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Gorsuch Appointment. First Protestant on the Court since 2010. How will Udall and Heinrich Vote? Are they (as implied by Pearce) Incredibly Influential with Trump?

02/01/2017

President Trump has appointed Neil Gorsuch of Colorado, and of New Mexico's own Tenth Circuit Court of Appeals, to succeed the late Antonin Scalia.

Gorsuch made an amazing speech last night, brief but to the point. What was amazing? It was that he signaled that he is among the tiny minority of judges (or even the entire legal community) who grasp the actual role of the judiciary.  Here is the key passage:

"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. A judge who likes every outcome he reaches is very likely a bad judge...stretching for results he prefers rather than those the law demands."

It is not Conservative v. Liberal on the Courts, but Jurists v. Legislators

Most people view the divide in jurisprudence to be between judges who prefer liberal or conservative policies. But that is not actually what happens.

The actual divide is between judges who, on one side of jurisprudential practices, make rulings based an analysis of the facts of the cases, the applicable law, and any constitutional issues that may be present, versus judges who do not employ such considerations and who instead merely pursue a desired outcome.

In New Mexico we are very accustomed to appellate judges, especially on the Supreme Court, who do little other than search for the desired outcome they want in a case, determine it, and then announce it. Many times they don't even issue a written opinion.

For example, it is a certainty that such appellate justices as Richard Bosson, Charles Daniels, Petra Maez, Edward Chavez, Barbara Vigil, or Michael Bustamante could never even conceive of making a statement like Gorsuch's, or even understand the point he is making.

And we are not picking on them: we would say that most judges—especially liberals, but even some Republicans—firmly and sincerely believe their duty is to rule politically and to enact either de facto legislation or to create public policy they believe is proper.

Religion on the Court

When John Paul Stevens stepped down in 2010, he was the last Protestant member of the court, until Gorsuch. Since then, the five Republican appointees, Anthony Kennedy, Clarence Thomas, John Roberts, Samuel Alito and the late Antonin Scalia, were all Roman Catholics. Of the four Democrat appointees, three are Jewish (Steven Breyer, Ruth Bader Ginsburg, and Elena Kagan) and one, Sonia Sotomayor is also Roman Catholic.

Hard as it may be for us to believe today, for the first 100-140 years, religion used to be a big deal with regard to supreme court justice nominations. Through say, about 1920 or even 1940, it would have been unimaginable to Americans that the court not reflect the majority Evangelical makeup of the country.

The first 25 justices on the Supreme Court were Protestants, with the first Roman Catholic to be named occurring in 1836 with the appointment of Roger B. Taney of Maryland as Chief Justice. The first Jewish justice was Louis Brandeis in 1916. Significantly, a fellow Democrat Party Justice, James C. McReynolds, an anti-Semite and racist appointed by Democrat Woodrow Wilson refused to sit next to Brandeis—this led to their being no official court portrait one year.

Just as with the change in attitudes that the election of President Kennedy helped bring about, the reality in America today is that religion plays much less of a role in every day life, and religious prejudices play none in such matters as selection of a Supreme Court justice. (Although some Republicans, Democrats and independents, according to polling data, may have foolishly held off voting for Mitt Romney because of his adherence to the Church of Jesus Christ of Latter-Day Saints.)

Roman Catholics, Protestants, Jews

Taney of course is the author of the infamous Dred Scott decision, and is regarded as perhaps the worst justice ever to serve on the court.

Since Taney, 12 more Catholics have served on the court, seven of whom have served just in the past 20 years.

If confirmed, Gorsuch would be the 93rd Protestant to serve on the court. Eight justices have been Jewish, and one, David Davis — Abraham Lincoln's close associate and campaign manager — is the only supreme court designated as "not a member of any church."

The Taney Legacy: The Predominant Force in American Jurisprudence Today

Oddly, Taney is the author of the most common type of jurisprudence practiced in America today: Outcome-based judging.

Taney strongly desired that blacks could not be citizens of the United States, so he willed his own personal prejudices into existence by asserting that the American Constitution and our laws compelled his desired political goal to be grounded in the law.

This of course was without factual basis and entirely absurd. However, Taney succeeded in establishing a precedent for simply "ruling" in a manner that achieves a desired political or partisan outcome.

Today, upwards of 80% of American attorneys and judges succumb to this view of the role of the judiciary: that a judge or an appellate or supreme court of several judges can act as a miniature legislature — enacting laws, rather than analyzing cases and interpreting laws.

This makes Neil Gorsuch's eloquent statement Tuesday evening so very welcome and hopeful for those Americans who want to see law-based jurisprudence rather than political-outcome-based judging.

How Will Gorsuch Rank? How do Current Justices Rank?

Though often repeated by pundits, it is highly false to claim that the US Supreme Court is or has been recently, a "conservative" court. Even with Scalia, the court was no more than a 4 to 4 match between jurists to legislators. Justice Anthony Kennedy long ago established himself as "neither fish nor fowl."

If confirmed, Neil Gorsuch would, temporarily at least, rank as the third-best judge on the Supreme Court, and would merely bring the balance back to the court, making it once again 4 to 4 to 1.

The following list is the ranking in jurisprudential honesty among the current Supreme Court justices:

1. Clarence Thomas. Adheres to the text of the statutes in question, the constitution when cited, and bases his rulings and opinions on an analysis of the facts of a case and the applicable law.

2. Samuel Alito. Same as Thomas. Thomas is ranked first because he's been doing it longer.

3. John Roberts. Usually follows the Thomas model, but succumbs to occasional temptations to try to please certain constituencies, or shoehorn policy into an alleged legal "finding."

4. Stephen Breyer. Is Taney-esque in his belief that the law is merely a suggestion, and is not binding on any case. He nonetheless many times adheres to the text of a given statute, and is far more likely to rule based on the facts and the law than the other Democrat appointees.

5. Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. All three pay no attention whatsoever to the written statute, or the text of the statute or the Constitution, but strictly strive for the progressive agenda-desired outcome in each case. Worse, Sotomayor especially, but Ginsburg also, inject ethnicity and sex into their narratives, stating that demographic characteristics should govern how an actual judge should "rule" or "vote," rather than a plain reading of the law.

8. Anthony Kennedy. Knows what is correct in jurisprudence, and actually gets more opinions correct than those ranked 4 through 7, but must be ranked last because he deliberately tries to be a "celebrity judge," yearning for the adulation of the media, basking in his role as the "deciding vote," and desiring "praise" over the law. This makes him far and away the worst kind of judge. At least the 4th through 7th justices know and virtually acknowledge that they are committed to Taney-esque jurisprudence and its resultant specific political outcomes. Kennedy was trained in jurisprudence, but gave it up, and is committed to nothing.


Email us (at nmpj@dfn.com) with your feedback, comments, questions and ideas.


Intelligent Political Discourse—for the Thoughtful New Mexican

 

 

 

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2016 Presidential Campaign - Republicans

Jeb Bush gets religion.

"They said he got religion at the end, and I'm glad that he did."  — Tom T. Hall. The Year Clayton Delaney died.

Well, it's official.  Jeb Bush has changed quite of few of his positions on illegal immigration.  The single most significant is that he no longer endorses the "path to citizenship" for those who came here illegally. 

This is, after all, the key portion of any proposal aimed at "reforming" our existing illegal immigration situation.

No sensible citizen can see any point in trying to deport between 12 and 16 million people currently living in America illegally.  And no candidate for any office that we know of supports that.  What the average American wants is for the country to "get a handle on it."  They want it stopped, our borders secured and future illegal immigration prevented.  It is a national security issue.

The Path to Legal Status

The only way to accomplish the above goals, is to identify current illegal immigrants, get them accounted for, have them documented, and placed on a path to legal status.  Neither they nor their children or spouses should live in a state of fear or anxiety.

But a path to "citizenship" is not the right course.  It is not morally or legally correct.  A merciful and compassionate nation can provide the safeguards of legal status without sending the message to the rest of the world that all you have to do is cross our border and you will eventually get to become a citizen, thus circumventing the legal framework scores of millions of Americans have followed, honored and respected.

If someone who is granted legal status eventually wants to become a citizen, that person should have to return to his or her country of origin and wait in line like 20 million people around the world are doing at any given time.  Failing that, America will forever send the signal that anyone in the world can "jump the line," and that there is no reason at all to obey our immigration and naturalization laws.

We Like Jeb Bush

We are glad Jeb Bush has learned this lesson.  He is a fine speaker, and can eloquently explain his positions on complex issue.  If he were not named "Bush" he would be an actual top tier candidate—in all that that title would entail, including likelihood of acceptance and support of and from the American people in the primaries, and in any theoretical general election.  

We also recognize that he already is a de facto top-tier candidate because of his fame and his fundraising.

If he were to be the nominee of the Republican Party we would heartily support him and endorse him.  We hope, however, that he is not, as he does not give the center-right coalition the best chance of winning.

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    Selma   ????? We have now seen the Oscar-nominated movie Selma.   Our earlier allusion to criticism that sounded as though it was in an Oliver Stone category for historical fabrication is some...

Sports

Sports

The Major League Baseball Playoffs are not realistic, and destroy the actual meaning of the sport. 

Major League Baseball is unique in this respect—its postseason is markedly different from the way the game is played normally.  No other major league sport suffers from this flaw.

Not that much is wrong with baseball. In some respects it's the most well thought-out sport there is.  The "perfect game" many aficionados say.

But the Major League Baseball postseason experience is unique in the world of professional sports, and not in a good way. 

In fact the playoffs are flawed in such a way as to detract from the sport itself and diminish the game and what it means to be the world champion of the sport. 

Among the Big Four team sports of North America: football, hockey, basketball and baseball—and all the 122 professional major league teams competing in the NFL, NHL, NBA and MLB respectively—it is in baseball alone that the postseason turns the sport itself on its head and makes it reflect something that it is not.  This article will explain why that happens and why it is wrong-headed.

 

Background on the The Frequency of Play

The 30 teams in both the National Hockey League and the National Basketball Association teams play a very similar schedule.  On average, each team has a day off between games, sometimes two days off.  Though there are back-to-back games, they are relatively infrequent.  NBA teams play between 14 and 22 back-to-back games a season, and for the NHL it usually ranges between 9 and 19. The NFL has a full week between games, the exception being the new Thursday games that each team plays once, leaving them only four days' rest once a year.

But baseball players play every single day.  Ten days straight, then a day off, then seven more games, then a day off, then ten more games.  Typically a baseball team plays 27 games every 30 days.  For the NHL and NBA it would be 14 per month, and for the NFL the number would be 4.

 

Getting to the Playoffs:  It's a grind

In all four sports, getting to the postseason requires a total team effort—in fact an all-out total organizational effort.  Teams must be deep, have bench strength and the capability of moving players in and out of the lineup, and on and off the roster, who can take the place of key players who go down for an injury, or who have to miss games for whatever reason.  While this is true of the other three major sports as well, it is most certainly even more of a concern for baseball teams because of the sheer volume of games in which a team must field a competitive lineup.

Each league's regular season* is a marathon, not a sprint.  NFL teams play for 17 weeks, 16 games.  The NHL has an 82-game season over six months, paralleled by an NBA season of 84 games over the same timeframe. Baseball is the biggest marathon of all—a true test of resilience and endurance—162 games usually starting around the beginning of April and finishing about the end of September.

NHL teams carry 23-man rosters, of which 20 can be active for any particular game.  The NBA is similar, with 15-man rosters of which 13 can be on the bench for a given game. In the NFL, the teams have 53 players on a roster, but only 46 can suit up on game day.  In Major League Baseball, teams have a 25-man active roster, and all 25 are at the park every day.

 

The Postseason Playoffs:  Sport by Sport

The National Football League:

Of the 32 teams, 12 qualify for the playoffs.  The playoffs are conducted in the exact same manner as the regular season.  Each team plays once a week, the exception being that the four top teams get the first week off.  For a typical qualifier to reach the Super Bowl, the team must play three consecutive weeks.  At that point both remaining teams have two weeks off before the Super Bowl.

In short, the playoffs, with a game each week, reflects the same means of advancement as is present in regular season grind.

The National Hockey League: 

16 of the 30 teams qualify for the postseason.  The playoffs are conducted in the exact same manner as the regular season: a game, a day off, a game, a day off, a game, a day off, and so on.  Just as in the regular season, there are occasionally two days off.  But the playoffs require the same stamina, the same approach as that required to make the playoffs.

 

The National Basketball Association

16 of the 30 teams qualify for the postseason.  The playoffs are conducted in the exact same manner as the regular season: a game, a day off, a game, a day off, a game, a day off, and so on.  Just as in the regular season, there are occasionally two days off.  But the playoffs require the same stamina, the same approach as that required to make the playoffs.

Major League Baseball

10 of the 30 teams qualify for the postseason.  (Although four of those teams qualify only for a one-game do-or-die play-in game.)

Here is where all similarity to baseball ends. 

Unlike the other three sports whose playoffs mirror the test of the regular season, and whose conditions are the same as the regular season, Major League Baseball playoffs in no way resemble the sport itself.  In hockey, basketball and football, the teams win playoff games and reach the pinacle of the sport in exactly the same way that they qualify to try to do so. 

Not so in baseball.  They are two entirely different concepts.  Teams make the playoffs only because they have depth, five-man pitching rotations and can play day-in and day-out at a high level.  But the baseball playoffs suddenly become a kind of "all-star" game within each team's roster.  MLB playoffs are conducted in a way that more closely follows the NBA and the NHL.  Teams have enormous numbers of days off. 

Here's the key point:  No Major League Baseball team could even qualify for the postseason if they played the same way during the regular season that they do in the playoffs.  None.

In the regular season Major League Baseball teams have to use a 5-man starting rotation, with pitchers pitching every 5th day.  There are not enough days off to have even a four-man rotation, let alone a team with three pitchers.  Even the best team in baseball using only a 4-man rotation, would wear them out, and most likely end up with a record of something like 66-96, or 70-92—and that would be if they were otherwise teh best team in the sport.

 

The 2014 Baseball Postseason is Typical

As examples, last year's World Series teams the Kansas City Royals played only 15 games in 30 days, and the San Francisco Giants played only 17 games in 30 days.  The 12 to 15 days off in the non-baseball fantasy world of the MLB postseason, means that teams can turn to three pitchers and give all of them plenty of rest.  But it isn't the way baseball really works.

At one point, the Royals had 5 consecutive days off, and the Giants had 4.  This never happens in the regular season.  Even the All-Star break is only three days.  Very rarely is there anything beyond a one-day break, and even that happens only a couple of times a month. 

What this means is that neither team used the team that got them to the playoffs.  (The NFL, NBA and NHL teams ALL used the very same teams that got them to the playoffs.) 

Baseball teams use a three-man pitching rotation in the playoffs.  Sometimes, they essentially opt for two pitchers only—conceding the likelihood that some of their games are going to be lost—when their third-, or rarely fourth-best pitcher has to face one of their opponents' two-man or three-man rotation members. 

Imagine an NFL team using only one running back and three wide receivers, instead of rotating through their roster in the course of a playoff game—or using only 4 defensive backs and 4 linebackers, instead of rotating 8 or 9 DBs and 6 or 7 linebackers?  In hockey, would a team use only two or three of their forward lines?  Would an NBA team use only the starting five?  They would never make the post season if they tried to present that product to their fans during the regular season.

Those are the equivalents of what Major League Baseball sets up every fall.  No other sport drags its playoffs out in such a way as to completely change the playing field—completely change the dynamics of its game.

Why Does Baseball Do This?

MLB does this because the TV networks want to drag out the games so that they can try to have one game each day  This requires an unnecessary staggering of games, and creates the phenomenon of 15 off-days in a month.

What about travel days?

What about them?  Baseball has travel days constantly.  A team may play in Chicago one day and in Miami the next, or in New York one day and Phoenix the very next day.  Travel days as a routine part of the game are again, a phenomenon of television, and stretching out the playoffs.

In years past, travel days were employed only when necessary. The famous "subway series" games were played on seven consecutive days.  Why?  Because there was no "travel day" required to go from Brooklyn to the Bronx.  Today, they would put in artificial travel days.

Even fairly long train trips didn't necessarily matter.  The 1948 World Series between the Cleveland Indians and the Boston Braves was played in six consecutive days, October 6 & 7 in Boston, October 8, 9 & 10 in Cleveland, and October 11 back in Boston.

This reflects actual baseball, the way the teams play day-in and day-out, and the kind of unique test that baseball presents to its athletes, its managers and management, and to its fans.

In the modern world of charter planes, teams fly from coast to coast to play games on consecutive days.  The artificial "travel day" should be eliminated so that teams can play in the playoffs in the same way that got them there in the first place.


*All these leagues also have pre-seasons and training camps, which add an additional 6-8 weeks to each player's year.


Email us with your feedback, comments, questions and ideas. 

Religious Issues

Religious Issues

  • Religious Issues
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