Ilya Shapiro on Supreme Court Confirmations

Ilya Shapiro of the Cato Institute testified on 20 July 2021 before the Presidential Commission on the Supreme Court .  He made the following major points:

1. Politics has always been part of the confirmation process.
2. Confirmation fights are now driven by judicial philosophy.
3. Modern confirmations are different because the political culture is different.
4. Hearings have become kabuki theater.
5. Every nomination can have a big impact.
6. The hardest confirmations are when there's a potential for a big shift.
7. The Court rules on so many controversies that political battles are unavoidable.

He concluded:

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

So should we reform the confirmation process? I’ve come to the conclusion that we should get rid of hearings altogether, that they’ve served their purpose but now inflict greater cost than any informational benefit. With instantly searchable records that nominees now have, is there any need to subject them, and the country, to an inquisition? Or maybe senators could hold hearings in closed session.

In the end, all “reform” discussion boils down to re‐​arranging the deck chairs on the Titanic. And this Titanic is not the appointment process, but the ship of state. The fundamental problem is the politicization not of the process but of the product. The judicial debates we’ve seen the last few decades were never really about the nominees themselves. They’re about the Court’s direction.

The reason we have these heated battles is that the federal government is making too many decisions for such a large, diverse, and pluralistic country. Let Congress decide truly national issues like defense or (actually) interstate (actual) commerce, but let states and localities make most of the decisions that affect our daily lives. Let Texas be Texas and California be California. That’s the only way we’re going to defuse tensions in Washington, whether in the halls of Congress or in the marble palace of the highest court in the land.

My Comments: 

Basically, the federal government is too damned big and presumptuously and injudiciously has taken on far too many powers, some of which should have been left at the state or local government levels.  People who live in different parts of the country commonly have different interests and values.  The many federal powers often conflict with these differing interests and values.  The federal legislative branch has defaulted on making those constitutional decisions that were assigned to it, allowing the executive branch to grow into a behemoth administrative, regulatory state issuing many controversial edicts, often bafflingly formulated.  As a result of the burgeoning administrative state, the Supreme Court has had make many more decisions regarding both "controversial social issues and complex policy disputes."  Ignoring the wisdom of the Constitution sure has disastrous consequences!

You have done good work here Ilya Shapiro.

Celebrating the Declaration of Independence Day

The Second Continental Congress agreed upon the 13 colonies of America becoming independent on 2 July 1776.  We should celebrate Independence Day on 2 July, as Benjamin Franklin thought we would.

There was a still more important event on the 4th of July, 1776.  The Declaration of Independence was signed by the members of the Second Continental Congress on 4 July.  This document stated the fundamental principles that would define the United States of  America.  These ideas were uniquely revolutionary in 1776.  Revolutions as uprisings were not too unusual, but the principles of the Declaration of Independence were entirely innovative as a basis for a new nation.

On this great day, this Declaration of Independence Day, we should read these inspiring principles and renew our commitment to them.  Our beloved Declaration of Independence says:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness -- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.  Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shown, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed.  But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.

No nation had ever committed itself to the principle that all men were created equal before.  No government had ever stated that its purpose was to secure the rights of all men to life, liberty, and the pursuit of happiness.  Before this vision of the United States of America, nations had been dedicated to a few among a given tribal group or ethnic group.  In rare cases, a foreigner found to be particularly useful to the ruling oligarchy might be accepted into consideration for the nation's benefits.  But in the new United States, whose people were primarily English, Scots, Germans, French, Dutch, Swedes, Portuguese, Africans, and American Indians by ethnic origin at the time, all men were created equal, with unalienable rights, which it was the proper purpose of the government they were forming to secure for them.

Yes, the government long did not properly and morally follow through on the implementation of this principle for those ethnically African or American Indian, but its actions could always now be held up against the yardstick it had clearly stated in its foundational principles.  This universal recognition of human rights had never, ever been done by any nation before and is very rarely done even now by any nation.  The Declaration of Independence made the Civil War almost inevitable.  It also made the end of Jim Crow laws virtually inevitable. 

The Declaration of Independence puts a principled duty upon each of us to throw off the attempts of Government to abuse our individual rights.  It states that when Government fails to earn its legitimacy by ruling with the consent of the governed for the purpose of securing their rights to life, liberty, and the pursuit of happiness, then we have both the right and the duty to provide new guards for the security of our universal and individual rights.

Our Constitution is a great document also.  The Constitution puts the means in place to organize the powers of government in such form as to achieve the goals and principles given to us in our sacred Declaration of Independence.  Our Constitution cannot be properly understood if this is not realized.  The context for interpreting our Constitution is the principles of the Declaration of Independence.  The widespread failure to understand the severe constitutional limits on the power of the federal government is a consequence of a refusal to recognize the fundamental principles of The Declaration of Independence.

Today, the 4th of July, is the greatest of all American holidays.  It is Declaration of Independence Day!  Love this day, love our Declaration of Independence, and celebrate its inspiring principles of universal individual rights to life, liberty, and the pursuit of happiness.  If we do not do this, we will surely lose our ability to exercise our many and broad individual rights.  It is the exercise of these rights that makes life worth living.  Live free or die!