Matthew Continetti, EIC of The Washington Free Beacon (which you should be reading regularly), has a fantastic column about the Deep State titled “Who Rules The United States“. I cannot endorse the entire piece, because I find Mr. Continetti’s inclusion of the judiciary to be out of place in an article about the Deep State, and strangely tone-deaf in attacking lifetime judicial appointments. That said, it is remarkable Mr. Continetti took a shot at the judiciary, as I am hoping it heralds conservatives ditching their veneration of the “Nazgul” and recognizing reality: the judiciary is nothing more than a branch of government. Getting conservatives to put down their Holy Judiciary Hymnals is an important first step in embracing a Constitutional remedy to bad judges: impeachment and removal.
Judges deserve impeachment and removal (and threatened with impeachment and removal) far more than it happens, which is effectively never. Judge Robart, who “wrote” the TRO against President Trump’s EO on immigration, needs removing. The three-judge panel that affirmed Robart’s ghastly TRO is asking for an Impeachment Party. To be clear, I am not supportive* of Trump’s EO, but regardless of politics, people of good faith across the political spectrum recognize these bums took advantage of the spotlight and decided to make names for themselves. In doing so, and mirroring my previous post about the Intelligence Community, they abused the trust and fairly unwavering adulation the Public has given them to self-aggrandize. It’s unfortunate it is impossible to get 2/3rds of the Senate to do something as minor as confirm the Secretary of {Whatever Useless Agency}, let alone impeach a judge, but so it goes. We should make these judges their sinecures are by no means a sure thing.
Speaking of dormant Constitutional powers that never get used, I sincerely hope the House of Representatives gets an infusion of sack from the White House this go around and rediscovers the power of the purse. I have a few co-workers I would like to see become the recipient of the Holman Rule. At a minimum, Congress should find those civil “servants” who think they are more important than duly-elected officials and tell them their paycheck is $1, take it or leave it. Even if my impeachment of the judiciary does not work out, maybe Congress can cut the judiciary’s allotment for some of the cushier judicial perks like staff, clerks, heating, water, whatever!
* because it does not go far enough. hee hee.
I’ll comment:
NAZGUL! RUUUUN!
I AM curious about this board’s respective legal giants’ opinions on Marbury…I have no opinion and want to form one.
He wasn’t very good with the Knicks, but then who was?
At least the Starbury was well-intentioned. Even if it was a piece of shit.
He was a physically gifted guy who really couldn’t play the position. So he was definitely an asset, but his play didn’t match his ability. He was like a rich man’s Steve Francis, and a billionaire’s Antonio Daniels.
Kevin Johnson was a really athletic guy who could play PG; Russell Westbrook is the most athletic guy yet to play PG, though his PG skills are a bit weak. Chris Paul is the best all-around PG I’ve ever seen, followed closely by John Stockton.
Of course, if I can pick one guy to play it, I’ll take Magic, because 6’9″.
Was Nash at least on par with Stockton?
Nash had a significant flaw – man-to-man defense. One of the big reasons the Spurs beat the Suns all those years in the playoffs was that Nash couldn’t even slow down Tony Parker. Not that that’s easy, but other guys could make Parker work a little bit.
The Spurs vs. Nash: 6-1 in series, 24-11 in games during the playoffs.
I think it’s a really interesting case. While the constitution (moar like con-shit-tution, amirite?) doesn’t specifically spell out judicial review as a power of the SC, but I believe that power is incumbent within the highest judicial authority, otherwise it spectacularly fails to act as a check and/or balance to the other branches.
Though I am open to being persuaded otherwise, as that’s just my college age hot take on the subject and I’ve not studied it in-depth.
The framers wrote extensively about Judicial Review. The primary argument against the “Committee of Revision” was that it was superfluous and upsetting to the balance of government because Judicial Review was already inherent as power of a Judiciary. Marbury, however, was a poor and incorrect decision on other grounds.
Did any of the living Founding Fathers get upset over Marshall’s ruling in Marbury v. Madison? Specifically, did they complain about how Marshall had imposed judicial review?
I’m just curious, because a whole lot of the original gang were still alive
Madison, obviously. Jefferson wasn’t to happy either though I’ve not read all the original sources. From what I’ve collated though none really seemed to disagree with the notion that the courts exercise judicial review, but they did disagree with the particular ruling in the case on several legal and policy grounds. They’re not the only ones, I think its a very quotable decision but its poorly reasoned.
Chemrensky’s analysis of the decision makes a point which I feel is most salient. In brief, the logical first step in receiving any case on appeal is determining jurisdiction, often it isn’t in issue but it will kill your case if it is. No jurisdiction the court don’t hear the case, doesn’t matter what any of the other issues are – the court has no power to decide them because they lie beyond the scope of its jurisdiction. The court determined right off the bat that it didn’t have jurisdiction and then proceeded to rule on the merits anyway.
I’m not sure how that’s supposed to work.
I assumed Madison wasn’t too keen on the ruling. Thanks for the info about Jefferson. I’d have to read his take.
I don’t understand why Congress did not reign in Marshall’s rationale, though. That would have been within their authority
Both practical and political reasons I’d imagine. Practically, you’ve now got a ruling from the Supreme Court. Where do you appeal that to? Also politically, you’d have to find a way to chuck the court’s authority which is a horrible thing to get into or you’d have to replace the offending justice and from the practical standpoint someone would then have to bring another suit to overturn the prior ruling. Finally, from what I recall, Madison’s refusal to deliver the commission after it having been granted was wildly unpopular and seen as a direct attempt to sabotage the incoming party of his political rivals.
I agree in Gojira. if the court is responsible for interpreting the law, they must be responsible for judicial review. otherwise you could never sue under the contracts clause, for example.
Pretty much. The Constitution is a legal document, the supreme law of the land. I don’t see how the courts could be prohibited from applying it. Judicial review is inherent in our government structure.
Its been too long, by decades, since I looked at the case. I think the basic concepts that it has (come to?) stand for are sound, namely, the courts can and should apply the Constitution in their decisionmaking, and the other branches are bound to obey the orders of the courts. I don’t see an alternative that isn’t much, much worse.
At least he didn’t use “DEUS VULT”.
I keep noticing your Saracen sympathies Ted. I got my eye on you.
Don’t stand between us and Jerusalem.
THERE WAS NO (A)!!!!
(begins smashing furniture)
Shhhhhhhh…it’ll be okay. *pets pompadour
*applies raspberry jam to Gilmore’s nose*
These are some good euphemisms, right there.
my fault. the inclusion of the courts was meant to be (a)
I don’t even see what he was complaining about.
Because he fixed it.
not me! thank you Mystery Editors!
Did he?
or she.
Calm down, Loretta.
Judge not, lest ye be judged yourself. – some dude
How’d that end up working out for that guy?
Pretty well. He saved the world from sin and expanded worship of his father and the study of his teachings to be the world’s largest religion – even some 2,000 after he strolled around Israel. Not bad for some grueling work done over the course of a long weekend.
Sounds like it worked out well for other people. For him? Hard to say.
I think the story goes that he is still around, waiting for the right moment. It’s like the story line to Return of the Jedi.
From the article on the Holman Rule:
Sounds like an unconstitutional bill of attainder to me.
A bill of attainder implies punishment. I don’t see where that applies.
interesting thought! i found this but as Scruffy said, the civil servant would have to prove it’s retaliatory.
http://prawfsblawg.blogs.com/prawfsblawg/2017/01/does-the-holman-rule-authorize-unconstitutional-bills-of-attainder.html
If you are a government employee, don’t you kinda serve at its pleasure and what it’s willing to pay you?
The possibly mistaken impression I got from the article is that they want to use the rule to arbitrarily abrogate contracts, and do it more or less one individual at a time. Sounds hinky to me.
I didn’t notice that Continetti attacked the judiciary in his article. I think only administrative law courts were mentioned.
“This is the government of unelected judges with lifetime appointments who, far from comprising the “least dangerous branch,” now presume to think they know more about America’s national security interests than the man elected as commander in chief.”
i took this to mean the Ninth Circuit. i don’t think ALJs have lifetime appointments, but i’d have to look it up.
Sorry, somehow I missed it.
No, Administrative Law Judges, or “judges” as they are referred to by some, are Article I judges serving term appointments – which are often, but not always renewed. Real, for life yo, federal judges are Article III judges. Fun fact – federal magistrate and bankruptcy judges are also Article I.
Not for lack of bitching about that ‘inequity’ I’d wager.
“conservatives ditching their veneration of the “Nazgul” and recognizing reality: the judiciary is nothing more than a branch of government. ”
I believe Mark Levin, a true conservative’s true conservative, has been singing that song for years. He even wrote a book to that effect.
https://www.amazon.com/Men-Black-Supreme-Destroying-America/dp/1596980095
good reference! i missed this.
IMO, start higher. Impeach any SC justice who supports the evisceration of the 4th by domestic spy agencies. Impeach any SC justice who further ignores the plain language of the 5th and supports asset forfeiture. Impeach any SC justice who believes that the 2A is subject to “reasonable” regulation. Impeach any SC justice who ignores the 9th and 10th by asserting Federal authority on matters not delegated to the federal government.
It will be awfully quiet in those chambers.
You’re going to have to find a legislative majority that supports those ideas first.
Yeah, fuck the constitution. The legislature has no delegated power to do any of those things, and is happy that the SC hasn’t stopped them, so this is in a sense collusion between branches.
Time for the woodchippers.
*gets a few cans of gas filled*
/unfurls banner with big block “HYPOTHETICAL” painted on it.
yes. probably shouldn’t go down this road again.
today in double standards: Star Trek’s George Takei Spoke Glowingly About Being Molested as Young Teen by Older Man
But that’s totally different from Milo’s story. You see, LOOK SQUIRREL!
Rules are different for house gays and field gays? Takei is an Auntie Tom? Man, these slavery analogies don’t fit as well.
huh, lets see if all those outlets crucifying Milo have anything about this…
While I agree with the idea that the judiciary goes too far many times, what, besides a pitchfork and torches march towards the Capitol, is the remedy to unconstitutional actions by the legislative or executive branches?
Maybe those bodies need to have elections periodically.
Do you trust the American electorate as a whole to vote out representatives who sign unconstitutional laws? Because those laws tend to be popular.
Look at the reelection rates for US legislators.
A more basic problem that a lot of people won’t face is that no amount of rules is enough for all situations. You must use your judgement. Even if you try to avoid using your own judgement by following a set of rules, you are merely substituting another person’s judgement for your own. And you will still have to judge what exceptions if any apply to those rules and when they apply.
Instead of rules, I think principles are more useful. A principle like “minimize harm” Based on this principle, a needle exchange program for junkies makes sense because fewer junkies with AIDS is better than more junkies with AIDS.
Why should the government be involved in that? “Minimizing harm” is not a delegated power. Legalize needle purchases (the power to regulate them isn’t granted in the first place!) and if junkies want to take their risks, it’s their call.
I’m cool with states that have needle programs.
SLD, these orgs should be funded privately and voluntarily.
Yes, legalizing is the ideal. I was just thinking hypothetically about how to convince a drug warrior to support something besides legalization, which I presume they would never consider.
You’re not going to convince a drug warrior about anything. Becoming one invariably involves a total commitment to utilitarianism and an abandonment of the principles of delegated powers.
The only solution for that person is a woodchipper.
I don’t think drug warriors believe drug users are human. They fail to realize when they are the aggressors, they have become the monsters.
Are drug warriors human?
Only one way to find out.
/fires up woodchipper.
Is it me or do judges get a tad too much reverence?
what if they didn’t? What if we stopped thinking of them as our superiors?
As far as the judiciary goes, whether you are Deep State or not doesn’t really have much to do with your job title. It has to do with how you do your job. If you do your job like your agency is the be all and end all, damn the elected politicians and the law, you are Deep State. Judges can definitely act like Deep Staters (the 9th Circuit is giving a master class on this right now re the immigration order).
Not all agency employees are part of the Deep State, but many are. I would say the same is true of judges who engage in deference to agencies or otherwise act as if the bureaucracy has some independent legitimacy of its own, rather than being the hired help for the elected/appointed officials who are actually the legitimate wielders of state power in our system.
This article is based on a fantastical premise. The issue with judges is that they defer to the branch that woulday be doing the impeaching. The true issue is with the legislature and by extension the American people who accept status quo and are fine ignoring the Constitution. Kicking out bad judges sounds fine on paper but in reality you’d be politicizing the judiciary even more. There’s no way I trust Congress to impeach judges based on their interpretations of the constitution.
I’d suggest that the judges use their decisions to call for the removal of elected officials who engage in blatantly unconstitutional behavior (Kamala Harris), but you know it would get ridiculously politicized.
A better said version of what I tried to say above. Agreed 100%.
If we’re willing to solely rely on the American electorate as a backstop to unconstitutional actions by representatives, we’re in big trouble. It’s been joked about that between the left and the right, if we gave them free reign we’d be down to the 3rd amendment, and the rest of the BoR would be gone. Don’t really want to live in a world where that more easily becomes true.
Impeachment would require something approaching bipartisan consensus – it rarely works unless the defendant is accepted on both sides of the aisle as being crooked.
Since one party is committed to using the judges as an auxiliary of the progressive movement, they’re not going to vote to impeach or convict a judge simply for usurping power for the sake of progressivism.
Incidentally, I sent in a little essay of my own, any reactions from the mods?
Yes. The only good Papist is a quiet papist.
*Eddie standing next to three story window in Prague*
So…tempting…can’t…resist…natural Hussite urge…
You’re a hussy, all right.
And your avatar is an axe-wielding guy from the movie American Psycho, so you’re not playing around!
Because I also have cat videos.
Neither here nor there:
There’s a radio show I like to listen to called Hometown Heroes. They have the best war stories. The one I heard last week was from a 96 year-old guy who joined the Marines when he was 20 and fought on an island called Tulagi near Guadacanal. During the battle, he saw US plane release a bomb over his position. He managed to crawl (very quickly) to relative safety, but the blast left him deaf for 3 days. One of his friends who also survived got splattered with blood and guts of the poor bastards who got hit.
Later, he was walking through the jungle and stepped over a crashed Japanese bomber. He thought the pilot was dead, but when his back was turned, the pilot tried to shoot him. Another guy walking behind him shot the pilot first. That guy later was killed on Tarawa.
He spent about 6 months around Guadalcanal. By the time his unit got rescued, he was no longer fit to fight because of disease and malnutrition, so he was sent home. He got lucky there. The ones who were still good to go were shipped off to Tarawa and many did not return.
He mentioned an incident which shows why Japan lost the war:
gasoline-soaked rags, while handy in certain applications, are an inferior substitute for automatic weapons wielded by men who understand the use of cover
Japan’s generals knew the US had tanks (Japan had their own), yet for some reason, chose to rely on bull-shido instead of equipping their troops with anti-tank weapons.
It’s just bizarre. Same goes for the machine guns with bayonets on them.
Check out this wacky pic on the wiki article for a Japanese machine gun.
Japan wasn’t exactly planning on fighting an island-to-island fight with the United States, at least not on their terms. Midway completely obliterated their long-term defensive strategy.
Derp –
i read it 2 years ago, but its still fresh in my mind; worth reading, tho i’m sure there are many good books on the Pacific. its riddled with anecdotes like the above. Not as bad as Ambrose in that regard; more judicious.
How does that incident illustrate that?
Suicidal bravery, while culturally-admirable, doesn’t win battles
It does wear on the opponents.
Sure, but when also combined with “inability to rapidly replace suicidal troops”, or – as Derp highlighted above – ability to supply (and re-supply) those suicidally-brave troops with fresh and appropriate materiel, its just accelerated attrition
When you’ve got no counter, suicidal bravery is all you’ve got.
Right but the suicidal bravery thing was not why Japan lost the war. Japan lost the war because of a fundamental strategic error, one that autocracies have been making for two thousand years: “those soft fucking sons of free societies don’t have it in them to resist the steel men that our autocratic system puts out.” The mistake the Japanese made was the same one Hannibal of Carthage made “If we wipe out their forces, they don’t have the societal strength to rebuild because of their fractious political system.” Completely misunderstanding reality.
A lot of the Jap generals knew defeating the U.S. was an impossibility, but they convinced themselves war was their only option.
They knew that defeating a determined US wasn’t an option. The size and industrial capacity was too big of a gap. What the “we can beat the US faction” argued was that if you hit the US hard enough in the opening moves, the soft and decadent democracy would throw in the towel because they didn’t have the stomach for a long and hard war.
Which is something that autocracies have thought about democracies in general and the US in particular for centuries, and is very curious, because I think even a cursory reading of history shows the opposite to be true. If you piss off a free country enough, they will build a massive nation in arms, invade your country, destroy your society, and then they go home.
Have you read Japan 1941: Countdown to Infamy? It’s very good.
Hahahah… Oh, wait, were you being serious?
you asked for clarity on what Derps’ example was illustrative of.
If you wanted to talk about something else, nothing was stopping you.
Right, but note that in 1942 (M5 stuart might be the M3 model instead, with even shittier armor), despite the war elsewhere raging for years, their own experience vs Soviet armor in 1938 and 1939, Finnish experience in Winter War vs Soviets, their troops didn’t even have the basic anti-tank training or any kind of equipment (fuck, a bundle of grenades tied together is better than swarming and dropping flaming rags!). Fuck, Poles were able to have few hundred Anti-Tank rifles made before 1939, and they could have stopped the Stuart at close range!
Their army was not ready for mechanized warfare, despite the time it had to prepare, and failed to correctly adapt to it. So they lost despite the 90% Germany, 10% Japan decision US high command made at the outset of the war.
Spend all your time fighting Chinese peasants and you get cocky.
Well to be fair, the island campaign was an infantry war, the armored and AT forces of the Japanese were in Manchuria for the most part.
Actual Slate article:
It’s Time to Give Up on Facts
Or at least to temporarily lay them down in favor of a more useful weapon: emotions.
I leave it to the commenters to find the derp within. Don’t worry. It won’t be hard to spot.
oopsy. I keep posting things in the wrong places.
Lack of supply, equipment and counter-tactics. There’s some things in the war that Japan just couldn’t counter, while they excelled at others (naval combat, for example).
also a Shame culture that prevents changing tactics
Eh, once the US industrial machine got going, the supposed superiority of the IJN evaporated. They maintained a decent edge in night operations, but after the Solomons they were behind the 8 ball. The “invincible armada of the rising sun” mostly stems from the surprise attacks which launched the war, and from the Zero shooting the shit out of planes like the Brewster Buffalo in 1941 and 1942. When they finally got their big decisive fleet battle they got their ass thoroughly kicked.
The Japs had their best shot at Midway, but made a bunch of mistakes
Their early war tactics were excellent, particularly their attacks on the British navy and the invasions of their colonial possessions. After Midway and Yamamoto died they were basically fucked though, carrier disadvantage spells doom in the war they were fighting.
We would have gotten things going a LOT faster on the Naval front if they had been issuing working torpedoes to our subs and PT boats. The 21″ Long Lance Nip torp was a monster (esp. fired in volleys of 3-6+). Meanwhile our MK 8 was a first class POS that was more than likely to bounce off a hull without detonating. (Of course..given how much of a PITA it is to load a MK46 tube underway – I can’t imagine trying to run a reloading operation on one of those monsters).
Lose 41 men to take out one tank +4 men is a bad, bad equation when your population is 2(3?) times smaller.
2 guys with Molotov cocktails or a single Anti-Tank rifle (for fuck’s sake, it’s just a Stuart!) would have done the job.
Japan had a really hard time countering tanks. Type 95s and 97s were absolute garbage, and the closest things to ‘good’ tanks they had were prioritized for the Manchurian/Chinese fronts and the Home Islands (most never even saw combat, or only for several days during the Soviet declaration at the end). Panzerfausts and bazookas wouldn’t show up until 1942/1943, Japan didn’t develop an equivalent until 1944. Which basically only leaves aircraft, recoilless rifles, anti-tank mines and artillery. Aircraft was a problem because of the obvious Imperial Navy loses early on, and they had no experience combating tanks. The only recoilless rifle I’m aware they used could only pierce light tanks. Most Japanese island defense prioritized whatever heavy artillery they had as coastal guns for naval forces and used light artillery for land engagement. So you’re stuck with a stationary explosive.
Hence, swarm the tanks.
Supposedly, there was also the “Guy with an AT mine on the end of a long pole”, which gives your AT mines mobility. But I’m not sure how widespread it was, as opposed to desperate measure that never saw wide use (much like infamous Soviet AT dogs).
“Guy with an AT mine” is basically the land based version of the first successful submarine attack.
Damn thing still killed more Johnny Rebs than Yankees.
Ooh, and I was reminded, “guy with the artillery shell and a hammer, concealed in a hole”, who might be even more apocryphal.
Marines post rare video to commemorate 72nd anniversary of Iwo Jima
No man can defeat the Nazgûl
Not all agency employees are part of the Deep State, but many are. I would say the same is true of judges who engage in deference to agencies or otherwise act as if the bureaucracy has some independent legitimacy of its own, rather than being the hired help for the elected/appointed officials who are actually the legitimate wielders of state power in our system.
The essence of the Deep State is inertia. Hundreds of thousands (if not millions) of unelected government employees who are pretty much assured of lifetime employment do not like their boat to be rocked. They sincerely believe they run the country, and those popularity contest figureheads are merely a short term irritant. That’s what I think.
Compounding the problem currently is the ugly truth that most of those people went into government with the specific desire to make the government bigger and more powerful. Suddenly, this interloper, this… UPSTART… comes swooping in from left field and starts telling them to *not* do the things they have devoted their lives to. It’s a wonder somebody hasn’t “forgotten to put fuel in Air Force One prior to heading for Florida.
Ah, Yes Minister time again…