Good Friday Morning! I hope you had a great Fourth of July holiday with family and friends! Frederick Douglass gave one of the very best speeches about the Fourth of July and American Independence on July 5th, 1852, entitled: “What to the Slave is the Fourth of July?” Douglass was a masterful orator, and his description of the Founding Fathers and their importance is about as good of a history lesson as you’ll receive. Remember, for him, the Founding was only 76 years in the past, similar to our position with WWII. And then he reminded his listeners that they to had to live to the legacy of the founding generation:
We have to do with the past only as we can make it useful to the present and to the future. To all inspiring motives, to noble deeds which can be gained from the past, we are welcome. But now is the time, the important time. Your fathers have lived, died, and have done their work, and have done much of it well. You live and must die, and you must do your work. You have no right to enjoy a child’s share in the labor of your fathers, unless your children are to be blest by your labors. You have no right to wear out and waste the hard-earned fame of your fathers to cover your indolence. Sydney Smith tells us that men seldom eulogize the wisdom and virtues of their fathers, but to excuse some folly or wickedness of their own. This truth is not a doubtful one. There are illustrations of it near and remote, ancient and modern. It was fashionable, hundreds of years ago, for the children of Jacob to boast, we have “Abraham to our father,” when they had long lost Abraham’s faith and spirit. That people contented themselves under the shadow of Abraham’s great name, while they repudiated the deeds which made his name great. Need I remind you that a similar thing is being done all over this country today? Need I tell you that the Jews are not the only people who built the tombs of the prophets, and garnished the sepulchers of the righteous? Washington could not die till he had broken the chains of his slaves. Yet his monument is built up by the price of human blood, and the traders in the bodies and souls of men, shout—“We have Washington to our father.” Alas! that it should be so; yet so it is.
The speech is well worth your time to read. It’s one of the few things I try to reread every year, along with the Declaration of Independence.
One other note before jumping in today: If you know anyone in a public sector union — teachers, police, fire department, etc. — who wants to know their legal rights after the Janus SCOTUS decision, send them this link: MyJanusRights.org. It’s a free site run by the National Right to Work Foundation and they even offer a form Janus letter for anyone to send to their union to opt out. There’s a Q&A section that explains everything for anyone involved with public sector unions.
This week I’m covering the new argument on the left that we need to abolish ICE, but I’ll start off with a quick look at the new SCOTUS shortlist. Links to follow.
New this week at the Conservative Institute
Anthony Kennedy’s retirement comes 31 years since his confirmation. He hasn’t the first choice for that seat. The first choice was Robert Bork, who was attacked relentlessly by Senate Democrats like Ted Kennedy and Joe Biden. That was when the phrase “Borking” came into play. Democrats “Borking” of Robert Bork and Clarence Thomas politicized the modern nomination process for SCOTUS in ways the nation hadn’t seen since FDR’s court-packing scheme.
Whenever Roe v. Wade is brought up during judicial nomination processes, a favorite dodge answer for people, who don’t want to discuss it is to say that Roe is “settled law.” That’s not true, as I go through in this piece.
And then it was three – the SCOTUS shortlist
Nearly all news stories I’ve read recently, from those plugged into all the right legal circles to regular political reporters agree on the final three shortlist for the next Supreme Court Justice, in the following order:
- Judge Brett Kavanaugh
- Judge Raymond Kethledge
- Judge Amy Coney Barrett
All of these picks are in the six I mentioned last week as the top contenders from FantasySCOTUS, Law Prof. Josh Blackman’s prediction website. FantasySCOTUS is still saying Barrett is the top contender for the position, with Kethledge a distant second. Kavanaugh comes in 5th on the FantasySCOTUS voting.
There is a reason to believe that FantasySCOTUS could be wrong. The best money was on Barrett for most of the week, until a well sourced and reasoned set of posts on Above the Law came out arguing that Barrett would be the chosen successor for Ruth Bader Ginsberg’s seat, should Trump get a chance to replace her.
The posts also argued quite persuasively that Kavanaugh was the frontrunner in the race, with Kethledge a close second. Kethledge is seen as another Gorsuch nominee, while Kavanaugh is a robust conservative judge with many credentials.
A healthy chunk of conservative legal punditry has treated Kavanaugh as the strong first place leader, which is why there have been more attacks on him than other judges. I don’t entirely agree with the attacks, and would more agree with Ed Whelan, that the reason Kavanaugh is getting attacked more is that he has a long list of opinions and history to comb through. Kethledge and Barrett are both bright stars on the conservative legal right, but they don’t have Kavanaugh’s experience in the courts.
If Trump wants a fight with Democrats, Barrett is the easy pick. Democrats already subjected her to a religious test for her previous nomination. If the anti-Catholic sentiment boils over again in the Senate, and among the Democratic base (some of whom are already calling her a member of a cult), Trump will get a religious, political fight. Democrats would be smart to avoid fighting Barrett, but I doubt their base allows them to be smart.
Given all that, I still think Kethledge is a dark horse with a decent chance to jump over Kavanaugh and Barrett. If the Trump administration gets scared of any adverse reaction from conservative circles, then Kethledge is probably the better bet here. Barrett is tempting to choose because the nomination battle would help Trump, but she’d also make a solid successor to RBG. Kethledge is probably the safer legal and political choice, almost guaranteeing easy Senate passage.
In any event, the nomination gets announced on Monday at 8 pm eastern.
The New Abolish ICE Movement
The new hotness among the Democratic Party base is abolishing ICE, the Immigration and Customs Enforcement department, part of the Department of Homeland Security. And as the far-left base calls for abolishing ICE, politicians are responding. Politicians like:
- Sen. Bernie Sanders (VT)
- Sen. Kristen Gillibrand (NY)
- Sen. Elizabeth Warren (MA)
- Mayor Bill de Blasio (NYC)
- Alexandria Ocasio-Cortez, Democratic Nominee for the House in NY, and new party star
There are others who have called for the abolishment of ICE, but these are the heavy hitters in the party. You’ll also notice that everyone on the list above and in that link is on the far left of the party, and the Northeast, Northwest, or Midwest. It’s interesting to note right now that Democratic politicians in California, Florida, the South, and the border states are slow to join in this fray.
The call to abolish ICE came as the family separations issue along the border hit its height a few weeks back. What’s strange about the abolish ICE movement is that they seem not to understand what ICE does because the ICE wasn’t involved at all with the family separations issue at the border, that’s the US Customs and Border Protection’s (CBP) job.
ICE was formed in 2002 as part of the post-9/11 government restructuring in the new Department of Homeland Security. ICE is more of an investigative branch with a focus on identifying the illegal movement of people with an emphasis on terrorism. The CBP enforces the border and handles most of the deportations you see on the news.
If you abolished ICE today, the border would continue getting enforced, family separations could continue, and all the statutes ICE enforces would get shifted to other agencies for enforcement.
And that’s why this is a confusing rallying cry from the left. ICE enforces statutes on the books, and if you remove the agency, all you do is change who enforces those same statutes. The task would fall to the DHS at large, the FBI, or other agencies like the CBP.
I do hold some empathy with the concept of getting rid of various government agencies. I was joking with a friend that we could offer to abolish ICE for the left if they also agreed to terminate another federal agency we don’t care for… like the Department of Education (something which should get left to the states and your local school board).
There’s a case for reigning in the powers of ICE, as it is an agency that’s struggled in the past to uphold various constitutional requirements, like the 4th Amendment and Due Process rights.
But that’s not the argument getting made by anyone on the left. They want to abolish ICE, for some reason. Part of that seems to be conspiracy-mongering by some of them, like Alexandria Ocasio-Cortez, baselessly claiming that ICE is running black sites on the border. But part of it is also evident illiteracy with regards to how immigration law in the US works.
See, for an example, a group of liberal protestors who protested an ICE raid… that was arresting people for child sex trafficking.
So what’s happening? I think Nate Silver has the best idea; it’s a political tactic:
More seriously: abolishing ICE isn’t popular based on the polling data we have so far.
But it’s worth noting that proponents of the policy aren’t necessarily expecting it to be popular. They’re expecting it to shift the Overton Window, as the kids say … meaning that they think taking a deliberately radical position can recenter the conversation in their direction.
Does that strategy actually work? I don’t know — I’m skeptical. But I expect to see more of it from left-ish folks who feel that Democratic incrementalism has failed.
The separation of families at the border was an easy question to bash the Trump administration on, but once that gets fixed, it has a short political news life. Abolishing ICE has a longer news life, and is an attempt to force immigration policies leftward. It also has the chance of radicalizing more people towards the side of far-left.
The problem with that calculation is that the free and open borders groups in Europe tried the same thing, and now far-right nationalist groups are winning across the continent. They aren’t having a Trump-style moment as much as they are returning to their nationalist roots. Shifting the conversation towards the far-left triggered a reaction on the right that’s pushed the countries away from the open borders movement into outright hostility towards anyone not in a given country’s majority ethnic group.
Political action doesn’t happen in a vacuum or without consequence. The left risks triggering a far more significant reaction towards the right than they think.
Links of the week
Are Democratic-Socialists the New Tea Party? – David Byler, The Weekly Standard
Democrats Underperforming With Hispanic Voters: Despite the president’s hard-line immigration policies, Republican candidates are running competitively in many Hispanic-heavy states and congressional districts. – Josh Kraushaar, National Journal
Judge Raymond Kethledge and the Separation of Powers – Charles J. Cooper and G. Ryan Snyder, Notice And Comment
The Media’s Favorite ‘Ethicist’ – Ethan Epstein, The Weekly Standard
Americans Are Having Fewer Babies. They Told Us Why.: Women have more options, for one. But a new poll also shows that financial insecurity is altering a generation’s choices. – Claire Cain Miller, The Upshot in the The New York Times
What Trump Doesn’t Get About Conservatism – Roger Scruton, The New York Times
Trump Must Stick to his Supreme Court List – Jonah Goldberg, National Review
Abortion and the Supreme Court: Precedents can be abandoned. But there is no guarantee that will happen to Roe v. Wade. – Ramesh Ponnuru, Bloomberg View
Democrats court-packing talk is just crazy – John Podhoretz, The New York Post
#NotTheOnion Piece of the week
This article surpassed any satire I read this week…
I stopped going to the gym because of Trump. Now I can’t open jars – Brigid Delaney, The Guardian
In the spirit of the Donald, I drank more bottles of Diet Coke and ate more McDonald’s. I dropped the gym – embracing Trump’s belief that we are given a certain amount of energy and if we use it then we are depleting a finite resource.
According to the book Trump Revealed: “Trump believed the human body was like a battery, with a finite amount of energy, which exercise only depleted. So he didn’t work out. When he learned that John O’Donnell, one of his top casino executives, was training for an Ironman triathlon, he admonished him, ‘You are going to die young because of this.’”
I didn’t want to die young, so I didn’t go to the gym.
Trump explained his exercise routine like this to Reuters: “I get exercise. I mean I walk, I this, I that. I run over to a building next door. I get more exercise than people think.”
I walked. I this. I that. Months passed. Then a year. Trump was going to be in power for another 1,000 years. Or at least that’s what it felt like. Could I really avoid the gym for the entirety of his presidency?
I missed being strong enough to open jars and carry groceries. So, last week, I returned to the gym, slinking back in as if no time had passed. I hoped that by wearing a puffy jacket and MC Hammer pants I could hide my lack of definition – that I could pretend I had maintained my fitness on my own. At home, running to the building next door. On the couch. While tweeting.
But you can’t hide fitness. You either have it or you don’t. You can either lift the dumbbell or you can wobble on your fifth rep and drop the load.
You are either strong or you are weak. And I was weak.
Thanks for reading!