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Daily Digest

Feb. 18, 2016

THE FOUNDATION

“[N]ever suppose that in any possible situation, or under any circumstances, it is best for you to do a dishonorable thing, however slightly so it may appear to you.” —Thomas Jefferson, 1785

TOP RIGHT HOOKS

Obama to Skip Scalia’s Funeral Saturday

Barack Obama delivering the eulogy of Rev. Clementa Pinckney

The salient question about Barack Obama’s decision not to attend Justice Antonin Scalia’s funeral is, “What’s he doing instead?” Obama’s spokesman didn’t know the answer when asked by a reporter Wednesday if the plans included a quick trip to the local golf course. “I don’t have a sense of what the president’s plans are for Saturday,” Josh Earnest said. “The president obviously believes it’s important for the institution of the presidency to pay his respects to somebody who dedicated three decades of his life to the institution of the Supreme Court.” Just not important enough to, you know, go to the funeral.

What could demand precedence above honoring the life and position of one of the most acute judges in recent history? In truth, Obama’s clearly sending a message about his opinion of Scalia and the latter’s strict interpretation of the Constitution. Sure, the Obamas will pay their respects as Scalia’s body lies in repose in the Great Hall of the Supreme Court Friday, but they won’t hop across town to attend his funeral at the Basilica of the National Shrine of the Immaculate Conception the day after.

Obama spoke at Walter Cronkite’s funeral, even though he never met the man. He also attended the funerals of three Democrat lawmakers, and made a point to deliver the eulogy at the Rev. Clementa Pinckney’s funeral, one of the victims of the racist murders at the church in Charleston. If Justice Ruth Bader Ginsberg had died — the ideological opposite of Scalia — what are the chances that Obama would have skipped her funeral? Can we really expect him to nominate a judge who will respect not just the institution of the Supreme Court, but the Constitution?

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Trump’s Only Winning Because Opposition Is Split

The most recent polling might indicate a shift in the Republican Party. The recent NBC/Wall Street Journal Poll finds that Sen. Ted Cruz now leads the GOP primary pack nationally with 28% support among primary voters. Donald Trump comes in at 26%; Sen. Marco Rubio follows with 17%. The poll was conducted after Trump swept New Hampshire and after his debate performance Saturday that garnered boos from the audience over he angrily made leftist talking points about 9/11 and Iraq.

But don’t take this poll (or any poll) as gospel. In particular, polling during primary season is notoriously unreliable. For example, the data wonks over at FiveThirtyEight still give Trump a 78% chance of winning the South Carolina Republican primary. As National Review’s Jim Geraghty noted, the NBC/WSJ poll measured a national audience, it’s the first poll to predict anyone but Trump out on top, and the margin of error is 4.9 percentage points. The gap between Cruz and Trump is only two points, so the poll really shows that the two are neck and neck.

The truly interesting question from this poll is that respondents were asked who they would support in a one-on-one matchup. Rubio beat Trump 57% to 41% and Cruz beat the real estate mogul 56% to 40%. For weeks, Trump has pointed to his popular poll numbers as a reason why he should get the nomination. This poll may show that support isn’t ironclad. As commentator Charles Krauthammer observed, “The reason [Trump] is way ahead and the reason it looks like a wholesale revolt is because the anti-Trump vote is so split. If it consolidates, it would beat him. The problem is it has not consolidated and the vote remains split. It may never consolidate and Trump will win the nomination.” It’s time to thin the herd for the sake of conservatism.

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Playing the 9/11 Card

Donald Trump accused people of a lot of lies in the last debate, and indeed there were some whoppers. For example, his assertion that George W. Bush knew about 9/11 beforehand and that there were no WMD in Iraq. We’ve thoroughly rebutted both far-Left campaign ads over the years — his rewrite of Iraq’s history just yesterday. So how about Trump and 9/11?

“I lost hundreds of friends,” he insisted Saturday. We don’t doubt given his connections in the financial sector that he did indeed know many people killed that day. But he seems to be using one of Barack Obama’s favorite tactics — standing on the caskets of innocents to make a political point. Trump has previously done this with his specious claim of watching as “thousands of people were cheering” in New Jersey on 9/11 or rebutting Ted Cruz by disgracefully invoking 9/11.

Reminiscent of his declining to cite his favorite Bible verse, Trump refuses to name any of those friends. Okay, it’s fair enough to not specifically drag them into the fray, but he doesn’t seem to have attended any funerals after 9/11 or any of the subsequent anniversary observances complete with reading the names of the deceased. And despite his campaign’s claims, it’s not clear that he actually contributed any money to 9/11-related charities. He did, however, give $100,000 to the Clinton Foundation, and he took $150,000 from the World Trade Center Business Recovery Grant program as a “small business” hurt by the attacks — a “small business” that brings in $26.8 million annually and occupies a $400 million building. What was that about New York values?

It’s certainly possible that Trump is telling the truth about losing hundreds of friends, but it seems to us more likely that this is just more empty bluster along the lines of “I have great relationships with everybody.”

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Don’t Miss Alexander’s Column

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FEATURED RIGHT ANALYSIS

We’re One Justice Away…

By Allyne Caan

The passing of Justice Antonin Scalia left far more than a cloth-draped empty seat on the High Court’s bench. It also left a docket of undecided cases with far-reaching implications for Liberty.

Chief among these are Whole Woman’s Health v. Hellerstedt, challenging Texas abortion restrictions; Little Sisters of the Poor Home for the Aged v. Burwell, fighting ObamaCare’s contraception mandate; Friedrichs v. California Teachers Association, arguing public employees should not be forced to support a public-sector union; United States v. Texas, challenging Barack Obama’s executive order on immigration; and Fisher v. University of Texas at Austin, questioning the legality of affirmative action in college admissions.

In any cases in which the justices already cast their votes but the decisions have not yet been made public, Justice Scalia’s votes are now void. This may, for example, be the scenario for Friedrichs and Fisher, both of which were argued before Scalia’s passing. How this will affect cases depends on the vote counts. If votes were cast and Scalia’s vote does not affect the outcome of a case — for example, if he were a dissenting opinion or in a majority of more than five, then the cases will be decided by an eight-member Court.

If Scalia’s passing means a 4-4 outcome, however, that’s where it becomes tricky.

Some argue that a tie vote would uphold the lower court’s ruling, but that’s not necessarily the case.

Tom Goldstein, Supreme Court practitioner and SCOTUSblog.com writer, initially concluded a tie would mean the lower court’s decision is “affirmed by an equally divided Court.” He later said his conclusion was wrong and wrote, “There is historical precedent for this circumstance that points to the Court ordering the cases reargued once a new Justice is confirmed.”

In other words, the Court may hear oral argument again in both Friedrichs and Fischer once a new Justice is confirmed — which may not be until next term.

As for cases yet to be argued this term, they will still be heard, but if the vote is tied, the justices may order the cases reargued at a later date.

In short, given what’s at stake as a whole for life and Liberty, the importance of Scalia’s untimely absence cannot be overstated. As we noted earlier this week, “[W]ith a series of 5-4 opinions from the High Court in recent years deciding the scope of our Second Amendment right to keep and bear arms, our First Amendment rights as pertains to political speech, the legal definition of marriage (and in the process putting our freedoms of religion, speech and assembly at risk), it is absolutely imperative that Republicans hold out for a strict constructionist in the mold of Scalia.”

Indeed, as Senator Ted Cruz warned, “We are one justice away from a Supreme Court that will strike down every restriction on abortion adopted by the states. We are one justice away from a Supreme Court that will reverse the Heller decision, one of Justice Scalia’s seminal decisions that upheld the Second Amendment’s right to keep and bear arms. We are one justice away from a Supreme Court that would undermine the religious liberty of millions of Americans.”

Cruz is right.

While the plaintiffs now before the Court may get a chance for a “do-over” if the Court orders their cases re-argued, once a new Supreme Court justice is confirmed, there is no do-over.

That’s why the words of Professor Robert P. George of Princeton University could not be truer: “We don’t need ‘balance’ on the Supreme Court, and Republicans should not claim that we do. We need faithful constitutionalists. Period.”

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MORE ORIGINAL PERSPECTIVE

BEST OF RIGHT OPINION

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TOP HEADLINES

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OPINION IN BRIEF

Larry Elder: “It’s one thing to disagree with the decision to go to war in Iraq. That, believe it or not, was once a minority view. According to a Gallup poll taken in March 2003, the night after the Iraq war began, 76 percent supported President George W. Bush’s decision. Two months after the invasion, a Gallup poll found 79 percent of Americans thought the war was justified — about half of those said, ‘The war will be justified regardless of whether (weapons of mass destruction) are found.’ But in the last GOP debate, Republican candidate front-runner Donald Trump took things to a new level. He not only called the decision to go to war ‘a big, fat mistake’ (and, post-debate, proclaimed it ‘a disaster’) but also said: ‘They lied. They said there were weapons of mass destruction. There were none, and they knew there were none.’ … Accusing a commander in chief, irrespective of his or her party, of knowingly lying to start a war is serious business. In the Iraq War, almost 4,500 U.S. service members died, to say nothing of the war’s cost. To claim that the Bush administration knowingly lied to start the Iraq War is to assert that the CIA was behind 9/11 or that O.J. Simpson was innocent of double homicide. Facts don’t matter. Lack of evidence means presence of proof.”

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SHORT CUTS

Insight: “A government that is big enough to give you all you want is big enough to take it all away.” —Barry Goldwater (1909-1998)

For the record: “[S]tarting … in the ‘20s with Woodrow Wilson, the government started getting involved in everything. It kept growing, metastasizing. By the time we got to the '60s, LBJ was saying, we the government are going to eliminate poverty. Now how did that work out? You know, $19 trillion later, 10 times more people on food stamps, more poverty, more welfare, broken homes, out-of-wedlock births, crime, incarceration. Everything is not only worse, it’s much worse. And that’s because it’s not their job. It’s our job. I wish the government would read the Constitution. I think that would probably help quite a bit. And maybe they did read it and maybe they got confused when they read the preamble, which says one of the duties is to promote the general welfare. They probably thought that meant putting everybody on welfare.” —Ben Carson

Belly laugh of the week: “I tell you what: If I would have run four years ago [Barack Obama] wouldn’t be president right now.” —Donald Trump (So by not running Trump still managed to screw us? Figures.)

Alpha Jackass: “Scalia’s death greatly boosts survival chances of Obama’s climate policy, all other humans.” —Slate’s Eric Holthaus

Singing a different tune: “Looking back on it, the president believes that he should have just followed his own advice and made a strong public case on the merits about his opposition to the [Supreme Court] nomination that President Bush had put forward. … What the president regrets is that Senate Democrats didn’t focus more on making an effective public case about those substantive objections. Instead, some Democrats engaged in a process of throwing sand in the gears of the confirmation process. And that’s an approach that the president regrets.” —Obama spokesman Josh Earnest

Braying Jenny: “It’s almost like [Republicans are] not being patriotic, it seems to me. … And I have to say it — I know it’s not popular to say it — but [Obama’s] color has something to do with it.” —talkinghead Joy Behar speculating on why the GOP objects to an Obama Supreme Court nominee

And last… “[S]lavery was abolished by the 13th Amendment, a constitutional provision even many progressives are willing to respect as written.” —James Taranto

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