Opening Statements: The Confirmation Hearing

Ignoring the YUGE news items that came out of yesterday's hearing, some news worthy snippets flew under the radar.

Yesterday began the Senate Judiciary Committee’s confirmation hearing of Judge Brett Kavanaugh.

You will undoubtedly hear about the endless, but well timed, protesters. You will undoubtedly hear about the debacle surrounding the release and availability of documents relating to Judge Kavanaugh’s time in the Bush Administration. You will undoubtedly hear about the Ben Sasse civics lesson. And you might hear about Lindsey Graham jokingly calling Trump and Hillary “bastards.”

Yet each senator’s opening statement had the potential to provide us with insight into their views regarding the role of judiciary, but less specifically, the role of American law and our constitution.

Apart from the theatrics, the arguing, and the unhinged rant from Senator Whitehouse regarding “dark money,” a penchant he developed during Gorsuch’s confirmation hearing, the hearing was quite interesting. While Senator Feinstein worries about who is out of the mainstream, her democratic colleagues proved how out of the mainstream THEY are by making statements that cast doubt on their grasp of current events and our history.

Though we had nothing rise to the level of Feinstein berating Judge Barrett or Booker berating Secretary Pompeo, simple statements are all it takes to show how far the left has gone.

Here are four choice selections.

Senator Hirono on too much power being given to one person i.e. Kavanaugh.

The irony of her critique is so stinging. Following Kavanaugh’s nomination, the right enjoyed laughing at the left because the left was now faced with the possibility of losing their supremacy by judicial fiat. Hirono laments that one person should not be able to overturn precedent and “the will of the people.” None of the issues she is worried about were ever the will of the people. Of course polling after the fact is going to change because the people have no choice but to accept the political reality. If it were the will of the people, then these issues would have never made it before the court. Her critique of Kavanaugh’s potentially disruptive future on the bench ignores how we got in that position in the first place. Conservatives would agree that nine people should not have that much power. If Hirono had paid attention to Ben Sasse, maybe this wouldn’t be an issue. But even Sasse’s response did not touch on the bigger issue, federalism. The only reason why one person, i.e. Kavanaugh is being placed in such a position of power is that these supposed rights and norms of government that Hirono is worried about were only created by judicial fiat. Kavanaugh and the rest of the Court would have much less power if congress did its job and if policies were left to the states. This is the key issue. On one policy alone, more than thirty of the states had enacted policies by legislation or by constitutional amendment only to be struck down by federal judges. Hirono is right, but not in the way she intends. One federal judge is all it takes to remove power from states and the people of those states. An assortment of judges on the US Court of Appeals is all that is needed to affirm that. And a group of 5,6,7,8, or 9 judges is all that is needed to make that removal of plenary power permanent absent an amendment to the US constitution. That is too much power! The fact that Judge Kavanaugh could possibly give some of that power back to the states frightens liberals who have finally realized their tenuous grasp of power was premised upon a flawed process of achieving policy.

Senator Hirono on the topic of independent agencies.

This is just a pet peeve of mine. Hirono says that Kavanaugh is a threat to agencies that exist independently for the protection of the American people or our institutions. There is no such thing as an independent agency. Though there are at least twenty-seven agencies that are touted as “independent.” The issue here is that agencies have to exercise legislative or executive power. They cannot do both. If they do both, there is a separation of powers issue. So when they do either, they are constrained by the same restrictions that apply to the branch of government in which their function falls. The democrats love to talk about transparency, accountability, and freedom from the influence of President Trump, but agencies cannot be independent as it removes them from the process of electoral and constitutional accountability. The CFPB shouldn’t be an independent agency because it enforces laws, it’s an executive function. It can only be accountable if it is accountable to the president who is then accountable to the voters.

Senators Harris and Feinstein on the Supreme Court protecting new rights.

Senator Feinstein is known for her defense of Roe v. Wade. Senator Harris made mention of how justice is to be blind to…among other things…who a person loves. In both of these cases, the chief concern among the California liberals is the preservation of rights constructed on dubious constitutional footing. Harris, who was elected to the Senate post-Obergefell lets her statement roll off her tongue as if the nation has nary a memory of when states had some say over this matter. She jumps to championing these rights as if they have existed since the days of Magna Carta. The same goes for Feinstein, but we expect this stare decisis drivel regarding Roe every calendar year. My favorite retort for this claim is “Plessy was precedent too.” Feinstein doesn’t appear to get that fabricated rights are not set in stone.

Senator Booker on the flaws of our founding documents.

Senator Booker, in a brilliant display of ignorance, pulled out a favorite of the race baiting left in his opening statement. Wait for it… Our founding documents are not only sexist, but racist too. Why you ask? Wait for it again… because black people only counted as “fractions of people,” thereby implying a lack of human dignity or inherent worth. This is the epitome of the left today. Facts and history are useless. All that matters is narrative, a narrative that can be foisted upon Americans who are too busy, too disinterested, too lazy, too apathetic, or too jaded to check out the statements made by their elected officials. So how is Booker wrong? Let us go back in time and see what America would look like in the event that slaves counted as full persons for the purposes of representation. For states with large slave populations, their number of representatives in congress would increase. Their electoral votes would increase. Slaves states would have wielded far more power in the early 1800’s, possibly altering key developments that prompted the Civil War.

Melancton Smith, an Anti-Federalist who opposed the ratification of the Constitution explained why even the three-fifths compromise was unjust. He says “the very operation of it was to give certain privileges to those people who were so wicked as to keep slaves. It would be admitted that this rule of apportionment was founded on unjust principles, but that it was the result of accommodation; which we should be under the necessity of admitting, if we meant to be in union with the southern states, thought utterly repugnant to my feelings.” What does that mean? It means that even counting slaves as three-fifths of a person gave too much power to individual states who refused to see the hypocrisy of gaining electoral and legislative power from individuals who were entitled to no power, no freedom, and no semblance of person-hood as they were considered property. The truly anti-slavery position would have been to count slaves as ZERO persons. This would solemnly recognize that states who subjected our fellow brethren to the horrors of slavery would not be entitled to the same political power as those who did not.

Booker distorts the history of the three-fifths compromise to fit the narrative that the founding was inherently racist. But that compromise is the acknowledgment by sinful men that the Union was not perfect. In Federalist 54, Madison weighs the different considerations as they related to slavery and apportionment. In Federalist 42, Madison also discusses the horrors of the slave trade and how it would be inherently good for Europe to follow America’s lead in planning the end of the slave trade.

It is almost poetic that as America outlawed the slave trade via the ratification of the constitution (with the provision taking effect in 1808), England spent decades debating the prudence of it. Famed Christian abolitionist and member of parliament, William Wilberforce, spent his life fighting the slave trade and slavery. His work led Britain to abolish its slave trade in 1807, one year before the American plan was set to take effect as established twenty years prior. He also secured the end of slavery by the 1830’s.

In acknowledging the evil of slavery as well as the political utility of union, the framers created a system that checked the power of slave states. Unfortunately it was not enough to end slavery without war. The framers and our founding documents deserve far more credit that Senator Booker gives them.

Yet and still, democrats in the senate will continue to push a narrative about America and about Kavanaugh that suits their desired ends. Expect to see more of this today as the Senators will now have time to question Kavanaugh himself. The hearing resumes at 9:30am.

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