Issues, News and Views

Who will fill the
United States
Supreme Court
vacancy resulting
from the passing
of Antonin Scalia?

Neil Gorsuch
nominated by
President Trump

As the President so
appropriately remarked
at the nomination

"I have always felt that
after the defense of our
nation, the most
important decision a
president of the United
States can make is the
appointment of a
Supreme Court justice.
Depending on their age,
a justice can be active
for 50 years and his or
her decisions can last a
century or more and
can often be

Neil Gorsuch: a judge
who understands both
what a judge's role is;
and what a judge's role
is not.

Watch the ceremony
and enjoy the
refreshing humility
of a true-to-the-
Constitution justice
like Neil Gorsuch.

Below is our rating of
Supreme Court justices
based upon judgement
of their fidelity to
the Constitution:

As the chart illustrates,
there are too many
rogue justices on the
Supreme Court. These
appointed, life-term
judges take it upon
themselves to arbitrarily
unilaterally and
autocratically over-rule
the will of the people.
They are the equivalent
of tyrants.

It is crucial to our
Democracy to fill all
open seats on all
Courts, as they
arise, with true-to-
the-law judges. With
originalist, textualist
judges who apply the
law as passed by the
representatives of the

It is NOT the role of
judges to over-rule laws
they just happen to
dislike. As Gorsuch said
at the ceremony:
"A judge who likes
every outcome he
reaches is very
likely a bad judge..."


2017/02/06 - Why does the nomination of Neil Gorsuch to the United States Supreme Court mean so much to so many people? Indeed, in his acceptance remarks he hinted at his judicial approach and the wars to come, hints that probably flew over the heads of many casual viewers, comments that seemed so "Captain Obvious", so axiomatic that they needed not to be said. A waste of space, almost.

I respect, too, the fact that in our legal order, it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people’s representatives.

Those comments seem so benign you might be tempted to respond facetiously, something like, "No way, really? Since when?" It’s almost like those "everyone knows that" series of GEICO commercials that recently made the rounds.

And in fact everyone does know that. From our early school days we are taught that our system of government, with its checks and balances, was specifically designed to separate the powers of government. The founding fathers were taking every precaution necessary to avoid the despotic tyranny, the arbitrary authoritarianism of King George III. The Constitution was to be the solid, unmovable, unshakeable bedrock upon which to build the foundation of our nation.

So in the Constitution the founders separated governmental power into three distinct branches: the legislative branch (Congress) that makes the laws, the executive branch (President) that operates the laws, and the judicial branch that applies the laws.

Sounds simple, right? Except that a pernicious mutant strain of judicial philosophy has arisen that argues judges are free to change the law to as they see fit in order to effect outcomes they prefer. Disciples of this ideology use nice language that seems to build up the Constitution "…it’s a living, breathing document". Sounds good, right? Except they use that as an argument to effectively kill the Constitution. If you want to kill something, it has to be alive. You can’t kill bedrock.

This "living, breathing" ideology is frequently referred to as judicial activism, where judges actively usurp the power of Congress by effectively rewriting laws. But the activists are completely wrong for a number of reasons, not the least of which is the prima facie ("on its face") argument that the Constitution simply doesn’t allow it. The idea of judicial activism is logically bankrupt and should never see the light of day.

A second reason for rejecting jurists of the activist persuasion is the ex post facto ("after the fact") argument. Ex post facto is a legal doctrine that says persons have a right to know the law and be confident in how it will be applied, before the fact. Changing laws after the fact and applying them to persons retroactively is a symptom of tyranny. Yet that’s what judicial activists do. Even though Article I Section 9 Clause 3 explicitly prohibits after-the-fact law making. But of course, activists by definition are more concerned about the outcomes they personally deem appropriate, and are less concerned about rule of law, about what the Constitution says.

It cannot be overemphasized: the work of a judge is to apply the law, not to apply his or her personal feelings or opinions. Otherwise that judge becomes a de fact tyrant by over-ruling the people who elected the legislative body that passed the law. Activist judges are an assault on Democracy.

In the spirit of the Super Bowl we can liken a judicial activist to a corrupt football referee who decides to change a rule and then apply the change to the play that has just taken place. Imagine a referee who after a play decides "offside" should be a serious 20-yard penalty rather than a minor 5-yard penalty, and applies the change to the play that has already happened. Wouldn’t you be wondering if that referee had taken out a personal stake in the outcome?

Such a gross miscarriage of justice would violate both ideas that have been considered. This activist referee would violate the prima facie concept – referees simply don’t have the authority to change rules – they apply rules, they don’t make or change them. And this activist referee would violate the ex post facto doctrine, applying rule changes retroactively. Imagine watching, or worse, playing a game where the referees made up the rules as they went along? Welcome to judicial activism, and that game you are playing is your life.

But the most obvious argument against judicial activism, is actually two reasons, two reasons in one: that the Constitution spells out the process; and that the process is really, really hard. If the framers had intended that the Constitution be a soft, malleable instrument, easily shifted by a variety of influences, then they would not have precisely detailed the process circumscribing how the Constitution can be changed. And if they had meant for it to be easily changed, then they wouldn’t have made it so difficult.

But what happens in the dreadful situation when Supreme Court Justices overstep their Constitutional authority? What is the recourse to right this wrong? The short answer is "nothing". That is why it is imperative to keep activists as far away from federal benches as possible, that is why we need justices like Gorsuch

The Supreme Court eminent domain case of Kelo v. City of New London is demonstrative of the issues at stake. The Fifth Amendment states that no private property shall be taken for public use, without just compensation. The Kelo’s had lived in New London, CT for decades. The drug company Pfizer wanted to build a complex on a tract of land that included the Kelo’s property, but they refused to sell. Their home was their castle, and they were certain the Constitution would protect them from this attack.

Coercing someone to sell property is illegal – though the Constitution specifically allows one exception, when the property is taken for public use, and with just compensation.

Taking sides with Pfizer, the city began eminent domain proceedings against Kelo. Obviously, Pfizer is a private corporation, and their development would be for private use. Thus, the city’s action should have failed. However, the activist Chief Justice John Paul Stevens, writing for the majority, opined that when we see the words "public use" we should read them as "public benefit". And since Pfizer was creating public benefits in the form of taxes and jobs, the Kelo’s should get the boot.

See what just happened there? Stevens right there and then changed the Constitution. He unilaterally circumvented the amendment process, indeed, made a mockery of it. He literally re-wrote the Constitution, to get the outcome he felt like obtaining. And tossed the outcome the people’s representatives had sought. One man, with four accomplices - Justices Kennedy, Ginsburg and Breyer, still on the Court, and Souter – overrode Kelo’s 5th Amendment rights and rewrote the Constitution. And Chief Justice Stevens applied it retroactively against the Kelo’s ex post facto, as they say, and as the Constitution specifically prohibits, again violating Kelo’s constitutional rights.

Preventing judicial activists from making their way to the benches - Federal and State Supreme Courts, Appeals Courts, indeed, all courts is - essential. As their terms expire they must be replaced with jurists committed to judicial restraint - conservatives in the mold Antonin Scalia, who dissented on Kelo and who Gorsuch has been nominated to replace. It is crucial to nominate and confirm judges who are committed to applying the laws of the people, not those candidates who are committed to their own personal opinions.

Perhaps firing a shot across the bow of the insidious activists presently on the Supreme Court bench – Kagan, Sotomayor, Ginsburg and Breyer – Gorsuch concluded his remarks thus:

A judge who likes every outcome he reaches is very likely a bad judge...



February 06, 2017 - If you are dismayed by the degeneration into political correctness of the NFL under its enabling current Commissioner, you are probably not a fan of Roger Goodell. In fact you probably loathe him.

And if you loathe Goodell, then even if you have qualms with the foibles of the New England Patriots, you probably cheer for the Pats in their ongoing feud with the Commissioner.

So after last night's Super Bowl how enjoyable it was to see the lustily booed Goodell grudgingly shove the Lombardi Trophy into the hands Patriots owner Robert Kraft and then slink away into the darkness.

As great as last night's game was, the post-game was almost better. Almost. Well, okay, not even close... but still.

Did you take more than a little pleasure in watching Kraft's speech, watching him stick a knife into Goodell? And twist it a bit? A couple of times? Subtle, but scathing.

It was a great game, unfortunately someone had to lose. Atlanta is a good team, it's hard not to feel a bit sorry for the folks cheering for them, except one guy. The Schadenfreude was almost as awesome as Election Night!

February 01, 2017 - Last night President Trump nominated Tenth Circuit Judge Neil Gorsuch of Colorado to the United States Supreme Court.

Drawing on his media acumen our President announced the nomination in a televised prime time ceremony at the White House.

The event allowed the White House and the nominee to elucidate an extended, thoughtful, powerful and conclusive case to the American people as to why Gorsuch is such a great nominee.

As demonstrated by the impact of the disgraceful Teddy Kennedy attacks on the Robert Bork nomination, you never get a second chance to make a first impression. Last night's pre-emptive first strike pushed the Democrats flat on their behinds, and will keep them there playing defence for the duration until Gorsuch is confirmed.

The Gorsuch confirmation should be a lay-up. Big Media had their guns spiked, they will be unable to re-create Gorsuch as some kind of ogre.

The Democrats will demagogue, vilify and demonize Gorsuch, but such efforts will amount to nothing more than self-parody.

No Borking here. Not this time.


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