17-56

by Rich Lowry

That’s the approve-disapprove of the Republican health-care bill, per a new Quinnipiac poll. If that number is anywhere close to accurate, it makes the analysis on why Republicans are having trouble passing the bill much simpler–major legislation this unpopular doesn’t become law. Per Fred’s point below, Sahil Kapur points out the numbers among key Trump demographics:

BREAKING: House Health-Care Vote Postponed

by Alexandra DeSanctis

After over two weeks of deliberation, House leadership has postponed a vote scheduled for sometime today on the American Health Care Act (AHCA), the GOP bill to repeal and replace Obamacare. According to the most recent information, the vote will be rescheduled for tomorrow, but no time has been set.

The AHCA rollout, which began on March 6, was plagued by controversy, as moderate Republicans and hardline conservatives alike found a variety problems with the first draft. Despite textual changes and further negotiation, the far-right House Freedom Caucus (HFC) remains the last big roadblock, as most of its members have yet to come around to accept the ACHA as it stands.

Given numbers in the House, the GOP could only afford 21 defections, and according to most reports, somewhere around 30 members were still unwilling to vote for the AHCA as of this afternoon, with another handful of members leaning toward voting “no” as well.

Hardline conservatives continue to insist that the bill leaves too many of the Affordable Care Act’s structures in place, failing to live up to the GOP promise of repealing Obama’s signature health-care bill. Members of the HFC — including its chairman, Mark Meadows (R.-N.C.) — held an extended meeting today with President Donald Trump and his White House advisors, but still were unable to strike a deal to give the GOP the votes necessary to pass the bill today as they had intended.

Meanwhile, over a dozen moderate GOP representatives recently have announced their intention to vote against the bill, some of whom are concerned that it would inhibit their constituents’ access to affordable health-care options.

Much of today’s discussion over the bill centered around the plan’s provisions for essential health benefits, which the White House offered to strip out of the legislation in a move to win HFC votes. This offer might’ve been a reason for some of the dwindling support from moderate members.

Although the process has devolved into some confusion, and the future of the bill seems somewhat unclear, Meadows assured reporters at a press conference this afternoon that he and his members are “desperately trying to get to yes” and promised “we are going to get to the finish line.”

Vote Delayed

by Rich Lowry

It’s obviously not a great sign. The tactical problem Ryan has is that he needs to win over both conservatives and moderates, which means that every action creates a reaction. It’s not clear, for instance, that the White House offer to the Freedom caucus yesterday to strip out the “essential health benefits” of Obamacare won more conservatives or lost more moderates. The bigger problem is that it’s not a good bill, so no one is eager to make compromises or sacrifices to get it over the top.  

How Health-Care Policy Divides the Republican Coalition

by Fred Bauer

Making even Internet memes look durable, the American Health Care Act seems a quickly evolving legislative artifact. Whatever it is, though, it faces a key political problem: Will it blow up the potential alliance between conservatives and working-class-oriented populists (perhaps not two entirely distinct categories)?

In some respects, the AHCA is a very generic Republican bill. One could see a similar measure being supported by a President Jeb Bush, for instance. The AHCA embodies in many ways a version of Republicanism that likes to lead with fiscal issues, focusing on tax cuts and entitlement reform. It would cut capital-gains taxes for upper-income households (to the tune, the Congressional Budget Office estimates, of over $16 billion per year by 2020 — or a big chunk of the estimated price of a border wall). In one of its most transformative provisions, the AHCA would block-grant Medicaid to the states, a mode of entitlement reform long desired by many conservative wonks.

While it achieves many longstanding priorities for Beltway Republicans, it contains some provisions that could alienate members of the working class, such as Medicaid cuts. It is telling that elements of the Right who have been very sympathetic to populist themes — such as Ann Coulter, many Breitbart writers, and Arkansas senator Tom Cotton — have been unsparing in their criticism of the AHCA. The bill itself is currently extremely unpopular, supported by only 17 percent of Americans according to the latest numbers from Quinnipiac.

It might be especially divisive for the Republican coalition. Donald Trump’s presidential campaign was premised upon outreach to working-class voters, and an improved performance with this demographic was crucial for breaking the “blue wall” at the presidential level and for the GOP’s successful defense of its Senate majority. Perhaps a key slice of the working class is what Pew calls the “Hard-Pressed Skeptic,” a type of voter skeptical of international trade and large institutions but also anxious for government support (even as Skeptics have grave doubts about the efficacy of the government). In many ways, Donald Trump campaigned as a Skeptic, and this group likely formed a key element of his electoral coalition in Rust Belt states.

Republicans risk grave political danger if they lose the faith of working-class voters because of GOP decisions on health care and other policies. These voters might enjoy President Trump’s combative approach to institutional Washington, but that pleasure could soon sour if they think that the administration is not advancing their policy priorities. It’s possible that the most dangerous position for Republicans on health care is that the GOP passes some reforms to the financing of health care, enough for Democrats to accuse them of denying care to people, while also failing to pass any reforms that could expand access to health care (such as expanding the insurance market). That is to say, Phase 1 without Phase 3 might be a very uncomfortable position for the GOP.

Sometimes, political dangers can be gone around rather than faced head on. If the House remains at an impasse on the AHCA, congressional leaders could return to the table with a legislative strategy that defers some reductions in Medicaid expenditures in order instead to offer some targeted reforms to the insurance markets and other elements of the medical-delivery system in the United States. If health-care costs are brought down and if the economy improves, Republicans could then have more space for a thoroughgoing reform of the Medicaid system; a vibrant economy was a key context for the welfare reform of the 1990s, and entitlement reform can often proceed more effectively in a time of economic optimism.

A bad bill passed quickly might be far more damaging to the policy agenda of Republicans than a better bill (or set of bills) passed more slowly, and, as Ramesh Ponnuru has noted, Republicans might be able to add more regulatory elements to the AHCA if they take the time to do so. As they continue to negotiate the AHCA, Republicans might remember that the who’s-up-who’s-down newscycle has an increasingly small half-life; policy accomplishments — and shortcomings — live on.

Ganges River Declared a Legal Person

by Wesley J. Smith

New Zealand previously passed legislation granting a river legal personhood. Yes, a river: you know the geological feature by which water flows through a defined channel, usually to the sea.

Now, an Indian court has decreed that the Ganges is entitled to human-style rights. From The Guardian story:

The Ganges river, considered sacred by more than 1 billion Indians, has become the first non-human entity in India to be granted the same legal rights as people.

A court in the northern Indian state of Uttarakhand ordered on Monday that the Ganges and its main tributary, the Yamuna, be accorded the status of living human entities.

The decision, which was welcomed by environmentalists, means that polluting or damaging the rivers will be legally equivalent to harming a person.

This ruling is an aspect of “nature rights,” a profoundly anti-human radical environmental legal and political campaign–discussed in my The War on Humans–that seeks to materially impede human thriving by thwarting our ability to prosper from natural resources and develop the natural world.

Beyond that, granting rights to river, trees, pond scum, viruses–all are part of nature, after all–profoundly subverts the intrinsic seriousness and gravity of human rights by making the concept as ephemeral as currency during a wild inflation. 

And what are the river’s “rights?”

For example, what if a dam is needed to prevent deadly flooding or generate electricity? Does the river have the “right” to flow unimpeded?  

Under nature rights theology–because that’s what this is–at the very least the river person would have to be given equal consideration with human persons.

In actuality, rights haven’t been given to a water course, but a committee who will impose their views as if they were those of the two rivers.

More broadly, “nature rights” grants tremendous power to radical environmentalists who enforce the rights of the natural world as a means to attain their own ideological goals. That’s how it works in Ecuador, Bolivia, and the more than thirty U.S. municipalities where such laws have been enacted.

And it is all completely unnecessary if the goal is environmental protection and conservation, which can be well sustained through laws and protected designations. For example, Yellowstone remains a treasured wonder of the world without pretending that Old Faithful Geyser is a legal person entitled to enforceable rights.

I have been warning for a few years that “nature rights” is gaining steam, often to the snorting derision of folk who think we would never be that self-destructive.

Time to splash some cold river water on our faces, assuming that wouldn’t be an assault on the waterway. It is happening. It is happening now. And it bodes ill for the human future.

Here We Go — Democrats Announce Intention to Filibuster Gorsuch

by David French

On Twitter, earlier today:

From the article:

Judge Neil Gorsuch, President Trump’s pick to serve on the U.S. Supreme Court, faced a critical blow on Thursday as Senate Minority Leader Charles E. Schumer (D-N.Y.) said he would join with other Democrats in attempting to filibuster the nomination — a move that could complicate his confirmation and lead to a total revamp of how the U.S. Senate conducts its business.

Let’s put it this way. If the Democrats filibuster a man as qualified as Neil Gorsuch, then the Republicans would be foolish not to exercise the nuclear option — especially when you evaluate the Democrats specious reasons for taking this extraordinary step:

In a Senate floor speech, Schumer said that Gorsuch “was unable to sufficiently convince me that he’d be an independent check” on Trump. He said later that the judge is “not a neutral legal mind but someone with a deep-seated conservative ideology. He was groomed by the Federalist Society and has shown not one inch of difference between his views and theirs.”

Wait just a minute . . . didn’t the Democrats in the judiciary committee just spend the last two days hammering Judge Gorsuch in part for his skepticism of executive branch power and his resistance to executive branch authoritarianism? Senate Democrats had wrapped both arms around the so-called Chevron doctrine, which mandates that courts grant great discretion to agency legal determinations. News flash: These agencies are now part of the Trump administration. 

Moreover, if the Federalist Society is out of bounds for GOP nominees, I suppose affiliation with liberal academic or advocacy groups will doom future Democrats?

But no one should be fooled. This isn’t about principles; it’s about power. The Democrats are still seething at the GOP’s raw exercise of power in blocking Merrick Garland’s nomination, and now the Democrats are responding with their own power play. While Democrats claim that Gorsuch didn’t answer questions with “any substance,” they know good and well that Gorsuch’s hearing was informative enough. He didn’t get into specifics of individual cases or issues, but he outlined his judicial philosophy at great length. Democrats don’t like that philosophy, so they don’t like Gorsuch. It’s that simple.

It remains to be seen whether Schumer can keep enough of his caucus in line to make good on his threats. If he can, the ball moves to McConnell’s court. Will the majority leader allow the Democrats to block one of the most-qualified jurists in the United States? Don’t bet on it. 

Hate Crimes Hoaxes Strike Again, Anti-Semitic Bomb Threats Edition

by Dan McLaughlin

If you follow the news with any diligence beyond reading the loudest early headlines and social-media clickbait, you are wearyingly familiar with the pattern of heavily-hyped “hate crimes” (ranging from violent crimes to nasty notes on restaurant receipts) that turn out to be “false flag” hoaxes, frequently perpetrated by the very sorts of left-leaning folks who make the stories go viral in the first place. Kevin Williamson wrote about the pattern, with a sampling of the extensive examples, only a few weeks ago. A website collecting media reports of false hate crimes reports (which includes both hoaxes and accidents first reported as hate crimes) currently lists dozens of publicly reported examples just since Election Day 2016. (This is distinct from the related and extensive phenomenon of immediate media reports blaming mass shootings and attacks erroneously on right-wingers).

One of the more sensational recent examples was left-wing journalist Juan Thompson, arrested and charged with making hoax bomb threats to at least eight Jewish Community Centers. Now, news comes today of an arrest in Israel pointing to a much more extensive pattern of hoaxes, with the same target:

The police on Thursday arrested an Israeli teenager who holds American citizenship in connection with waves of threats to Jewish institutions, including community centers in the United States, law enforcement officials said. A spokesman for the police here….said the suspect, from the Ashkelon area of southern Israel, had also made threats to institutions in Australia and New Zealand, as well as to at least one commercial airline flight, forcing an emergency landing…The authorities did not immediately identify the teenager, who they said was Jewish and in his late teens. His motives were not immediately clear…The arrest appeared to be a turning point after months of investigation and waves of turmoil and panic as Jewish community centers across the United States reported more than 100 bomb threats since the beginning of the year….The wide-ranging, multinational inquiry was hampered by what the authorities described as the suspect’s use of “advanced camouflage technologies” to try to mask the communications, which he made through the internet. The technology shielded the caller’s identity and also disguised the voice that threatened carnage.

Incidents of actual anti-Semitic threats and violence are a real problem. They are also not new, as the available data suggests, but when Obama was president, they were not seen as newsworthy:

There were 1,211 antisemitic incidents in Obama’s first year in office. This was after four straight years of declining antisemitism. For instance, in 2008, there were 1,352 incidents. Attacks had peaked in 2004 with 1,821.

Over the years, the number of incidents continued to decline. After an initial uptick to 1,239 in 2010, they declined to 751 in 2013. They began to rise again to 914 in 2015, the last year for which we have data. When we tally the total number of incidents between 2009 and 2015, the overall number of attacks reaches more than 7,000. However, the number of assaults increased, almost doubling during the Obama administration.

Overall, there was an average of 84 incidents a month under the Obama administration. Let’s step back for a moment and compare that to the 95 incidents between January and February 2017 [based on a tally of media reports]. That’s a 10% increase. It could be more once all the data comes in. But the media haven’t been telling us there is a slight increase; the narrative has been that there is an antisemitic wave sweeping the US. 

President Trump has, in fact, been more than a little reluctant to denounce this stuff in the past, which is why it was a big deal that he opened his State of the Union Address by doing so. It’s a positive sign that law enforcement is serious about capturing the perpetrators, both fake and real. Hate crimes hoaxes, such as bomb threats directed at innocent third parties, can do just as much damage as the real thing, and should be prosecuted as such.

But as Kevin noted, the main motivation behind the drumbeat of media coverage and social-media sharing is not to target hate crimes themselves, or even to advance policies designed to stop them, but rather to use them to discredit conservatives by tenuous association. As David Bernstein has observed, the organized anti-anti-Semitism groups in the U.S. have very specific incentives to blame anti-Semitic incidents on the Right:

When Greenblatt took over the ADL from the long-serving Abraham Foxman, he announced that the younger generation among ADL’s primary constituency, liberal, secular Jews, was no longer terribly interested in the issue of anti-Semitism, and instead wanted the ADL to focus on oppression more generally. The enthusiasm and fund-raising dollars were in supporting Black Lives Matter and transgender rights, not worrying about anti-Semitism on college campuses. One strongly suspects that this is because the threat of anti-Semitism was seen primarily as coming from the anti-Israel left. Trump created a wonderful entrepreneurial opportunity for the ADL to focus on what is naturally its core issue, anti-Semitism…by focusing on the threat from the right. The ADL’s reticent donors are no longer reticent in the age of Trump, with the media reporting that donations have been pouring in since Trump’s victory….

Another group that has had a strong incentive to exaggerate the present threat of right-wing anti-Semitism is Jewish progressive activists. For the past decade or so, leftist Jews have increasingly found themselves excluded from progressive coalitions that not only take very harsh anti-Israel lines, but also have refused to take seriously anti-Semitism in their midst, suggesting that allegations of such anti-Semitism are mere covers for the “privilege” of “white Zionists.” So long as the problem of American anti-Semitism was largely associated with anti-Zionism and far-left politics more generally, Jews were not permitted to be part of a coalition of the marginalized.

Those motivations themselves often creates the temptation to generate hoaxes. One hopes, in vain, that the latest arrest leads to even a little humility and reflection on the part of those who use media reports of hate crimes for that purpose.

Mike Lee’s Obamacare Bombshell

by Ramesh Ponnuru

Last night Phil Klein had a report that is much more significant than I think a lot of people have realized:

Sen. Mike Lee, R-Utah, said on Wednesday that the Senate parliamentarian has told him that it may be possible for Republicans to push harder on repealing Obamacare’s regulations than the current House bill, which contradicts the assertion by House leadership that the legislation goes after Obamacare as aggressively as possible under Senate rules. . . .

Lee also said that the parliamentarian told him it wasn’t until very recently, after the unveiling of the House bill, that any Republican even asked her about the possibility of repealing regulations with a simple majority.

Lee’s statement was followed by, and probably contributed to, last-minute efforts by the House leadership to tweak its health-care bill to win a vote scheduled for today. But if Lee is right, then what’s called for is stopping this process and starting over.

The central defect of the bill is that it leaves too many Obamacare regulations in place. That’s why conservatives rightly say that it falls short of repealing and replacing Obamacare. It’s why it doesn’t do much to lower premiums. If it did more to reduce those premiums, it would make coverage more attractive to people and more people would get covered. Even the Congressional Budget Office, as dubious as some of its assumptions are, acknowledges this point.

House Republican leaders have asserted repeatedly that the bill is carefully designed to go as far as it can to tackle regulations while staying within Senate rules that shield it from a filibuster. The Senate parliamentarian, they said, would allow most regulatory provisions to be filibustered; if the bill had too many such provisions, Democrats could use a filibuster to keep the bill from even being taken up in the Senate. But, they added, many of the regulatory features of Obamacare that Republicans want to change could be addressed by Secretary of Health and Human Services Tom Price and by further legislation that would win enough Democratic support to overcome filibusters.

If Lee is right, though, none of this is true. Republicans can change or eliminate more of Obamacare’s regulations with a simple-majority vote. They don’t have to wait for a second and third stage of policy change to make needed reforms. They can write a bill that would do more to lower premiums, get a better CBO score on coverage, and do more to repeal Obamacare than their current one.

But they can’t do it on the fly. They will have to figure out just how much freedom the Senate majority has to change regulations and then what regulatory changes both make sense and can win over a majority of both chambers. They ought to take the time to do that.

London Attacker Khalid Masood Tied to Islamic Extremism; Killed Four, Injured Over 40 (UPDATED)

by NR Staff

1:05 p.m.: Yesterday’s attacker has been identified by British authorities as 52 year old Khalid Masood, who was born in the United Kingdom. He was an ex-convict known to MI5 but was deemed a “peripheral figure” in radical Islam; however, ISIS has claimed responsibility for the attack and called Masood a “soldier of the Islamic State.”

Masood was previously convicted on non-terrorism crimes including grievous bodily harm and possession of a knife. He was living in Birmingham before renting an SUV in order to carry out the attack. According to the New York Times, the investigation is now searching for anyone else who may have been involved:

The British authorities raided six properties across the country on Thursday, detaining eight people in London and in Birmingham, in central England, as they pressed ahead with a fast-moving investigation.

British authorities do not expect other attacks, and they also had no prior leads on this attack. This has led to Masood being characterized as a “lone wolf,” although he was known to British counterintelligence.

Before being shot and killed by the British defense minister’s protection officer, Masood killed three and injured over 40, including three French schoolchildren and people from America, South Korea, Ireland, Greece, Germany, Italy, Romania, and China.

6:07 p.m.: U.K. prime minister Theresa May called upon her countrymen to carry on as normal in a short speech following the terrorist attack in London today:

She praised police officers, expressed sympathy for the victims and their families, and near the end, declared that attempts to change the British way of life are in vain:

These streets of Westminster — home to the world’s oldest parliament — are engrained with a spirit of freedom that echoes in some of the furthest corners of the globe. And the values our Parliament represents — democracy, freedom, human rights, the rule of law — command the admiration and respect of free people everywhere. That is why it is a target for those who reject those values. But let me make it clear today, as I have had cause to do before: Any attempt to defeat those values through violence and terror is doomed to failure. Tomorrow morning, Parliament will meet as normal. We will come together as normal. And Londoners — and others from around the world who have come here to visit this great City — will get up and go about their day as normal.

Her statement affirmed that the officer and assailant were indeed killed after the attacker exited his vehicle, with which he had already killed two pedestrians. (Three other officers were wounded.) She offered no new information, and speculation about the identity of the attacker has so far been inconclusive.

2:27 p.m. U.K. police have confirmed four dead in what they are calling a “terror incident” outside the Houses of Parliament. One of those dead is the suspected attacker. He also injured over 20. He hit pedestrians with his car before crashing into a barricade outside Parliament, when he exited his car and killed a police officer with a knife.

Reports that there were two assailants appear to have been false. This photo from the AP shows the suspected attacker on a stretcher:

One example of heroism in this frightful attack came from British foreign minister Tobias Ellwood, who tried to save the stabbed officer. The Telegraph reports:

The Tory MP attempted to give the officer mouth-to-mouth resuscitation and stemmed the blood flow by applying pressure to the wounds.

Mr Ellwood – himself a former soldier – remained with the injured officer waiting for the air ambulance to arrive, which landed in Parliament Square.

Tragically, this is not entirely new for Ellwood. His brother Jon was killed in the Bali terror attack in 2002, which killed 27 Britons and 202 in total.  

1:49 p.m. The BBC reports:

[The BBC's Daniel Sandford] says eye-witness reports have referred to a “bald white man” and a “black man with goatee beard” in association with the incident.

It is possible, although he stresses this is not confirmed, that both may have been in the car when it was driven at “high speed” down Westminster Bridge – knocking down an estimated eight people.

The car, Daniel Sandford adds, crashed into the parliamentary railings soon after.

Also, the BBC reports that the officer who was stabbed in the incident has died. This is in addition to the woman who was originally confirmed dead. The officer was given emergency medical care at the scene.

Police are gearing up to make a new statement any minute.

1:23 p.m.: Sky News is reporting that two are dead, but CNN and others have not confirmed a second death.

One woman went into the river and was injured, and the BBC reports that she has been rescued:

The Port of London Authority has confirmed that a seriously injured woman has been recovered from the Thames river.

Spoken Martin Garside said: “A female member of the public was recovered alive from the water, but with serious injuries.

“She has been brought ashore and is undergoing urgent medical treatment. The working assumption is that she fell or jumped from the bridge”.

He added that the river is completely closed to vessels between Vauxhall Bridge and the Embankment.

The driver crossed the Westminster Bridge, and this woman may have leapt from the bridge to avoid his car.

Bloomberg has aerial footage of the area, including the bridge and Parliament, and they provide some background about the incident and the security there.

1:01 p.m.Chambers of Parliament are in lockdown after an attack in London where a man driving a Hyundai drove into pedestrians, killing at least one, and then stabbed a police officer. The attacker was then shot by police.

Scotland Yard commander B.J. Harrington addressed reporters moments ago to confirm that a full counter-terrorism investigation is underway. He also confirmed that the attacker had a knife, and that officers with firearms engaged him. He stressed repeatedly that he would not speculate further.

He also named various parts of London that people should avoid. “This is to allow emergency services to deal with the incident,” he said. He also asked anyone with images or film of the incident to share them immediately.

Security is ramping up all over the city, especially where there are government officials. We will update the Corner as the story develops.

Paul Manafort Is Under the Bus, and He’s Not Coming Back

by Rich Lowry

The White House has been distancing itself from Paul Manafort, and for good reason. On the one hand, this is absurd — Manafort was the campaign manager and had a huge role in putting Trump over the top for the nomination. On the other hand, there is no suggestion of any of the Russian stuff touching the core political team that got Trump elected president — Conway, Bannon, Bossie, et al. If the Manafort revelations get worse, and there is no reason to believe they will get any better, Trump’s inoculating argument will obviously be that he fired him and barely knew the guy.

Gorsuch on Roe at the Hearings

by Ramesh Ponnuru

Pro-lifers have been burned often enough by Republican appointees to the Supreme Court to be nervous when watching confirmation testimony. Two of Judge Gorsuch’s exchanges raised a few pulses.

First, his comments under questioning from Senator Feinstein are being taken as suggesting that he thinks Roe v. Wade is a settled issue. Here’s a rough transcript:

FEINSTEIN: Good to see you again.

Since we’re on Roe, I wasn’t going to begin with this, but I well recall the time we spent in my office and we talked about precedent. And in my opening remarks, I indicated that if anything had super precedent, Roe did in terms of the numbers, and I’ve put that in the record.

Here’s why it becomes of concern. The president said that he would appoint someone who would overturn Roe. You pointed out to me that you viewed precedent in a serious way in that it added stability to the law. Could you elaborate on the point that you made in my office on that?

GORSUCH: I’d be delighted to, Senator. Part of the value of precedent — it has lots of value. It has value in and of itself because it’s our history and our history has value intrinsically. But it also has an instrumental value. In this sense, it adds to the determinacy of law.

We have lots of tools that allow us to narrow the realm of admissible dispute between parties so that we can — people can anticipate and organize their affairs. It’s part of the reason why the rule of law in this country works so well. We have statutes, we have rules, we have a fact-finding process and a judicial system that’s the envy of the world.

And precedent is a key part of that because, as the Chairman pointed out when he quoted an old piece of mine, once the case is settled, that adds to the determinacy of the law. What — what was once a hotly contested issue is no longer a hotly contested issue. We move forward.

Here he’s just making a general point about the value of precedent. While the point was prompted by a question that has Roe in the background, there’s no reason to think that Gorsuch believes that Roe in particular needs to be re-affirmed. My own two cents on this question: Truly settled issues are the ones that don’t require frequent declarations that they’re settled.

Second, he told Senator Graham that if President Trump had asked him to overrule Roe, “I would have walked out the door. It’s not what judges do.” I don’t think he’s making a Roe-specific point here, either: He’s saying that it would be improper for a prospective judge to promise to rule in a particular way in a future case.

A bit more on this. I think some of the conventions that have been built up to protect judicial independence are absurd. Judge Gorsuch leans heavily on those conventions when he claims that if he shared his thinking on a constitutional question–such as whether the Second Amendment is rightly read to protect an individual right to own guns–then litigants will have reason to doubt that they are getting a fair and unbiased judge to hear their case. I’m not saying Judge Gorsuch should use these hearings to break this convention. But come on. That’s like saying that litigants can’t trust Supreme Court justices who have previously ruled on cases involving the same issues as theirs. To get a fair hearing, litigants in a gun case would need to have new justices who had never ruled on–or, of course, otherwise suggested what views they hold on–the meaning of the Second Amendment.

But even I think that Gorsuch is right in what he said to Graham: A judge can’t promise a specific desired outcome before he has even heard a case.

Yes, Win Elections, but Don’t Forget the Culture

by George Leef

Are we focusing so much on politics that we’re forgetting the role of culture in shaping society? The Martin Center’s Jesse Saffron think so and makes his case in “Beyond Ideology: Poetry and the Conservative Mind.”

“Since roughly the midway point of last century,” he writes, “conservatives have abandoned their progenitors’ insights into the importance of culture, literature, and aesthetics. The elevation of transcendent beauty and truth, the intellectual and cross-generational preservation of great artistic and philosophical achievements — these tasks, once central to the conservative project, have been subordinated.”

Saffron looks in particular at poetry, inspired by Russell Kirk’s line, “If men of affairs can rise to the summons of the poets, the norms of culture and politics may endure despite the follies of the time.”

Sadly, most of our poets these days have been schooled in left-dominated Master of Fine Arts programs and the academic world is largely hostile to the work of poets who aren’t part of their circle. Antioch College even boasts that its MFA program is geared toward “the pursuit of social justice.” Saffron points us to a few poets who are swimming against this tide.

I think Saffron is right — we must endeavor to save our society from the “progressives” and their statism not only through politics and think tanks and magazines, but also through poetry, film, music, and all other aspects of culture.

Britons Respond to the London Terror Attacks

by David Pryce-Jones

The anger of the British public over the latest act of terror in London comes across strongly in the press, on television, and in talk shows. It is nonetheless undirected, as though the question were “How can things like this happen here?” rather than, “What will stop attacks like this?” So far, the terrorist remains unidentified. A journalist, Quinton Letts, happened to catch sight of the man who, he reports, had a bushy beard. Islamic State terrorists ran down and killed and injured passers-by in exactly this manner in Berlin and Nice. A lethal attack on the Westminster Parliament seems to bear out the IS anti-Western slogan of “No democracy.” Moreover, at this very moment U.S.-led coalition forces are moving in on Raqqa, the Syrian town where IS has its capital and now faces its end-game. It is a virtual certainty that the terrorist saw himself fulfilling a religious obligation and was completely clear in his own mind. Yet Prime Minister Theresa May calls him “sick and depraved.” In an even more far-fetched euphemism, the police and counterterrorism officials describe him as an “international terrorist.”

By coincidence, Martin McGuinness was buried at that same time. He was a particularly sinister IRA terrorist, utterly cold-blooded as he fulfilled what he saw as a nationalist and Catholic obligation. He is thought to have tortured his victims, among them Marcus McCausland, a big-hearted man I had been at school with. Because the IRA was defeated in the field, McGuinness entered politics, whereupon the British government struck a shabby deal empowering him. Those responsible, notably Tony Blair and his advisers, come forward now to praise this evil man. The BBC compares him to Nelson Mandela. McGuinness is a peace-maker only because they are his apologists.

Where Islamic terror is concerned, if the British public is invited to accept anything like this obscuring of moral judgment for the sake of political advantage, their anger will put a stop to it.

The Fair Point from Devin Nunes That Trump Critics Don’t Want to Acknowledge

by Jim Geraghty

From the Thursday edition of the Morning Jolt:

The Point Devin Nunes Is Making That Trump Critics Refuse To Acknowledge

It’s perfectly fair to ask whether the chairman of the House Intelligence Committee should be traveling to the White House to brief the president when the FBI Director just announced that there is an ongoing investigation into whether there was any collusion between the president’s campaign and a foreign government in the past year.

But everybody’s whacking Rep. Devin Nunes around like a piñata right now, and it’s easy to forget he’s raising a perfectly valid concern.

On January 12, the Washington Post columnist David Ignatius wrote:

According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act (though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about “disputes” with the United States. Was its spirit violated? The Trump campaign didn’t immediately respond to a request for comment.

This is a leak of classified information. Michael Flynn was not, as far as we know, a target of any U.S. government surveillance. He was one of the figures whose conversations was “incidentally” recorded, presumably as part of the regular monitoring of Kislyak.

People within the U.S. government are not supposed to take the information that is incidentally recorded and then run to David Ignatius because they don’t like the American citizen who was recorded. That’s not the purpose of our domestic counterintelligence operations.  Even if Flynn had violated the Logan Act – which, as we all know, no one has never been prosecuted for violating – there are legitimate avenues for dealing with that, namely going to law enforcement and a prosecutor.

(Invoking the Logan Act in this circumstance is particularly nonsensical, because the interpretation Ignatius floats would criminalize just about any discussion between a presidential candidate, a president-elect or his team and any representative of a foreign government on any matter of importance. If you ask a foreign official if his country would make a concession on Issue X in exchange for a U.S. concession on Issue Y, BOOM! Call out the SWAT teams, we’ve got a Logan Act violation!)

There are a lot of reasons to not like Michael Flynn, but that doesn’t change the fact that somebody broke the law and leaked classified information in an effort to get him in trouble. That is wrong and that is illegal, and Nunes is right to point out we’re going down a dangerous road when information collected by U.S. intelligence agencies about American citizens starts getting strategically leaked for partisan purposes.

Here’s what Democrats and their friends in the media are too shortsighted to recognize: any skullduggery they excuse now will be used against them in the future. Anything that the Obama administration did during the transition can be done by figures in the Trump administration against future Democratic candidates.

Just about any serious presidential campaign and any presidential transition is going to speak with someone under U.S. government surveillance at some time. It seems reasonable to think that every ambassador and representative of a foreign government, but particularly those of Russia, China, and any other not-always-friendly country, is monitored 24-7 or as close to that as possible. Executives at foreign and international companies, scholars, retired officials – anyone connected to a foreign government is probably a potential source of intelligence and a potential target of surveillance.

The default setting for most of the media right now is, “well, the eavesdropping on Trump’s transition team was incidental; no harm, no foul.” But leaking of even incidental eavesdropping is harmful and is a foul. Nunes has a right to be angry, and to remind us that this strategic illegal leaking should bother us as well.

It Doesn’t Matter That Garland Didn’t Get a Hearing

by Dan McLaughlin

As I demonstrated in Monday’s column, Democratic efforts to claim that Judge Gorsuch should be defeated because Republicans “stole” a seat that rightfully belonged to Merrick Garland and President Obama collapse when you look at the history of election-year nominations. This is the seventh time that the Senate has left an election-year Supreme Court vacancy open for the next president, and of the ten such vacancies to happen when the president and the Senate were from different parties, six were left vacant, three were confirmed after Election Day in favor of the party that won the election, and only one (in 1888) was confirmed before Election Day.

There are a couple of common responses to this. One is to note that the Senate confirmed Anthony Kennedy, a Reagan appointee, in the election year of 1988. But Justice Kennedy was a victory for Democrats on a vacancy that long predated an election they ended up losing badly. Lewis Powell’s swing seat came open in June 1987, and Reagan’s first two, more conservative choices were thwarted (Bork by his defeat in the Senate, Douglas Ginsburg by withdrawal). The Senate in February 1988 — after more than seven months of delay, and a week before the Iowa caucus – confirmed an Earl Warren protégé who would go on to deliver massive victories for liberals on a number of key cultural issues (such as abortion and same-sex marriage). Moreover, Democrats in 1988 were acting in their partisan self-interest in taking the Kennedy nomination while they could, rather than run the 1988 campaign on cultural wedge issues (exactly what their nominee, Michael Dukakis, tried and failed to avoid).

The second is to complain that Garland never got an up-or-down vote. But as I noted in my column, majority parties in the Senate have used a variety of procedural devices to thwart Supreme Court nominees; of the 34 failed nominations (not counting one who was withdrawn and resubmitted for technical reasons), only twelve received a direct vote, and five were withdrawn in the face of opposition. The rest were prevented from moving forward due to a variety of Senate procedures. Some of those involved a vote on the record to table the nomination, some did not (William Micou’s nomination by Millard Fillmore in 1853 died without any action by the Senate). But Garland would have received a vote if there had been significant defections from the GOP majority; the absence of such defections (aside from Mark Kirk) means that a majority decided not to confirm him. A filibuster by a minority of the Senate would have been a radical step, but in this case, it was the Senate majority exercising its power.

Democrats are hardly on pristine ground here. Since the bipartisan (24 Republicans and 19 conservative Democrats) 1968 election-year filibuster of Abe Fortas and Homer Thornberry, there have been two efforts at filibusters of Supreme Court nominees, both by Democrats: against Samuel Alito and William Rehnquist. There’s some debate over whether the first of Rehnquist’s nominations can truly considered to have been filibustered: in 1971, Democrats denied that they were filibustering him, then defeated a Republican cloture motion (the 52–42 margin for cloture fell short of the 67 votes then required), but proceeded to allow an immediate vote. But in 1986, when he was nominated for chief justice, a cloture motion was filed to stop a Ted Kennedy filibuster, and passed 68–31, with sixteen Democrats voting for cloture and 31 against (senators voting against cloture included Joe Biden, John Kerry, and Al Gore). A more organized effort, led by Kerry, was made to filibuster Alito. This time, cloture passed by a vote of 72–25, with Kerry, Kennedy, and Biden now joined by Barack Obama, Hillary Clinton, Chuck Schumer, and Dick Durbin, among others, voting to filibuster Alito’s nomination.

The third and final avenue of attack is to complain that sure, the Senate has spiked nominees without a floor vote before, but they didn’t even give Garland a hearing. But this misunderstands the role and history of hearings. The Constitution says nothing about nomination hearings, which are a relatively modern innovation. No Supreme Court nomination received a public hearing until Louis Brandeis in 1916, and Harlan Fiske Stone in 1925 was the first nominee to appear and testify before the Senate. Harold Burton in 1945 was the last Justice confirmed without a hearing. (John Marshall Harlan II was denied a hearing when nominated after the midterm elections in 1954, although he returned, testified, and was confirmed in the following Senate session in 1955.) And as any nominee (including Gorsuch) can tell you, Judiciary Committee hearings aren’t for the benefit of the nominee, they’re for the benefit of the senators. In 2016, the Senate majority decided to leave the Scalia vacancy open, to be filled after an election they had only slim hopes of winning. No hearing would have persuaded anyone of anything. The Senate wastes enough time on pointless charades as it is.

The Senate’s refusal to consider the Garland nomination was a new packaging of the Senate’s power, and Democrats are right to complain that it was yet another step down the path of that has poisoned the confirmation process. But it was not actually unprecedented in any meaningful way for the party controlling the Senate to decide that an election-year Supreme Court nomination should be set aside until after the election.

 

Krauthammer’s Take: Hard to See Republicans Repudiating Trump and Ryan on Health Care

by NR Staff

With the health-care vote looming, Charles Krauthammer said that, while everything isn’t riding on it, President Trump and Speaker Paul Ryan could be severely damaged if their own party repudiates them by voting against the bill:

Well, it’s a little early in the presidency to say “make or break.” But it would certainly really damage the Trump presidency. And that’s why I think, in the end, these things happen in every presidency, but when you have the fate of a presidency and the fate of a speakership hanging on the vote, it’s hard to see that in the end his own party is going to repudiate them.

We saw in the early nineties, beginning of the Clinton administration, he had a tax hike that went down to the last minute, and one member of Congress, Marjorie Mezvinsky was her name, was the one vote that put Clinton over the top. She lost her seat as a result of that. But I would add as a happy note, she gained a daughter-in-law since her son married to Chelsea. I’m not sure that’s going to happen in this case.

I think, in the end, there is so much at stake, and I think there is this Cruz option where he is suggesting that they take a risk and add a change in what is called the coverage mandate — all of the things that Obamacare requires that you have in your plan, which is the worst part of the deal, that they are promising now the HHS secretary will take out. But the Conservatives are saying a new HHS secretary could restore it, so we want it in the law. I think that would be a reasonable offer to give conservatives. And that would ensure its passage.

Revisiting NFIB v. Sebelius

by Ramesh Ponnuru

I take Kevin Drum’s point in this post to be that the view that the Supreme Court is in general too inclined to overturn federal laws is hard to square with the view that it should have struck down Obamacare because of the individual mandate. A series of precedents upheld congressional authority to impose the mandate, he claims, yet conservatives invented a “hairsplitting” distinction between regulating commerce and forcing someone to enter commerce in order to justify striking it down.

The key assertion here is that the distinction is hairsplitting. If you don’t agree with that, as I don’t, you’ll view the case differently. You’ll think that Congress had not previously tried to impose anything like the individual mandate, that the Court had therefore never considered whether it could, that the precedents that blessed an expansive congressional power to regulate interstate commerce were thus off-point, and that new arguments had to be thought through to meet the new circumstance. Those arguments, in my view, justified striking down the individual mandate (as four and a half justices concluded in NFIB v. Sebelius).

But I’ll give Drum this: I do think that the Court overreached, with conservatives’ approval, in striking down part of Obamacare. Seven justices agreed that the federal government could use the threat of withdrawing some federal funds to get states to expand Medicaid, but could not withdraw as much funding as the Obamacare law threatened. That the Constitution lays out any such judicially-enforceable line has always seemed implausible to me.

Mailbag, Supreme Court Edition

by Ramesh Ponnuru

Email 1:

I get that you think what the Republicans did to Merrick Garland last year was constitutional. But don’t you feel a little bad for Judge Garland personally? He’s a distinguished judge who got dragged into a hyper-partisan process.

No, I don’t feel bad for Judge Garland. He was picked after Senate Republicans had done everything in their power to make clear that they were not going to proceed with a nomination until a new president was elected (and he might not have been nominated absent their statements). Republicans blocked him, moreover, by simply not doing anything. Thus there were very few attacks on his record or his character. Nobody accused him of hostility to schoolkids with autism, for example, as Nancy Pelosi has done to Gorsuch; national publications haven’t distorted his decisions, as (to pick one of many, many examples) Adam White shows Slate has done to Judge Gorsuch. I’m sure Garland would switch places with Gorsuch if he could, but there is a long list of past presidential nominees who have more cause for complaint than he does.

Email 2:

Alright already, we get it. You love Neil Gorsuch. You don’t need to keep telling us.

False. I could never love anyone who is against the dormant commerce clause.

On Super-Precedents

by Peter Augustine Lawler

Well, Gorsuch is wowing America in the confirmation hearings. He does display a virtue of our president: Trump prefers appointees who look and sound the part. And Gorsuch is somewhere between Jimmy Stewart and Gregory Peck. In my limited circle of personal contacts, it’s pretty stunning how many hate Trump but are okay with Gorsuch.

I haven’t been following the hearings closely, partly because I have a job and partly because I don’t care if Gorsuch agrees me on any particular constitutional issue. He easily passes the character and competence standards on which all judicial nominees should be judged. Once he’s on the Court, it goes without saying, he’ll surprise us now and again.

On the issue raised by Senator Dianne Feinstein about Roe’s being properly regarded as a kind of super-precedent: The senator herself and the various commentators don’t seem to realize that Roe’s having “rare precedential force” as a “landmark decision” is the reigning precedent. That’s what the Court said in Planned Parenthood v. Casey.

The Court actually mentioned two such super-precedents: Roe and Brown v. Board of Education. In both cases, the argument goes, the Court meant to resolve a major national controversy, to, in effect, end constitutional conversation on the matter.

In the case of Roe, it’s also the case that women have come to organize their political and economic lives as free and equal participants with abortion as a back-up to birth control.

That means the Court couldn’t notice error in Roe, if error there was, without calling into question its own legitimacy. And so the standard for overturning that decision seems to be actually higher than beyond reasonable doubt.

The super-precedent idea reflects a more general principle of constitutional interpretation embraced by Justice Sandra Day O’Connor. Stare decisis become a more formidable consideration when people have gotten used to having been granted a right or privilege. Another example: She wrote the opinion in Grutter v. Bollinger upholding Justice Lewis Powell’s quirky and otherwise sketchy judgment in his Bakke opinion (with which no other member of the Court agreed) that diversity as an educational technique is the only purpose that justifies affirmative action or taking race (and so forth) into account in making admissions decisions. Our institutions of higher education had gotten used to operating under that doctrine and so let’s just stay with it, she came close to saying straight out. So she mainstreamed a doctrine that turns our attention away from a real national conversation about the justice of remedying the effects of past or present discrimination through race-based policies — and so helped turn “diversity” into a mendacious substitute for what’s really at stake under our Constitution.

With this way of thinking in mind, the Obergefell same-sex marriage decision quickly becomes a super-precedent. People have gotten used to it, and imagine the havoc caused if suddenly gays no longer had the right to marriage. In that case too, the Court clearly meant to bring a national controversy to an end.

To my mind, the suggestion might be that Roe and Bakke might have been illegitimate judicial activism when they were decided but that now it would be illegitimate activism to overturn them. This is a very convenient doctrine for deflecting attention from what the Constitution actually means.

It’s easy to criticize this line of thinking in a number of ways. For one, Roe isn’t much like Brown. The latter decision was unanimous, and any controversy it engendered disappeared as a national issue within a decade. On Roe, both the Court and public opinion remain divided. The Court tried but failed to bring a national controversy to an end. In that respect, Roe is more like Dred Scott, which tried and failed to unite the country around a pro-slavery interpretation of the Constitution.

And it’s far from clear that it’s the job of the Court to end national controversies over issues about which people can reasonably disagree, such as abortion or same-sex marriage or even, in the antebellum context, the place of slavery under the Constitution. Those issues are usually best resolved by legislative deliberation and often compromise.

Most importantly, the doctrine of the super-precedent is entirely a judicial invention with no constitutional warrant. The Court now is in no way obliged to honor it, although it can’t help but sometimes make prudential judgments about the effects of disruptive decisions.

It would have a calming effect on many Americans to be assured that some precedents can’t be revisited. And maybe the compromise would be best that allows same-sex marriage to be viewed as settled law while drawing the line at using that precedent to endanger religious liberty. That, of course, legislatures could readily do.

But the Court has to be guided by a genuine effort to discern how the Constitution is to be applied in a particular case, whatever the precedents might be.

Gorsuch: ‘A Mistake to Say That Originalism Turns on the Secret Intentions of the Drafters’

by Paul Crookston

This morning at Neil Gorsuch’s confirmation hearing, Senator Dianne Feinstein asked whether originalist ideas conflict with the notion of equal protection under the law. Not only did Gorsuch address the text of the 14th Amendment directly, he eloquently described the way that an originalist interpretation of that amendment is the best guarantee of justice:

It would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law. The point of originalism, textualism, whatever label you want to put on it — what a good judge always strives to do, and I think we all do — is strive to understand what the words on the page mean. Not import words that come from us, but apply what you, the people’s representative, the lawmakers, have done. And so when it comes to equal protection of the law, for example, it matters not a whit that some of the drafters of the 14th Amendment were racists, because they were, or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That’s what they wrote. And the original meaning of those words John Marshall Harlan captured in his dissent in Plessy. An equal protection of the laws doesn’t mean separate in advancing one particular race or gender — it means “equal.” And as I said yesterday I think that guarantee — equal protection of the law’s guarantee in the 14th Amendment, that it took a civil war for this country to win – is maybe the most radical guarantee in all of the constitution, and maybe in all of human history. It’s a fantastic thing, and that’s why it is chiseled in Vermont marble above the entrance to the Supreme Court of the United States.

Critics, such as Feinstein herself, have accused Gorsuch of avoiding substantive answers during this confirmation, because he has refused to answer blatantly political questions. This clear and erudite explanation of his judicial philosophy is the best refutation of that charge.