Editor’s note: this is a revision of an earlier version of this article. The revision includes new material.
Senator Mark Steven Kirk, Illinois Republican, urges Republican colleagues to “man-up” and just cast a vote on Obama’s nominee for the U.S. Supreme Court, Judge Merrick Garland, whose views on America’s Constitution, according to Senator Kirk, are “a lot like Justice Scalia.” Really? But that’s what he said as noted, with approval on the liberal web blog, “Think Progress,” in a March 18, 2016 article titled, “Republican Senator says Colleagues Should ‘Man Up’ And Vote On Merrick.”
Yet, not even Obama has the audacity to suggest that Judge Garland’s ideology and jurisprudence are even remotely like that of Justice Scalia; and Senator Kirk’s attempt to shame the United States Senate Committee on the Judiciary through Kirk’s use of the term, ‘man-up,’ is nothing more than a child’s dare or is otherwise incoherent. Indeed, the mainstream New York Times admits that, ideologically, Judge Garland is well to the left of Justice Anthony M. Kennedy.” See, the NY Times article published, March 17, 2016, titled, “Where Merrick Garland Stands: A Close Look at His Judicial Record.” And, we know that Justice Kennedy, the “swing-vote,” stands ideologically well to the left of Justice Scalia. So, who is Senator Kirk kidding? Indeed, how is it that a United States Senator, a Republican at that, would support Obama’s call for Senate action on Obama’s nominee for the U.S. Supreme Court in the first place? Might there be something about Senator Kirk that doesn’t quite ring true?
We were curious about Senator Kirk’s own position on the Second Amendment. So, we checked. What we have found is disconcerting to say the least but does much to explain Senator Kirk’s support of Obama’s nominee for U.S. Supreme Court Justice.
It turns out that NRA gives Senator Kirk, the Republican, a rating of “D.” See, “Mark Kirk on Gun Control.” Senator Kirk does beat Senator Bernie Sanders. Sanders candidly, exuberantly remarks that NRA currently rates him, “F.” But, a “D” rating by NRA, no less than an “F” rating, is hardly cause for celebration. Such a dismal rating by NRA is definitely not something a Republican U.S. Senator to be proud of. Senator Kirk does, understandably, prefer to keep that fact quiet — spoken in whispers, if at all. In fact, in 2010, NRA rated Kirk “F,” according to the weblog, “sunlightfoundation.” Not surprisingly, Senator Kirk supports the Brady Bill, and was, apparently, the only Republican who voted for the 2013 ban on rifles that are considered “assault weapons” by antigun groups. Perhaps, Senator Kirk ought, himself, to “man-up,” and admit to the American public he is a hypocrite who is deliberately leading both the American public and Congress astray by urging his Republican colleagues to cast a vote on Obama’s nominee for the U.S. Supreme Court.
The Christian Monitor, in a 2013 article, titled, “Obama’s quiet ally: Who’s behind gun control bill no one is talking about,” is on point in calling Senator Kirk, Obama’s “quiet ally.” But, even The Christian Monitor could not have envisioned, at that time how portentous its 2013 ‘quiet ally’ reference to Senator Kirk would be. For, three years later Senator Kirk is now, in fact, lending his support to Obama’s nominee, Judge Merrick Garland; and, in so doing, actively defying Republican Senators Mitch McConnell and Chuck Grassley, and, in fact, going to war against the Republican Party, by operating in the background as Obama’s “quiet ally.”
Senator Kirk’s assertion that Judge Garland is of the same ideological bent as the late Justice Scalia is an abominable lie. Senator Kirk certainly knows the assertion to be untrue and he is unashamedly fomenting an outrageous lie. Apparently, it is okay, though, to assert a bald-faced lie to the American people to accomplish a desired goal.
Republicans like Senator Kirk, who infect the Republican party with schemes poisonous to the well-being of the Republic and destructive to our sacred Bill of Rights, give cover to Obama, who can then plausibly and piously argue: see, even Republicans understand I intend to safeguard Americans’ Bill of Rights, and that I will, especially, safeguard and defend Americans’ Second Amendment right through commonsense actions and commonsense nominations and appointments to the federal courts.
One thing is clear: if Judge Garland secures a seat on the U.S. Supreme Court, the tenuous balance that existed for some time between the Court’s right-wing Justices and the Court’s left-wing Justices will be lost. The Court will swing violently to the left and that will be reflected in the Court’s decisions.
Consider what one reviewer in a recent NY Times article, published March 18, 2016, — titled, “What Do You Need to Be a Justice?” – had to say. Ian Millhiser, senior fellow at the Center for American Progress, and the author of the article, said, in his NY Times Op-Ed, “Some of the court’s worst decisions were the product of rigid ideology. But many are rooted in the fact that the justices in the majority lacked what President Obama said he was looking for in a nominee: ‘an understanding of the way the world really works.’”
An “understanding of the way the world really works?” Millhiser took that quote from the SCOTUSblog, which posted certain remarks of Obama, supporting his nomination of Judge Merrick Garland to the U.S. Supreme Court. Explicating one of three points he was looking for in his nominee, Obama said: “. . . a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.” Obama also says that anyone he nominates to the U.S. Supreme Court “will have an independent mind, rigorous intellect impeccable credentials, and a record of excellence and integrity,” and that the person he appoints will be someone who “recognizes the limits of the judiciary’s role.”
On a cursory inspection this may all sound reasonable and noble. But how much of it rings true? And, further, is there anything in Obama’s remarks that, on deep reflection, do not suggest something ominous. Let’s analyze and extrapolate what Obama is really saying here.
A perusal of Obama’s remarks illustrates an inconsistency. He plainly states, in his remarks, that he wants a person who “recognizes the limits of the judiciary’s role, someone who will not legislate from the Bench. But, that singularly critical and, in fact, correct point, is at odds with the third point he makes, although obliquely, namely that he seeks a person who holds a certain philosophy, akin to Obama’s own, suggestive of utilitarian ethical concerns which, then, if acted upon may very well amount to adjudicating a case on the basis of social theory irrespective of legal constraints. So, Obama is saying that U.S. Supreme Court decisions should not be decided merely through an application of America’s own case law; its own history; its own case law precedent. Rather, those who sit on the high Court should decide a case in terms of how a decision impacts the lives of people who reside in this Country, whether they are here legally or not. By extension, he is asserting that U.S. Supreme Court decisions should also take into account how a decision impacts people globally. He is saying that the U.S. Supreme Court should take into account the manner in which U.S. Supreme Court decisions reflect multicultural values. This last point entails a consideration of and belief in utilitarian ethical systems along with notions of moral relativity.
So, Obama is asserting and maintaining that a U.S. Supreme Court decision should encompass a worldwide perspective, and not simply one that reflects our Nation’s values, manifested in our unique Bill of Rights, our unique history, our own culture, our own legal precedent. Obama is arguing for a cosmopolitan approach to U.S. Supreme Court decision-making. Obama is, then, definitely, espousing enacting law — legislating law — from the Bench, not merely interpreting law — the latter of which is the high Court’s principal duty and responsibility.
The Judicial authority of the U.S. Supreme Court does not encompass the Legislative Authority of Congress as set forth with particularity in Article I of the U.S. Constitution; and, neither the Legislative authority of Congress nor the Judicial Authority of the U.S. Supreme Court encompasses the Executive authority of the President of the United States as set forth with particularity in Article II of the U.S. Constitution. The demarcation of duties and responsibilities of each Branch of the Federal Government is established by and codified in the Constitution, and the duties and responsibilities of one is never to cross over into the domain of the other. But, Obama has deliberately and unconscionably argued for expanding the legislative functions of Congress into the domain of the Executive Branch and now suggests that the Judicial Branch of Government ought to do the same. In fact, Obama has himself used the power of the Executive Branch to unlawfully encroach into the Legislative arena, either by failing to execute the laws of Congress — which we see in his adamant refusal to enforce existing immigration laws and which we see through his unlawful use of executive directives to curtail the free exercise of the right to keep and bear arms under the Second Amendment, and which we see in both his callous indifference to a citizen’s right to be free from unreasonable searches and seizures and in the expansion of police and intelligence activities into areas that clearly transgress Congressional enactments.
Obama has, apparently, no reservation about using the Office of the Chief Executive to make law, thereby transcending Constitutional authority to faithfully execute the laws, whenever he feels compelled by his personal morality and multicultural propensities and political philosophy to override the Separation of Powers Doctrine. And, he demonstrates the same contempt for the Separation of Powers Doctrine when he pompously suggests the U.S. Supreme Court should inject utilitarian ethics and multiculturalism into its decision-making, thereby uprooting 200+ years of carefully developed and cautiously applied American jurisprudence.
What Obama is looking for in a U.S. Supreme Court Justice and what he sees in Judge Merrick Garland is someone who shares his personal Weltanshauung — his personal world view: someone who is prepared to, and who would, upend our entire legal philosophical system by secreting moral relativity and geopolitical considerations and trans-national, multinational goals and objectives into U.S. Supreme Court decision-making.
Obama’s ideal candidate for the U.S. Supreme Court manifests a view for deciding cases also held by the left-wing U.S. Supreme Court Justice, Stephen Breyer, as laid out methodically and comprehensively in his book, “The Court and the World: American Law and the New Global Realities.” Justice Breyer’s jurisprudence is a mélange of laws, values, social mores, and ethical systems that extend well beyond a consideration of our own Constitution, our own laws, our own precedent. Justice Breyer’s jurisprudence – one reflected in the liberal wing of the U.S. Supreme Court – is an anathema. It undermines our Constitution, our laws. It undercuts the very sovereignty of our Nation and the sanctity of our Bill of Rights.
What is noticeably lacking in Obama’s praises of Judge Garland Merrick and in Obama’s recitation of the factors he deems important in an individual who sits on the high Court is any mention of the need to consider how the core of our rights and liberties, codified in the Bill of Rights of the U.S. Constitution, is to be protected – indeed, that the core of our fundamental rights and liberties ought be protected at all. Apparently, Obama doesn’t consider our Bill of Rights, around which American U.S. Supreme Court jurisprudence is built, to be particularly important in this new age, in this new world, that Obama envisions, in which the very concept of the ‘Nation State’ is perceived as a relic, eventually to be discarded in favor of a neo-corporate, financial world union.
By the way, in the event anyone believes that Obama does not consider, would not consider, or has not considered the role a Judge’s personal philosophy plays in Obama’s consideration of a nomination of a person to the high Court, think again. In a February 16, 2016 article, titled, “Obama Filibustered Justice Alito, Voted Against Roberts,” appearing in the conservative weblog, “front page mag,” the author, Daniel Greenfield demonstrates Obama’s clear attention to a Judge’s philosophical bent. No one can reasonably attack the ability, intellect, credentials, and integrity of Chief Justice John Roberts and Associate Justice Samuel Alito; yet, President Obama, as U.S. Senator Barack Obama, has voiced serious reservations for these nominations of President George W. Bush to serve on the high Court, and chose not to support the nomination of either one of them. So, when Obama asserts that, what he is looking for in a person who serves as a U.S Supreme Court Justice is a person whose analysis of cases will, when the need arises, “be shaped by his or her own perspective ethics, and judgment,” he is being duplicitous. For, he will not consider a person, as a nominee, whose perspective, ethics, and judgment do not coincide with his own. Otherwise, he would have voted for and supported Chief Justice Robert’s nomination and Associate Justice Alito’s nomination to the high Court.
We know, of course, that the values expressed in America’s Bill of Rights are not universally emulated by many Western Countries. In particular it is abundantly clear that America’s Second Amendment, far from being praised by other Countries, especially those comprising the EU, is often disparaged. But, it is disparaged in part, no doubt, because in no other Country in the World does a nation’s government accept and respect the idea that a nation’s government exists only by grace of the people, of the nation’s citizenry.
America’s Second Amendment, however, makes absolutely clear that the federal Government exists only by the grace of the American people. The federal Government does not “own” the American people. We are free citizens in a free Republic, not enslaved subjects residing in an autocratic realm. The federal Government cannot dispense with our Bill of Rights; nor is it permitted to erode the fabric of our Nation’s sovereignty through international treaties and conventions that the American people are little if ever adequately aware of, nor their representatives in Congress ever completely privy to.
America’s Bill of Rights – certainly the Second Amendment – is perceived by the left-wing of the U.S. Supreme Court as representing ideas and values no longer reflective of the modern age. But, the founders of our Republic were no fools. They knew that the rights and liberties set down in stone in the Bill of Rights were “constants” that never change, never become obsolete, and must never change or be perceived as obsolete if our Republic is to continue to exist in the form envisioned by our founders. Justice Scalia knew this, respected this, and his decisions reflected that principle – a principle omnipresent in his decisions.
Justice Scalia believed that U.S. law must dictate and inform all U.S. Supreme Court decisions and that the Bill of Rights – all ten of them – must never be compromised or be considered relevant only to a bygone era. The left-wing of the high Court does not agree with this. They hold to the idea that Americans’ rights and liberties only have meaning relative to a particular era – that Americans’ rights and liberties are not “constants” applicable to all eras. That idea percolates through their legal opinions, and is often reflected in their own ad hoc and peculiar jurisprudence.
The notion that our Bill of Rights transcends all time is considered an aberration and antithetical to the reasoning of the left-wing of the high Court because that notion is not compatible with “the way the world really works” today, as Obama says. All the more reason, then, for the U.S. Supreme Court to hold fast to the principle that Americans’ rights and liberties are “constants,” never-changing absolutes, as our founders perceived them and meant for them to be as applied to the continued existence of our Nation State as a Sovereign Nation State and as a free Republic – never subordinated to another nation or subsumed into a larger political or economic union, like the EU.
Americans’ sacred rights and liberties are never to be seen as outmoded. They are never to be cast aside when deemed, by some on the high Court, to be incompatible with the “way the world really works” – with global realities, according to Justice Stephen Breyer, as laid out in his book, and as echoed by President Obama in his praises of Judge Merrick Garland.
Judge Garland is certainly not cut from the same cloth as Justice Scalia. If Judge Garland does acquire a seat on the high Court as an Associate Justice, he would definitely fit in with such fellow travelers as Justices Breyer, Ginsberg, Kagan, and Sotomayor. Certainly, that is what President Obama, and, apparently, one “Republican” Senator, Mark Steven Kirk, would like very much to see.
Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.