WE find it extremely interesting, and in most respects encouraging, to see how deeply and sincerely interested citizens are right now in the Supreme Court of the United States, SCOTUS for short. Folks are jabbering everywhere, in bars, with barristas, in barbershops, you name it.
    In the eleven days since Justice Scalia died, the nation has been swept up in a tsunami of intense sentiment, research, and opinion about the Constitution, history, and the way our "three branches" should intertwine.
​Here's a fascinating tidbit that local readers (both "left and right") might want to reflect on. While the politicos will inevitably make a hash of this trying beat each other up, we might be better served if they made a truce ... and tried a little experiment.
​

​Eight Is Enough (for Now)
Weekly Standard, February 29, 2016
By JEFFREY H. ANDERSON
 
To hear some on the left tell it, the Supreme Court would be hamstrung if it had to function for a year or more without a ninth justice. What to do in the event of a 4-4 tie? This would not have been viewed as a problem, however, by America's Founders, who created a Court with an even number of justices—six. In fact, Marbury v. Madison, arguably the most important case in the Court's 226-year history, was decided by a six-justice Court.
 
The Constitution, of course, leaves it up to Congress to decide how many justices will serve on the Supreme Court. In 1789, Congress passed, and President Washington signed, the Judiciary Act. That law determined that the number of Supreme Court justices should be six. The Congress of that day was full of men who had been at Independence Hall two years earlier and had participated in the writing of the Constitution, so they presumably knew what they were doing.
 
With a six-justice Court, a 3-3 opinion simply meant the Court wouldn't overturn a lower federal court ruling but instead would let it stand (or wouldn't alter the status quo in a case taken up by the Court as a matter of original jurisdiction). One effect of a six-person Court was that it took two-thirds of the Court (4 votes to 2) to declare unconstitutional a law duly passed by Congress or a state legislature. With a nine-person Court, 5-4 rulings are commonplace: In modern times, the trajectory of the nation has changed repeatedly on the personal whims of an Anthony Kennedy or a Sandra Day O'Connor. An even-numbered Court seems to be more conducive to judicial restraint.
 
From February 1790, when the Court first convened in the original capital of New York City, until March 1807 (when Thomas Todd became an associate justice on the John Marshall Court after having been nominated by Thomas Jefferson), Congress didn't change the number of justices.Marbury v. Madison was a unanimous decision by the six justices in 1803. So much for not being able to get anything done with an even number.
 
Indeed, when Congress increased the number of justices to seven in 1807, it doesn't seem that moving to an odd number had anything to do with it. In The Supreme Court in United States History, Charles Warren writes that the addition of a seventh justice was a function of an era when Supreme Court justices had to "ride circuit," serving on federal circuit courts. The need for an extra justice was "impelled by the increase of business and population in the Western Districts of Kentucky, Tennessee and Ohio, and by the necessity of bringing into the Court some lawyer versed in the peculiar land laws of those States."
 
The left would likely respond by saying that what worked in the Founding era wouldn't work today, but the truth is that the Court worked far better in 1790 or 1806 than it did in 1973 or 2015. Judicial review is meant only to void acts that violate, as Alexander Hamilton put it, the "manifest tenor" (obvious meaning) of the Constitution. Justices are supposed to adhere to the clear-violation standard, which holds that an act must be unconstitutional beyond a reasonable doubt for the Court to be justified in voiding it. Justice Antonin Scalia adhered to the clear-violation standard of constitutional review.
 
Returning to an even number of justices, if only for a year, would offer an additional level of protection against those justices who are inclined to eschew the clear-violation standard and impose their own wills. With an even number of justices, overturning the actions of the other, more representative branches of government would require at least a two-vote margin.
 
Not only will the Court survive just fine with an even number of justices for the next year or so, it may even do the Court some good.

     As most readers know all too well, Whatcom County ranks high on the list of dictum-happy Left Coast jurisdictions. A river of gold has been pouring into political organizer coffers from the likes of The Sierra Club, The Bullitt Foundation, and Washington Conservation Voters just long enough that little remains of local self-government. Most of our county council, R-Jack and his staffers, and effectively most other agencies are on the speed dials of well-paid policymaking staffers at Futurewise, ReSources for Sustainable Communities and the Puget Sound Partnership. The newest members of county council are aglow that their chairman, Carl Weimar ... whoops ... Weimer, was recently decorated as a "Champion for Change" at The-e-e White House. Nothing corrupts like the combination of money, ego, and power and the local appetite for all three resembles a raging case of the munchies (have you seen Ken Mann lately?)   While WE realize that nothing can be done this year locally to swing the pendulum back toward sanity, lets can and do hope for change back in the other Washington before it's too late to unwind the other dictum and debt happy administrative state.

WEIMAR AMERICA
PJ Media, February 21, 2016
By historian
VICTOR DAVIS HANSON

2016 is a pivotal year in which accustomed referents of a stable West are now disappearing. We seem to be living in a chaotic age, akin to the mid-1930s, of cynicism and skepticism. Government, religion, and popular culture are corrupt and irrelevant—and the world order of the last 70 years has all but collapsed.
 
Neither the president nor his would-be successors talk much about the fact that we are now nearing $20 trillion in debt—in an ossified economy of near-zero interest rates, little if any GDP growth, and record numbers of able-bodied but non-working adults. (The most frequent complaint I hear in my hometown is that the government lags behind in their cost-of-living raises in Social Security disability payments.)
 
No one can figure out how and why America’s youth have borrowed a collective $1 trillion for college tuition, and yet received so little education and skills in the bargain. Today’s campuses have become as foreign to American traditions of tolerance and free expression as what followed the Weimar Republic. To appreciate cry-bully censorship, visit a campus “free-speech” area. To witness segregation, walk into a college “safe space.” To hear unapologetic anti-Semitism, attend a university lecture. To learn of the absence of due process, read of a campus hearing on alleged sexual assault. To see a brown shirt in action, watch faculty call for muscle at a campus demonstration. To relearn the mentality of a Chamberlain or Daladier, listen to the contextualizations of a college president. And to talk to an uneducated person, approach a recent college graduate.
 
If all that is confusing, factor in the Trimalchio banquet of campus rock-climbing walls, students glued to their iPhone 6s, $200 sneakers, latte bars, late-model foreign cars in the parking lot, and yoga classes. Affluence, arrogance, and ignorance are quite a trifecta.
 
Bernie Sanders—a proud Eugene Debs-like socialist whose campaign in normal times would have been the stuff of caricature—is now running neck and neck with Hillary Clinton for the Democratic Party nomination. He rails like an Old Testament prophet at Wall Street, often oblivious that Wall Street’s totem stands a mere three feet away on the debating stage.
 
Obama may have wrecked his party by losing the Congress and most of the state legislatures, but he certainly has moved it to the hard community-organizing left. Sanders has little appreciation that he is an artifact of free-market capitalism, which alone has created enough bounty for such a demagogue to call for massive redistribution—in a way impossible for socialists any longer in exhausted Cuba, Greece, Venezuela, or any other command-economy paradise. Where does Sanders think his statism has worked—China, North Korea, Bolivia, Cuba, or the ossified European Union?
 
Bill Clinton on the stump has reminded us that there need not be any dignity to the post-presidency He offers a blueprint to becoming fabulously wealthy by monetizing a mere eight years in office with lifetime quid pro quos and Putin-like leverage. He has managed to make the sanctimonious scold Jimmy Carter seem reverential in comparison. The mystery of Hillary Clinton is not that she should be indicted on charges that are routinely filed against lesser miscreant bureaucrats, but that her entire corrupt career has always somehow been exempt, from cattle speculation to withholding subpoenaed evidence.
 
Mrs. Clinton is now like a tottering third-world caudillo—she can’t really continue on in politics and she can’t quit trying if she wants to stay out of jail. Her possible indictment depends entirely on her political viability and utility. She and the once disbarred Bill Clinton might appear like tired, tragic dinosaurs, bewildered that politics have left them behind in their late sixties—were it not for these aging egoists’ routine petulance and sense of entitlement.
 
Donald Trump is probably not a serious student of the European 1930s, but in brilliant fashion he has sized up the public’s worries over a Potemkin economy, exhaustion with wars, and namby-pamby leadership. His own remedy is 1930s to the core: nationalism, crude bombast, mytho-history, and sloganeering without much detail. Trump’s trajectory is predicated on the premise that a jaded public cares more about emotion than logic, and how a leader speaks rather than what he says.
 
In European 1930s street-brawling fashion, no one knows quite whether Trump is a 1990s Clinton Democrat, a 1980s Reagan Republican, or a Perotist ["tired of politics as usual"] misfit. He has thrown a ball and chain through the pretentious glass of American campaigning. Trump excites voters because he can profane, smear, interrupt, and fabricate—on the premise that as a performance artist he reifies what they think but don’t dare say about a corrupt political class and its warped, politically correct values. Trump reminds Americans what deterrence is: the supposedly courageous media, the so-called truth-to-power leftists, and the sober and judicious careerist politicians are all terrified how he might reply or react to their criticism. None of them want to spend 2-3 days trading smears with Donald Trump.
 
The president has a strange tic: the more he lectures about either the peaceful tendencies or impotence of an Iran or ISIS, or the more he explains how an aggressive Russia or China is stupidly not acting in their own interests, the more we know that the world is becoming ever more dangerous to the United States. He peddles mythologies about Cuba’s Castro, Iran’s aspirations, non-Islamic jihadism, and hands-up, don’t-shoot racializing, on the premise that even as all else has failed him, he wins exemption from reasoned cross-examination due to his “transformative” and iconic status.
 
Israel is now a neutral at best—a sort of forgotten Byzantine outpost in a dangerous neighborhood, forsaken by the medieval West. China brazenly has established the principle that a superpower can create territory ex nihilo—along with territorial jurisdiction anywhere it wishes. The only brake on Putin’s Russia is his own energy level and whether he believes that routinely taking advantage of Obama’s United States is getting boring. ISIS did not wait for its full-fledged caliphate to start slaughtering its ideological and religious enemies, given that it assumes a corrupt world has no worries about its genocide and religious cleansing. It is baffled only because after raping, beheading, dismembering, strangling, smashing, drowning, and incinerating, it still cannot win the attention of the West—and is running out of methods to torture and slay the innocent.
 
Not since Pius XII has a pope proved as mysterious and exasperating as Francis. He seems not to have transcended the parochial time and space of Peronist Argentina. The well-meaning and kindly pope acts as if he is unworried about the historical wages of leftwing authoritarianism and government-mandated redistribution. Why would a pontiff, protected by medieval walls and Vatican territorial security, blast U.S. immigration policy toward Mexican illegal immigrants?
 
Since Obama’s reelection, the southern border has been wide open, in naked efforts to recalibrate American electoral demography. The U.S. has taken in more immigrants, legal and illegal, than has any other country—the only impediment for entry is being educated, skilled, with resources, and insisting on legality. The U.S. last year allowed nearly $80 billion to be sent in annual remittances to Mexico and Latin America, mostly from those here illegally. Certainly, Mexico, in a most un-Christian fashion, has built walls on its own southern border to prevent unlawful entry, published comic-book manuals to instruct its emigrants how to violate U.S. immigration law, and written into its own constitution repulsive racial prerequisites for emigrating to Mexico—all to the apparent ignorance of the otherwise intrusively editorializing pope. Mexico’s own obsession with exporting its indigenous people to the U.S. is predicated on historic Mexican racism, always emanating from grandees in Mexico City.
 
Popular culture has become a 1930s collective Berlin cabaret. Apple—whose iPhones cause more fatal distractions than driving while under the influence of alcohol or drugs—refuses to help the FBI to open one phone of a dead Islamic terrorist. It protects the last calls of a mass murderer as if the logs were records of Apple’s $180 billion stashed in offshore investment schemes.
 
To walk on an upscale bike path today is to see more pets than toddlers in baby carriages (I counted yesterday). Swerving semis on the freeway used to mean high blood alcohol levels, now they reflect text messaging. Is there some rule that demands that only movie stars, investment bankers, and tech moguls, who live in houses of more than 5,000 square feet or fly on private jets, have earned the right to lecture hoi polloi on their bad habits that lead to global warming? Is barbecuing a steak worse than burning up 5 gallons of aviation fuel a minute?
 
Segregation, not integration and assimilation, is the new trajectory of racial relations. “White privilege” is said to be such an insidious aid to career success that careerist whites like Elizabeth Warren, Ward Churchill, Shaun King, and Rachel Dolezal will do almost anything to insist that they are really non-white. The president of the United States invited a rapper for a White House visit. The rapper's latest album cover shows a dead white judge lying at the feet of celebratory African-American men, with fists of money and champagne held in triumph--in front of the White House. Reality imitates art. Could the president give another Cairo speech about such symbolism?
 
The half-time Super Bowl spectacle was Petronian to the core. Beyoncé, in apparent reaction to heightened racial tensions over the absence of a black Oscar nominee, performed an incoherent tribute to the Black Panthers, with an non-integrated retinue, damning the police and canonizing a fallen felon with a long history of violent criminal offenses. In the age where “cultural appropriation” is damned, a multimillionaire, decked out in dyed blond hair and bullet-stuffed bandoleers, is messaging to an apparently new segregated racial universe—perhaps in tune with the periodic racialist outbursts of the multimillionaire Kanye West. If in the past, jazz, soul and Motown offered a positive corrective to crude, heavy metal white American music, today rappers vie to trump the raunchiness of Miley Cyrus, Lady Gaga, and Madonna. Certainly to watch the Super Bowl, Oscar, or Grammy festivities is to receive a pop sermon from mansion-residing multimillionaires about just how unfair are the race, class, and gender biases of the world in which they somehow made fortunes. In Weimar America, that Will Smith has a 25,000 square-foot mansion, but not a 2016 Oscar nomination, is proof of endemic racism and deprivation.
 
I wish all this could end well. But history’s corrective to 1930s chaos was a different—and deadlier—sort of chaos. And so ours may well be too.

Since inception, the Excavators' theme has been the quest for truth and honesty in self-government (in all branches, on all levels). WE have written about individual liberties that are firmly rooted in constitutionally protected inalienable rights. WE have written about justice, transparency, rule of law, effectiveness, and common sense. Supreme Court Justice Antonin Scalia, who died of natural causes (a heart attack) on February 13, was an eloquent and outspoken champion of all these things.

Sadly, it seems that news of Scalia's death has sent a thrill up the leg of "big D" politicos with a rabid appetite to tip the scales of justice quickly, while Obama is still in office. Haste must not make waste of the Supreme Court.  Does this matter locally?  You bet. The duty of the justices and this court is to stand for one and all.​

With Shock, Lawyers React to Scalia's Death
Katelyn Polantz, The National Law Journal
February 13, 2016 

     “Saddened beyond words." "A shock to the system." These were some of the reactions from lawyers on Saturday following the news of U.S. Supreme Court Justice Antonin Scalia's death. Some remembered his interactions with clerks and law students, others recalled his argument style and the impact he left from his originalist approach to the Constitution. The National Law Journal asked dozens of top appellate advocates and scholars to share their thoughts.
     Viet Dinh, Bancroft PLLC founder: “It is a shock to the system, literally, to lose his mind and voice. Folks may agree or disagree with particular decisions, but I think everyone recognizes his contribution in putting constitutional and statutory text first in judicial interpretation.”
     Martha Minow, Harvard Law School dean: “He was a man of great learning. He was also one of the most effective writers in the history of the court, and he had an exceptional gift for the memorable phrase. He had a terrific sense of humor, which was accompanied by great personal warmth.”
     Carter Phillips, Sidley Austin chairman and Supreme Court attorney "It will be very strange after 73 arguments in front of him to go to the podium with him not there. I will miss him very much. Obviously, his impact on statutory interpretation and on how to construe the Constitution will live on for the ages."
     Greg Garre, Latham & Watkins, Supreme Court and appellate practice chair and former U.S. solicitor general: "My first reaction is sadness at his passing and, my second, is that it is almost impossible to imagine the court without him."
     Neal Katyal, Hogan Lovells partner and former acting U.S. solicitor general: "Justice Scalia was the game changer of the court. In our lifetimes, no one has had a more profound impact on the court--from its methodology to its opinions to the rigor of oral argument--than he did. 
     Lisa McElroy, Drexel University Thomas R. Kline School of Law professor: “On two different occasions, Justice Scalia spoke to my Supreme Court seminar students when we visited the Supreme Court. What stands out most to me about those meetings was that in both cases, I had very liberal students in the class who substantially disagreed with Justice Scalia's views on constitutional interpretation. However, after hearing him explain his originalist approach, they walked away nodding their heads and saying they actually thought he made sense.”
     Paul Smith, Jenner & Block, appellate and Supreme Court practice chair: “There are few justices in our entire history who have equaled his overall level of influence on the court and the law—originalism and the Constitution, interpreting statutes based primarily on their plain language, vastly increasing the level of interaction between lawyers and justices at oral argument.”
     Pratik Shah, Akin Gump Strauss Hauer & Feld, Supreme Court and appellate practice co-head: “Although ‘originalism’ and ‘textualism’ may be charged terms, his judicial philosophy informs how all of us brief and argue cases before the Court. Justice Scalia’s sharp wit and deep intellect evoked both laughter and chills in anyone standing behind the lectern.”
     Joseph Kearney, Marquette University Law School dean and former clerk to Scalia: “He was a rare combination of intelligence and personality ... He was also a great boss.”
     Miguel Estrada, Gibson, Dunn & Crutcher appellate partner and colleague to Scalia’s son Eugene Scalia: “I am saddened beyond words by his passing. He was a brilliant lawyer and judge, a great family man, a warm and thoughtful mentor and friend, and a true patriot. This is an incalculable loss for the country he so lovingly served.”
     Ed Whelan, president, Ethics and Public Policy Center: “It’s been more than 80 years since a Supreme Court justice was confirmed in an election year to a vacancy that arose that year, and there has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court.
     Brian Fitzpatrick, Vanderbilt University Law School and former clerk to Justice Scalia: “It will be hard to get an accurate picture of him right now, but even after this moment passes, I think all fair minded people will agree that he has had more of an impact on how we think about the law than perhaps any other Justice in this history of this nation.”