Judge Barrett

What goes around, comes around. The Democrats have behaved disgracefully throughout Donald Trump’s first term and are trying to steal November’s election. Nothing symbolised the Democratic Party’s contempt for pluralism and the US Constitution more than the deeply personal attacks on Justice Brett Kavanaugh during his confirmation hearings in 2018. President Trump has hit back by nominating Judge Amy Coney Barrett to the Supreme Court. Did the Democrats think that poor old Justice Ruth Bader Ginsburg was going to last forever?

One thing that all true conservatives (obviously Senators Mitt Romney and Susan Collins don’t count) can agree on is that the President has shown a real talent for picking Supreme Court justices. Neil Gorsuch and Brett Kavanaugh were outstanding appointments. The President has shown similar wisdom in appointments to the federal bench.

Judge Barrett was one of those appointments, to the 7^th Circuit Court of Appeals in 2017. She was Justice Scalia’s law clerk in 1998/99 and like him is an originalist. I don’t like the term – I prefer constitutionalist. What it means is interpreting the Constitution in accordance with its language and the intent of its framers, the Founding Fathers.

Living instrument theorists want to get around the amendment clause in Article 5 by having liberal judges do it instead. The Founding Fathers knew what they were doing – many were barristers after all! They would never have agreed to Article 5 being bypassed in this way.

The requirements for a two-thirds majority in both Houses of Congress and subsequent ratification by three-quarters of the States (who can also propose amendments) means in practice that proposed amendments require broad, bipartisan support to stand any chance of being adopted. An amendment permitting the use of abortion as a form of birth control would never get through.

That’s why Roe v. Wade 410 US 113 is controversial. Even the plaintiff, Norma McCorvey, who sadly died in 2017, later said that the decision was wrong, although she switched positions yet again shortly before she died. (Ironically the case took so long her child was delivered long before it ended.)

The Democrats are in a panic because Judge Barrett is thought to be opposed to the majority view in Roe. Since she’s a good lawyer the Democrats are probably right to be worried!

Roe v. Wade is bad law, period. As I have observed on these pages before the idea that George Washington and Thomas Jefferson believed in baby-killing and thought that they were giving women in the new republic the right to abort their children only has to be stated for its absurdity to be apparent. Judge Barrett’s Catholicism is a red herring – I don’t believe that she would allow her private religious beliefs to affect her judicial rulings. The problem with Roe (Wade was the local DA in Texas, where McCorvey lived) is that it’s a legal stretch, to put it mildly.

Reversing Roe wouldn’t mean that all abortions would become illegal – no one is arguing that a woman shouldn’t be allowed to have an abortion to save her life. Some conservatives, mostly men, argue that abortion shouldn’t be allowed in cases of rape, but that’s not President Trump’s view and it clearly goes too far. No woman should be forced to bear a child when she has not consented to sex.

In practice the Supreme Court would probably leave it to the states. In states controlled by baby-killing Democrats, no offense intended, reversing Roe might not make much of a difference. In God-fearing states like Texas the number of dead babies would drop dramatically.

I make no apology for not drawing a distinction between foetuses and babies, which seems to me to be artificial. Technically a new human being only gets called that after a successful live birth, but life begins in the womb. Abortion ends a human life and therefore should only be allowed when another life, that is to say the mother’s, is at stake.

The moral case against abortion on demand is clear. The feminist argument that a woman has a right to control her own body contains a logical flaw – after conception another life is involved. I’m gay and generally a social liberal, but I draw the line at killing babies. The young need protecting and safeguarding and the younger they are the more protection they need. Before birth the need is even greater. The womb should be a place of safety.

I’m not much impressed by the argument that a foetus can be killed if it shows signs of abnormality. If it cannot survive so be it. If it’s just a question of disability however then the pregnancy should go to term. Judge Barrett had a child with Down’s Syndrome and chose life over the ‘easy’ option.

I’m not saying by the way that pregnancy and childbirth are easy, or that having a disabled child is straightforward. None of these things are easy. All I’m saying is that these things are part of life, and that life isn’t always a bed of roses. Having the DVD try to assassinate you isn’t easy either, in fact assassination attempts can be a real nuisance.

All y’all have done well to draw me out into expressing a view! Please don’t tell me that I’m not entitled to a view because I’m a man. Around half of all babies are male. We blokes have a stake in this debate.

I suspect that not all woman who have had unnecessary abortions live without regret. Maybe those regrets will not come straightaway, but what about in later life? Always choose life over death.

The bad news for fiscal conservatives is that all this comes at a price. Women have to be supported during the third trimester of pregnancy and families with young children need tax breaks and other forms of support. A society which does not look after its young has no future.

Legal ability

Judge Barrett is a fine lawyer, with respect. She writes well and has the good lawyer’s respect for precedent. (Roe is not only a bad precedent of course, it conflicts with the Constitution.) I can see why the late Antonin Scalia, whose death remains controversial, chose her as his law clerk. I have no doubt that if confirmed by the Senate Judge Barrett will make an excellent Associate Justice of the Supreme Court.

Confirmation

I entirely associate myself with the generous tributes paid yesterday to Associate Justice Ginsburg by the President and Judge Barrett. Unhappily the Democrats are unlikely to be as gracious and generous during the confirmation hearings.

My sense is that they don’t have the numbers to block Judge Barrett. They also have to be careful not to alienate voters further in the run-up to the election. Many voters will not have forgotten the brutal and wholly unfair treatment of Brett Kavanaugh.

No-one could say that President Trump hasn’t stuck loyally to his pre-election promise to appoint sound, conservative lawyers to the High Court bench. Voters knew what they were getting when they backed Donald Trump in 2016. He’s a man who means what he says, with respect.

Packing the court

Some left-wing Democrats have resurrected FDR’s controversial plan in the late 30s to pack the court by increasing the number of justices to 11 or 15. Since the size of the Supreme Court is not fixed in the Constitution this would technically be possible if the Democrats controlled the White House and both Houses of Congress.

It would however be wildly unpopular and would involve interfering with a settled constitutional principle, going back as far as 1837, that there should be nine justices on the court. Admittedly the court was reduced to seven for a while but that was in the context of the battles over slavery and the Civil War. The court was restored to nine justices in 1869 and it’s remained at nine ever since.

Moreover if the Democrats increased the court to say 11 in order to pack it with head-banging liberals there would be nothing to stop a future Republican Congress increasing it further, to say 15, and appointing four sensible judges. I suspect that whatever happens in November the court will stay at nine. It’s a workable number, given the small number of cases which reach the court and the fact that traditionally it sits en banc, unlike say the European Court of Justice.

The ECJ of course is a prime example of what happens when you have activist judges. The ECJ lost its legitimacy, indeed its antics went a long way towards turning British voters off the EU. The UK Supreme Court has been equally short-sighted, taking political rather than legal decisions, for example, in its failed attempt to stop Brexit.

Breonna Taylor case

I see no reason to depart from the grand jury’s view of the case. They would have had all of the evidence. Left-wing demonstrators have been banging on about police brutality, but the facts are that Ms Taylor’s boyfriend, Kenneth Walker, had a gun and fired first.

His explanation – that he mistook police officers executing a lawful search warrant for Ms Taylor’s ex, Jamarcus Glover, wanted on drugs charges – seems a bit far-fetched. Why would an ex use a battering ram? Since the search was abandoned after the exchange of shots we still don’t know whether Glover was storing narcotics on the premises or not.

Given the number of police officers shot in the States each year not having them return fire seems to be expecting a bit much. The officers would not have known that Ms Taylor was unarmed and there is no suggestion that she tried to dissuade Walker from firing at the officers.

The Croydon shooting

It’s not just in Louisville that police officers get shot, sadly. Kiwi-born Sergeant Matiu Ratana has been shot this weekend in Croydon Police Station in South London, where he was the custody sergeant. The chief suspect is a Sri Lankan, Louis de Zoysa, who decided to shoot himself as well. He is currently in hospital, rather unwell, as people who shoot themselves in the neck with their own revolver tend to be.

The shooting was unusual, in that Zoysa was handcuffed at the time. With every respect to the special constables who searched him after his arrest this does rather suggest some weaknesses in their search procedures. The media are confused as to what weapon he had managed to secrete about his person, some describing it as a revolver and others a semi-automatic pistol.

Since he reportedly ran out of ammunition after firing six shots it seems that he was armed with a revolver. We haven’t been given the caliber, but one would hope that police officers searching a suspect would manage to find even a small revolver. (Given that poor Sgt Ratana was murdered by a single shot to the chest, albeit at close range, it doesn’t in fact sound like a particularly small caliber, unless it was a ‘lucky’ shot.)

I’m not sure that I buy the MSM suggestion that Zoysa shot himself deliberately. It rather sounds like he was trying to shoot more officers, two of whom seem to have been trying to get his gun off him. If someone is trying to shoot you whilst you’re grappling with him it’s always a good idea to turn the gun in his direction rather than yours.

This week’s TV review: Away, Netflix (Airdate September 4^th 2020)

I’m not sure that ‘TV’ is the right description for Netflix programs, most of which are not watched on a TV. Unlike a traditional TV series of course, where you have to tune in at the same time next week, the entire series is released at once.

Away seems to have attracted a lot of interest, unsurprisingly, given the subject matter – mankind’s first mission to Mars – and Hilary Swank’s leading role. It’s well-made, indeed very well-made, with high production values, and well-acted.

The plot closely follows NASA thinking. Limited backups to crucial systems like water supply, using solar power and having only a single spacecraft make life easier for scriptwriters but more difficult for astronauts!

Essentially it’s a cautionary tale about how not to go to Mars. Why take months to get there when you could use nuclear reactors and ion engines and get there in weeks?  For that matter why use solar power, except as a backup, when you could use fission reactors, possibly modified, modular versions of the reliable reactors already used for carriers and submarines?

Why have only one backup to a mission-critical system? And what is the point of having your interplanetary spacecraft descend through the Martian atmosphere? The obvious place to assemble your spacecraft, plural, is in space, with shuttles for descent to the Martian surface. Not having to navigate through atmospheres also allows you to hang tanks off your spacecraft for additional non-nuclear fuel, air and water. I can’t see the point in only taking one spacecraft, either. Why do it on the cheap?

Away is worth watching, but should not be taken as a guide on how to get to Mars! You might not get there if you did.

Michael Shrimpton

Michael Shrimpton was a barrister from his call to the Bar in London in 1983 until being disbarred in 2019 over a fraudulently obtained conviction. He is a specialist in National Security and Constitutional Law, Strategic Intelligence and Counter-terrorism. He is a former Adjunct Professor of Intelligence Studies at the American Military University.

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