It is down to this:  the Supreme Court issue is way more important than any differences of policy, character, or temperament between the candidates in the presidential election.  Nothing else matters, because of this:

  • When both the president and a majority of the Court are leftist, the president can act as a dictator, because Congress cannot stop the president and a leftist Court will not stop the president.
  • If Ms. Clinton wins the election, the odds are that it will be at least three decades before conservatives regain a majority on the Supreme Court.

Congress cannot stop the president. Until the Obama presidency, American presidents issued federal regulations and executive orders when they wanted to “fill in the blanks” in an Act of Congress, to provide clarification or greater specificity.  But under Mr. Obama, regs and orders are mainly for changing existing laws or creating new ones; they are for doing what Congress had been asked by the president to do but did not.  They are the president’s excuse for ignoring – for exploiting – congressional gridlock, using his pen and his phone.  This is far worse than judicial activism, this is defiance of Congress and the judiciary, this is open disdain for the constitutional model of separation-of-powers.

The judiciary will not stop the president.  A lawsuit can contest the legality of a particular regulation or order, arguing that it was unconstitutional because it was, in effect, a form of legislation, a way of getting around the executive branch.  In the highest-profile recent case involving the constitutionality of an executive order, United States v. Texas, a prominent immigration-case, the lower courts ruled that the president’s executive order was unconstitutional, and, as the Supreme Court was deadlocked at 4 – 4, the lower court ruling remained in place.  However, there was agreement among the commentators that the Supremes were split along ideological lines –  the four lefties voting to reverse, the four conservatives (including Kennedy) voting to uphold. This outcome confirmed the general public impression that a leftist-dominated Court could be counted-on to uphold virtually any executive order issued by a president.

The consequence:  when the judiciary is unwilling to invalidate regulations and orders, it affords the president clear-sailing, freedom to ignore Congress.  We now know what that means when we have a modern Democrat as president: so long as conservatives do not have a majority in the Supreme Court, we live in an autocracy, a de facto dictatorship.

How could this be changed?  With Scalia gone, we have a potentially-deadlocked Court:  4 of the remaining justices are leftist, 3 are conservative, and Kennedy is a swing vote who sometimes give the leftists a majority. But if Clinton were elected and another leftist were appointed as the successor to Scalia, that would give the left a clear majority of at least 5 to 4.  Here is what it would take for conservatives to regain a majority on the Court:

  • A Republican president. Let’s call that a 50/50chance, a 50% probability in any election.
  • A  Republican majority in the Senate, at the same time as we have a Republican president.  (The Senate must approve all nominations to the Supreme Court.) Recent history:  in the 64 years beginning with the presidency of Dwight Eisenhower, a single party has held both the presidency and a majority in the Senate only 27.5 years – 43%  of those years.  (Nixon never had a Republican Senate in his 6 years, Ford did not have one in his 2, and Bush The Elder was 0-for-4.)   Let’s generously round the 43% up to 50%.  So, the probability of having both a Republican president and a Republican Senate in any year is only 25%, under the basic formula:  when two events are independent, the probability of both occurring is the product of the probabilities of the individual events. 50% of 50% is 25%.
  • The departure of a lefty justice at a time when we have both a Republican president and a Republican Senate. The probabilities?  Let’s start with the fact that since 1930 (the nomination of Chief Justice Charles Evans Hughes), there have been only 39 justices appointed to the Supreme Court, of whom 8 still serve, meaning the turnover is only 31 justices in 86 years.  So, we appoint, on average, just one new justice every 2.77 years, meaning the probability of even one court-opening in any year is only 36%.  As there is only a 50/50 chance that the departing justice would be a lefty, the likelihood of an opportunity to replace a lefty with a conservative is a mere 18% (50% of 36%), or once every 5 ½ years.
  • Now the punch line: All of that would have to happen at least twice in order to get the conservatives up to a clear majority.  What are the chances of the requisite alignment of the stars and planets occurring not just once, but twice?  The chance of its happening in any year is, 18% times 18%, or just a bit more than 3%.  Three percent per year means once every 33 years! Willing to live under a dictatorship until 2049? Does that work for you?  For your kids?  Your grandchildren?

Temporary relief:  We might not have an autocratic government continuously for the entire 33 years.  Even if Clinton won, we might get temporary relief at a later time if a Republican were elected president.  But that, by itself (absent the other requisite conditions), would not be enough to appoint two conservative nominees to the Supreme Court, it would merely make life a little better for a few years.  Once that president’s term ended, the nation would revert to being at the mercy of a presidential dictatorship.

So, are you anti-Trump conservatives and Republicans  still feeling OK with sitting out this election because of your distaste for Mr. Trump, still dreaming that you could turn this all around with better candidates in 4 or 8 years?  Still confident that a Republican president and Congress in 2020 or later could set things straight again?  Sorry, will not happen.  Even if the Republicans kept control of the Senate this year, despite a Clinton victory, we already know that a Republican-controlled Senate would not have the fortitude to spend 4 whole years continuously refusing to approve any Clinton nominees  to fill the Scalia seat.  So, we would be back to the 33-year scenario.  Are you willing to bet everything on Mitch McConnell overseeing a Republican retention of the Senate and leading a “no” vote on every single Clinton nominee for up to 8 years?


Republican Derangement Syndrome

We are eight weeks away from an election that could grant Hillary Clinton a mandate to achieve her life’s ambition of transforming our liberal, democratic republic into an authoritarian, centrally-planned state.  And Dorothy Rabinowitz (see Wall Street Journal, 9/29/16) is still sniffling about the stylistic and temperamental shortcomings of Mr. Trump.  Ms. Rabinowitz might have been more persuasive had she addressed the differences between the candidates on substantive matters, but the more-important point is that this election is about just one issue: control of the Supreme Court.

  •  It is certain that Ms. Clinton would fill the Scalia seat, as well as any other seats that became vacant during her reign (e.g., Ginsburg’s), with people who share her view that the U. S. Constitution is an obsolete nuisance that can and should be brushed aside to make way for presidential Executive Orders and federal regulations.  It is also clear that a Clinton-style Supreme Court would give the White House the functional equivalent of the power of the Central Committee of the Communist Party of China.
  • We cannot be certain that Mr. Trump is more respectful of the truth than is Ms. Clinton, but we do have his pledge to fill Supreme Court vacancies with responsible lawyers and jurists who do not share Ms. Clinton’s vision of turning our legislative and judicial branches into window-dressing.  He has given us a list of possible nominees, and the list is impressive and convincing.

Ms. Rabinowitz indicates that Ms. Clinton, though burdened by certain “proclivities” (like, lying?), is “experienced, forward-looking, indomitably determined, and eminently sane.”   She neglects to mention that Ms. Clinton is a big-government/static-economy socialist, but, picky picky.

The central point is that Trump, despite his flaws, would give us an independent Supreme Court and Clinton would not.  The only other core-issue, the elephant in the room, is that the fastidious right is nearly as concerned as the left over placing Donald Trump’s finger on the Nuclear Button.  This fear, more than quibbles about policy or doubts about his character and personality, lies at the core of Trump-aversion syndrome.  Rabinowitz et al seem to fear that Trump might blow up the world if some nation insulted his wife or questioned his net worth.  Understood, but would you reject someone who might push the button at an inappropriate time, who might decline to go through the charade of assembling 30- member Coalitions of The Willing, and instead elect someone who has shown that she would never push the button, no matter how grave the danger we faced, someone with a lifetime resume’ of finding reasons NOT to take appropriate military action, whether in Benghazi or generally in the Middle East?  Do you, like Ms. Clinton, fear battle more than you fear loss of your independence?

We get it, that historians might not forgive you purist republicans for voting for Trump.  But remember, you scarcely lifted a finger to support the losers he dispatched so readily in the primaries.  So, get over it: hold your nose, compromise your intellectual purity, and save your country.  Forget policy and personality. This election is about the survival of our constitutional system of checks and balances.  At this point, only the judiciary, only a Supreme Court not dominated by the left, can prevent keep this “progressive” coup from becoming permanent.  Remember, it is almost impossible to revert from the statist model back to the free-markets/free-people model. Think Venezuela.  Think western Europe.  Sitting out this election while pledging to nominate a better candidate in 2020 would be unrealistic and reckless.  We might not even be holding elections by then.


The Carlos Gomez saga continues.  In 124 plate appearances with the Rangers, since being abandoned by the Astros, Gomez is hitting .291/.371/.564 with six doubles, eight homers and 24 RBI. Since moving to the leadoff spot (16 games ago), he’s been even better:  349/.406/.698 with four doubles, six homers and 15 RBI.  His Rangers numbers, if sustained over a full season, would represent 40+ home runs, 120+ RBI, etc.  So, what happened?

Possible answers:  (i) He got a new opthmalogist, a better one than the one who prescribed the contact lenses with which he was a dud, a doctor who could provide contacts that enabled him to see the ball as well as he had seen it with the glasses he wore during a brief hot streak with the Astros this summer; (ii) he got a new hitting coach, a better one than the Astros’ coaches who have also overseen the sharp declines in the offensive production of two of the team’s four stars (Correa and Springer) and several of the lesser players; (iii) he likes the Rangers’ players and coaches better; and (iv) he is a mercurial head case who will never again sustain a consistently high level of performance over an extended period.

I vote for all of the above.  Of particular interest is the possibility that Gomez is way happier in Arlington than he was in Houston.  It does not escape detection that the Astros have a distinctive style, a personality, one that is thus not necessarily everyone’s dish of tea.  Despite all the enthusiasm and energy displayed by the team in general and especially its leaders (Springer, Altuve, and Correa), there is a fundamental conservatism to the Astros –  an Edmund Burke-style conservatism, enthusiastic but firmly grounded in the best of what has gone before.  Consider the number of players (including the team’s leaders) who favor the old-fashioned high-socks/short-pants look – deeply conservative, even when paired with the most daring contemporary baseball-footwear.  The leaders usually speak in a sober and reflective manner, a stark contrast to the effervescent, mercurial personality of Gomez.

And then there are the fans.  From the beginning of his stay in Houston, Gomez had the look and sound of an outsider.  It did not help that the Astros’ fans seemed, from the beginning, to view him as a showboat, a pouter, a guy determined to attract attention.  The fans clearly indicated that they were not prepared to indulge that kind of stuff coming from a low-level performer.  Like the old joke about a pretentious restaurant:  the food was lousy, and such small portions!


Colin Kaepernick is free to do whatever he wants during the national anthem.  If he wants to assume yoga poses and salute the flag with a middle finger instead of an entire hand, that is his legal right.  But his employer, the 49ers, is free to penalize him however it wants, subject to the terms of his employment contract.  That is their legal right.  Free country, free speech, free markets.  Employers cannot fire you for being black, brown, yellow, female, Jewish, gay, or old, but they most certainly can fire you for violating the terms of your contract.  End of legal discussion.

On the merits, the Kaepernick protest does not appear to signal anger against the NFL (which employs more black players than white ones) or his team.  Apparently Mr. Kaepernick’s disdain for the national-anthem ritual is intended to signal that he is not proud of his country, because he does not like the way black people are treated here. Remind you of anyone?

Is America sufficiently flawed to merit this kind of insult?  That is a matter of opinion, but there is an irresistible temptation to say, OK, what other country on earth would come closer to satisfying you?  And if there is such a country, why are you still here?  If your plan is to stay here and fix America, the only part of your plan that makes any sense is your pledge to donate a million dollars to community organizations, though it might be more impressive if you paid the money today – and if it turned out that Acorn is not your model of a community organization.  Have you considered that you could honor your nation while working to improve it?

If Kaepernick’s behavior inspires similar protests by other professional athletes, it will pose a dilemma for the various leagues and associations that set the rules for player contracts and standards of conduct.  Will sports become yet another part of our culture in which participants and fans will be required to take sides, that we will become even further divided on matters of social mores or political correctness?


A Revolutionary Approach to the Second Amendment

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

So reads the Second Amendment, which is a hot political topic.  What does that sentence mean?  Let’s begin with the meaning of the first thirteen words, referred to in Justice Scalia’s majority opinion in the famous Heller case as the “prefatory clause.” (As distinct from the rest of the sentence, which Scalia referred to as the “operative clause.”)   What is a Militia?  Why recite the necessity of a Militia? What’s up with the first comma?   What is the meaning of “the security of a free State?”  What is the meaning of “keep and bear arms?” (It is translated by Scalia as “have weapons.)   Does the prefatory wording establish the sole purpose for which arms may be kept and borne, or does it mean,  “Here is the primary purpose, but not the only purpose, for which arms may be kept and borne?”

The essence of the Scalia opinion is that the prefatory clause is a reason, perhaps even the principal reason, for establishing the right to keep and bear arms, but it is not the sole reason. Per Scalia, once the Framers had granted the right to keep and bear arms, it would have been senseless for them to go on to say, By the way, we did not mean that literally, we meant that arms may only be kept or borne for “the security of a free state.” Would the Framers have been comfortable allowing the States to ban the bearing of arms for the defense and protection of a citizen’s family from an armed attacker or for hunting for one’s dinner?

The essence of the dissents to the Scalia opinion is that the prefatory clause should be read as a limitation of the scope of the objective clause.  They read the sentence to mean that we are entitled to maintain an armed force to defend ourselves in case we are threatened or attacked by an enemy, but that is the only purpose for which arms may be kept or borne.

This writer acknowledges that the majority opinion makes more sense to him, as a matter of grammar and syntax and logic, than the dissents, but that is not the point of this essay.  The point is to address the meanings of certain other words or phrases of the amendment: “militia,” and “the security of a free state.”

Militia.  Both Scalia and the dissenters seem to think of a militia as an armed force established by a governmental unit – such as our colonial militias (which eventually matured into state militias), or a standing force of the federal government (the regular army, navy, etc) or a state (the national guards).  But “militia” can have more meanings than those given it by the Court. Here is another common meaning, from a popular dictionary: “a military force that engages in rebel or terrorist activities, typically in opposition to a regular army.”

The security of a free state.  No one, neither the majority nor the dissenters, pays much attention to the phrase, “the security of a free State.”  They all appear to take it to mean, national defense  – i.e.,  a defense against foreign countries that might go to war against the United States (a free state).  It does not appear that the Court felt it had any reason to think about a Militia like the Colonial militias, formed in order to resist a denial of their freedoms by their own government (the British Crown) – a resistance for the purpose of restoring “the security of a free state.” No Justice paid any attention to the possibility that “state” was being used by the Framers in the sense of the primary definition of the word: “the particular condition that someone or something is in at a specific time,” as distinct from its secondary definition, “a nation or territory considered as an organized political community under one government.”

Thus the phrase “the necessity to the security of a free state” is ambiguous.  It might refer only to having weapons for defense, for keeping the country free from foreign attack or domination.  But it might also refer to having weapons for offense: (i) in order to “rebel . . . in opposition to a regular army,” as in the case of the American rebellion against the British Crown, in order to establish (or re-establish) a free nation, or (ii) in order to preserve America’s status as a free nation – keeping us in a free condition (a “free state”).

If the Framers meant to refer only to national security, why didn’t they just refer to the security of the state (the United States of America) instead of referring to the security of “a free state?”  Was it one of the intentions of the Framers to ensure that the citizenry would be able to rebel against the American government, to create armed militias (like the original colonial militias) to resist the devolution of the country into an un-free state, such as a state whose government had become authoritarian?