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Outsiders vs. Insiders: 4th of July fireworks a prelude to political pyrotechnics over Court

Ah, the Fourth of July. Just breathing out the words conjures up images of fun and exhilarating things – the Sousa marches, the parades, the picnics, the patriotic music, the fireworks, the flags fluttering in the breeze, the packed plates of barbecue and brimming plastic (red solo) cups of brew… It’s like a Lee Greenwood song all rolled up into one day.

And if you’re really lucky maybe even a trip to the beach is in store for you and the family. Thanks to the Trump Trump swimsuitsfolks everyone can now sport their own “Make America Great Again” swimwear this year! Steven Nelson reported at the Washington Examiner last week, “Days after President Trump took office, campaign veterans began to brainstorm ways to sustain enthusiasm among the grass roots. Last month, one early idea finally hit roof pools and beaches: swimsuits that say, ‘Make America Great Again.’

“The unconventional presidential merchandise concept was slowed by design iterations and finding a U.S. manufacturer, but debuted just before Memorial Day, with Lara Trump modeling a suit in a widely shared Instagram post.

“’Traditionally, this is not something presidential candidates do,’ Lara Trump told the Washington Examiner. ‘But why not? People really want 'Make America Great Again' gear and products that support the president and look really patriotic.’”

Since you’re no doubt curious, here’s a link to a story where Mrs. Eric Trump models the swimsuit (don’t worry, she’s holding a Trump grandchild in the photo, very G-rated). As would be expected the suit looks great and appears to be exceptionally well-made and stylish – trademarks of the Trump name and brand. You won’t be able to get one by tomorrow…but there’s still the rest of the summer, right?

Just like it was under Ronald Reagan over three decades ago there seems to be a renewed appreciation for what the Fourth of July represents under Trump. The two presidents’ styles are vastly different but their love for country and belief in the American dream is remarkably comparable. Reagan and Trump also share a very forward-looking orientation, not allowing themselves to be bogged down by the avalanche of media negativity engulfing every Republican/conservative administration.

Naturally after last week’s announcement that Justice Anthony Kennedy is retiring from the Supreme Court, much of the over-the-holiday news discussion revolves around who Trump might choose to replace him. Every presidential appointment or decision is particularly noteworthy but this one is taking on a significance all its own. Both conservatives and liberals are intensely focused on the subject, setting up for a very interesting second half of 2018.

In his post-Kennedy retirement remarks President Trump promised to select another constitution-revering jurist to take the justice’s place. While it’s always challenging to foresee what impact another constitutional originalist justice would have on the Court, we can now at least begin speculating. Some anticipate a massive change in the country, but is that really accurate?

National Review’s David French made his predictions last Friday, writing, “Looking at Trump’s list of 25 candidates (and reading the speculative ‘short lists’) to replace Kennedy, one thing seems certain: The moment the new nominee is confirmed, no matter who it is, the Supreme Court will grow appreciably more originalist. Look for fewer sweeping moral statements — like Kennedy’s declaration in Obergefell that ‘marriage responds to the universal fear that a lonely person might call out only to find no one there’ — and more close textual and historical analyses of the Constitution...

“…I’m less sympathetic to the notion that the cause of building a just society somehow requires granting the state the power to dramatically limit free speech (or even compel speech, as California attempted to do to pro-life crisis-pregnancy centers in NIFLA), to create immense administrative superstructures subject to the barest legal oversight, and to make explicit, race-based decisions in dispensing jobs or college admissions. And justice actually requires that we reverse Roe and work mightily to end the senseless and unjustified slaughter of millions of the most innocent and vulnerable Americans.

“In short, an originalist court stands for a simple proposition: The Founders created an ingenious system of government. We should give it another try.”

Precisely – French hit the nail on the head. Listening to establishment media commentators over the weekend you’d think an “originalist” would spell doom for every single civil right propagated since the Warren court. Not true. It’s one of the biggest misconceptions in American discourse today that a Constitution-conscious Supreme Court is unfeeling and cruel, one that all-but permits segregationists to run wild and looks the other way at state sanctioned discrimination.

And most relevantly these days, a Court that frowns on a “woman’s right to choose.” (I shudder using that term…choose what?) That’s not what textualist jurisprudence means at all; an originalist Court protects rights, not take them away. Rights don’t exist in a vacuum and there isn’t a finite list of liberties citizens possess free from government infringement. Originalism merely suggests individual states will take on a greater role in preserving local interests. Federalism will reign – the national government will be humbled and restrained. Amen.

Still, if Rhode Island desires to create a “right” to an abortion there’s nothing in the federal Constitution that prohibits it (we need a constitutional amendment protecting unborn life). By the same token if Texas chooses to honor a baby’s right to exist then the federals will similarly bow out. If Massachusetts believes state hiring should follow an affirmative action scale, so be it; but if Arizona doesn’t, it won’t face federal censure over the matter.

In his article French lays out six areas where an originalist Court could depart from the current one, including more deference to the First Amendment’s guarantee of freedom of religious conscience and the Second Amendment’s right to legally purchase and possess firearms without excessive restrictions. French also predicts the administrative state would be rolled back and Roe v. Wade would be overturned. Most notably he doesn’t figure same-sex marriage would be reversed (it’s here to stay). Time will tell.

Yet another important aspect of Supreme Court practice that doesn’t receive much consideration by the hypersensitive media is the enormous amount of time involved with making big changes in law and customs at the national level. As has been repeatedly noted over the years, comparatively few cases ever make it to the high Court. Therefore, it’s an arduous process to get the Court’s attention and once the justices hear a dispute there’s no assurance they’ll rule a certain way (see Chief Justice John Roberts’ opinion upholding Obamacare).

There’s nothing to say the Court would even hear an abortion case in the new justice’s first or second or third year… Nothing will be decided overnight, but do the liberals acknowledge this fact?

Legislatures (both Congress and at the state level) react much quicker to urgent matters – that’s what they’re designed for. Political questions (those not specifically addressed by the Constitution) are resolved through the legislative process. Once a justice is parked on the Supreme Court bench he or she is there for life if they so choose. Meanwhile, if a legislator does something outrageous they’re theoretically just an election away from being removed.

Using the recent illegal immigrant family separation issue as an example, Congress could’ve acted instantaneously and the policy would change. In contrast, when lawsuits are filed to correct a perceived slight to some “right” it takes years for the quarrel to snake its way through the federal court system to reach the Supreme Court (assuming they agree to hear it). And even then, the parties may not receive a definite “yes or no” answer from the justices.

In essence, liberals should quit freaking out and gain perspective on what they’re talking about before they assert for the millionth time that the world would implode because Kennedy’s now gone fishing instead of listening to lawyers argue. Radical evolution is just not going to happen, largely because the Founders devised a system that resisted rapid change, for better or worse.

What is likely to take place over the course of years is interest groups will have a much harder time completely bypassing the political branches to get something enacted. For example, the proponents of same-sex marriage would’ve spent more of their time working at the local and state levels to pass laws rather than risk trial-balloon lawsuits making it to the Supreme Court – and then have the majority deny them on their claim.

True originalist jurists give great deference to elected legislatures – as it should be.

If lawyers see an issue that isn’t likely to achieve success at the Supreme Court they may not push as hard to file a suit in the first place. Similarly, lower court judges will recognize an originalist majority on the Court means a much-reduced chance for judicial activism to succeed. Judges hate to be reversed – and it’s more than a blow to one’s ego. To be censured by the Supreme Court could be a career altering error.

In other words, ideally the entire system would function better with federal district and appellate judges paying more mind to the actual text of laws and working harder to separate themselves from disputes instead of seeking to find the best and most satisfying outcomes according to their own personal preferences.

But first things first. Mimicking Mitch McConnell’s decision to hold off acting on a Court vacancy (created by Antonin Scalia’s death) until after the presidential election in 2016, Democrats argue no nomination or confirmation hearings should be held before this November’s vote. The Republican majority apparently doesn’t agree.

Susan Ferrechio of the Washington Examiner reported, “Senate Republicans hope to seat a new justice on the Supreme Court by the start of the next term, which could require a rapid confirmation process in the face of heated political opposition from Democrats…

“The Senate typically takes more than two months to confirm a Supreme Court justice from the time the president chooses a nominee.

“In this instance, lawmakers could easily finish vetting and voting on a nominee by Oct. 1, which is the start of the Supreme Court's next term.”

It certainly appears like it can be done though Republicans should be cautious against rushing – or making it look like they’re hurrying a nominee through. The nation will be slowly waking from its typical between elections slumber after Labor Day – and both sides of the ideological fence will need plenty of opportunity to air out their cases for/against before the public eye.

Democrats are already panicking before a nominee is even announced…no surprise there. Buoyed by a survey showing a majority of Americans don’t want Roe v. Wade overturned, Democrats intend to make the entire confirmation process about abortion – in my opinion, a risky strategy. When Americans learn that ditching the tragically flawed unconstitutional abortion decision won’t mark the end of the debate many could and should change their mind.

Regardless, both sides plan on dumping a ton of money into the effort to sway public opinion. Alexander Bolton of The Hill reported, “The fight to replace retiring Justice Anthony Kennedy is expected to be the most expensive Supreme Court confirmation battle in history.

“Conservative groups predict they will exceed their past expenditures over the summer and fall to boost President Trump’s forthcoming nominee, who could change the ideological balance of the court for years to come.

“Liberal groups are also expected to spend freely and have warned that Trump’s pick could tip the scales against the Roe v. Wade decision that legalized abortion nationwide. ‘I rank this as the most important I would’ve been through, largely because of the state of the country and the divisions that have been driven into this,’ said Sen. Dianne Feinstein (Calif.), the top Democrat on the Senate Judiciary Committee.”

Hypocrite DiFi apparently dropped her phony pandering on behalf of illegal alien children to concentrate once again on cutting short the lives of American babies in the womb. Shameful.

No doubt there will be many things on the minds of Americans as they celebrate the nation’s independence tomorrow, with the specter of the looming fight over the Supreme Court hovering in the foreground. The fireworks displays this year will just be a prelude to the political pyrotechnics to come.

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