Politics, not qualifications, will decide the Gorsuch nomination

Commentary by James Shott

Senate Democrats are doing the Stanky Legg Two-step in order to dance away from confirming a nominee to the U.S. Supreme Court who is a federal judge provably as devoted to following the U.S. Constitution and the body of federal law as any nominee in many years.

Judge Neil Gorsuch, whose record on the bench of the 10^th Circuit Court of Appeals is as nearly perfect as one can hope to achieve, is precisely the type of judge the Founders had in mind when they wrote the Constitution, a man in the mold of the late Antonin Scalia, whose vacancy he has been nominated to fill.

Testifying before the Senate Judiciary Committee, Gorsuch said his law clerks had compiled information about his ten years on the bench of the 10^th Circuit, which covers about 20 percent of the U.S. He has participated in more than 2,700 appeals, 97 percent of those cases were decided unanimously, and he was in the majority 99 percent of the time. How much more mainstream can one be?

His record clearly identifies him as a mainstream appellate judge, as has the American Bar Association, not an ideologue, or someone who plays favorites. Nevertheless, an exercise designed for confirming a qualified person to sit on the nation’s highest court has devolved into a political war.

U.S. law is a system of rules that govern behavior. Rules and laws must be followed and not following laws has penalties. In the U.S. laws are not static; they can be amended or repealed, but they must be amended or repealed through a specific process. However, some people – primarily liberal Americans – believe that this process may be circumvented by the rulings of activist judges when laws get in the way of their inclinations.

Gorsuch’s adherence to the law is the primary objection to his nomination, although some say it is also because the Republican majority in the Senate refused to take up the nomination of Judge Merrick Garland for the seat Gorsuch is now nominated for.

This, too, points to a Democrat anomaly. A principle relating to this situation arose in the U.S. Senate in 1992 when then-Sen. Joseph Biden, D-Del., who was chair of the Judiciary Committee, said on the Senate floor that filling Supreme Court vacancies “that would occur in the full throes of an election year,” must be held to a different standard. Citing “a majority of his predecessors,” Biden said that the president, George H.W. Bush, should delay naming a replacement, which would de-politicize the nomination, at least for a while.

In March of last year, “in the full throes of an election year,” President Barack Obama ignored the advice that Biden, who was then his Vice President, had offered on the matter years before and nominated Judge Garland. The Republican Senate Majority Leader, Mitch McConnell, R-Ky., however, liked Biden’s theory, and would not schedule hearings for Garland.

Democrats want judges that decide legal issues on whether their decisions fit the passions of the moment or have their preferred impact on the people, and therefore disapprove of the necessity to appoint judges that follow the Constitution and the law.

Minority Leader Sen. Charles Schumer, D-N.Y., is upset with Republicans over the Merrick Garland issue, and will therefore not vote to confirm the highly qualified and squeaky-clean Gorsuch.

He spent 20 minutes on the Senate floor urging his fellow Democrats to oppose Trump’s nominee. Gorsuch, he said, “was unable to convince me he would be a mainstream justice who could rule free from the biases of politics and ideology.” And he said that Gorsuch “is someone who almost instinctively favors the powerful over the weak, corporations over Americans,” Schumer said. “He declined to answer question after question with any substance,” he said, referring to Gorsuch’s refusal to express his political beliefs or to prejudge issues that may come before the Court.

Others have equally irrelevant objections:

** Sen. Kamala Harris, D-Cal.: "As U.S. senators, we have an obligation to also examine a nominee's legal approach and ask whether he or she considers the impact of those decisions on our society and the daily lives of our people."

** "I cannot trust that President Trump is acting in the best interest of our country or our democracy and that I cannot support moving forward with his choice for the court," said Sen. Patty Murray, D-Wash.

** Virginia Democrat and former vice presidential candidate Sen. Tim Kaine explained that, “After meeting with Judge Gorsuch and reviewing his testimony and past decisions, I’ve observed that he has repeatedly taken an activist approach to cases involving a woman’s right to make her own decisions about her health.” Kaine clearly does not understand judicial activism.

Senate Democrats threaten a filibuster to prevent a confirmation vote and ending the filibuster requires 60 votes. With 52 Republican senators, that will require the support of eight Democrats, and will be difficult to achieve.

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Following the lead of former Nevada Democrat Harry Reid when he was Majority Leader, Republicans can use the “nuclear option” to allow a simple majority vote to confirm Gorsuch. Majority Leader McConnell has pledged that one way or another, Gorsuch will be confirmed.

What happens when judges abandon the Constitution and the law?

Commentary by James Shott

If you have read legal documents you will likely have noticed how detailed, specific and often obtuse the language is. The purpose of such language is to assure that the intent of the document is clearly set forth, and this language is well understood by lawyers.

However, despite the careful legal wording of President Donald Trump’s Executive Order (EO) temporarily suspending travel to the U.S. from seven countries with close ties to terrorism, U.S. District Judge James Robart in Washington found problems with the document last month, and issued a temporary stay. A revised second version of that EO, rewritten to avoid the objectionable parts of the first one, including removing one of the seven countries on the list, was found unacceptable by two other federal judges, U.S. District Court Judge Derrick Watson in Hawaii, and Maryland U.S. District Court Judge Theodore Chuang.

The revised document may as well have been written in the language of the Klingons, because these two judges ignored the Order itself, rejecting the travel suspension due to negative statements about Muslim immigrants Trump made during the campaign.

Even though the people who have to implement the EO must do only what it says, the judges, in their infinite wisdom, decided that what they imagine to be the thinking of the president is more important than what the document actually mandates, even though those who follow the EO will have no knowledge of what the president thinks, and therefore no obligation to implement those opinions.

Apparently, these federal judges are confused about their jobs or perhaps just don’t care about professional ethics or their sworn duties. They apparently believe that in ruling on a legal document they should ignore the actual document that is being challenged, and instead rely on speculation about the opinions of the document’s creator, and act to protect certain rights of immigrants and foreigners that the Constitution does not assign to them.

Under 8 U.S. Code § 1182(f) Congress granted the President broad discretion to suspend the entry of “any class of aliens” into the United States, and independently broad discretion over the refugee program.

That section reads: “Suspension of entry or imposition of restrictions by President - Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” This section of the law goes on to assign the Attorney General authority over activities by airlines bringing in non-citizen passengers, further assigning complete authority over entry to the country to the executive branch of the government, not the judiciary.

The law is crystal clear in its meaning, and does not provide as exceptions to the power of the President the personal opinions of federal judges or the beliefs or motives that these unelected referees ascribe to the president.

Perhaps the reason these judges didn’t want to rule on the actual language and effect of the Order is that it disagrees with their personal opinions. The Heritage Foundation’s Hans Von Spakovsky, a former Department of Justice lawyer, told Breitbart, “I don’t think [these judges] have any professional shame about it — in fact, they’re being applauded by newspaper editors for actually ignoring the law and [Supreme Court] rulings based on their own personal policy preferences.”

He notes that, despite the plain text of the law and prior Supreme Court decisions, these rulings are “destructive of the rule of law, which is the entire basis of our Republic.” This, he said, “is a very bad development that threatens our democracy … [and] it looks like it is going to get worse [because] we’re going to have more and more litigation, and it is very clear that the progressive left wants to use the courts to fight the way our democracy works,” he said, adding “I think what they doing is very anti-democratic.”

Indeed. What can be worse for a country that lives by the rule of law than to have some judges that do not follow or honor the law or the Constitution, but instead make law from the bench or twist laws to suit their personal or political preferences? That is what liberal judges do, and this behavior has reached crisis proportions.

These legal rulings raise important questions:

What is the proper response to a federal court ruling that is so plainly contrary to the law? Should the Trump administration follow a clearly illegal ruling and attempt to overturn it though a lengthy appeal process, or defy the federal courts?

What should happen to judges who issue rulings are at odds with laws and the Constitution that they are sworn to uphold?

Aren’t these judges directly responsible for any harm done to American citizens as a result of persons with the intent to do harm getting into the country by virtue of their rulings?

Cross-posted from Observations

Trigger warning: Immigration problems are being discussed here

Commentary by James Shott

Immigration ought to be one of a nation’s primary concerns, and after the last eight years of lax enforcement of immigration law and the horrible consequences to some individual Americans at the hands of some illegal aliens, President-Elect Donald Trump faces the screaming need to make changes to the immigration process once he is sworn in, and he has stated the desire to do so.

President Barack Obama touts his record on deportations, which some say is nearly 3,000,000 illegal aliens. That certainly is a good thing, but like Paul Harvey famously provided his listeners for so many years, here’s the rest of the story.

The Obama administration did not go around the country rounding up and deporting illegal aliens, some of whom are criminals with varying degrees of violent behavior, including murder. Instead, the Border Patrol caught these nearly three million illegals near the Mexican border as they were entering the country, and turned them around to head back south. Better than nothing, certainly, but far less laudable than that for which Obama takes credit.

In the meantime, the many millions of illegals that have found their way into the country remain, many of them in self-proclaimed “sanctuary” jurisdictions, where local officials brag that they will protect the illegals – criminals and non-criminals alike – from being discovered and deported, or otherwise dealt with as federal law provides.

Like his failure to identify and correctly label radical Muslims who commit terrorism in America and elsewhere, Obama’s failure to properly address illegal immigration will forever be near the top of his lengthy failure list.

It is said, and in proper context it is true, that America is a nation of immigrants. In the earliest days everyone who came to the colonies was an immigrant, and after the colonies gained independence and formed the new nation many other immigrants came to America over the decades and did their part to build and strengthen the nation. But the idea that America still needs immigrants to make it successful and desirable is ridiculous.

American culture was established long ago, so we no longer have a burning need for immigrants for that purpose, or for any purpose. These days, with the foolish suspension of border and immigration control, largely during the term of Barack Obama, the millions of illegal aliens in the country today often weaken our country and pose threats to Americans.

Our country belongs to Americans, those of us whose families have been here for more than a few years, families that have been here for generations. Our Founders created a nation with a unique set of principles from which deep traditions were formed that have survived more than two centuries since the United States came into existence.

We have our ways of doing things – our culture – and a body of laws that evolved from that culture. Americans decide how things are done here, and those who want to come here from places near and far, and places often much different, and many far worse than America, are expected to adapt to our way of doing things.

What sense does it make to do what is required to get to America legally from countries hundreds or thousands of miles away, become a US citizen, and then maintain an allegiance to the land you wanted to get away from instead having an allegiance to America? Or to try to institute the culture of the home you left to come here? If you don’t want to adapt to our way of life – to become an American – why did you come here?

Our policy ought to be: If you want to come here, and you agree to embrace our culture and to assimilate into the American way of believing, living and behaving, and you are a good and honest person with something positive to contribute to America, you will be considered acceptable to apply for citizenship.

What we don’t need, don’t want, and must not abide is people coming here illegally, even if they do so because they truly want a better life in the US. And we also can’t allow those to immigrate here whose national allegiance lies with a country other than the United States. Be an American; accept the country as it is, not as you want it to be. Do not be, for example, a Nicaraguan that lives in America.

Every American needs to understand that there is no divine right held by citizens of other countries to come to America, either as
visitors, immigrants, or as refugees. And further understand that America has no obligation to accept people who want to come here. We can accept them, or not, as we choose.

However, America does have the right, and the obligation, to control who it allows into the country, to be sure they are fit to be here, and have something beneficial to offer us.

America became the great and wonderful country that it is through decades of honoring and sustaining its founding principles, and not by kowtowing to the demands of every dissatisfied minority group that believes its desires are more important than our heritage.

Cross-posted from Observations

The Constitution is under attack, and from an unexpected source

Commentary by James Shott

Just when you think you have heard the silliest thing possible, someone comes along and slaps you in the head with something sillier yet.

It is no secret that lots of Americans do not appreciate or honor the U.S. Constitution, and millions have no clue what it is, what it means, or why it exists. Among those we do not expect to find in that group are people trained in the law, and especially those who have been elevated to the judicial bench through appointment or election. Of course, every group has its eccentrics, even the judiciary.

To wit: Richard Posner, a judge in the United States Court of Appeals for the 7^th Circuit, who expressed an idea on Slate.com that baffles those of us who honor the country created for us 200-plus years ago, and the controlling document, the U.S. Constitution, the law of the land that has been the anchor keeping our republic relatively stable all these years. It has done so to the extent it has been followed, and its principles upheld by those specially trained folks who study the law.

Said Posner: “I see absolutely no value to a judge of spending decades, years, months, weeks, days, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation,” which he followed with: “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc. of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post-Civil War amendments (including the 14th), do not speak to today.”

Education, it seems, is frequently incomplete. For example, some doctors seem to have not had the class in Bedside Manner 101. News journalists often appear not to have heard the idea that news reporting requires impartiality and accuracy. Many teachers at all levels do not understand that their job is not indoctrination, but the presentation of, and assistance in helping students understand their subject.

Posner apparently missed the class where it was discussed how the Constitution could be improved through amendments, and also where one should have learned about the concept of principles, like those set forth in the Constitution.

A principle, in this sense, is a broad concept, not merely a list of specifics. For example, the First Amendment to the Constitution guarantees the right of free speech, the freedom of religion, etc. to all Americans, and the Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The Constitution is not intended to limit its protections to only those threats that existed in the 1700s, but also to any that may arise thereafter. 

Giving Posner credit not substantiated by his comment, let us assume that he understands that a nation must have laws. Since he does not respect the fundamental law that now exists, if we take his argument that the Constitution is old, outdated and therefore useless, what are we supposed to replace it with? Whatever ideas are the most popular? Or the ideas that a particular group of judges like best? Or, worse yet, what each judge and law enforcement official decides ought to be legal and illegal.

Would he prefer a set of rules proposed by the sitting president? Or, would he prefer a set of “living” rules that changes with the winds of popular opinion?

Posner’s article does not address that aspect.

Even with the protections of the Constitution, we see frequent over-stepping by government officials and agencies that ignore its limits on government, so without it how would the citizens of the United States be protected from government excesses? By what measures could we keep our government from becoming just another tyrannical body like communist China or North Korea?

The Constitution in Article III, Section 1, provides: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…” This runs contrary to the widely accepted idea that federal judges are appointed for life or until they decide to step down. Clearly, the Framers foresaw that a judge might exhibit behavior other than “good Behaviour,” in which case he or she is subject to removal from the bench.

With that in mind, several judicial watchers have suggested that Posner’s idea of discarding the Constitution, the document he is sworn to uphold, warrants his impeachment, and also said that a Congress that took both Posner’s oath and its oath seriously would impeach him.

However, Posner is protected by the provisions of the very document he so disdains and wants done away with, the First Amendment’s protection of free speech, which was written not to protect speech with which we agree, but speech that is not popular to some, and even critical of the government. This includes criticism of the Constitution, even by someone so high in the judicial hierarchy as a federal Circuit Court judge.

Our freedoms are now under more serious attack than ever before since the nation’s founding, by political correctness and those who find some protections inconvenient, and now by some charged with defending them by upholding the Constitution’s protections.

Cross-posted from Observations

“Coming to America” in the 21st century: Stupid is as stupid does!

Commentary by James Shott

A sanctuary jurisdiction is a place where people who are in the U.S. illegally may go without fear of being discovered and deported. Most of these people are just looking for a better life, but not all, and some are violent criminals. Regardless of their reason for being here, all are safe from being deported or jailed until they commit a crime, but then it is too late. Someone, likely a taxpaying, law-abiding American citizen will have been robbed, assaulted, raped or murdered.

If you come into the United States without proper documentation, without following the approved procedure, you are a federal law-breaker. If you come into the U.S. legally and over-stay your Visa, you are a federal law-breaker.

Both types of illegal immigrants are deportable under Immigration and Nationality Act Section 237 (a)(1)(B) which says: "Any alien who is present in the United States in violation of this Act or any other law of the United States is deportable.”

You are not an “undocumented immigrant,” you are an illegal alien, a law-breaker. Period. You are not entitled to any government benefits, you should not be able to get a job; you should not be protected by going to a sanctuary jurisdiction.

If you broke our laws to come here because of intolerable conditions where you came from, you have our sympathy for your situation, but we have a process for people like you to immigrate to the United States. In very dire circumstances you may be able to request asylum, but even in those dire conditions, there is a process to follow, and that process does not include crossing our borders illegally, living in the shadows, collecting benefits and avoiding immigration authorities. If you do that, you are a criminal, and should be deported. If you do it again, you should be jailed.

If an American citizen harbors an illegal alien, he or she is breaking the law and can be prosecuted. But cities and counties may do so with the blessing of the federal government, and get taxpayer funding to do so.

It’s not that most illegal aliens are criminals, it’s that far too many of them are. Even one illegal who commits a crime – especially a serious crime like armed robbery, assault, rape or sexual abuse, murder, etc. – is one more than we should accept.

Far too many illegals are up to no good. According to U.S. Immigration and Customs Enforcement (ICE) records, “from January 1 to August 31, 2014, more than 8,100 deportable aliens were released after arrest in approximately 300 local sanctuary jurisdictions, even though ICE had issued a detainer seeking custody in advance of deporting them,” as reported by Jessica Vaughan, director of policy studies at the Center for Immigration Studies, writing in National Review. “Some 62 percent of these offenders had a prior criminal history,” of whom about 3,000 were felons. “Of the 8,100 aliens who were released to the streets instead of to ICE, approximately 1,900 were later arrested, a total of 4,300 more times, on 7,500 different charges.”


Kathryn Steinle, 32, walking on Pier 14 with her father in San Francisco on July 2, 2015, was shot and died in her father’s arms, begging him to help her. Ms. Steinle and her father were minding their own business, but she was nevertheless mindlessly shot and killed. And who committed this heinous crime? An illegal alien from Mexico named Francisco Sanchez who had seven felony convictions against him, four on drug charges, and had been deported five times.

“ICE had started the deportation process, but San Francisco asked for custody of Sanchez to pursue prior drug charges,” Ms. Vaughn’s report noted. “These were dropped, and in early April, instead of turning him back over to ICE for deportation, the San Francisco sheriff’s department released Sanchez, in keeping with the city’s longstanding sanctuary policies, without notification to ICE. Less than three months later, Sanchez shot and killed Ms. Steinle.”


Kate Steinle is not the only American murdered by an illegal, only one of the most recent. It is a true scandal that Americans are less concerned with this serious threat to the safety of their fellow Americans as they are with whitewashing history by removing every existing Confederate battle flag from the land of the free and the home of the brave, and that the Obama administration is more concerned with global warming than with illegals streaming into the country, many of whom are violent criminals.

How many of those who like sanctuary jurisdictions and open borders and the other foolish ideas that constitute threats to Americans have the power of their convictions? How many would follow the same policies at their homes, leaving doors unlocked, allowing anyone to come in and live in their basement or garage, or their bedrooms? Very few, most likely. But they like the sanctuary idea because it makes them feel all warm and fuzzy with misplaced compassion, and they don’t really have to worry about the consequences.

Except they do. These vicious crimes are their responsibility. Wonder how would they feel if Kate Steinle was their daughter, wife, or sister? How would you feel?

Cross-posted from Observations

Thoughts on the Supreme Court: Same-sex marriage and the Affordable Care Act

Commentary by James Shott

Following the American Revolution when the new nation realized it needed a new controlling document, it replaced the Articles of Confederation with the U.S. Constitution, under which the states had significant independence from the federal government. The new government had a brilliant and unique design that included three co-equal branches, each with its own specific duties, limited authority and a system of checks and balances so that no one branch could become dictatorial.

Mentioned first, the Legislative Branch is the rule-maker, the single branch authorized to make laws. Next, the Executive Branch is charged with administering and enforcing the laws that Congress passes; and the Judicial Branch was to be the referee that made sure that the actions of the Legislative and Executive Branches comported with the dictates of the Constitution, as Alexander Hamilton said, to determine whether laws passed by the legislature were consistent with the fundamental and superior law of the Constitution. And Chief Justice John Marshall, in weighing the validity of a provision of the Judiciary Act of 1789, declared “It is emphatically the province and duty of the judicial department to say what the law is.”

Today we see that the Judiciary has become politicized, putting Constitutional concerns on the back burner, as demonstrated by two decisions by the U.S. Supreme Court last week.

First, the Court turned plain language and constitutional law on its head, for the second time, to deny challenges to the Affordable Care Act (ACA). And then it redefined what marriage has been for centuries.

The purpose here is not to argue against same-sex marriage or against whatever few good things may have resulted from the ACA, but to argue for proper judicial behavior in regard to interpreting Congressional acts.

Contrary to the popular notion that the Constitution is a “living document,” the meaning of which changes in response to the prevailing winds of popular societal notions, the Constitution set forth principles envisioned by the Framers as valid for the ages, and which ought to be interpreted as such. Otherwise, what means one thing in 1795 could mean something totally opposite in 1895, and then completely different from either meaning in 1995; the law being blown about on an ever-changing sea.

In the first case last week, Chief Justice John Roberts, voting with the majority, opined: “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.” Had he not redefined a “penalty” as a “tax,” the ACA would have overstepped its power in regulating interstate commerce. Last week, the Chief Justice again voted to correct flaws in the law by deciding that words don’t really mean what we thought they meant, saving the law’s constitutionality for a second time.

In his scathing dissent of that most recent ruling, Justice Antonin Scalia wrote: “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it [actually] means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.” “Words no longer have meaning,’” he wrote.

Further, the Constitution does not provide for the Supreme Court to correct errors in Congressional acts so that they pass constitutional muster. Congress must fix its own mistakes.

Chief Justice Roberts is thought to have been more concerned with trying to protect the Court’s reputation by not overturning a piece of popular legislation, rather than observing his duty to uphold constitutional law.

And last week the Court also voted to redefine what marriage is, with Justice Roberts returning to proper judicial conservatism, voting with the minority this time.

Nothing in the Constitution requires or allows the Supreme Court to redefine marriage. Marriage is a social/cultural construction that has stabilized the family as a bulwark social institution for thousands of years. The court imposed its judgment about a policy matter that should be decided by the American people through their elected state representatives, as provided for by the Tenth Amendment to the Constitution. The definition of marriage had already been broadened by 34 states, which is proper. If some states decide not to change that definition, so be it.

Chief Justice Roberts, who twice abandoned constitutional requirements in finding the ACA to be legal, noted the following in dissent about the same-sex marriage ruling: “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

The Chief Justice properly noted the absence of constitutional authority in the same-sex marriage case, but somehow did not understand that the separation of powers prevents the Court from repairing the work of the Congress, which behaved horribly in creating the Affordable Care Act.

If the people can no longer rely on the Supreme Court to objectively evaluate acts of Congress and the Executive, we are doomed.

Cross-posted from Observations

Honorable service and integrity are requirements for good government

The anniversary of the United States Constitution passed by relatively unnoticed last week, but politics as usual went along apace. That marvelous document – born of discontent that sparked revolution, and which was followed by discord, debate, trial and error, and ultimately yielded triumph – set forth a form of government unheard of in human history. It created a government empowered by the people, a government that expects and depends upon people of integrity following the rules, because doing so benefits the whole of the American people. It is a form of government designed to operate above the muck and mire of petty politics.

A nation so constituted is obligated to the people that empower it to operate efficiently, responsibly, honestly, and to identify its mistakes, own up to and bear responsibility for those mistakes and take steps to assure that those mistakes are not repeated. This element is never more important than when government failure results in the unnecessary loss of life of Americans serving their country.

Such a government and the people of integrity that operate it do not allow political considerations to prevent the truth from being found. It requires people in government, whether put there as an act of faith through the electoral process, or whether put there as hired hands, all work for the people, and all owe a duty to the people to act lawfully and with integrity. Anything less is treasonous, perhaps not by the letter of the law, but certainly in the spirit of the law.

As that revered date passed by, so did another: a date marking the terrorist attacks on New York and Washington on Sept. 11, 2001, and the terrorist attack on the U.S. consulate in Benghazi, Libya in 2012.

We well remember the first of those dates, when Muslim terrorists hijacked four airliners and crashed two into the World Trade Center, one into the Pentagon, and passengers scuttled the fourth before it could reach its target, but these acts resulted in killing nearly 3,000 innocent people. Not since Pearl Harbor had the United States seen an attack of such magnitude.

On the latter date, Islamic militants attacked the Benghazi consulate. In that attack U.S. Ambassador to Libya Chris Stevens, Sean Smith, a Foreign Service information officer, and Tyrone S. Woods and Glen A. Doherty, two former Navy SEALs working as security personnel at the consulate died. This is an event many want simply to forget, and move on. “Dude, that was two whole years ago!”

The Benghazi attack occurred on the watch of President Barack Obama and Secretary of State Hillary Clinton, neither of whom has any appetite for providing answers to the several serious questions about security failures that they are obligated to provide to their bosses, the American people.

The tragedy of Benghazi resulted from a grossly failed episode of government that puts some public servants in a very, very bad light. But people who put good government above sordid political concerns understand that the many unanswered questions of Benghazi deserve –require – answers. Honest and complete answers.  Mrs. Clinton’s shameful response to a Congressional committee, “What difference, at this point, does it make?” simply does not cut it.

And the longer Americans are left wondering which of the public servants in our government made decisions, or failed to make decisions, that led to the murder of four brave Americans serving their country, the more tawdry details leak out.

In a lengthy story for the Daily Signal online, Emmy award-winning investigative journalist Sharyl Attkisson reported that as the House Select Committee on Benghazi prepared for its first hearing on the scandal last week, former State Department diplomat Raymond Maxwell alleged that confidants of Hillary Clinton took part in removing some damaging documents before they were turned over to the Accountability Review Board investigating the security lapses prior to and during the terrorist attacks on the consulate.

As Ms. Attkisson reported: “Maxwell says the weekend document session was held in the basement of the State Department’s Foggy Bottom headquarters in a room underneath the ‘jogger’s entrance.’ He describes it as a large space, outfitted with computers and big screen monitors, intended for emergency planning, and with small offices on the periphery.”

Mr. Maxwell said that he observed boxes and stacks of documents, and that a State Department office director, whom he said was a close advisor to Mrs. Clinton was there. The office director actually worked for Mr. Maxwell, but he said he was not consulted about her working on this weekend assignment.

The office director explained that the assembled staff were to go through the stacks of documents “and pull out anything that might put anybody in the [Near Eastern Affairs office] or seventh floor [where the Secretary of State and top advisers are] in a bad light.

 “I asked her, ‘But isn’t that unethical?’ he said. “She responded, ‘Ray, those are our orders.’”

These State Department employees were more concerned with following orders than with acting honorably and legally, something that should concern everyone.

For that reason, and for the memory of those four brave Americans that died needlessly, we must pursue the truth about Benghazi.

Election protections in the US Constitution are being circumvented

Commentary by James Shott

Back in the good ol’ days, school kids studied history and civics where they learned how and why America came to be. And they came away from that with an understanding of the wisdom the Founders applied in creating this country.

They learned that the first governing document was not adequate to accomplish the desired goals. The Articles of Confederation reflected the Founders’ profound and well-grounded fear of a too-strong national government, gave too much independence and control to the states, and had other problems that failed to provide a solid foundation for a cohesive nation.

Their solution to that misstep was to develop a new governing document that gave enough power to the federal government to hold the union together, but left the states with a significant degree of control and autonomy.

The Founders created a unique and enlightened form of government that prevented a small minority of self-serving people from controlling the masses, and also prevented a majority of citizens from imposing its will on the minority.

In creating the US Constitution to replace the Articles the Founders considered having Congress select the president, but the president would then be beholden to the Congress, confounding the idea of three co-equal branches of government. They also considered state legislatures or governors selecting the chief executive, but those ideas, too, were rejected. And they rejected electing the president through a purely popular vote, because they wanted to balance the power of the larger and smaller states. 


On this point, before being elected president then-US Sen. John F. Kennedy noted, “Direct election would break down the federal system under which states entered the union, which provides a system of checks and balances to ensure that no area or group shall obtain too much power.”

The deliberations on how best to select the president ultimately resulted in the creation of the Electoral College. But now there is an effort afoot to do away with this beneficial safeguard of the US Constitution that the Founders meticulously developed to best serve the citizens of their country.

Changing the Constitution requires amending the Constitution, and that requires the consent of two-thirds of Congress and three-fourths of the states; very difficult and unlikely to be accomplished any time soon.

The National Popular Vote (NPV) plan claims its purpose is “to ensure that every vote for president is equally valued no matter where it is cast.” However, it seeks to make this change without a Constitutional amendment. The Founders realized there might be legitimate reasons to change the Constitution, but also understood that such changes must have broad support among the citizenry and it therefore should not be too easily done. The system for amending the Constitution is demanding, as it should be.

Rather than approach this important change the proper way, by putting it before the people and the Congress through the amendment process, NPV advocates decided to take a short cut and simply subvert the Constitution through a back-door agreement.

The mission statement of the NPV initiative should therefore read: “Things aren’t working out to suit us, so we need to change the rules.” Its campaign seeks to obtain the consent of the majority of the 538 votes in the Electoral College to award electoral votes to the winner of the national popular vote instead of the winner of the popular vote in each state, a system in which the inmates run the asylum.

The president will be chosen not by the electors voting as the voters of their state determine they should vote, but under the terms of an agreement among themselves.

This effort to buy control of presidential elections must be the work of the evil Koch brothers, or the TEA Party, right? Nope. It is uber leftist Hungarian-American multi-billionaire George Soros pulling the strings.


Ten states have already signed up for this subversion: New York, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont, California and Rhode Island. The District of Columbia also has joined the scheme.

Since the Electoral College protects the balance the Founders created with deference to states with smaller populations and by ensuring that the interests of these states be reflected in national decision-making, circumventing it through the NPV creates serious problems, according to former Federal Election Commission member Hans A. von Spakovsky:

** Recounts would be both more prevalent and more problematic.
** It could destabilize America’s two-party system, leading to a higher incidence of close elections and recounts.
** Provisional ballots could also lead to an extensive, widespread, and complex battle that could further delay and confuse the results of a presidential election.
** The plan would encourage vote fraud.

According to Mr. von Sapkovsky, “The NPV is unconstitutional because it would give a group of states with a majority of electoral votes the power to overturn the explicit decision of the Framers against direct election. Since that power does not conform to the constitutional means of changing the original decisions of the framers, NPV could not be a legitimate innovation.”

The NPV is yet another liberal idea that upon analysis turns out to be a lousy idea. Is it also criminal?

Cross-posted from Observations

Cattle grazing standoff in Nevada ends peacefully with BLM retreat

Commentary by James Shott

Thankfully, the standoff at the Bundy ranch in Nevada ended fairly peacefully. Bureau of Land Management (BLM) Director Neil Kornze made a good decision, and the correct decision, when he pulled his officers out after returning some 400 head of seized cattle to the land on which they had been grazing. He took the action “because of our serious concern about the safety of [BLM] employees and members of the public.”

The Internet is rife with stories about this incident from national and local news outlets including ABC, the local CBS channel KLAS-TV, Newsmax.com, the Los Angeles Times, the Las Vegas Review-Journal, the Associated Press, and others.

Some will say that rancher Cliven Bundy was at fault in this incident. Mr. Bundy raises cattle on the ranch his grandfather started in the1870s, and he and his ancestors and neighbors have been grazing their herds on this land for well over a hundred years.

The federal government, through the BLM, took control of a huge area in Nevada when a tortoise that makes its home there was labeled “threatened” many years ago. In order to graze their cattle there, ranchers had to pay a fee. The new paradigm engendered the shutting down of several ranches, Mr. Bundy asserts, and he refused to be one of them. He continued to graze his cattle there and has refused to pay the fee on the basis that the federal government had no right to take control of the land that belonged to the State of Nevada.

He and others dispute the stated reason for the federal encroachment, the “threatened” tortoise. They say that the tortoise is not endangered at all, and that even if it was, cattle do not harm the habitat or the tortoises. Thus, the federal government had no basis for the take-over, and the court actions against him are therefore moot.

After losing court actions, Mr. Bundy still grazed his cattle on the land for years without paying. In response to a court order, the BLM recently sent an estimated 200 heavily armed officers and police dogs to the area and began rounding up the cattle.

And that’s when the revolt against what protesters viewed as over-reaching on the part of the BLM/federal government starting building steam. The protestors began rolling in from across the country. Some were armed and some were on horseback, reportedly attempting to free cattle seized by the BLM.

Tensions grew and were aggravated when Mr. Bundy’s son was shot twice with a stun gun, and a BLM officer tackled Mr. Bundy’s 57-year-old sister to the ground.

As tensions grew among the protestors, and the potential for violence grew, Director Kornze made the decision to return the captured cattle and withdraw the BLM personnel.

Some believe the federal retreat signals a victory for Mr. Bundy and his supporters. Others believe the federal intervention was a test to determine whether, and to what extent, the American people will stand up against federal over-reaching. Whatever the case, it has gotten the attention of millions of Americans.

Now it’s time for answers to some important questions about the BLM and its actions, and the basis for the court decisions. The most important of these questions is: Where does the federal government find the authority for the BLM to take control of land belonging to a sovereign state?

Some legal authorities say that the Bureau of Land Management action is a direct violation of Article 1, Section 8, Clause 17 of the US Constitution. That clause, the Enclave Clause, authorizes Congress to purchase, own and control land in a state only under specific and limited conditions, such as “for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.” It does not mention uses such as to protect endangered animals.

Legal scholar Mark Levin said that the BLM negotiated agreements with Mr. Bundy and other ranchers many years ago for water rights, grazing rights, and for building roads and irrigation. The BLM then changed the rules in what Mr. Levin called a “systematic and deliberate campaign to drive ranchers out of Southern Nevada.” The fact that Mr. Bundy is the lone remaining rancher in the area adds credence to this charge.

And why swoop in with heavily armed federal agents and forcibly take Mr. Bundy’s cattle? This action is not only uncalled for, but is dangerous and irresponsible. There are other methods for the federal government to get what it is due in fees without armed force.

It is an encouraging sign that so many Americans from so many states felt strongly enough about this issue to travel to Nevada and stand beside Mr. Bundy and his family in the face of federal tyranny.

Each time the government oversteps its bounds, the people complain, but usually to no avail. Let us hope that this time the message that the government that exists only to serve the best interests of Americans will not be allowed to endlessly abuse them.

People are more important than animals, and the American people are more important than their government. Our government and our leaders need to be reminded of their proper place.

Cross-posted from Observations

Liberals use the courts to change the rules

Commentary by James H. Shott


A story in The Washington Post informed readers that “The Supreme Court ruled the Second Amendment provides Americans a fundamental right to bear arms that cannot be violated by state and local governments.” This issue should never have had to be decided by the Supreme Court.

The Second Amendment is part of the Bill of Rights, which is a specific articulation of what many of the Founders regarded as fundamental principles of human liberty – “unalienable Rights,” according to the Declaration of Independence – that must be guaranteed, and not left in doubt, so those rights were specifically guaranteed in the first ten amendments to the United States Constitution in 1791.

They include the right of free speech, freedom of the press, the right to assemble and to petition the government, freedom of religion, the right to due process and trial by jury, protection from unreasonable search and seizure, and the right to keep and bear arms, among others, which the Founders recognized as essential for a free people in a free society, and which Justice Samuel Alito confirmed in his majority opinion: "It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

The 5-4 ruling came in response to a challenge to a Chicago law banning handgun possession. Such blanket bans are in response to the illegal use of handguns, but are poorly thought out and fraught with flaws and unintended consequences, the most obvious of which is that law abiding Chicagoans who have sold their handguns to comply with the law, or have not purchased a handgun because of the law, have had their most effective means of self-defense outlawed by the City of Chicago, leaving them vulnerable to criminals who still have their guns.

It is ludicrous to suggest that the Framers ever intended for such a preposterous situation to be created.

Gun control is another of the many areas where good intentions fall victim to reality: In the real world gun control laws do not control guns. What they do most effectively is to disarm potential victims.

The populace has nothing to fear from law abiding citizens with guns. In fact, studies show that law abiding citizens who are armed provide an effective deterrent to crime. In an article titled “Can Gun Control Reduce Crime? Part 1,” historian and writer Benedict D. LaRosa noted that “Vermont has the least restrictive gun-control law. It recognizes the right of any Vermonter who has not otherwise been prohibited from owning a firearm to carry concealed weapons without a permit or license. Yet Vermont has one of the lowest crime rates in America, ranking 49 out of 50 in all crimes and 47th in murders.”

He also said that states which have passed concealed-carry laws have seen their violent crime rates fall by from three to seven percent, which makes perfect sense: If a criminal believes his intended victim may shoot him, he might think twice before robbing attacking him or her.

All of the gun control laws in the universe cannot keep criminals from having guns. That’s sort of what the term “criminal” implies, you know? Does it make any sense to prohibit law abiding citizens from owning guns to protect themselves from criminals who ignore the law and arm themselves? That’s a no-brainer.

Still – and this is truly troubling – four of the nine Justices of the United States Supreme Court voted in this case to maintain Chicago’s prohibition against handgun ownership, which is a de facto vote against the concept of law abiding citizens owning handguns for self-defense. That defies both common sense and the intent of the Second Amendment. But more importantly, it is a serious threat to our freedom that those four Justices – Steven Breyer, Ruth Bader Ginsburg, John Paul Stevens, and Sonia Sotomayor – either do not understand the intent or the plain language of the US Constitution, which they are duty bound to uphold, or they have substituted their own ideology for the intent of the Constitution. Neither is acceptable

This behavior is referred to as “judicial activism,” a theory that judges can and should creatively reinterpret the Constitution and laws in order to serve the judges' own ideas of the needs of contemporary society.

But what is the point of having a constitution if it can be reinterpreted by judges? What is the point of enacting laws if judges can interpret them according to their own personal views? And why should any of us obey existing laws, if their meaning changes from judge to judge?

For centuries people have used anchors to keep their boats from being moved around by winds and tides. Our Founders realized that the Republic also needed an anchor to keep it from being swept around by changing social and political ideas, and they created the United States Constitution for that purpose, and to establish a nation with maximum personal freedom. It has served us well for more than 200 years, making America the most exceptional nation in history.

We must be smart enough to follow it and not screw things up.

Cross-posted from Observations