With Democrats taking control of the House (and presumably doing little more than investigating the President, his family and business associates) and Republicans keeping control of the Senate and White House, it’s unlikely that much is going to get done legislatively for a while, at least until January of 2021. So, how can Republicans make the most productive use of the next two years, to really make a difference? Andrew C. McCarthy has a new, very helpful column that offers some direction.
President Trump was voted into office, he notes, in large part because the electorate wanted to see his policies implemented --- policies on immigration, the environment, etc. In our free, constitutional republic, that’s the way it’s supposed to work, with elections being a choice from among competing policies. But that’s not what is happening now, as hard as Trump has been working to fulfill his promises, because of activist judges (the “Lawyer Left,” as McCarthy calls it) who were largely put in place under Obama. With President Trump being blocked by them from exercising his constitutional authority on a variety of fronts, McCarthy recommends a solution: “conveyor belt” confirmation of his nominees to federal appellate courts and district courts.
Numerous vacancies on the appellate courts have been filled since Trump took office, but 11 seats remain open, and within the district courts, there are currently 111 open seats. The President needs to get them filled, with judges who will follow the rule of law rather than dictate an ideological agenda. Under the judicial control of the Lawyer Left, McCarthy explains, “elections represent a policy choice only when Democrats win.” This needs to change, and appointing new judges is the way to do it.
McCarthy anticipates that the left will simply accuse the right of doing essentially the same thing they themselves do: put like-minded judges on the bench to ensure the decisions we want. But that’s not it; in a larger sense, we conservatives think differently from liberals in that we really want to protect the rule of LAW --- the legislation passed by Congress (lawmakers who are accountable to us and can be removed in the next election) and signed by the duly-elected President, as outlined in the Constitution. We’ll live under a law we oppose as long as we have the have the opportunity through the system to repeal or amend it. That’s so unlike the left, who see the Constitution as elastic and will stretch it every which way as a means to an end. After all that, if leftists still don’t get the result they want, they “resist”: marching, rioting, screaming in people’s faces, making threats, pounding on doors and wearing ridiculous hats.
Take the obvious example of this difference in approach, Roe v. Wade. Leftists want legalized abortion, so they “found” the “right” to it, just as they are happy to “find” any other “right” they want to bestow. On the right, we strongly oppose abortion but see the issue as one to be addressed by legislation, primarily at the state level. (I would add that in this case, a constitutional amendment would also be consistent with the rule of law, but the state-by-state legislative approach, along with scientific education and working to change individual hearts, is much more reality-based.) We don’t look for authorities in robes to “find” a prohibition of abortion in the Constitution where none actually exists, because that would chip away at the rule of law.
Liberals don’t understand this because their minds don’t work that way. They’re projecting their own way of thinking onto us. (The same principle applies with voter fraud: Democrats willing to blatantly manipulate elections –- i.e., break the law –- to get their desired outcome will naturally project that willingness onto conservatives and assume we all do the same thing they do. Not so. But I digress.)
We’ve got a situation now in which some judge or panel of judges on the Lawyer Left is no doubt going to hit President Trump with an injunction against his administration’s restrictions on asylum applications. As the first migrants from the “caravan,” presumably the ones who managed to hitch a ride instead of walking, are arriving at the U.S.-Mexico border, we have a policy for handling them in place, a rule derived from existing federal statutes by the Departments of Justice and Homeland Security and specified in the form of a proclamation signed by President Trump. It very reasonably states that an alien who is physically present in our country and wishes to apply for asylum here must be in the country legally. He must not have attempted to smuggle himself in or force his way in as part of a mass group, or “caravan.”
McCarthy points out that just four months ago, the Supreme Court affirmed the President’s authority to “control the ingress of aliens based on his assessment of national security needs.” That would certainly seem to include his policy for dealing with these large migrant groups. But it won’t matter. What will matter is that Trump is trying to reverse the lax Obama border policy (which has obviously failed to create border security, but never mind). This reversal will not be permitted, because Obama appointed 329 federal judges, the vast majority of whom are just as “progressive” on the issues as he is and think nothing of telling the current President what he can and can’t do.
Example: At the time the administration was firming up the new asylum standards, a three-judge panel on the Ninth Circuit Court of Appeals (two Obama appointees and one Clinton appointee who was on Obama’s short list for the Supreme Court) ruled that Trump could not reverse Obama’s DACA policy (Delayed Action on Childhood Arrivals). Obama had proclaimed this unilaterally, through nothing more than a policy memo, yet the judges said Trump didn’t provide them with a good enough reason for changing it. Here’s all the reason they should need: “I am the President of the United States, you black-robed idiots, and I get to do it.”
Another example: An Obama-appointed judge in Montana has issued an injunction against the Keystone Pipeline. Gosh, you’d think Obama was still President, and I guess he still is, according to this particular Montana judge.
The Lawyer Left talk about democracy from the ground up, “power to the people” and all that, but what they really want is control from the top down. They want to run things, and run things they do. This is the kind of government someone like Hillary Clinton wants, the kind that minimizes the will of the “deplorables.” It’s the kind of mentality that sees nothing wrong with legally hemming in the duly-elected President, with injunctions and/or with endless investigations and threats of impeachment, because the decision of the voters doesn’t matter.
The only thing that matters is political muscle. And judges increasingly wield it.
It’s a great idea for President Trump to use these next two years to appoint as many judges as possible who believe in the rule of law. Republicans still control the Senate, so the approval process hasn’t been derailed. (Of course, they've got to stick together, unlike outgoing Sen. Jeff Flake, who says he won't vote to confirm any of Trump's judicial appointments until the Senate votes on legislation to protect the special counsel. Disgraceful.) Let the Democrat-controlled Congress devolve into its own internal power struggles, endless investigations and hysterical ravings against everything Trump says and does. The President should just quietly go about his business constructing a solid judiciary, and in doing so, create the kind of legacy that will do this country an amazing amount of good.
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