Travel ban about national security, not religious bias

Many of the news articles and opinion pieces penned about the Supreme Court ruling upholding President Trump’s so-called travel ban totally ignored a key word that was at the core of the 5-4 ruling — the verb “to vet,” which appears 32 times in the syllabus, opinion, concurrences and dissents.

The travel ban was not about banning Muslims from entry, but was about restricting travel and immigration from nations that fail to or, due to unrest, cannot adequately document whether individuals from their jurisdictions might pose a threat to public safety.

In the court opinion Chief Justice John Roberts explains:

The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion. Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.

But the plaintiffs harped on Trump’s campaign stump rhetoric, claiming it was a window into an ulterior motive of religious animus that they claimed was a violation of the Establishment Clause of the First Amendment. For example, Trump once called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”

In his concurrence Justice Clarence Thomas observed:

Further, the Establishment Clause does not create an individual right to be free from all laws that a “reasonable observer” views as religious or antireligious. … The plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad. … And, even on its own terms, the plaintiffs’ proffered evidence of anti-Muslim discrimination is unpersuasive.

Roberts pointed out the crux of the rationale for the travel ban was adequately backed up, “The Proclamation (as its title indicates) sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present “public safety threats.” … To further that purpose, the Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate.”

Thomas also took the opportunity to thump the lower court judges for engaging in issuing “universal” dictates that no law or constitution grants them the power to do.

The travel ban is and was about national security not religious bias.

Of course, the decision also revealed to Nevada voters where certain candidates stand on this matter. Television station KRNV in Reno quoted both senatorial candidates.

Republican Dean Heller’s office issued a statement saying, “Sen. Heller believes that the Supreme Court got this right. The policy reviewed was significantly narrowed in scope compared to the initial version of the travel ban, and the court’s ruling affirmed its legality based on legitimate national security interests.”

His Democratic opponent, Rep. Jacky Rosen of Las Vegas, said, “Denying individuals entry to the U.S. based solely on religion or nationality is wrong and out of touch with our American values. This travel ban won’t help keep us safe, and I will continue to stand up against this Administration’s ignorant and xenophobic policies.”

Nevada’s other Democratic representatives in Washington joined the chorus in opposing anything any Republican ever does no matter what.

Sen. Catherine Cortez Masto declared, “This decision flies in the face of our nation’s founding principle of religious freedom. President Trump’s Muslim Ban is in direct opposition to American principles and sends yet another prejudiced message to Muslim-Americans, refugees and immigrants.”

Lame-duck Rep. Ruben Kihuen complained, “Today the Supreme Court upheld President Trump’s racist and discriminatory Muslim Ban which further erodes our leadership position in the world and is just another example of the Trump Administration tearing families apart. The United States is made stronger every day through our diversity.”

Rep. Dina Titus sweepingly declared, “Today’s decision upholds a misguided xenophobic ban that does nothing to make us safer. Banning the people of an entire religion from immigrating to the U.S. is a betrayal of our nation’s founding principles of religious freedom and tolerance.”

We assume she missed the part about the ban affecting only 8 percent of Muslims or that people can seek case-by-case waivers.

Protests in front of Supreme Court. (Getty images)

Editorial: Return authority over intrastate water to the states

The Environmental Protection Agency announced this past week that it is moving to rescind the Obama administration’s 2015 rules that defined the “waters of the United States” (WOTUS) under the Clean Water Act of 1972 as every stream, ditch, wetland or mud puddle that might eventually after a deluge spill a few drops into any rivulet that might occasionally be navigable with an inner tube.

As the courts have noted, the Clean Water Act was intended to give the EPA and the Army Corps of Engineers and other federal agencies authority over “navigable waters” only.

President Trump signed an order in February instructing the EPA to consider repeal and replacement of Obama’s EPA water rules.

Now the EPA is beginning the process of rewriting the rules, hopefully to take into account the role and authority of the states over intrastate water resources.

“We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” said EPA administrator Scott Pruitt in a press release. “This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

As it now stands with this order and several court rulings, including one from the U.S. 6th Circuit Court of Appeals, the EPA is enforcing clean water rules that were in place prior to the 2015 attempted usurpation of power.

Pruitt would do well to lift heavily from a June 19 letter to him from the attorneys general of 20 states, including Nevada’s AG Adam Laxalt, which offers suggestions on how to include input from the states and retain state jurisdiction over intrastate waters.

Laxalt was one of 23 attorneys general who backed a lawsuit that went all the way to the Supreme Court and resulted in the court saying property owners have a right to sue in court over EPA permitting determinations under WOTUS rules. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

The attorneys general letter notes the burden the Obama era rules were on land owners, because the discharge of any pollutant — be it mere soil, rocks or sand — required obtaining a permit that is excessively expensive and takes years to obtain.

In that Supreme Court case Chief Justice John Roberts noted that a specialized individual permit, such as the one sought by the plaintiffs, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required.

Further, discharging into “waters of the United States” without a permit can subject a farmer or private homeowner to fines of up to $51,570 per violation, per day.

The attorneys general noted that the Obama water rules violated the Constitution by intruding on the states’ reserved authority under the 10th Amendment and usurped Congress’s authority under the Commerce Clause. They called for an approach that would allow the states the flexibility to design state law in order to protect the water resources within their borders. “It also would provide any state for which EPA attempts to designate certain waters an opportunity to explain to EPA why its regulatory program is sufficient to protect those waters and contest EPA’s determination that those waters significantly affect navigable waters,” they wrote.

It is time to return those 10th Amendment rights to the states.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Trump orders feds to review Obama-era water grab

President Trump today signed an executive order telling the EPA and the Army Corps of Engineers to review the so-called waters of the United States (WOTUS) rule created under the Obama administration, which attempted to usurp dominion over every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.

“We’re going to free up our country and it’s going to be done in a very environmental and positive environmental way, I will tell you that,” Trump said. “[We will] create millions of jobs, so many jobs are delayed for so many years that it’s unfair to everybody.”

Trump ordered the federal agencies to review a 2006 opinion by the late Justice Antonin Scalia, that reduced the scope of the act by defining “waters of the United States” as only permanent bodies of water and not the occasional result of rainfall.

Nevada was one of 23 states to file suit over the WOTUS rule. The Supreme Court ruled this past summer that property owners had a right to sue in court over permitting decisions. The federal agencies had contended property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

In December 2010, the Hawkes Co. applied for a permit to mine peat on property in Minnesota. More than a year later the Army Corps denied the application, saying the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away.

In the opinion of the court, Chief Justice John Roberts pointed out the definition of WOTUS used by the EPA and the Corps includes “land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”

Roberts also noted that a specialized individual permit on average costs $271,596 and 788 days to complete. He said the permitting process can be “arduous, expensive, and long.” He left out futile, since the process never ends.

Nevada Attorney General Adam Laxalt applauded the judgment, “This unanimous U.S. Supreme Court decision vindicates our position that the Obama administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions. The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Trump orders review of WOTUS.

Editorial: SCOTUS curbs WOTUS, but Congress must act

The U.S. Supreme Court (SCOTUS) this past week acted to finally curb, but not eliminate, the unfettered power of the Environmental Protection Agency and the Army Corps of Engineers to control every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.

Under the agencies’ vague definition of what exactly are waters of the United States (WOTUS) under the Clean Water Act of 1972, the existence of any water on one’s own property promulgates the necessity to obtain a permit before doing anything that might “pollute” that water with anything, including dirt.

In a unanimous decision in Army Corps of Engineers v. Hawkes Co., the court said property owns have a right to sue in court over permitting determinations. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

In December 2010, the Hawkes Co., which mines peat for use on golf courses among other uses, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

In February 2012, the Corps determined the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. The owners appealed and got the same result, essentially a denial of permission to mine their own property.

In the opinion of the court, Chief Justice John Roberts points out the definition of WOTUS used by the EPA and the Corps includes “land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”

Roberts also noted that a specialized individual permit, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” No kidding. He left out futile.

The Corps told Hawkes after its denial of a permit that it could appeal administratively, but not judicially, or simply do the work without a permit and risk a fine of $37,000 a day and criminal prosecution.

The court said Hawkes has a right to sue in court. So, it curtailed the process but did not put a stop to the draconian obstruction of the right of personal property and burdensome expenses.

In a concurring opinion, Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment.

“This unanimous U.S. Supreme Court decision vindicates our position that the Obama administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions,” said Laxalt. “The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Congressman Cresent Hardy also lauded the court ruling, saying, “The Court’s unanimous ruling in the Hawkes case reins in an unchecked executive branch.  Property owners should not have their lands locked up by a ‘final agency action’ and be forced to go through a prohibitively expensive permitting process without the ability to appeal the decision. Thankfully, the Supreme Court agrees.”

But the reality is that this decision, while welcome, merely puts a Band-Aid on a hemorrhage. Congress must rewrite the Clean Water Act and properly define WOTUS for the rapacious federal agencies lest they grind commerce in this country to a halt.

The House and Senate passed resolutions that would have blocked the EPA water rule, but in January the Senate failed to override Obama’s veto.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Reid hypocritical about Supreme Court nomination

Some people are ambidextrous. Harry Reid is ambioratory. He speaks out of both sides of his mouth.

This past week one of Sen. Reid’s staffers penned an op-ed column that ran under his name in The Washington Post on the topic of replacing the late, great, conservative Supreme Court Justice Antonin Scalia, who had died only days earlier.

The Democratic Senate minority leader took umbrage with something the Republican Senate majority leader, Mitch McConnell, said shortly after Scalia was found dead at a West Texas hunting resort. McConnell said the American people should have a voice in the replacement process, meaning no new justice should be confirmed until the next president is seated, rather than allow lame-duck Obama to nominate someone like his two liberal rubber stamps on the court — Elena Kagan and Sonia Sotomayor.

Reid countered that the American people voiced their opinions by twice electing Obama president and handing him the constitutional power to nominate Supreme Court justices.

“That is how our system works and has worked for more than 200 years,” the op-ed proclaims. “Until now, even through all the partisan battles of recent decades, the Senate’s constitutional duty to give a fair and timely hearing and a floor vote to the president’s Supreme Court nominees has remained inviolable. This Republican Senate would be the first in history to abdicate that vital duty.”

A couple of days later Republicans McConnell and Sen. Chuck Grassley, chairman of the Senate Judiciary Committee, took to the same pages of the same newspaper to remind the same senator who had lectured them days earlier of what he had said in 2005 on the floor of the U.S. Senate.

According to a transcript of that speech, Reid chided President George W. Bush for rewriting the Constitution and reinventing reality when he said two days earlier that the Senate had a duty to promptly consider each nominee, debate their qualifications and give them an up-or-down vote.

“Referring to the president’s words, duty to whom?” Reid asked rhetorically back then. “The radical right who see within their reach the destruction of America’s mainstream values. Certainly not duty to the tenets of our Constitution or to the American people who are waiting for progress and promise, not partisanship and petty debates.

“The duties of the Senate are set forth in the U.S. Constitution. Nowhere in that document does it say the Senate has a duty to give presidential appointees a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote.”

Reid later lectured, “The Senate is not a rubber stamp for the executive branch. Rather, we are the one institution where the minority has the voice and ability to check the power of the majority.”

Fast forward to this past week’s op-ed in the Post. Reid concluded his thundering accusation against Republicans by saying, “Pursuing their radical strategy in a quixotic quest to deny the basic fact that the American people elected President Obama — twice — would rank among the most rash and reckless actions in the history of the Senate. And the consequences will reverberate for decades.”

We seem to recall that by 2005 Bush had been elected twice, but efforts to circumvent his high court appointees seem not to reverberate a single decade later.

It is just as we have come to expect from Harry Reid and his ilk — politics first, last and always. No argument is so compelling that it can’t be reversed, refuted or abandoned. Reid says Obama will nominate someone in two weeks.

If McConnell’s call to give the American people a voice in Scalia’s successor sounds familiar, perhaps it is because Reid’s Democratic Senate colleague Chuck Schumer said in 2007, two years before the end of Bush’s second term:

“For the rest of this president’s term and if there is another Republican elected with the same selection criteria let me say this: We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another (John) Roberts; or Justice Ginsburg by another (Samuel) Alito. Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances.”

Reid, Schumer, then-Sen. Obama, Hillary Clinton and Joe Biden all voted to filibuster Alito and Roberts.

All ambioratory and hypocritical.

A version of this column appears this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.

The rules are precisely what the court says they are on any given day due to any given whim

Cato’s Michael Cannon accused the Supreme Court of playing Calvinball in its decision upholding ObamaCare.

In the old Calvin and Hobbes cartoon strip the characters played Calvinball, a game in which the rules were constantly changing to suit a player’s advantage.

You might conclude the court was playing Calvinball in three cases in two days.

In King v. Burwell on Thursday, the court said the words “established by the state” also mean established by a federal agency, when it comes of doling out subsidies.

Also on Thursday in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., the court ruled that discrimination can be proven by mere disparate outcomes rather than actual evidence.

In Obergefell v. Hodges, today the court ruled, in its customary 5-4 split, that there is a right to gay marriage in every state, no matter how the citizens of any given state may have voted.

In the ruling today, Justice Antonin Scalia wrote in dissent a sentiment probably held by many libertarians:

Those civil consequences — and the public approval that conferring the name of marriage evidences — can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice John Roberts, back from his sojourn in Humpty Dumpty land in the ObamaCare ruling, opined:

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex. But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78 …

Justice Clarence Thomas in his dissent took apart the Due Process argument of the majority:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea — captured in our Declaration of Independence — that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.

How many other rights will now be found in the penumbra of the Constitution now that we have a right to health insurance subsidies no matter what the law actually says, a right to claim discrimination based on statistics (lies, damned lies and statistics) and a right to the benefits of marriage no matter what the law or constitution of a state may say.

Justice Anthony Kennedy, who wrote today’s gay marriage ruling, also wrote the opinion striking down the federal Defense of Marriage Act of 1996, signed by Bill Clinton.

In the that earlier ruling, Kennedy wrote:

The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.

That was then, this is now in the game of Calvinball.

Polygamy must be a right, too. It is in the Bible. If Kennedy can cite Cicero and Confucius, why not the Bible?

In fact, Roberts asked that very question: “If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ … serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”

 

 

 

 

 

Happy birthday, Eric Blair, from the U.S. Supreme Court

How apropos that the King v. Burwell ruling came out on the birthday of Eric Blair, who was born on this day in India in 1903.

Eric Blair at six weeks old

You might know him better by his nom de satire, George Orwell.

Orwell wrote frequently about the manipulation of language to obtain one’s desired outcome, especially in his classic, “Nineteen eighty-four,” with its concepts of newspeak and doublethink. Doublethink is holding two contradictory views or opinions at the same time.

This is what John Roberts did in today’s ruling by saying an exchange established the state is the same as an exchange established by the federal government.

 

Orwell once wrote, “But if thought corrupts language, language can also corrupt thought.”

Antonin Scalia’s dissent points out the doublethink of both ObamaCare decision from Roberts:

The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

WAR IS PEACE, FREEDOM IS SLAVERY, and IGNORANCE IS STRENGTH.

 

Newspaper column: U.S. Supreme Court ruling is another push to appoint judges instead of electing them

No doubt about it, the recent U.S. Supreme Court ruling that allows Florida to bar judicial candidates from personally soliciting campaign funding is not just a blow to free speech, but is another volley in the ongoing campaign to have judges appointed by elite committees of lawyers and judges and not voted into office by ignorant citizens who don’t know a judicial canon from a howitzer.

The court ruled 5-4, with Chief Justice John Roberts joining the court’s liberal faction, against Lanell Williams-Yulee, a 2009 county court judge candidate in Tampa. The Florida’s Supreme Court reprimanded her for a mailer asking for donations.

Though the Florida Bar code does not allow candidates to solicit funds, they may set up committees to seek funding, and the candidate may send personal thank you notes to donors, which seems to obviate the whole concept of separating judicial candidates from the squalor of being beholding to donors. It is all a ruse.

Campaign flier.

The dissent in the case by Justice Antonin Scalia, joined by Justice Clarence Thomas, makes clear the court’s ulterior motives.

Scalia wrote that the Florida code “scope suggests that it has nothing to do with the appearances created by judges’ asking for money, and everything to do with hostility toward judicial campaigning. How else to explain the Florida Supreme Court’s decision to ban all personal appeals for campaign funds (even when the solicitee could never appear before the candidate), but to tolerate appeals for other kinds of funds (even when the solicitee will surely appear before the candidate)? It should come as no surprise that the ABA (American Bar Association),whose model rules the Florida Supreme Court followed when framing Canon 7C(1), opposes judicial elections — preferring instead a system in which (surprise!) a committee of lawyers proposes candidates from among whom the Governor must make his selection.”

Thirty-nine states elect judges, including Nevada. An effort in 2010 to have Nevada judges appointed failed by a 58-42 margin, despite a vigorous campaign on its behalf.

U.S. Supreme Court Justice Sandra Day O’Connor, former Nevada Supreme Court Justice Bill Maupin and former Arizona Supreme Court Justice Ruth McGregor appeared at a Las Vegas newspaper editorial board seeking support for the ballot measure. The newspaper editorially opposed it, and I wrote a column against the idea.

“I think Americans want and expect to have one safe place in government, and that’s the court,” Justice O’Connor testified before the assembled journalists, “where somebody with a legal dispute can go and have somebody deciding the issue, based on the law, who is fair, independent and qualified. And I think your best chance of getting that is with this kind of a system. And it doesn’t take away people’s right to vote, it postpones it for whatever time is set in the legislation, one or two years. And then the voter can receive the information about the judge, the performance record, and cast a more intelligent ballot. Do you want to keep the person on the bench? Yes or no.”

She was dismissive of my argument that it is harder to bribe a million voters than one governor, even though I personally knew a governor who went to prison for that.

The Wall Street Journal pointed out at the time, “States using this so-called merit selection method have had their judicial selections manipulated by lawyers and bar associations that nominate guild favorites. In most cases this has pushed courts to the activist left.”

Yes, there is a problem with voters not being well enough informed about judicial candidates, but that is partly the fault of the legal community, which sets itself up as some bastion of virtuous objectivity, prohibited from sullying its robes in the mud wrestle that is electioneering.

Scalia also noted that the Florida ruling “banning candidates from asking for money personally ‘favors some candidates over others — incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.’ … This danger of legislated (or judicially imposed) favoritism is the very reason the First Amendment exists.”

The court majority danced around so many precedents in law — using speculative phrases like “possible temptation,” “might lead” and “even unknowingly” — that Scalia at one point exclaimed: “This is not strict scrutiny; it is sleight of hand.”

Let’s hope this ruling doesn’t give anyone in Nevada ideas.

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.

Court ruling gagging judicial candidates really a ploy to stop electing judges

“I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

— Thomas Jefferson to William C. Jarvis, 1820

No doubt about it, the recent U.S. Supreme Court ruling that allows Florida to bar judicial candidates from personally soliciting campaign funding is not just a blow to free speech, but is another volley in the ongoing campaign to have judges appointed by elite committees of lawyers and judges and not voted into office by ignorant citizens who don’t know a judicial canon from a howitzer.

The court ruled 5-4, with Chief Justice John Roberts joining the court’s liberal faction, against Lanell Williams-Yulee, a 2009 county court judge candidate in Tampa. The Florida’s Supreme Court reprimanded her for a mailer asking for donations.

The offending flier

Though the Florida Bar code does not allow candidates to solicit funds, they may set up committees to seek funding, and the candidate may send personal thank you notes to donors, which seems to obviate the whole concept of separating judicial candidates from the squalor of being beholding to donors. It is all a ruse.

The dissent in the case by Justice Antonin Scalia, joined by Justice Clarence Thomas, makes clear the court’s ulterior motives.

Scalia wrote that the Florida code “scope suggests that it has nothing to do with the appearances created by judges’ asking for money, and everything to do with hostility toward judicial campaigning. How else to explain the Florida Supreme Court’s decision to ban all personal appeals for campaign funds (even when the solicitee could never appear before the candidate), but to tolerate appeals for other kinds of funds (even when the solicitee will surely appear before the candidate)? It should come as no surprise that the ABA (American Bar Association),whose model rules the Florida Supreme Court followed when framing Canon 7C(1), opposes judicial elections — preferring instead a system in which (surprise!) a committee of lawyers proposes candidates from among whom the Governor must make his selection.”

Thirty-nine states elect judges, including Nevada. An effort in 2010 to have Nevada judges appointed failed by a 58-42 margin, despite a vigorous campaign on its behalf.

U.S. Supreme Court Justice Sandra Day O’Connor, former Nevada Supreme Court Justice Bill Maupin and former Arizona Supreme Court Justice Ruth McGregor appeared at a Las Vegas newspaper editorial board seeking support for the ballot measure. The newspaper editorially opposed it, and I wrote a column against the idea.

“I think Americans want and expect to have one safe place in government, and that’s the court,” Justice O’Connor testified before the assembled journalists, “where somebody with a legal dispute can go and have somebody deciding the issue, based on the law, who is fair, independent and qualified. And I think your best chance of getting that is with this kind of a system. And it doesn’t take away people’s right to vote, it postpones it for whatever time is set in the legislation, one or two years. And then the voter can receive the information about the judge, the performance record, and cast a more intelligent ballot. Do you want to keep the person on the bench? Yes or no.”

She was dismissive of my argument that it is harder to bribe a million voters than one governor, even though I personally knew a governor who went to prison for that.

The Wall Street Journal pointed out at the time, “States using this so-called merit selection method have had their judicial selections manipulated by lawyers and bar associations that nominate guild favorites. In most cases this has pushed courts to the activist left.”

Yes, there is a problem with voters not being well enough informed about judicial candidates, but that is partly the fault of the legal community, which sets itself up as some bastion of virtuous objectivity, prohibited from sullying its robes in the mud wrestle that is electioneering.

The current ruling in Florida case runs counter to a Supreme Court ruling in the case of Republican Party of Minnesota v. White, in which the court said judicial canons limiting judges’ ability to address legal and political issues violates the First Amendment. Asking for money is also a free speech right.

If selection panels are needed to help a governor appoint and evaluation panels are needed to give voters information about whether or not to retain a judge, why not create them informally and present the information directly to the voters? I asked at the time.

Scalia also noted that the Florida ruling “banning candidates from asking for money personally ‘favors some candidates over others — incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.’ … This danger of legislated (or judicially imposed) favoritism is the very reason the First Amendment exists.”

The court majority danced around so many precedents in law — using speculative phrases like “possible temptation,” “might lead” and “even unknowingly” — that Scalia at one point exclaimed: “This is not strict scrutiny; it is sleight of hand.”

This 2010 commercial supported appointing judges:

Speech is free, but the soap box to stand on is not

The ink wasn’t dry on the Supreme Court’s 5-4 ruling lifting caps on aggregate campaign contributions in federal races before the usual Democratic suspects started squealing like pigs caught under a gate.

Of course, Harry Reid had to drag out his favorite whipping boys, the Koch brothers, and stomp on them like he was doing a Mexican hat dance.

“The Supreme Court today just accentuated what they did on Citizens United, which is a decision that is one of the worst decisions in the history of that court,” Reid said. “All it does is take away people’s rights because, as you know, the Koch brothers are trying to buy America.”

Harry Reid and Nancy Pelosi (AP photo)

Pay no attention to the union organizations behind the curtain, you know those dozens of unions that contributed far, far more to Democrats then the Koch brothers, who rank 59th in the list of top campaign spenders, ever thought about spending.

If it is possible, Nancy Pelosi may have frothed even more than Harry on this topic, exclaiming, “Our founders risked their lives, their liberty and their sacred honor to create a democracy — a government of the many, not a government of the money. After misguided and destructive court decisions in McCutcheon and Citizens United, it is clear that Congress must act swiftly to restore fairness to our campaign finance system.”

In his opinion in McCutcheon v. FEC, Chief Justice John Roberts explained that the court has long held that Congress may regulate campaign contributions in an effort to avoid corruption or the appearance of corruption. Therefore, limits on how much one person may give to one candidate are OK, but limiting total spending by that one person is not.

“Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests,and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition. …” Roberts writes. “Indeed, as we have emphasized, the First Amendment ‘has its fullest and most urgent application precisely to the conduct of campaigns for political office.’”

Roberts added that campaign finance restrictions that pursue objectives other than avoiding corruption are not permissible — such as trying to prevent someone from “buying” the country. He said that injects the government into the debate over who should govern. “And those who govern should be the last people to help decide who should govern,” he noted.