Supreme Court Rules EPA Must Obey the Law

It should be obvious that the EPA must obey the law.  However, the EPA and every other regulatory agency has long adopted the principle that they can exercise whatever flights of fantasy they wish in interpreting the laws passed by Congress that the agency has been empowered to enforce.   The EPA has declared that carbon dioxide is a pollutant under the Clean Air Act and claimed that that gave it the power to control its emissions from power plants. Carbon dioxide was certainly not considered a pollutant when the Clean Air Act was passed into law.  It was declared a pollutant by the EPA under the Obama administration under the claim that it caused catastrophic man-made global warming.  That declaration of carbon dioxide as a pollutant had particularly threatening effects upon existing coal-fired power plants.  The Supreme Court put a temporary hold on the Obama EPA rules for carbon dioxide emissions from power plants.  In 2017, the Trump EPA changed those rules to make them more lenient, but the U.S. Court of Appeals for the District of Columbia decided the Trump EPA rules were invalid.  This caused West Virginia and 18 other states to appeal that ruling to the Supreme Court.

If carbon dioxide actually did cause catastrophic man-made global warming, that would still not actually make it a pollutant and it would not really have been addressed by the Clean Air Act.  The EPA is required to provide scientific studies proving that an emitted gas is a pollutant.  The EPA cited no actual science proving that carbon dioxide caused catastrophic man-made global warming.  It did point at the UN IPCC reports, but those reports are only political documents fulfilling the desires of the governments of the world.  They are not scientific analyses, though they mascaraed as such.  The Summary for Policymakers for each report is written by the political representatives of the governments and any failures of the more detailed "science" sections of the report to support the political Summary for Policymakers are corrected as required.  There have been many re-writes of the science sections to make them more supportive of the political ends of the governments.  Nonetheless, the unwarranted assumptions and the holes in the scientific argument for catastrophic man-made global warming are apparent to any careful reader of the "science" sections of the UN IPCC reports.  Over the years, many of the scientists who wrote the original science sections stopped participating in the writing of the IPCC reports because they were furious about how the science sections were rewritten either by the scientists on the take or by purely political hacks.

In a 6 - 3 ruling, written by Chief Justice Roberts, the Supreme Court said that it was implausible that the Congress would have given the EPA the power to control carbon dioxide emissions of power plants without saying so clearly and explicitly in the Clean Air Act.  He also said that such controls have such a strong effect upon our energy service that such a power requires that Congress address it in law explicitly if those controls are entrusted to a government agency.  Indeed, the implication was that any agency making decisions with great magnitude and consequence must have been given that power very explicitly by our elected representatives.

This ruling is of huge importance for American energy infrastructure and the cost and reliability of power for Americans.  It will likely also result in a welcome reduction of regulatory overreach so common for most of our government regulatory agencies.  It will force Congress to make laws addressing many issues for which they might rather not take responsibility.  The rate of new rulings of government agencies far surpass the rate of new laws produced by Congress.  This court ruling will serve as a brake on the rapid growth of government micromanagement of most all aspects of our lives.

I propose we make 30 June a national holiday called Freedom from Regulation Day.

Supreme Court Justice Clarence Thomas is our most stalwart defender of the Constitution

Today is the 29th anniversary of the day our greatest Justice of the Supreme Court, Clarence Thomas, took his seat on the highest judicial court in the great United States of America.  For all his faults, President George H. W. Bush did do one very great service to our country -- he nominated and strongly supported Clarence Thomas to be a Justice on the Supreme Court despite the vicious attacks upon him during his confirmation hearings.

Justice Clarence Thomas has been a tireless and ruthlessly criticized originalist interpreter of the Constitution and of our laws.  He has written 190 opinions, which is far more than any of the other justices have written.  His opinions have had a strong influence on the conservative side of the Supreme Court.  Justice Thomas has been more ready than any other Justice to review prior opinions he believes were wrongly decided.  He is a man with a dedication to independent thinking, which makes him a spear in the side of those Democrats who insist a man is not Black unless he agrees with them.  Personally, I view Justice Clarence Thomas as an unusually rational man who has earned my highest respect and gratitude for his profound service to the rights of the individual, to the rule of law, and to justice, all of which are well served by our Constitution, of which he is the foremost defender.  Justice Clarence Thomas is a genuine hero.

If you want to learn more, read this article:

For 29 Years, Justice Clarence Thomas Has Been the North Star for Originalism on the Supreme Court by Mark Paoletta

A Government Fraud - Take a Bonus to Re-enlist for the CA National Guard

Government lawyers in the Pentagon are demanding that California National Guard members who took bonuses to sign up for re-enlistment and future possible deployments to Iraq and Afghanistan ten years ago, now have to pay back those bonuses.  The government was not authorized to make them.

Now, how likely is it that the service members knew that government officials were unauthorized to offer the bonuses that helped the government to solve its shortage of war-fighters?  Of course most people hearing about this wonder how hard it would be for them if the government asked them to pay back $15,000 the government may have given them 10 years ago for any reason.

But worse than that, the government is compounding its mere incompetence with a very dramatic fraud.  Men extended their enlistments knowing they would likely be sent to Iraq or Afghanistan and might lose their lives or their limbs or their minds fighting there. But now they learn that the bonuses were a case of fraud upon their trust in their government!  Effectively, it was just a trick to help the government steal their labor, their lives, their limbs, and their minds.

Well, what can you expect of a government that expects everyone except high politicians and high bureaucrats to obey the laws?  It is government by fraud for the fraudsters laid heavily upon the defrauded.  This is a fine substitute for the Rule of Law.  The People are now no more than fleeced sheep in the hands of these monstrously evil rulers.  There is a multitude of such frauds, but this is one of the more egregious of that multitude.

Update:  Today, 27 October 2016, the policy of recovering the bonus money was revoked due to complaints by some Congress members, at least some of whom recognized the offering of bonuses to be later taken back as fraud.

The Educational Attainment of Americans Before 1850

It is widely assumed that few Americans prior to 1850 and the development of government-run school systems were capable of reading and that knowledge was sparsely distributed.  This is a myth which there is much evidence to refute.

Here is an excerpt from an article by Andrew Berstein which was published in The Objective Standard, Vol. 5, No. 4 (2010) under the title The Educational Bonanza in Privatizing Government Schools.

Prior to the mid-19th century, government schools did not exist in America. All schools were private, and education was widespread and outstanding. For example, in the Middle Atlantic colonies during the pre-Revolutionary period, professional educators established numerous schools to satisfy the demand for education.15 Philadelphia, for instance, boasted schools for every subject and interest. Between 1740 and 1776, 125 private schoolmasters advertised their services in Philadelphia newspapers—this in a city whose population was miniscule relative to today. Professional educators provided mentoring services in English, contemporary foreign languages, science, and a wide variety of other topics.16 Children who grew to be such brilliant scientists, writers, and statesmen as Benjamin Franklin, Thomas Jefferson, and George Washington received their education at home or in private schools.

(As to higher education, by the late-18th century six private colleges operated in the colonies: Yale, the College of New Jersey [Princeton], the College of Philadelphia [Penn], Dartmouth, Queen’s [Rutgers], and Rhode Island College [Brown].)17

Predictably, the educational results of such a free educational market were superb. The literacy levels of Revolutionary America were remarkably high. For example, Thomas Paine’s book, Common Sense,written in plain style but enunciating sophisticated political principles, sold 120,000 copies during the colonial period to a free population of 2.4 million (akin to selling 10 million copies today).18 The essays of The Federalist, written by Hamilton, Madison, and Jay in support of a Constitution for the nascent republic, were largely newspaper editorials written for and read by the common man.

Sales of American books and educational materials in the early- and mid-19th century likewise indicate a high national literacy rate. Between 1818 and 1823, while the U.S. population was under 20 million, Walter Scott’s novels sold 5 million copies (the equivalent of selling 60 million [actually more than 77.5 million] copies today). Early in the 19th century, The Last of the Mohicans by James Fenimore Cooper likewise sold millions of copies.19 The McGuffey’s Readers, first published in 1836, routinely used such terms as “heath” and “benighted” in third-grade texts. They asked such questions as “What is this species of composition called?” and gave such assignments as “Relate the facts of this dialogue.” The fourth-grade reader included selections from Hawthorne, and the fifth-grade text, readings from Shakespeare. “These were not the textbooks of the elite but of the masses,” explains Thomas Sowell. “[F]rom 1836 to 1920, McGuffey’s Readers were so widely used that they sold more than 122 million copies.”20

Given the high quality of education in early America, it is no surprise that two renowned French visitors observed and reported on the phenomenon. In an 1800 book Vice President Thomas Jefferson commissioned, titled National Education in the United States of America, Pierre Du Pont de Nemours reported that Americans received an education far superior to that of other peoples. “Most young Americans,” he wrote, “can read, write, and cipher. Not more than four in a thousand are unable to write legibly.”21 Several decades later, Alexis de Tocqueville wrote in Democracy in America that Americans were the most educated people of history.22

The bracketed text in red is my correction.  Footnote 17 explains that Harvard College, King's College in New York City (now Columbia University), and William and Mary College in Williamsburg, Virginia, which are all private colleges now, were founded by governments.  Harvard was founded by the Massachusetts Bay Colony and King's and William and Mary Colleges were founded under Royal Charters in the colonial period.  It is clear that the 1800 book Vice President Thomas Jefferson commissioned, titled National Education in the United States of America, Pierre Du Pont de Nemours stating that "not more than four in a thousand are unable to write legibly" did not include slaves.

The idea that a private education system would leave many Americans less educated than the government-run education system of today is belied by this history and by the fact that the approximately 11% of schools today that are private out-perform the government schools readily.  Home-schooled children also greatly out-perform government-schooled children.

The government-run schools have little reason to teach children good reasoning skills, the knowledge they need to earn a living, and the habit of independent, critical thinking.  Without these attainments, it is a very uphill battle for individuals to achieve wisdom and the necessary skills to make their own value choices well.  Government-run schools have a tendency to propagate myths that support Big Government and diminish the exercise of individual rights.  Government-controlled education endangers children, future adults, and our constitutionally limited republican government of a few enumerated powers.  Government-educated students generally have no idea what purposes and achievements define a legitimate government, no sound understanding of individual rights, no thoughts about the intelligibility of laws and regulations, and no commitment to the Rule of Law.  Because the People are divided about ideas of morality, the government schools downplay moral principles.  They have little knowledge of history and the many lessons of how governments have deprived their citizens of their rights.  They have no understanding of basic economics and are taught to believe in policies that deny the basic Law of Supply and Demand and the importance of production itself.  They massively promote group identifications and victim-hood and victimizer status for these groups in a highly divisive manner.  They systematically undermine the much greater diversity and wealth of individual choices provided by the private sector in favor of the rigid, group oriented controls of the government sector.

The government-run education system wallows in a profound conflict-of-interest and because it is coercive and tax-funded, it has no reason to improve.  In fact, the schools are more commonly provided with more money the more they fail, providing them with no incentive to provide a decent education.  Government-run and controlled schools very commonly put the welfare of their under-performing employees well ahead of that of their under-performing students.

The state of education in America today is tragic and is much of the reason that the state of government in America today is increasingly harmful to the freedom, security, and general well-being of Americans.

Unconstitutional Rule by Bureaucracy

There is an excellent article by John Yoo and Dean Reuter at AEI on this subject.  I think it is instructive, but not surprising given the general incompetence of our federal government, that there is no authoritative list of all the rule-producing government agencies.  This fits in very well with the fact that the federal government has no authoritative accounting of its assets.  It is not even clear that it knows who it employs.  Yet this unaccountable government expects individuals and companies to be much more accountable than it is.  It is the old "Do as I say, not as I do." rule.  This is the unaccountable, unconstitutional power that adds 80,000 pages of rules and regulations a year that everyone of us is expected to read, study, interpret, check on court interpretations, and find ways to obey in our lives.

Did you do your duty as a peon under this system of governance?  If not, wouldn't you be better off if you required the legislative body, our Congress, to be the sole source of binding rules which we must obey.  Of course, that would not be sufficient either given that our elected representatives cannot be bothered to read the laws they vote for.  We must make them pass a law that no legislative representative may vote for a law they have not read.

The Patient Subjugation and Unaffordable Care Act and Progressive Elitism

As the time nears when Americans are once again being forced to sign-up for government approved health insurance plans, a string of pithy quotes by Jonathan Gruber, a chief contributor to the creation of the near-secret PPACA bill, baldly state that stupid Americans were easily manipulated into subjugating themselves to this law.  In fact most Americans have always opposed this law and very many were always angry that the Congress did not construct a bill of such a critical nature with due deliberation and discussion.  It did not even read the bill, as famously noted by Nancy Pelosi with her statement that the bill had to be passed so that it might be read!  It is true that Americans had been duped into providing the Democrat Socialist Party the presidency, a super majority in the Senate, and a majority in the House of Representatives.

All one had to know about the bill to oppose it was that individuals were no longer to be free to choose what medical care would be covered in their health insurance plans.  With some thought, some even realized that the basis for a government claim for the authority to dictate how an individual would maintain his mind and body, was a highly collectivist claim that government had a right of ownership in every individual's mind and body.  This is an appalling claim to anyone who understands and values the equal, sovereign right of every individual to life, liberty, property, the ownership of one's own mind, body, and labor, and to the pursuit of one's own happiness.  The government's denial of individual self-ownership is chilling and brutal.  This denial was a chief aim of the many Progressive Elitists in leadership positions in the Democrat Party, in academia, and in much of the media.

In the cause of achieving this universal claim of collective ownership of every individual's mind and body, the Progressive Elitists are highly united.  They often agree that lying, misdirection, bribery, and fraudulent voting are all very acceptable means to achieve the end of collectivism which they value above all else.

Progressive Elitists often state that everyone is morally obliged to sacrifice their own interest for, as they like to say, "the least among us."  This is not only a moral claim in their minds, but it is a license for the use of government force to make everyone give up their own interest in favor of someone the Progressive Elitist believes to be in need, either materially or mentally.  This claim of subjugation to the needs of "the least among us" has become more and more common on the part of Progressive Elitists.

There is a tradition and still a strong following among Progressive Elitists for the notion that government is the moral enforcer of the so-called pragmatist claim that the greatest good for the greatest number defines morality.  When real moral principles are deemed too hard to formulate, to defend, and to live by, such a weak nostrum is about all a society can fall back on, excepting religion and the commonly related divine right of Kings and their aristocratic and ecclesiastic enablers.  To be sure, the American Progressive Elitist does view the President as a King-like figure and themselves as the aristocratic and ecclesiastic enablers.

They also claim to be proponents of democracy, though that claim is modulated by their constant belief that most Americans are stupid, as was so clearly revealed in the Jonathan Gruber and Nancy Pelosi comments.  This was earlier revealed in Obama's claim that most Americans cling foolishly to their guns and religion.  That he also sees himself as a king is very apparent in his saying as President he can do anything he wants and in his continuing violations of the Rule of Law.

Progressive Elitists are in a bind given that they purport to support democracy, yet they think the People are mostly incapable of choosing their own values, managing their own lives, and of voting correctly as envisioned by the Progressive Elitists.  They must find a way to manipulate the unwashed masses to vote in a manner that will allow the Progressive Elitists to actually dominate and control the government.  Because the Progressive Elitist is sure that she knows what is best for the masses, deception through any combination of lies and misdirections is justified.  We have seen this in spades with the PSUCA (see title) or the Patient SuckA.

How do the Progressive Elitists enlist support from the People in democratic elections?  Usually it is by claiming that they are for all the People except the Rich or that they are the champions of the Middle Class.  In this way they are hoping to gain the support of the majority and they will commonly promise this majority enough special favors to try to win them to their cause.

Among their many deceptions is the idea that it is possible to achieve the greater good of the greater number through laws that affect many of our moral choices.  Perhaps it is the in-supportability of this idea that has actually pushed more and more Progressive Elitists toward the claim that government is obliged to primarily pursue the interests of "the least among us," though this claim is usually made to fellow highly educated people they expect to be fellow elitists.  The practical problem of achieving political power is complicated if the Progressive Elitists actually ask the Middle Class to give up its own interests.  This is not an easy sell.

Why is this notion of the greatest good for the greatest number unachievable?  If force is to be used to transfer some value from some to others and yet a majority has to be enlisted to support that use of force by the government, then it is not easy to have a big enough pool of victims from whom enough can be extracted to provide a noticeable benefit to the majority except when the majority is not much greater than the victimized minority.  So, on one issue the beneficiaries might be 60%, on another 55%, and on another they may be 80%.  If the beneficiaries are randomly chosen, the chance any one individual was benefited on all three issues is only 0.264.

If these same issues were left to the private sector, most people might very easily arrange their affairs to benefit on each of the three issues or at least not to be hurt on any of them.  Surely on all of the issues before our Big Government now, a transfer to the private sector would commonly allow individuals to achieve 70 to 90% of their values.  In the private sector one has the added critical advantage that force cannot be used to make you enter into a trade that you do not think is in your own best interest.  In the government sector a victim is required and force must be threatened to make the victim yield his time, his income, or his wealth up to the Progressive Elitist re-distributor.

Now to be sure, the Progressive Elitist program does not aim to distribute the benefits randomly.  Some people are supposed to be the ones who are commonly to bear the hurt, in theory.  In practice, Big Government is little more controlled by the Progressive Elitists avowed agenda than it is a true expression of the democratic will of the majority of the People.  As I have noted over and over, Big Government is so vast and complex that the People do not understand what is going on and they commonly feel powerless to control it.  Even few, if any, Progressive Elitists can understand and follow the full scope of government actions.  This was richly illustrated in their contingent of full-time politicians voting for the PSUCA without reading it and later having to admit that they knew little about it.

Progressive Elitists who are not actually corrupt are also overcome by those who are corrupt and a multitude of special interests who fill the power vacuum to manipulate some government policies of particular interest to themselves.  Big Government becomes mostly a government not of and for the People, but one of and for the Special Interests.  Contrary to the claims of the Progressive Elitists, this is not correctable by electing or appointing better Progressive Elitist managers.  Indeed, the Progressive Elitists who see themselves as managing government actually have to turn to Special Interests for help in writing the laws which control actions in the private sector they do not themselves understand.  This happens all the time.  Some Special Interests are happy to do this for them so that they can design a law that gives them special favors or at least costs smaller companies, their future competitors, more to abide by than it costs them.  Complex laws and regulations tend to suppress smaller, hungrier competitors very well.

ObamaCare certainly has rewarded many special interests while depriving many individuals of the health insurance plan they wanted, the doctor they wanted, the convenience of using a hospital near them, and the weight of often much more expensive plans especially if a young male, but also for anyone who was healthy.  The AARP was among the heavily rewarded special interests, as were some other insurers.  So were many hospitals since many doctors had to give up their private practices and join hospital and clinic groups due to the computer records and financial pressures of ObamaCare.

Government can be designed so that it only acts in all of our interests.  There is only one way this can be achieved.  Government must be allowed only the power to protect the one value we all share.  That value is our individual rights.  This was recognized in our great Declaration of Independence.  A government so limited in power and scope was mandated by the People in our Constitution.  Unfortunately, the Progressive Elitist program has long required the effective destruction of the protections of our Constitution, for as Obama famously stated it is a roadblock to the redistribution of wealth and favors.  The Constitution stood in the way of his Progressive Elitist transformation of America.  Now the Obama Regime simply ignores it and any law they do not like.

Because the Progressive Elitist government model cannot improve the lives of the majority of Americans compared to their own self-management in the private sector, the Progressive Elitist has to have constant recourse to lies and misdirections.  The Middle Class must be deceived.  It is simply impossible to actually benefit "the least among us,", the Middle Class, and the necessary number of Special Interests.  It is an absolute certainty that most Americans will suffer from the Progressive Elitist Big Government model.

The only way we can ever bring back a commitment to constitutional and limited government consistent with our individual freedom is to live by an individualist philosophy designed to promote rational values consistent with the practical needs of life on Earth.  Objectivism is that philosophy.  A commitment to its principles would enable the People of the USA to elect officials capable of and dedicated to reforming our horribly errant governments.  We must transform these tyrannical governments too much under the control of the Progressive Elitists and their allied Special Interests.

Those special interests are not just rich people, corporations, and religious people as the Progressive Elitists claim.  Some special interests are rich people or corporations, but there are many more.  These include:

• Christians who would use government to impose their values, commonly by requiring women to carry a fetus to full term, by denying same-sex marriages, or by claiming that Christian charity requires governmental redistribution.  Yes, some Christians are Elitists, some Progressive, some Traditional
• Islamists who want to impose Sharia Law.
• Environmentalists who believe man is evil, but all other animals are supreme.
• Those opposed to carbon-based fuels for environmental and CAGW reasons.
• Those who believe that profit is evil.
• Labor unions who deny individuals freedom of labor contract.
• Government workers
• Green energy companies with subsidies and favoring mandates
• Farmers with subsidies
• Those who benefit from the ethanol mandate.
• Users of the Export-Import Bank
• Those companies protected by high tariffs
• Banks with cheap money from the Federal Reserve
• Too-Big-To-Fail financial institutions
• Too-Big-To-Fail auto companies
• Extended unemployment beneficiaries
• Disability insurance recipients who used to work with the same disability
• Food Stamp recipients
• Employees whose employers are forced to do all the tax paperwork with its risks
• Professions and jobs with limited competition due to licensing requirements
• Accountants and tax attorneys due to the overly complex tax law
• Trial lawyers
• Insurers due to excessive liability awards allowing them to collect high premiums
• AARP with its health insurance supplements and anti-youth political program
• Home builders and mortgage lenders due to mortgage interest deductions
• Beneficiaries of rent controls
• Older home owners in areas with severe home-building restrictions
• Existing commercial real estate owners where new commercial construction is denied
• TV and radio stations favored by the FCC
• Those near shale oil and gas formations with super cheap energy because governments are delaying pipeline construction
• Russia and the Saudis because governments are slowing energy production here
• Many, many more

The Progressive Elitist does not think we are capable of arranging and choosing our own health insurance, just as they do not think we can generally choose our values and manage our own lives.  As Tocqueville said:

A man’s admiration for absolute government is proportionate to the contempt he feels for those around him.

It is interesting to note that that contempt seems to easily transform into a disregard for the welfare of your fellow man and makes it easier to take advantage of him as a Special Interest manipulating the powers of excessive government.  The transformation of America implemented by the Obama Regime has richly illustrated this.

[On 26 November 2014, Prof. Walter E. Williams wrote a column called Elite Contempt for Ordinary Americans, which emphasizes the role of academics as a center of such contempt and their efforts to indoctrinate the young in college.]

ObamaCare - The Law of the Land Made Lawless

The Democrats of the Democrat Socialist Party have repeatedly claimed that the PPACA or ObamaCare is the Law of the Land and must be respected.  Yet, Obama has made many exemptions from the law's requirements for unions and favored businesses and has made 18 major changes in the law, mostly by delaying its provisions, without the congressional action required by the Constitution, which is the Law of the Land. 

Of course, I think that ObamaCare is clearly unconstitutional, since the government was given no power to own our bodies and minds and hence has no power to determine the means of maintaining our bodies and minds.  Any attempt by government to take over this critical life function of the individual is a fundamental violation of individual rights.

But if we ignore that paramount fact, then the many unlawful changes in ObamaCare made by Obama have clearly deprived it of any pretense of being The Law of the Land, unless Congress and the Courts become adamant in defending the law as voted on by Congress and originally signed into law by Obama.  The law is already highly blemished, indeed highly rotten, by virtue of the many provisions already violated by Obama.  Those violations of the law by Obama have not yet been opposed by Congress, making Congress complicit in this lawlessness.

The fact that this law is maintained in an ever changing form against the wishes of most of the People is a red flag slapping us in the face and shouting that this is not a democracy, however often the Democrats proclaim it to be so.  This is a clear indicator that special interests and not the People control the government.

The fact that the Democrat Socialist Party is now in such terror of the next election is a very clear result of the extremely harmful effects of ObamaCare.  The very high premium costs in most states, the high deductibles and co-pays, the poor doctor and hospital choices, the many drugs and medical services no longer covered, the severe disruptions brought to the entire medical care, medical insurance, and medical insurance policy holders, and the financial risks of entering the system negligently deprived of security guards for one's personal information, all scream that the law is highly inimical to our welfare.  The law has failed to induce the uninsured to sign-up for ObamaCare as well.  So, it is both unaffordable and unwanted.  So far, only about 10% of the uninsured have become insured and fewer of the previously insured who lost their insurance because of ObamaCare have signed on to ObamaCare.  While some uninsured with serious medical conditions have now signed on to ObamaCare, others with serious medical conditions who previously had coverage and then lost it thanks to ObamaCare are now either without insurance or have a less desirable insurance coverage.

The results of ObamaCare are so bad that it is pretty much impossible to buy into the idea that the Democrat Socialist Party ever thought that this law was consistent with the Welfare of the People.  Or if they did think so, then the Progressive Elitist claim to rule due to superior intelligence, education, and moral fiber is ridiculous.

On Some Criticisms of Sonia Sotomayor

There are two statements made by Supreme Court nominee Sonia Sotomayer which have come under a great deal of criticism in conservative circles. These are:

"Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases....I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

"All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is - Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know. [laughter] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating."

As I mentioned in my previous post, I believe Judge Sotomayer is a badly flawed judge, but we should make her evaluation on a rational basis and these quotes as given above are not a sound basis for such an evaluation.

In the first quote, she is said by many conservatives to have taken a racist stance. Well, no, this is not the case. I think some of her case judgments and other statements reveal her as racist, but this statement does not. The reason is that anyone of any race who is wise is, of course, going to make better judgments and decisions than the average person of any race. Wise people are not all that common and many people of any race in positions of authority are not wise. So, a wise Latina woman is going to make better decisions more often than not than a white male. Similarly, a wise white male is going to make better judgments and decisions more often than not than a Latina woman. These statements will both be true provided that the person not specified as wise is not one of the few wise members of the given race. There are specifically very wise judges who are white males (Judge Andrew Napolitano), white females, black males (Justice Clarence Thomas), black females, Latin males, and Latina women, Asian males, Asian females, Native American males and females. Whoever is chosen for the Supreme Court position ought to be one of those few judges who is wise. I do not care what race or nationality they are, only that they are wise.

Now, a wise judge would have a very good understanding that all laws should be consistent with our Constitution and that the purpose of the Constitution is to protect, preserve, and defend the sovereign rights of the individual to life, liberty, property, and the pursuit of happiness. In addition, a wise judge would know that the rule of law and the impartiality of law with respect to wealth, race, religion, and national origin is very important. The wise judge would understand that the law must be consistent and intelligible and that it must be as simple as it is reasonably possible to make it. Overly complex laws are effectively unknowable and are therefore an abomination. For instance, any law that Congress cannot even interpret is clearly not a law at all and should be thrown back in their faces as a disgrace. Much of the tax code, EPA regulations, and anti-trust law all fall into the realm of unintelligible law which should be unenforceable in the courts. Judge Sotomayor is certainly not such a wise judge based upon her decision record.

Let us now examine the statement that the Court of Appeals is where policy is made. Looking at her record, there is reason to be concerned here with respect to Judge Sotomayor's understanding of the law. But, one really does have to look beyond this statement to come to that conclusion. This statement could be understood in a context that the lower courts may disagree with one another on the law and the Court of Appeals, which produces the final appeal decision on 99% of court cases, has to set the policy of what the law actually means with its decisions. This does not necessarily mean that they are making up law, as some conservatives have implied. Unfortunately, an examination of Sotomayor's actual decisions does lead one to conclude that she makes up law as it suits her, but this quoted statement does not make that clear. One has to dig deeper.

The argument against Judge Sotomayor's appointment is trivialized if we stop with these quotes and base all of our objections to her upon them. We must examine her decisions and look to other quotes for a true understanding of her philosophy of law. We will not be happy with what we find, since she has no business serving on the Appeals Court, let alone on the Supreme Court.

Erasing the Remnant of Constitutional Government

Obama has chosen Judge Sonia Sotomayor as his nominee for the position opening on the Supreme Court upon Justice Souter's retirement. She has served on the U.S. Court of Appeals for the 2nd Circuit for 10 years. Justice Souter was no champion of individual rights and was notable in his defense of the City of New London in taking the land out from under Susan Kelo's home. Sonia Sotomayor looks at this point to be a still more consistent enemy of the individual and of property rights. She is, however, full of empathy for those Obama cares about, or at least likes to pose as caring about. She is also an enemy of the successful and those hard-working people who may be on their way to becoming successful.

Obama mostly has his way with the Congress. Congress is capable of making the occasional symbolic assertion of independence when Obama wants them to do something hugely unpopular with Americans, but really no more than they know he will tolerate. In any case, neither the President nor the Congress have been concerned about the Constitutionality of the laws they enact and ratify for a long while. Such little protection as Americans have comes in those rare cases when Americans overwhelmingly recognize an act of Congress as both unconstitutional and unpopular with them or it comes from the Supreme Court serving as an infrequent brake on the erosion of our liberties. Congress and the President have become consistent treats to Constitutional government, while the Supreme Court has been a very inconsistent protector of the Constitution.

Obama, as much as FDR, wants to change the Supreme Court to make its road bumps to his barreling socialist diesel truck as minuscule as possible. His favored group identity agenda, his taking control of the energy industry and all those other industries that use energy, his pending takeover of the medical insurance business, his transfer of business assets to the unions at the expense of investors and the future of the businesses so robbed, his enthusiasm for the massive transfer of wealth from the private sector to the public sector, his desire for unchecked unilateral power in the hands of the President, and his desire to encourage and require Americans to serve government in myriad unpaid or underpaid ways, all appear well-served by his appointment of Judge Sotomayor.

She has made it clear that she thinks a Latino woman makes better decisions than white men. Well, I am sure that some Latino women make better decisions than some white men. But, it is no less offensive a statement to say what she has said than it would be to say that white men make better decisions than Latino women. And frankly, the latter statement might be more defensible on average than the former, since white men may be a bit more rational on average than are Latino women. When hiring someone for a job, averages are irrelevant, however. It is the ability and the character of the individual that count. When it comes to picking judges, we should surely look very closely at the individual and pick that individual who will prove the best defender, protector, and preserver of the Constitution and of those laws which are constitutional. It may be a good thing to have a female Latino Supreme Court Justice, provided she is a true champion of the Constitution and the individual rights it was intended to protect. Of course, in the context of our times, I will be delighted with anyone of any race or gender or national background who is such a champion of the rights to the individual.

Among Judge Sotomayor's poor judgments was her unargued dismissal of the Ricci vs. DeStefano case in which the City of New Haven denied firefighters a promotion though they passed the test which was to decide on their promotion. The city simply decided that there were too few minority members who passed the test, despite its having been carefully designed to discriminate against no minority or at least those minorities approved by government currently. Sotomayor was one of three judges on the review panel and apparently had no empathy for the 20 firefighters who passed the test, including the one recognized minority member who passed it. Empathy is always selective for those of the left. It selectively ignores the capable and favors the incompetent and the unprepared. It bestows itself upon those who meet certain group identity parameters and discriminates against those who do not. It substitutes approved group identities for individual character and ability. It is as simply bad as the discrimination in favor of white males once was in the Antebellum South. The logic is slightly different, however, since the Antebellum South favored white males because they thought they had more ability and better character, while now the left favors those groups they believe have less ability and less good character and consequently can only enjoy material success with the helping hand of the politicians and the force of government.

Judge Sotomayor also was on the panel that issued the Summary Order in Didden v. Village of Port Chester. Richard Epstein, a defender of property rights, has written about this case in Forbes. Judge Sotomayor sat on the review panel that upheld the decision against Bart Didden and his partner Domenick Bologna. Richard Epstein says,

The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: “We agree with the district court that [Wasser's] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”

Apparently, property rights have no standing with Judge Sotomayer. Not only is she opposed then to those who do not meet with her approval in terms of their group identity, but she is also opposed to those who own property. This is not an example of rational empathy and it surely is not an example of the rule of law, most especially not of Constitutional law.