Kennedy's Retirement a Recipe for Success(or)

Kennedy's Retirement a Recipe for Successor

June 27, 2018

After yesterday's win on the Trump travel policy at the Supreme Court, Senate Majority Leader Mitch McConnell (R-Ky.) tweeted out a picture. He didn't caption it, because he didn't need to. It was a photo of him shaking hands with now-Supreme Court Justice Neil Gorsuch. The snapshot said it all. Republicans, led by McConnell, stood their ground and delivered on the issue that mattered most: preserving the balance of the Supreme Court. And with today's news that Justice Anthony Kennedy is retiring, he'll have a chance to do it again.

For months, the rumor had been floated -- Justice Kennedy, the longest-serving member of the court, was stepping down. For conservatives, who've had a love-hate relationship with Kennedy after his swing votes helped redefine marriage and preserve Roe v. Wade, it was somewhat of a relief to hear that the 82-year-old would be retiring. Not only does it give President Trump the opportunity to confirm a more reliable constitutionalist to the bench, but it galvanizes the Republican base on an issue that could very well be the difference in the midterm elections.

The liberal media, which had been expecting the bombshell as early as this week, is already wringing its hands over the possibility. Obviously, Kennedy's retirement won't change the court's composition completely, but where it will matter is on values issues. "The Court's decisions on issues where he's a down-the-line conservative -- like campaign finance and corruption, most business regulation and voting cases, gun rights... likely won't change. There's already a 5-4 conservative majority on those, so conservative rulings like the ones Kennedy wrote or joined in DC v. Heller, Citizens United, or Hobby Lobby will continue apace." But, Vox's Dylan Matthews warns, "what will change are rulings on issues where Kennedy has helped maintain a shaky 5-4 center-left consensus."

On cases involving abortion and issues of sexuality and gender, there stands to be a major sea change with Trump's next SCOTUS pick. As the first GOP nominee in history to say that he would only appoint pro-life justices to the bench, Trump won over plenty of skeptics by releasing his list of solid and impartial jurists in advance of the election. For voters who ranked SCOTUS as the number one priority in 2016 (and there were a lot of them), Kennedy's retirement gives them another major opportunity to help President Trump appoint another Neil Gorsuch-type justice to the Supreme Court.

If you're wondering how important the next justice will be, look at the Supreme Court term that just ended. During this 2017-18 session, the Washington Times points out, "there have been a dozen 5-4 decisions where Justice Gorsuch sided with the conservative majority. By contrast, during the court's last term with a full nine-justice court, the 2014-2015 term, there were only four 5-4 decisions from the conservative majority that included Scalia." Those are razor-thin margins on issues of major significance to most Americans. Just this week, the justices decided three cases on free speech by a single vote.

As liberals increasingly turn to the courts to accomplish what they can't legislatively, it's more important than ever to have men and women on the bench who understand and respect the Constitution. And in a fiercely divided Senate like ours, that won't be easy. Once President Trump makes his nomination known, expect Leader McConnell to begin the process of with the goal of a pre-election confirmation. However, the opposition party in the Senate, led by Senator Chuck Schumer (D-N.Y.), will work overtime to slow down or stop President Trump, which could throw the confirmation debate into the election. Regardless, the reemergence of the Supreme Court as an issue in the fall's election cycle should serve to turbo-charge conservative turnout.

Tony Perkins' Washington Update is written with the aid of FRC senior writers.

Jumping off the Ban Wagon

June 27, 2018

It was a "wow" win all right. When President Trump tweeted his reaction to the Supreme Court ruling on his travel ban, those three letters said a lot about the state of American politics and justice. "Wow" that he was vindicated after a year's worth of hysteria from the media and far-Left. "Wow" that what should have been standard national security policy turned into a months-long debate over settled presidential power. And "wow" that there were actually four justices on the court who were willing to ignore the plain text of the law just to spite a president they despise.

For the far-Left, this case wasn't so much a protest of Trump's refugee policy -- but the fact that he's president at all. And since his opponents can't remedy that fact for at least the next two years, they've tried the next best thing: using the courts to strip him of the authority he does have. We've seen this same strategy play out on the military, immigration policy, and now, national security. Fortunately, there are five justices on the Supreme Court who understand that Donald Trump may be the most unconventional president America's ever had, but that doesn't mean he isn't entitled to the same powers. And one of those powers is keeping the country safe, secure, and protected.

When Donald Trump became president, he promised that one of his first priorities would be preventing terrorist attacks on American soil. The obvious way to do that is by stopping terrorists from entering the country in the first place. So, the White House issued an order (not a ban) that put a temporary, 90-day hold on the people streaming into America from countries who pose the greatest threat to U.S. security: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. Of course, that was a major departure from the Obama administration, which let refugees (or radicals posing as refugees) pour through our borders without vetting them.

Democrats came unglued, insisting that the president was somehow barring Muslims from America. A) The order doesn't ban anyone. It delays them. All the Trump administration asked for was a more thorough screening process, which, under any other White House, would have been seen as a reasonable request. B) Nothing in the order even mentions Muslims, a fact the Supreme Court highlighted when it said, "The text says nothing about religion." If this is a ban on Muslims, it's not a very good one, since there are dozens of Muslim-dominated nations who aren't even included. And, if Trump was targeting Islam, what are North Korea and Venezuela doing on the list? The point is, Trump isn't banning Muslims, he's banning terrorists -- who don't subscribe to a faith so much as a doctrine of radicalism. It's not the president's fault that the majority of terrorists carry out their violence in the name of Islam. If Democrats want a more diverse terrorist corps, they'll have to take it up with the jihadists.

Now there are those, including Justice Sonya Sotomayor, who suggested that the same five-justice majority who ruled in favor of Christian baker Jack Phillips should have ruled against Trump's travel policy for the same reason: religious animus. "Unlike Masterpiece [Cakes]," she writes in her dissent, where the majority considered the state commissioners' statements about religion to be persuasive evidence of unconstitutional government action, the majority here completely sets aside the president's charged statements about Muslims as irrelevant." Here's the problem with Sotomayor's argument (and there are several): Jack Phillips didn't want to commit violence in the name of his religion. And if he had, he couldn't claim a First Amendment defense to it.

The legal justifications that we make in the context of protecting the First Amendment don't automatically apply when it comes to letting unsafe actors into our borders. Everyone, from all backgrounds and faiths, has the same free exercise of religion. But they have to be willing to respect the Constitution that gives us that right. If they want to destroy it (and us), then we have every reason to deny them entry into our country. That's what President Trump is trying to do -- prevent a threat, not the expression of a certain faith.

Meanwhile, as even the justices pointed out, "...The twelve-page proclamation was more detailed with factual findings than any ever issued under the statute. The restrictions imposed were not based on nationality per se, much less religion, but on inadequacies in addressing risks." In other words, this controversy was less about the actual policy than it was about Trump issuing it. The plaintiffs here, Kyle Sammin writes in the Federalist, say "the Supreme Court must ignore the text entirely when the motives behind an action are impure. Hillary Clinton could have issued this order were she president because she is good; Trump is bad, so he cannot. And who would determine bad and good? The unelected courts, of course." He, like a lot of people, think the most astounding part of the ruling was the final vote.

"What is shocking is that the decision was 5-4, not 9-0. That four justices -- including the more thoughtful members of the court's Left -- were willing to adopt a radical theory of intent-based law shows how deep the rot of Trump Derangement Syndrome goes, and how far activists in the judiciary will go to thwart the man they hate, even when he acts strictly within the rule of law."

Perhaps the most maddening part of the Left's effort is that they're trying to tie Trump's hands when he has the benefit of intelligence that most people don't, including the justices deciding this case. Even so, it's not – and never has been -- the role of courts to substitute their judgment for the president's. "There is no special jurisprudence of Trump, no judicially legislated exemption that denies this duly elected president the legitimate constitutional and statutory powers of his office," the editors at NRO point out. "Federal judges do not have to like the president, but their allegiance is supposed to be to the law, not to the Resistance."

The Democrats' dramatics over the situation are completely overblown. Senator Chuck Schumer (D-N.Y.) went so far as to say, "Tears are running down the cheeks of the Statue of Liberty." But better the Statue of Liberty, victims' families would say, than thousands more grieving families who will never see their loved ones again because their president was more concerned about being politically correct than protecting their citizens.

Tony Perkins' Washington Update is written with the aid of FRC senior writers.

Sessions Tackles Separation Anxiety on the Left

June 27, 2018

The job of U.S. attorney general is a difficult one under the best circumstances. But for Jeff Sessions, who's had to withstand an onslaught from the Left (and, at times, the Right), it takes real grit to continue moving forward and making a difference. For Sessions, though, this latest controversy over the border and immigration should prove to a lot of the attorney general's critics why the president was right to hire him.

After eight years of Obama, Sessions's Justice Department has been a dream -- defending religious liberty, the unborn, and systematically ending the lawlessness and corruption that exploded under the last president. Even on touchy issues like family separation, Sessions hasn't wavered, explaining calmly and rationally why the policy existed and what Congress can do to fix it. He understands that the family separation issue is just a symptom of the broader problem: a broken immigration system with more loopholes, he argues, than "Swiss cheese."

President Trump did his part -- issuing an executive order to end the separation of children at the border. Of course, as we know from Homeland Security Secretary Kirstjen Nielsen, the vast majority of these kids weren't with their parents to begin with. They were either trafficked, brought across like a passport by adult males who knew they'd have a better shot at asylum with children, or alone. In other words, most of these children (10,000 of the 12,000 Nielsen confirms) are unaccompanied and were already separated from their families.

Still, none of this -- including the White House's fix -- seemed to satisfy Trump's opponents, who, in reality, probably don't want to solve the problem as much as they want to capitalize on it. And frankly, Sessions and the rest of the administration's leaders are tired of it. As far as they're concerned, Democrats have a choice. They can either come to the table and be a part of the solution or stop co mplaining.

As most conservatives know, one of the problems here is a profound difference in ideology. Radical leftists want a country without borders -- which, ironically, is no country at all. Sessions realizes this, and yesterday, at an event in Los Angeles, called them for their double standard. "The rhetoric we hear from the other side on this issue... has become radicalized," Sessions said. "We hear views on television today that are on the lunatic fringe, frankly."

"And what is perhaps more galling is the hypocrisy," he added. "These same people live in gated communities, many of them, and are featured at events where you have to have an ID to even come in and hear them speak. They like a little security around themselves. And if you try to scale the fence, believe me, they'd be even too happy to have you arrested and separated from your children," he said to raucous applause.

"They want borders in their lives, but not in yours."

Tony Perkins' Washington Update is written with the aid of FRC senior writers.

Tony Perkins' Washington Update is written with the aid of FRC senior writers.

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