Independent Institute: Replacing RBG — A Lesson in Politics

Randall Holcombe writing at the Independent Institute reminds us that politics is adversarial whereas markets are based on agreement and mutual benefit. Better to rely on markets than politics for more of what we do. Replacing RBG: A Lesson in Politics

Supreme Court Justice Ruth Bader Ginsburg’s death on September 18, less than two months before the upcoming presidential election, set off a major political controversy. Democrats argued that the appointment of her successor should wait until after the election and be made by the winner of the election. Most (but not all) Republicans argued the appointment should be made now, before the election.

When Justice Antonin Scalia passed away in the last year of President Obama’s administration, Obama nominated Merrick Garland to fill Scalia’s seat, but the Republican Senate refused to give his nomination a hearing, arguing (as the Democrats are now) that any Supreme Court appointment should be made after the election, by the winner of the election.

According to the Constitution, President Trump has the power to nominate Justice Ginsburg’s successor immediately, “with the advice and consent of the Senate.” The election year argument against making the appointment is somewhat weakened because President Obama nominated Garland in an election year, although the Republican Senate did not confirm him. But arguments about whether President Trump “should” make a nomination are pretty much irrelevant, except for their rhetorical value, because he has the constitutional power to do so.

While Garland’s nomination stalled, a nomination by President Trump likely would not be, unless a sufficient number of Republican Senators declared their opposition.

The biggest difference between Obama’s nomination and Trump’s is that Obama was facing a Senate with his party in the minority, whereas Trump is facing a Senate with his party in the majority. He likely has the votes to get his nominee confirmed, whereas President Obama did not.

Even if Trump wins the election, waiting to make a nomination could make things more difficult for him, especially if the Democrats were to gain a majority in the Senate. If he wants to “win” on this issue, he should make the nomination now.

Another factor to consider is that if the election is contested, its ultimate outcome might be decided by the Supreme Court, as the presidential election of 2000 was. Trump might like to have another friendly Justice on the Court were that to occur.

I’m not passing judgment on whether nominating a candidate now would be the “right” thing to do, or whether waiting would be the “right” thing. In politics, that’s pretty much irrelevant. You take whatever opportunities you have to “win,” because in politics some win while others lose, and politicians naturally want to avoid being on the losing end.

There is a larger lesson that is playing out in this one specific issue, which is that politics is adversarial, and any political decision produces winners and losers. Thus, politicians have the incentive to take whatever opportunities are offered to put themselves on the winning side of issues.

This contrasts sharply with market activities, in which people transact voluntarily with each other for their mutual gain. Nobody has to engage in a market transaction, so individuals in markets naturally want to entice others into making mutually advantageous exchanges by offering them a chance to increase their well-being by participating in transaction.

Market activity is based on agreement and mutual benefit. Politics is based on conflict, and trying to win by preventing others from getting what they want. The more we rely on markets and the less we rely on politics in our interactions, the more peaceful and harmonious will be our society.

President Trump will make a Supreme Court nomination, not because it is the right (or wrong) thing to do, but because the Republican Senate gives him the opportunity for a win—an opportunity that might not exist after the election. That’s politics. Any other arguments for or against simply amount to empty rhetoric.

Independent Institute: Second Amendment Sanctuaries Started in 1774

Attorney and author Stephen P. Holbrook has written an article about Second Amendment sanctuaries and what is going on in Virginia over at Independent Institute. Dr. Holbrook has written and litigated extensively on Second Amendment issues. He wrote an amicus brief for DC v Heller and was counsel for the NRA in McDonald v Chicago, both before the US Supreme Court, among others.

…Spearheading the war on Virginia gun owners is Gov. Ralph Northam, best known for his gig in blackface or Klan attire, and for calmly endorsing post-delivery abortion, that is, infanticide. To divert attention from the backlash, he is moving to criminalize all sorts of innocent conduct that has been lawful in the Commonwealth since Jamestown was settled in 1607.

It’s as if “the Redcoats are coming” again. Northam’s counterpart in 1774 was Lord Dunmore, the last royal governor, who took measures to disarm “disloyal” Virginians led by Patrick Henry. The patriots were arming and organizing themselves into independent companies to protect their rights.

None other than George Washington formed the Fairfax Independent Militia Company. “Threat’ned with the Destruction of our Civil-rights, & Liberty,” wrote George Mason, the volunteers pledged that “we will, each of us, constantly keep by us” a musket, six pounds of gunpowder, and 20 pounds of lead.

That was a lot of ammo. There’s a parallel here to the “large capacity” magazines that Northam wants to ban. And there’s an irony that Fairfax County is now the center of the blue wave that supports Dunmoresque gun bans.

The rest is history. In 1775 the Redcoats marched to seize colonists’ arms at Lexington and Concord and the Americans repulsed them. The inhabitants of Boston were ordered to turn in their guns, which were seized by British General Gage. The Continental Congress cited this perfidy in the Declaration of Causes of Taking Up Arms.

Nothing like that will happen today. Counties that have declared themselves Second Amendment sanctuaries make clear their dedication to use all lawful means to protect their constitutional rights. Law-enforcement authorities have scarce resources and must choose how to allocate them. Work to solve murders and robberies, or track down gun owners because they have rifles with those oh-so-deadly pistol grips or adjustable stocks? That’s a no-brainer.

But those who support filling the prisons with law-abiding citizens just because they have, for instance, a rifle that will also shoot flares—which is nothing more than a distress signal—should remember our history. The Second Amendment was adopted to prevent exactly those kinds of infringements.

A Second Amendment sanctuary shouldn’t be any more controversial than a First Amendment sanctuary. Imagine if the governor signed a law banning books he didn’t like, then sent police to search houses to confiscate them and arrest their owners, who would be charged with a felony. He could then have a book burning alongside of his massive gun melting…

Click here to read the entire article at Independent Institute.