason I maintain that the firefighters who did poorly on the test also will benefit in the long term. They cannot change their skin color but they can change how they work and how they study for the next promotional exam.

It is true that many minorities have suffered discrimination and economic problems in the U.S. and elsewhere. However history shows that those minorities who overcome such problems do so by struggle, hard work, and education. Preferential treatment simply helps them stay in the same situation and thus works against them long term.

As the country follows the New Haven decision, everybody will benefit from the wisdom of the fourteenth amendment. That amendment simply requires that no state “shall deny any person within its jurisdiction the equal protection of the laws.” As I’ve described in my blog about the Gander Test, New Haven attempted to deny white firefighters the same protection the city would have given to minorities. The Supreme Court decided correctly in this case and we will all benefit from that decision.

Hiring a Justice

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Hiring decisions can be difficult or relatively simple, depending on the nature of the job. It can be easy to hire someone to pick up litter in a park; almost anyone can do that. Even if the person hired does a poor job no long-term damage is done and it’s easy to replace him. However as the job gets more complex, the difficulty of finding the right person increases, as does the potential damage he can do. A corporate chief executive officer can ruin a company in a hurry. There are not many people available who can and will do the job right. For that reason companies looking to hire a CEO usually take a long time and carefully evaluate potential candidates.

The hiring of a justice of the Supreme Court is more important than hiring a corporate CEO, maybe even more important than hiring a president of these United States. Justices receive lifetime appointments and are essentially accountable to nobody. A vote of five justices decides a case, making it the law of the land. There is no appeal. That makes each justice effectively one fifth of a dictatorship. It is a position of extreme trust and with the ability to do a lot of damage. This is not a position for which we can take a chance and replace the person in a few years if we don’t like the outcome. Selection of justices has to be done right, and done right the first time.

That means we should not just make sure there is no evidence against a potential justice. We must make certain that the person is qualified. This is not a criminal trial in which the appointee is innocent until proven guilty. Instead all candidates should be considered unqualified until shown beyond reasonable doubt to be qualified. The burden of proof is on the candidate and his or her supporters. I repeat here the five requirements I regard as mandatory for such justices:

1. Absolute integrity.
2. Commitment to the constitution and constitutional law.
3. Ability to subordinate personal belief and preference to the constitution and the law.
4. Intellectual ability to weigh issues and to decide wisely based on evidence, fact, and logic.
5. Sound knowledge of the law and the constitution.
I’ll be up front about the fact that I do not believe Judge Sotomayor is qualified to be on the Supreme Court. In fact I think there is evidence she does not meet two of the above requirements. She does seem to have great intellectual ability and a sound knowledge of the law so she probably meets requirements 4 and 5. I have no knowledge of her integrity so will hope that suitable investigation has been done on that score. However her commitment to the constitution and her ability to subordinate personal preference to that constitution appear to be lacking. Sadly, she seems willing to apply her stated racist views to court decisions.

The most cited case of this was Ricci v. DeStefano. This New Haven, Conn case involved firefighters denied promotions they had qualified for simply because not enough minorities qualified. I discussed that case in my last blog so I won’t repeat it here. I will, however, reiterate that Sotomayor’s acceptance of what amounts to a racial quota shows a disregard for the equal protection clause in the 14th amendment to the constitution. She failed to defend the constitution in that case.

Sotomayor is also a member of the National Council of La Raza, a Hispanic organization that strongly supports “affirmative action.” What affirmative action has come to mean in practice is that one group is passed over for employment or promotion in order to fill the quota of minorities. A friend of mine is a manager in a large company. He tells me that their human resources department regularly refuses to let him hire the person he regards as most qualified. The reason? Simply because that person happens to be a white male. His company has been cowed into taking those measures because both government officials and many independent civil rights organizations regard affirmative action as requiring de facto quotas. That is a clear violation of our constitution.

The most important job of the Supreme Court is protection of the constitution. Any justice who allows his or her own preferences or beliefs to supercede the constitution is a danger to the country. We need justices who can make decisions they hate and disagree with but which are what the law and constitution require. Oliver Wendell Holmes was such a justice and has left a legacy to be worth emulation. Will Sotomayor do that? Sadly, her record indicates otherwise.

We should all contact our senators and urge them to carefully evaluate Judge Sotomayor’s beliefs and judicial qualifications, especially her commitment to the constitution. If she fails the test of commitment to the constitution, she should be rejected.

Supreme Court Appointments

Appointment of a Supreme Court justice calls for extreme care. Decisions of that court remain effective for an unlimited time and there is no appeal. It is also difficult to remove a bad justice so the president must chose wisely. Mark R. Levin in his book, Men in Black documents many justices who have caused problems over the years. That includes Abe Fortas who resigned to avoid impeachment in a bribery scandal. The potential mischief a bad justice can commit is a warning that they should be chosen wisely.

I submit the following as mandatory requirements for any Supreme Court justice:

1. Absolute integrity.
2. Commitment to the constitution and constitutional law.
3. Ability to subordinate personal belief and preference to the constitution and the law.

4. Intellectual ability to weigh issues and to decide wisely based on evidence, fact, and logic.

5. Sound knowledge of the law and the constitution.

Integrity is the first and most important characteristic. A justice must not be subject to bribery, blackmail, undue influence or anything that could interfere with good decisions. Intelligence and ability without integrity are dangerous; an intelligent but unethical justice can use his ability to hide misdeeds and to persuade other justices to support tainted decisions.

Second, justices must be committed to our constitutional form of government, and to constitutional law. We have a representative republic with carefully crafted protections against abuse of power and the court must uphold that form of government. Substitution of its own wisdom for the constitutional law of the land would put the court the position of a dictator. Legislation should be left to senators and representatives who are accountable to the voters; the court is not a super-legislature.

Third, justices must subordinate their own beliefs and desires to law and constitution. One mark of a good judge is to set aside personal preference and judge according to the law. To do otherwise would again be putting himself in the position of dictator, imposing his own will on the electorate. We need justices who can say, "I dislike this law. I think it is dumb. However it is the law and it is constitutional so I must let it stand." Justices must recognize that they are "hired hands," employed to serve the people according to the "contract" set forth in the constitution. They may think that a law is stupid, and in this they may be right. However they must recognize that voters and their representatives have a right to make laws, even stupid laws.

Forth, justices must have the intellectual wherewithal to deal with the issues they will face. This seems obvious. Not only are the issues themselves often complex, but there are smart lawyers arguing each side. A justice must be able to consider all aspects of a case, cut through the intellectual fog, and decide on the basis of fact, logic, law and constitution.

Fifth, and again rather obviously, judicial nominees must have a sound knowledge of the law and the constitution. They must know and understand the basis on which they are to decide.

The president must reject the temptation to appoint justices who will advance a political agenda, instead seeking those who meet the above requirements. Justices should be judges, not politicians.