Archives for March 2015

Former Justice Department Official Hans von Spakovsky says Senate Republicans are finally realizing Loretta Lynch is an unacceptable choice to become the next attorney general, but he isn’t sure enough of them will oppose her to prevent her from getting the job.

Lynch, who is currently a federal prosecutor in New York, received generally positive comments from Republicans when she was nominated to replace Eric Holder late last year.  Even after confirmation hearings in which she vigorously defended President Obama’s unilateral action on immigration, there seemed to be a general consensus that she would be confirmed.

Now, more than two weeks after the Lynch nomination cleared the Senate Judiciary Committee, the vast majority of Republican senators say they will vote against her.  By some head counts, only four Republicans still support her, the bare minimum needed to get confirmed.

The four Republicans plus 46 Democrats would give Lynch 50 votes and Vice President Joe Biden would then break the tie.

Why are Republicans increasingly sour on Lynch?  Von Spakovsky says her testimony is not wearing well over time.

“The senators have had a chance to really think more carefully about what she said and how dangerous it is to have an attorney general who’s unwilling to tell the president when he is going beyond the authority he’s got under the law and under the Constitution,” said von Spakovsky.

Von Spakovsky served as counsel to the assistant attorney general for civil rights during the early days of the George W. Bush administration.  He also served on the Federal Elections Commission.

Republican Sens. Lindsey Graham, R-S.C., Orrin Hatch, R-Utah, and Jeff Flake, R-Ariz., were the three members of the majority to back her in committee.  Von Spakovsky is not optimistic that any of them will join the opposition.

“I think they’ve come out the way they have because they have this general view that a president has the ability to pick his nominees.  But he doesn’t have the ability to pick nominees who aren’t going to enforce the law and abide by the rule of law.  Frankly, the non-answers she gave indicate that she’s going to be just like Eric Holder in helping the president bend, break and change the law whenever he wants to,” said von Spakovsky.

Sen. Graham said he is supporting Lynch mainly to get someone else in charge at the Justice Department and end the tenure of Holder.  While he agrees with part of that logic, von Spakovsky says that rationale alone is not enough to overshadow the problems with Lynch.

“I certainly agree it’s time for a change but I don’t think it’s time for a change and putting someone in who is basically going to put in a version of Holder 2.0.  I think they ought to instead push the president to instead put someone ethical and professional in who actually believes in the rule of law,” said von Spakovsky, who admits Obama is unlikely to nominate anyone palatable to most conservatives.

“That’s what any reasonable president would do.  I’m not sure he will because he seems to have decided to spend his last two years being as confrontational as possible with Congress as opposed to trying to work with them,” said von Spakovsky.

This week, Senate Majority Leader Mitch McConnell announced there would be no vote on the Lynch nomination so long as Democrats continue to hold up legislation to combat human trafficking.  Democrats refuse because of language in the bill banning taxpayer-funded abortions.

Is this a shrewd move by McConnell or is he just playing politics?  Von Spakovsky thinks the strategy is fully justified.

“I think that is a fair parliamentary tactic and I think it is something that is the right thing to do here, where the argument they’re having over this debate is Democrats voting against language they previously voted to approve.  That in itself seems unfair and inequitable,” said von Spakovsky.

Two Republican senators are looking to increase government spending on various energy programs, but conservatives accuse them of stifling the free market’s efforts to address energy concerns and effectively helping President Obama pass his climate change agenda.

In a recent piece for Conservative Review, FreedomWorks Senior Fellow Tom Borelli highlights the efforts of Senators Lamar Alexander, R-Tenn., and Lisa Murkowski, R-Alaska, to increase funding for the Department of Energy through the current appropriations process.

Alexander is focused on federal assistance to develop more nuclear power, which Borelli says is now at a competitive disadvantage as a result of plunging natural gas prices.

“This is not anything new for Mr. Alexander.  A while back, he promoted a Republican plan to build something like a hundred nuclear plants and also to increase electric vehicles and double federal energy research.  So it seems like the big government playbook is back for Mr. Alexander,” said Borelli.

According to Borelli’s reporting, Sen. Murkowski’s energy priorities include more money for the Department of Energy’s Advanced Research Projects Agency-Energy and  for the department’s loan guarantee program.  Borelli says her position doesn’t come as a surprise either.

“Lisa Murkowski, back in 2013 she had something called “Energy 20/20: A Vision for America’s Energy Future,” he said.  “What she wanted to do was grow the energy research budget.”

Borelli says the actions of Alexander and Murkowski present another headache for GOP leaders already feeling the frustration of conservatives.

“It’s big government out of control.  It’s been disappointing so far with conservatives in terms of stopping Obama’s agenda.  It’s one thing not to be able to stop the agenda, but to flip around and try to support part of President Obama’s climate change agenda,” said Borelli, who says letting the government pick winners and losers fails to learn one of the key lessons from Obama’s first term.

“The Department of Energy, as we know, led to spectacular clean energy failures like Solyndra,” said Borelli.

But if conservatives claim to champion the “all the above” approach to increasing the domestic energy supply, why are the actions of Alexander and Murkowski being panned?  Borelli says it’s not about the goal but about how the goal is achieved.

“It should be done in the free market, not on the taxpayer’s dime.  As we’ve seen with Solyndra and other companies that went bankrupt with respect to Department of Energy funds, it’s money that sometimes gets steered to political backers,” said Borelli.  “Their ideas couldn’t cut it in the free market to get venture capital support, but you can always get money through government because it’s a very loose system as we’ve seen in the past.”

“What we’d be for is all of the energy, but let it be done in the free market,” added Borelli, who says there is plenty of action in the private sector towards developing diverse sources of energy.

“There’s plenty of venture capital firms out there who would be willing to take a risk on energy research.  The problem is when you have government money going in to support energy it crowds out the venture capitalists.  Let the venture capitalists take the risk, not the U.S. taxpayer,” he said.

While the appropriations process will play out over a matter of months, will Alexander and Murkowski get the extra spending on energy they want even though Republicans control the Congress now?

“That’s a good question and that’s why conservatives need to pay attention and listen to good shows like yours and get on the phone and get engaged in social media to stop these kind of ideas,” said Borelli.

Greg Corombos of Radio America and Jim Geraghty of National Review react to news that Seattle restaurants are closing and low-skilled workers are losing jobs as the city mandates a $15 minimum wage.  They also fear Benjamin Netanyahu may be getting desperate as he vows to oppose a Palestinian state just one day before critical elections.  And they have fun with the news that Mitt Romney will fight former heavyweight champ Evander Holyfield for charity.

Former college and pro football star Craig James is standing behind his comments that Satan is using the pressure to endorse same-sex marriage to silence and intimidate Christian believers from speaking out for their values.

James drew attention for his comments after his former NFL team, the New England Patriots, signed onto a brief urging the U.S. Supreme Court to legalize same-sex marriage nationwide.  Speaking on the radio with Family Research Council President Tony Perkins, James said this rising tide of intolerance could make life very uncomfortable for Christian athletes.

“If I were a current player in that locker room and my livelihood depended on me being quiet or losing it because of my belief system, I worry, I wonder. So, that’s Satan working on us,” James said.

Asked exactly what he meant by that, James says the media frenzy occurred because his words were misunderstood.

“If the person had really listened to the interview, who started this controversy, you would hear in there that I was talking about believers and specifically about me as I get fear and there’s pause in my heart before I go out and speak and about my belief and believing in natural marriage.  That’s Satan working on me, on us as believers when we get pause and concern in their heart.  So very, very much misrepresented,” he said.

James, who was half of the famed Pony Express backfield at Southern Methodist University in the 1980s, says locker room cohesion is critical and to have a team publicly endorse a position contrary to a player’s beliefs makes for a difficult work environment.

“A locker room is made up of a lot of different belief systems.  Some believe.  Others don’t believe.  Others are in the middle.  Black, white brown, we’re all over the map.  Yet we all come together under one cause.  My concern is that these pro organizations are going to begin to sort of censor or restrict and limit and shut down the belief systems of their players,” said James.

This is not some theoretical issue to James.  He says we already saw the intolerance playing out last spring during the NFL draft.  That’s when Michael Sam became the first openly gay player to be drafted into the NFL.  His public display of affection with his partner bothered a Miami Dolphins player.

“He was suspended and sent to counseling for how he should think and what he should say.  That’s censorship and I’m totally against that,” said James.

So what does James want?

“Here’s what I really am fighting for: the freedom for me to continue to believe as I believe, for every player in that locker room who has a belief system to not fear for having that belief system and to feel like they’ve got to be quiet about it and sheltered,” he said.

Even before a possible Supreme Court decision to legalize gay marriage, James says there has been a dangerous erosion in the freedom to express one’s firmly-held beliefs.

“This two-way street that we’ve had forever of the first amendment, right now there’s a bulldozer over in the lane of religious freedom trying to shut us down.  We cannot accept that.  I’m not going to accept that.  I’m not telling anyone else what they have to believe.  Don’t tell me what I have to believe,” said James.

If the court rules against his position, James says the fight will still go on.

We’re going to fight this thing hard.  I will not accept it.  You cannot tell me that I have to accept something that is non-biblical.  I’m not going to do it,” said James.

What he would most like to see now is for more believers to find the courage to speak up.

“I just don’t think there’s enough people standing up and being heard who really have thought through the ramifications of being silenced and the slippery slope that that’s on,” said James.

Like many traditional marriage advocates, James has received plenty of public scorn for his comments.  He says being the target of such vitriol has actually been good for deepening his faith.

“Don’t miss an opportunity when God puts a storm in your life to grow closer to Him.  I cherish the last 4-5 years of trials and tribulations in my life .  I’ve taken the route that says I want to grow closer to God and what He wants from me in His Word.  That’s stability.  Me trying to please the world, I have found, is a reckless, tireless event,” he said.

Greg Corombos of Radio America and Jim Geraghty of National Review are pleased to see Democrats demanding that Congress review any nuclear deal with Iran.  They also groan as another shady Clinton Foundation donation emerges – this time from a Chinese politician.  And they discuss the flurry of rumors surrounding Vladimir Putin’s public absence for more than a week.

Elaina Newport of the Capitol Steps talks with us about the Hillary Clinton email scandal and Apple’s fancy new watches.

Greg Corombos of Radio America and Jim Geraghty of National Review are enjoying the increasing public sniping of Obama administration officials towards Hillary Clinton.  They also shake their heads as the State Department is unable to confirm whether Hillary Clinton signed standard forms declaring she turned over all relevant material when she left office.  And they react to the latest Secret Service embarrassment.

Alabama stands as the only state to reject a federal court ruling on its definition of marriage, but an advocate of traditional marriage says what’s happening in that state ought to give the Supreme Court pause before issuing any sweeping rulings on the issue.

In 2013, the high court ruled the federal government cannot deny benefits to same-sex couple who are legally married in the states where they live in the case of Windsor v. United States.  Federal judges around the country have used that decision to declare traditional marriage amendments and laws in many states to be unconstitutional.  No state refused to comply until Alabama’s supreme court ordered probate judges not to issue marriage licenses to same-sex couples.

Family Research Council Senior Fellow Peter Sprigg says the actions ought to convince the Supreme Court to tread lightly when it considers whether states have the right to define marriage only as the union of one man and one woman.

“I would hope that that lesson would be one more thing that would chasten the Supreme Court a bit and make them reluctant to overturn not just the laws but the constitutions of a majority of U.S. states on the issue of marriage,” said Sprigg, a defender of traditional marriage.

With Alabama as precedent, Sprigg says the Supreme Court may be in for a big surprise if it legalizes same-sex marriage nationwide and expects states to fall in line.

“I think what is happening in Alabama shows that the federal courts, including the U.S. Supreme Court, should not necessarily operate on the expectation, that everyone on the state level will simply roll over and play dead because a federal court expresses its opinion on this issue,” said Sprigg.

“There are limits to how much the courts can impose their will simply by virtue of their prestige and so forth when they’re clearly going beyond anything found in the text of the Constitution,” he said.

But is the Alabama Supreme Court operating within its powers or is it going rogue?  Sprigg says most people assume any federal court trumps a state supreme court, but that’s not the case.

“They both have an independent authority to interpret the federal constitution.  It is not as though because the federal district court is a federal court, that its interpretation of the U.S. Constitution is considered inherently superior to the Alabama state courts,” said Sprigg.

Another problem for same-sex marriage supporters is how they challenged the law in Alabama.  They sued the state attorney general but Sprigg says marriage is under the purview of the judicial system.

“In Alabama, that responsibility is delegated to the probate judges.  Probate judges are not officers of the executive branch, like the attorney general.  They are officers of the judicial branch and they are under the immediate supervision of the Alabama Supreme Court,” said Sprigg.

“So the Alabama Supreme Court, based on its own interpretation of the U.S. Constitution and based on its own authority to supervise the probate judges, has ordered them not to issue marriage licenses to same-sex couples,” he said.

The Supreme Court will hear oral arguments in Obergefell v. Hodges on April 28.   The case centers not only on whether states can craft their own definitions of marriage but whether they must recognize same-sex marriage legally performed in other states.

Sprigg not only contends the Constitution is on the side of traditional marriage advocates.  He says legal precedent is as well, despite the flurry of lower court rulings in favor of same-sex marriage.

“I think people who believe that the Windsor case is going to dictate the outcome of this case are mostly people who haven’t actually read the Windsor decision,” said Sprigg.  “That decision was premised on the assertion of the court that the Defense of Marriage Act constituted an unconstitutional federal interference with state definitions of marriage.”

Sprigg says while that rationale worked against traditional marriage supporters two years ago, it now helps make their case that states can define marriage as the union of a man and a woman.

“If that same principle is applied in the current case, that the federal government has an obligation to respect states’ definitions of marriage, then this time it would mean that the federal government, in this case the Supreme Court, has to respect states that have chosen to define marriage as the union of one man and one woman,” said Sprigg.

Federal judges have not cited that language in their decisions.  Sprigg admits Justice Anthony Kennedy’s majority opinion also provides some ammunition to same-sex marriage backers in this and other cases.

“Justice Kennedy’s opinion did include some rather sweeping language about the dignity and respect that should be afforded to same-sex couples who are married according to the laws of the state and the harm to their children of denying them that recognition and so forth.  That’s the language of Windsor that the other side chooses to refer to instead,” said Sprigg.

Sprigg says there’s a simple reason why that language should not matter as much in the current case as the right of states to define marriage for themselves.

“It’s not a legal, constitutional finding.  It’s more an expression of personal opinion.  I’m hopeful, and perhaps it’s naive for a conservative to be hopeful of this, but I’m still hopeful that the court will show respect for the text of the Constitution and for its own substantive prior precedents and uphold the states’ powers to define marriage,” said Sprigg.

The vast majority of court watchers expect the June decision to legalize gay marriage in at least the four states involved in Obergefell v. Hodges if not the entire nation.  In addition to the string of court wins for same-sex marriage advocates, there are four reliable liberal justices on the court and Justice Kennedy has consistently written opinions that advance the cause.

Sprigg says Kennedy is key but he might not be the only hope for traditional marriage forces to find five justices to side with their arguments.

“I’m not ruling out the possibility that one of those who is considered more liberal might actually exercise some judicial restraint on this and come our way.  But I think most of the money is on Justice Kennedy being the deciding vote,” said Sprigg, who dismisses speculation that Chief Justice John Roberts might also side with the liberals in this case.

Greg Corombos of Radio America and Jim Geraghty of National Review credit mainstream National Journal columnist Ron Fournier for holding Hillary Clinton to account on her email and fundraising controversies.  They also groan as two police officers are shot in Ferguson during protests in response to the resignation of the Ferguson police chief.  And Sen. Lindsey Graham says he would use the military to force Congress to work until sequestration cuts are lifted on defense and intelligence spending.  Graham later said he was joking.

While Washington focuses on whether President Obama will sign on to a nuclear agreement with Iran without submitting the deal for Senate approval, the administration is following a similar strategy on a global climate change policy that could leave the U.S. beholden to an International Climate Justice Tribunal.

The United Nations Framework Convention on Climate Change (UNFCCC) recently released the negotiating language for the agreement to the public.  The official purpose of pursuing a “universal climate agreement” is to renew the Kyoto Protocol, the 1997 deal championed by then-Vice President Al Gore but resoundingly condemned by the U.S. Senate.  President George W. Bush eventually cut all U.S. ties to Kyoto.

Competitive Enterprise Institute Senior Fellow Chris Horner, who raised alarm about the proposed tribunal in Sunday’s edition of The Washington Times, says that provision is ominous for the United States.

“What is climate justice?  This is troubling for several reasons,” said Horner, who says his first concern is President Obama attempting an end run around the Senate’s role in ratifying any international treatied.

“The Senate has an advisory and a confirmation role in international agreements.  Whatever comes out of these Kyoto II talks, the president said, ‘It’s not a treaty, so I don’t need to go through the Senate.’  But now we see this draft that has a court.  That’s a problem,” said Horner.

The first problem, he says, is that the U.S. has always vigorously resisted being subject to any international court, despite the best efforts of the political left.

“You know about the Law of the Sea Treaty (LOST).  That was a global environmental treaty as well as a wealth transfer.  It had a court as well and that was a major reason the United States never ratified it.  The first thing Ronald Reagan did was push that aside.  Bill Clinton later signed it but we’ve never ratified it because it had a court.  It was Kyoto with a court,” said Horner.

Horner says it’s also a problem in part because this tribunal will mainly be looking to punish one country – the United States.

“Now we actually have a Kyoto court and the president saying ratification has proven to be a problem.  We’ve seen that when our system causes him obstacles, he decides he doesn’t have any use for our system.  Now we see there’s going to be, in a treaty, a climate justice tribunal, which I assure you has one country in mind and it will not be stacked with the Antonin Scalia’s of the world,” said Horner, who elaborated more on what the tribunal would likely be about.

“It will be stacked with people who style themselves as climate jurists seeking climate justice, which as we’ve seen in recent years, means pretty much any grievance there is, climate is an excuse to force a wealth transfer to remedy it,” he said.

Why would the United States have any interest in joining an agreement that largely targets it for climate violations or makes us subject to a legal entity outside of our own judicial system?  Horner says it’s part ideology and partly driven by policy.

First, he says there are many leaders and activists on the political left in America and around the world who don’t like our system.

“There are a lot of people, including the head of the UNFCCC, which is the UN body running this and some academics and some authors who have come out saying, ‘Look, capitalism is the problem.  This is how we solve the problem.  This is how we solve capitalism.’  There are a lot of people who believe that, including some in the administration,” said Horner, who says the climate change movement has had the U.S. economy in its cross hairs from day one.

“It was transparently all about us when [Kyoto] was drafted in the ’90s.  When Asia happened and all this development occurred, thank goodness, and their emissions began skyrocketing while ours did not, it remained about us.  Now that’s odd if it really was about greenhouse gas emissions,” said Horner.

“Now that they’re putting in a court and claiming they’re going to go around the U.S. Senate, you need to be very concerned because these climate jurists will not be those who have our best interests at heart,” he said.

Horner says another major motivation for Obama to get involved in this climate agreement i to help lock his own environmental policies in place.

“He’s trying to make sure that his EPA rules are too politically hot-buttoned that his successor will not touch them and undo them.  Congress will not undo them and the courts will be reluctant to undo them,” said Horner.

Does the Senate have a way to stop this if the agreement is never presented for ratification?  Horner says there is and it means following the strategy we’ve seen Senate Republicans already take this week on Iran.

“They need to make the same statement, either in a letter or perhaps through a Sense of the Senate Resolution saying that anything he does that purports to bind us in Paris on climate is freelancing.  Do not think this is a treaty because we don’t,” said Horner.

Horner cited a Sense of the Senate Resolution passed unanimously in the 1990s to denounce the Kyoto Protocol before it was even adopted at the conference.  As a result, the Clinton administration never submitted the plan for ratification and the U.S. was never bound by it.

He admits the Senate can no longer get a unanimous vote on this issue but he says you don’t need that many when two-thirds of the Senate would be required to approve it.

“Fifty-one votes is plenty.  To be honest, 34 votes is plenty.  You have to put the world on notice, because of something called customary international law which our courts sometimes bow to, that whatever happens is not a treaty if it doesn’t go through the Senate,” he said.