So far, we’ve spent a disproportionate amount of time during the current presidential campaign talking about the candidate’s personalities. Perhaps that was unavoidable in a cycle in which Donald Trump and Hillary Clinton are the frontrunners for the major party nominations. The discussion about key issues has often been obscured by the discussion about Trump’s suitability and Clinton’s credibility. Cynicism about our leaders is rampant and has fed the desire for a non-politician, although it’s not clear how different a Washington run by Trump from one by Clinton except on immigration. But lurking beneath the surface in any presidential campaign is the one thing that we all know really will be affected by the outcome next November: the identity of possible Supreme Court nominees.
With a number of aging members of the high court still serving out their lifetime appointments, the next president is likely to play a key role in determining the direction of American law. If a Democrat wins, the current setup in which four liberals and four conservatives wait to see which way the swing vote (usually cast by Justice Anthony Kennedy) will go may be altered to one with a clear liberal majority for the foreseeable future. That will affect decisions on a host of issues involving abortion, gun rights, free speech, religious freedom, and campaign finance laws that will make radically diminish individual rights. And even if a Republican wins, the danger of that happening will still exist since we all know that while liberal choices stay liberals, some conservatives appointed by Republicans have a way of “evolving” toward liberal stands.
All the Republican candidates will vow to appoint strict constructionists that believe in judicial restraint and all may actually mean it. But predicting what happens when a Republican is appointed to the Supreme Court is a loser’s bet, as we’ve seen with many of those elevated to it in the last 70 years. This conundrum is brought to mind by the death this week of the man that Republican presidents considered for the Supreme Court three times. Judge Arlin Adams, who died at his home outside of Philadelphia at the age of 94, served for decades on the Third Circuit of the U.S. Court of Appeals. But Presidents Richard Nixon (who had also chosen him for his Court of Appeals slot), Gerald Ford, and Ronald Reagan also considered him for a SCOTUS appointment. Each time they chose someone else. Of particular note was Ford’s choice. Adams was a finalist for the slot that John Paul Stevens got. Considering that Stevens became a liberal stalwart rather than the conservative as Ford supposed him to be, has made Adams the answer to one of the great what-if questions for conservatives.
Had Adams been picked any one of those times, he would have ended the drought of Jewish Supreme Court judges that stretched from the Abe Fortas’s resignation in 1969 until Bill Clinton’s choice of Ruth Bader Ginsburg in 1993. But that is mere Jewish history trivia, and that distinction needn’t detain us long.
Adams was rejected each time because his association with “liberal Republicans” tainted him in the eyes of White House conservatives. He had served in Pennsylvania Governor William Scranton’s cabinet and on civil rights, the issue that divided the GOP in the early 60s but which is now a matter of consensus in both parties.
In the case of Nixon’s choice, William Rehnquist, conservatives had nothing to complain about. But Stevens was a terrible disappointment. As for Anthony Kennedy, who ultimately got the nomination for which Adams was mentioned, he is mixed bag for conservatives since he sometimes comes down on their side, but has also displayed a penchant for judicial activism that takes him far away from the principles of restraint, belief in legislative supremacy, or the original intent of those who wrote the laws.
As with all counter-factual queries, we don’t really know how Adams would have fared in Washington. Perhaps, like so many Republicans have done, he might have assimilated into his environment. Perhaps he too would have “evolved” and might have help steer the country on a path that created precedents that previous generations of jurists would have thought inconceivable in their scope and abandonment of the principles of limited government and individual rights.
The notion of a deeply modest man like Judge Adams, who was something of a legend in the Philadelphia legal world, being swept off his feet by the temptations of the capital is hard to believe. What we do know is that he was the man who wrote in 1972, “courts serve democracy best by leaving the principal issues confronting the citizenry for decision to the political branches of the government.” Though he was certainly not what we would call a “movement conservative,” it’s difficult to avoid pondering how different would the political and legal history of the country in the last 45 years have been had the man who wrote — and believed — those words been on the Supreme Court.
Adams is a good example of what we now call the “greatest generation” achieved. From a modest Jewish background in Philadelphia, he worked his way through school, served honorably in the Navy during World War Two and ultimately ascended to the heights of the legal world. Even after he resigned from the appellate bench, he served the country with distinction investigating federal corruption.
But while we do well to mourn the passing of a great man who was not well known outside of legal circles and his own community, those conservatives who wish to be our next president, should think about how they will choose Supreme Court judges. If they wish to avoid the mistakes of past Republicans, they should remember the name of Arlin Adams as well as of those nominees who disappointed the presidents that appointed them. May Judge Adams’ memory be for a blessing.
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A SCOTUS Choice the GOP Never Made
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Terror is a choice.
Ari Fuld described himself on Twitter as a marketer and social media consultant “when not defending Israel by exposing the lies and strengthening the truth.” On Sunday, a Palestinian terrorist stabbed Fuld at a shopping mall in Gush Etzion, a settlement south of Jerusalem. The Queens-born father of four died from his wounds, but not before he chased down his assailant and neutralized the threat to other civilians. Fuld thus gave the full measure of devotion to the Jewish people he loved. He was 45.
The episode is a grim reminder of the wisdom and essential justice of the Trump administration’s tough stance on the Palestinians.
Start with the Taylor Force Act. The act, named for another U.S. citizen felled by Palestinian terror, stanched the flow of American taxpayer fund to the Palestinian Authority’s civilian programs. Though it is small consolation to Fuld’s family, Americans can breathe a sigh of relief that they are no longer underwriting the PA slush fund used to pay stipends to the family members of dead, imprisoned, or injured terrorists, like the one who murdered Ari Fuld.
No principle of justice or sound statesmanship requires Washington to spend $200 million—the amount of PA aid funding slashed by the Trump administration last month—on an agency that financially induces the Palestinian people to commit acts of terror. The PA’s terrorism-incentive budget—“pay-to-slay,” as Douglas Feith called it—ranges from $50 million to $350 million annually. Footing even a fraction of that bill is tantamount to the American government subsidizing terrorism against its citizens.
If we don’t pay the Palestinians, the main line of reasoning runs, frustration will lead them to commit still more and bloodier acts of terror. But U.S. assistance to the PA dates to the PA’s founding in the Oslo Accords, and Palestinian terrorists have shed American and Israeli blood through all the years since then. What does it say about Palestinian leaders that they would unleash more terror unless we cross their palms with silver?
President Trump likewise deserves praise for booting Palestinian diplomats from U.S. soil. This past weekend, the State Department revoked a visa for Husam Zomlot, the highest-ranking Palestinian official in Washington. The State Department cited the Palestinians’ years-long refusal to sit down for peace talks with Israel. The better reason for expelling them is that the label “envoy” sits uneasily next to the names of Palestinian officials, given the links between the Palestine Liberation Organization, President Mahmoud Abbas’s Fatah faction, and various armed terrorist groups.
Fatah, for example, praised the Fuld murder. As the Jerusalem Post reported, the “al-Aqsa Martyrs Brigades, the military wing of Fatah . . . welcomed the attack, stressing the necessity of resistance ‘against settlements, Judaization of the land, and occupation crimes.’” It is up to Palestinian leaders to decide whether they want to be terrorists or statesmen. Pretending that they can be both at once was the height of Western folly, as Ari Fuld no doubt recognized.
May his memory be a blessing.
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The end of the water's edge.
It was the blatant subversion of the president’s sole authority to conduct American foreign policy, and the political class received it with fury. It was called “mutinous,” and the conspirators were deemed “traitors” to the Republic. Those who thought “sedition” went too far were still incensed over the breach of protocol and the reckless way in which the president’s mandate was undermined. Yes, times have certainly changed since 2015, when a series of Republican senators signed a letter warning Iran’s theocratic government that the Joint Comprehensive Plan of Action (aka, the Iran nuclear deal) was built on a foundation of sand.
The outrage that was heaped upon Senate Republicans for freelancing on foreign policy in the final years of Barack Obama’s administration has not been visited upon former Secretary of State John Kerry, though he arguably deserves it. In the publicity tour for his recently published memoir, Kerry confessed to conducting meetings with Iranian Foreign Minister Javad Zarif “three or four times” as a private citizen. When asked by Fox News Channel’s Dana Perino if Kerry had advised his Iranian interlocutor to “wait out” the Trump administration to get a better set of terms from the president’s successor, Kerry did not deny the charge. “I think everybody in the world is sitting around talking about waiting out President Trump,” he said.
Think about that. This is a former secretary of state who all but confirmed that he is actively conducting what the Boston Globe described in May as “shadow diplomacy” designed to preserve not just the Iran deal but all the associated economic relief and security guarantees it provided Tehran. The abrogation of that deal has put new pressure on the Iranians to liberalize domestically, withdraw their support for terrorism, and abandon their provocative weapons development programs—pressures that the deal’s proponents once supported.
“We’ve got Iran on the ropes now,” said former Democratic Sen. Joe Lieberman, “and a meeting between John Kerry and the Iranian foreign minister really sends a message to them that somebody in America who’s important may be trying to revive them and let them wait and be stronger against what the administration is trying to do.” This is absolutely correct because the threat Iran poses to American national security and geopolitical stability is not limited to its nuclear program. The Iranian threat will not be neutralized until it abandons its support for terror and the repression of its people, and that will not end until the Iranian regime is no more.
While Kerry’s decision to hold a variety of meetings with a representative of a nation hostile to U.S. interests is surely careless and unhelpful, it is not uncommon. During his 1984 campaign for the presidency, Jesse Jackson visited the Soviet Union and Cuba to raise his own public profile and lend credence to Democratic claims that Ronald Reagan’s confrontational foreign policy was unproductive. House Speaker Jim Wright’s trip to Nicaragua to meet with the Sandinista government was a direct repudiation of the Reagan administration’s support for the country’s anti-Communist rebels. In 2007, as Bashar al-Assad’s government was providing material support for the insurgency in Iraq, House Speaker Nancy Pelosi sojourned to Damascus to shower the genocidal dictator in good publicity. “The road to Damascus is a road to peace,” Pelosi insisted. “Unfortunately,” replied George W. Bush’s national security council spokesman, “that road is lined with the victims of Hamas and Hezbollah, the victims of terrorists who cross from Syria into Iraq.”
Honest observers must reluctantly conclude that the adage is wrong. American politics does not, in fact, stop at the water’s edge. It never has, and maybe it shouldn’t. Though it may be commonplace, American political actors who contradict the president in the conduct of their own foreign policy should be judged on the policies they are advocating. In the case of Iran, those who seek to convince the mullahs and their representatives that repressive theocracy and a terroristic foreign policy are dead-ends are advancing the interests not just of the United States but all mankind. Those who provide this hopelessly backward autocracy with the hope that America’s resolve is fleeting are, as John Kerry might say, on “the wrong side of history.”
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Podcast: The claims, their legitimacy, and the potential precedent.
We devote the entire podcast today to the allegations of teenage assault issued against Supreme Court nominee Brett Kavanaugh. Are we ready to surrender the idea that a person is innocent until proven guilty, even in a non-legal proceeding? Give a listen.
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With the demise of the filibuster for judicial nominations, the Senate has become a more partisan body. Members of the opposition party no longer have to take difficult votes to confirm presidential nominees, and so they no longer have to moderate their rhetoric to avoid the appearance of hypocrisy. Many expected, therefore, that Brett Kavanaugh’s confirmation hearings would tempt Democrats to engage in theatrics and hyperbole. Few, however, foresaw just how recklessly the Judiciary Committee’s Democratic members would behave.
The sordid performance to which Americans were privy was not the harmless kind that can be chalked up to presidential ambitions. Right from the start, Democratic committee members took a sledgehammer to the foundations of the institution in which they are privileged to serve.
Sen. Cory Booker made national headlines by declaring himself “Spartacus,” but the actions he undertook deserved closer attention than did the scenery he chewed. Booker insisted that it was his deliberate intention to violate longstanding Senate confidentiality rules supposedly in service to transparency. It turns out that the documents Booker tried to release to the public had already been exempted from confidentiality. Booker was adamant, though, that he had undermined the Senate’s integrity. You see, that, not transparency, was his true objective. It was what he believed his constituents wanted from him.
Booker wasn’t alone. Sen. Sheldon Whitehouse appeared to share his colleague’s political instincts. “I want to make it absolutely clear that I do not accept the process,” he said of the committee’s vetting of Kavanaugh’s documents. “Because I do not accept its legitimacy or validity,” Whitehouse added, he did not have to abide by the rules and conventions that governed Senate conduct.
When the committee’s Democratic members were not trying to subvert the Senate’s credibility, they were attempting to impugn Judge Kavanaugh’s character via innuendo or outright fabrications.
Sen. Kamala Harris managed to secure a rare rebuke from the fact-checking institution PolitiFact, which is charitably inclined toward Democratic claims. “Kavanaugh chooses his words very carefully, and this is a dog whistle for going after birth control,” read her comments on Twitter accompanying an 11-second clip in which Kavanaugh characterized certain forms of birth control as “abortion-inducing drugs.” “Make no mistake,” Harris wrote, “this is about punishing women.” But the senator had failed to include mitigating context in that clip, which would have made it clear that Kavanaugh was simply restating the arguments made by the plaintiffs in the case in question.
Later, Harris probed Kavanaugh as to whether he believed the Chinese Exclusion Act of 1882, which has never been explicitly ruled unconstitutional, was wrongly upheld by the Supreme Court. Despite calling the decisions of this period “discriminatory,” Kavanaugh declined to elaborate on a case that could theoretically come before the Supreme Court. This, the judge’s detractors insisted, was “alarming” and perhaps evidence of latent racial hostility. In fact, it was an unremarkable example of how Supreme Court nominees tend to avoid offering “forecasts” of how they will decide cases without having heard the arguments—a routine deemed “the Ginsburg Rule” after Ruth Bader, who perfected the practice.
Over a week later, Harris had still not explained what she was getting at. But she doesn’t have to. The vagueness of her claim was designed to allow Kavanaugh’s opponents’ imaginations to run wild, leading them to draw the worst possible conclusions about this likely Supreme Court justice and to conclude that the process by which he was confirmed was a sham.
Harris may not have been alone in appealing to this shameful tactic. On Thursday, Sen. Dianne Feinstein shocked observers when she released a cryptic statement revealing that she had “referred” to “federal investigative authorities” a letter involving Kavanaugh’s conduct. It’s human nature to arrive at the worst imaginable conclusion as to what these unstated claims might be, and that’s precisely what Kavanaugh’s opponents did. It turned out that the 35-year-old accusations involve an anonymous woman who was allegedly cornered in a bedroom by Kavanaugh and a friend during a high-school party. Kavanaugh, the letter alleged, put a hand over her mouth, but the woman removed herself from the situation before anything else occurred. All were minors at the time of this alleged episode, and Kavanaugh denies the allegations.
Some thought it was odd for Feinstein to refer these potentially serious allegations to the FBI this week and in such a public fashion when the allegations contained in a letter were known to Democrats for months. The letter was, after all, obtained by Democratic Rep. Anna Eshoo in July. But it doesn’t seem confusing when considering the facts that the FBI all but dismissed the referral off-hand and reporting on the episode lacks any corroboration to substantiate the claims made by the alleged victim here. It is hard not to conclude that this is an attempt to affix an asterisk to Brett Kavanaugh’s name. Democrats will not only claim that this confirmation process was tainted but may now contend that Kavanaugh cannot be an impartial arbitrator—not with unresolved clouds of suspicion involving sexual assault hanging over his head.
Ultimately, as public polling suggests, the Democratic Party’s effort to tarnish Kavanaugh’s reputation through insinuation and theatrics has had the intended effect. Support for this nominee now falls squarely along party lines. But the collateral damage Senate Democrats have done to America’s governing institutions amid this scorched-earth campaign could have lasting and terrible consequences for the country.
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While the nation’s attention is focused on the Carolina coast, something very odd is happening across the country in Sunspot, New Mexico.
Sunspot is hardly a town at all–the nearest stores are 18 miles away. It’s actually a solar observatory 9,200 feet up in the Sacramento Mountains. It is open to the public and has a visitor’s center, but don’t visit it right now. On September 6th, the FBI moved in and evacuated all personnel using Black Hawk helicopters. Local police were told to stay away. The only explanation being given by the FBI is that an unresolved “security issue” is the cause of the evacuation.
The sun is the only astronomical body capable of doing major damage to planet earth without actually hitting us. A coronal mass ejection aimed at the earth could have a devastating impact on satellites, radio transmission, and the electrical grid, possibly causing massive power outages that could last for weeks, even months. (It would also produce spectacular auroras. During the Carrington Event of 1859, the northern lights were seen as far south as the Caribbean and people in New England could read newspapers by the light.)
So, there are very practical, not just intellectual reasons, to know what the sun is up to. But the National Solar Observatory right now is a ghost town, and no one will say why. Such a story should be catnip for journalists.