Thursday, February 23, 2023

Part I

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More Big Battles Erupt in the States: Wisconsin Supreme Court Election Heads to a Run-Off — With Huge Issues at Stake

The state supreme courts often don’t get adequate attention and in the case of many of those state courts, the seats on the court are by election and that is very different than what we have, of course, at the federal level, with the Supreme Court of the United States.

Just to remind you, seats on the Supreme Court of the United States are by presidential appointment, subject to the confirmation by the United States Senate. So it’s a very indirect process when it comes to American citizens. You elect a president and that turns out to be of crucial importance, because you elect a president because you are electing a worldview that is to be represented by presidential appointments throughout the government, but particularly on the Supreme Court of the United States.

The reason why we are in a position now, when we talk about a conservative majority on the Supreme Court, it’s because conservative Republican presidents have nominated conservative jurists to sit on the high court, three of them alone in one term of President Donald J. Trump. So you look at that and you recognize when it comes to the state courts, well frankly, an awful lot of Americans, and let’s be honest, an awful lot of conservative Christian voters just don’t give adequate attention to what turns out to be very, very important, particularly on some of the big moral issues that frame so much of our concern, including abortion.

Now, let me just point to the problem. What sense does it make for conservative citizens in the United States to say we recognize the importance of the Supreme Court of the United States to the extent that it largely now determines how I vote in a presidential contest?

Let’s be honest, that is often the most salient factor when it comes to conservatives voting for a presidential candidate. But then there’s a disconnect, because all too many conservatives don’t give the same kind of attention. They don’t fulfill the same kind of stewardship when it comes to judicial elections and in particular, when it comes to elections for the state Supreme Courts, where those positions are elected. And right now, ground zero for this issue is the state of Wisconsin.

Over the course of the last several years, the majority on that state Supreme Court has at least leaned conservative. That is to say, it has been more conservative than it has been liberal, and it’s surrounded by at least several states, most importantly Illinois, where the court is very liberal. So the state of Wisconsin, in terms of its Supreme Court, has actually had something of an exception to many other of the Supreme Courts at the state level around the country.

But one of the so-called conservative leaning jurists on the Wisconsin Supreme Court is retiring, and that opens a 10-year term. And guess what? The left is gunning for it. Now, there are a couple of factors here that haven’t been given much attention. One of them is money. So let me just talk about the money that is poured into this race. Earlier this week, there was an election that had several candidates in it that everyone knew would lead to a runoff, and now Wisconsin voters face an upcoming runoff that will feature an election between former Supreme Court Justice Dan Kelly, more conservative, and Milwaukee County Judge Janet Protasiewicz, who is, by any means, far more liberal.

Now, there are a couple of things to note here, and as we’re thinking in worldview significance about the courts, let’s just remind ourselves insofar as the judges and the justices on these courts are the arbiters of the meaning of the law, and sometimes the establishers of policy, it turns out to be really important at every level.

Now, as these levels ascend, let’s just face it, the judiciary importance becomes greater. And so you’re looking at, say, a district court judge or a circuit court within a county, that’s not insignificant, not at all. But when you look at the Supreme Court of one of the 50 states, you’re looking at a court that has a great deal of influence, and everyone knows that in Wisconsin. Furthermore, with the Dobbs decision last year reversing Roe v. Wade, the issue of abortion looms large in so many of these states, and Wisconsin is front and center in the line of those states.

The first thing I want to mention is that the voters in Wisconsin have an extremely clear worldview divergence between these two candidates. No one’s going to confuse them. You’re talking about one of the candidates who has identified as conservative and he has served on the Supreme Court before, but it’s the liberal candidate that turns out to be, not surprisingly, not only of greater concern, but of greater interest.

And what has made her candidacy unique at this point is how brazen she is in establishing her liberal and progressive bona fides, even on issues that are sure to come before the court, that everyone knows will be coming before the court. That breaks judicial precedent, it breaks precedent for a judicial election. Let’s just talk about how she’s been talking. Protasiewicz said, just days ago, speaking of the voters there in Wisconsin, “You deserve to know what any candidate seeking this office believes. I value a woman’s freedom to make her own reproductive healthcare decisions with her doctor, family, and faith. I also value our democracy and believe every Wisconsinite deserves to be fairly represented.” Now, some of that is rather generic language, but let’s be really clear, Judge Protasiewicz has made her position on abortion and her position on abortion rights absolutely front and center.

And so she’s basically dared Wisconsin voters to take that into consideration. She is giving assurance to moral progressives. She’s giving assurance to pro-choice, pro-abortion voters in Wisconsin. You need to vote for me, because once I’m on the bench, I’m going to vote for you. Now, in virtually any moment in American history, that would have been considered absolutely wrong, not only a breach of political protocol, but frankly, something that is incommensurate with what it means to be a judge. Because at least in theory, the ideal of the judge is one who rules dispassionately between alternatives and judges dispassionately between arguments.

Now, one of the things we talk about on The Briefing is that that can be a bit utopian when the issues are as starkly drawn as they are now. So if someone’s running with liberal support, you can pretty much figure out they’re going to be pro-abortion. They’re going to redefine that as a woman’s reproductive healthcare, whatever they may do.

But nonetheless, you can pretty much count on the fact, at the national level, that if there is an individual who wins the Democratic presidential nomination, the justices and judges appointed by that president, if elected, will be not only to the left, but increasingly far to the left. And you’re looking at something as a mirror image on the right. If you elect a Republican candidate as president, you are going to get conservative judges and justices.

But as we understand, at least at the national level, there is at least the argument that that is premised upon a certain way of interpreting the Constitution, not just an absolute declaration, hey, I’m pro-abortion, vote for me. The other point I want to make before leaving Wisconsin, because clearly Wisconsin voters have a lot at stake here, is money, because there’s big money in these judicial elections these days and there’s big money in the Supreme Court race in the state of Wisconsin.

I just want to report what National Public Radio’s Wisconsin affiliate reported on Valentine’s Day, February the 14th, “More than $235,000 of Protasiewicz’s total came from large donations she reported in the past week alone.” So you’re talking about a seven figure total amount for a state Supreme Court seat. I guess that’s not unprecedented these days. But you’re talking about one week with nearly a quarter of a million dollars. Now remember that figure, 235,000, then hear this quote. “Of that, 206,000 came from out-of-state donors.”

So that’s where you see this isn’t really even now about just Wisconsin. The big money tells the story, as the big money almost always does.

Part II

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The Administrative State Wins Again: The Courts Are Still Ruling by a Badly Mistaken Precedent, and Constitutional Order is Undermined

But next, as we’re talking about courts, it’s just really important that American Christians understand that a lot goes on at the courts, and let’s just shift our attention right now to the federal courts that is outside the public eye but has vast significance for the American public.

Now let me just give you one example, and it’s an example of how the nation’s courts are often complicit with the administrative state, and basically taking over a legislative function. And that’s exactly what’s behind a statement of concern from the editors of the Wall Street Journal published yesterday. Now, there is a famous decision by the Supreme Court known as Chevron, and that particular precedent says that the administrative decisions of regulatory agencies should be considered valid unless there’s some major reason why they should be proved invalid. This is often called Chevron deference, deference to the administrative state.

Now I’ll just say that even conservatives underestimated the damage of the Chevron precedent, because basically, that is handing over to a nameless bureaucracy in the United States government the vast power to regulate so many of even the details of American private life, what you can build and what you can’t build, arcane regulations that make sense and sometimes make absolutely no sense at all.

The case that drew the attention of the editorial board of the Wall Street Journal was one that came before the D.C. Circuit Court of Appeals, so short of the Supreme Court destination’s highest court. And a majority on that court recently said that deference should be given to the administrative state in interpreting what is known as the Immigration and Nationality Act. Now, that’s an act. So, an act means adopted by Congress, signed into law by the President of the United States. That’s the way legislation is supposed to happen.

And the Immigration and Nationality Act provided for temporary visas for foreign individuals to study in the United States and to pursue a full course of studies. But after that, they’re supposed to leave, or at least they have to apply for and get some other kind of visa if they want to remain in the country. But academic institutions, and especially the big universities, they get big money by continuing to have such persons enrolled.

And also, you have all kinds of advocates for persons who are here on student visas saying they ought to be able to stay. And what has happened is that one of the administrative agencies of our government, the Department of Homeland Security, has just decided through its own bureaucratic process, there’s no legislation here, there’s no member of Congress, no senator here, by simply the exercise of the power of the administrative state, this regulatory agency has decided to redefine what the law means. And that means, again, pursue a full course of study, to include at least a year or more after the conclusion of the course of study for what’s considered to be, I guess, further reflection, or what’s defined sometimes as practical training, which means practically anything or nothing. It just means defying the clear legislative intent.

Now, it’s really interesting to note that it’s not just conservatives who are concerned about this particular case, but also organized labor, because organized labor unions see these persons staying in the United States and sometimes being employed as a threat to their own jobs and to their job security.

The editors wrote this, this is really important. The Department of Homeland Security invoked Chevron deference, contending that course of study was ambiguous, that is that the term course of study is ambiguous. I’ll just say, as an educator, no, it’s not. But nonetheless, the editors went on to say that the DHS invoked Chevron deference, arguing that its interpretation of the term to cover post-graduation practical training was reasonable.

The Department of Homeland Security also claimed that once a foreigner qualifies for entry, it, that means this administrative department of our government, has “plenary authority” to regulate the conditions for maintaining their visa status. Now let me just underline the fact that plenary means full. Here you have a bureaucracy of the United States government claiming that it has the full authority to redefine federal law. The editors of the Wall Street Journal ended by saying that they call for comprehensive immigration reform.

And by the way, that can mean just about anything to anybody. But the point is, it would require legislation, and thus would be at least an honest process. The editors write about their concern, “Immigration policy is such a mess in part because presidents and judges often rewrite laws on their own, which release Congress of its duty to fix problems.”

And I want to turn the problem backwards. The biggest issue here is not just that this lets Congress off the hook. The biggest issue here is that the United States Constitution simply does not provide for any such power to be invested in bureaucracy or the administrative state. This sounds like a foreign country. And increasingly, when it comes to the distance between our bureaucrats and our citizens, that’s what it’s going to feel like.

Part III

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‘“Do Something” Should Not Have Been Public Policy’: New York Times Documents Study on Effectiveness of Masks Against Covid-19

Interestingly, a similar point was also made yesterday by Bret Stephens. I often disagree with Bret Stephens, but nonetheless, he’s right in this case.

His article is Do Something is Not Science, and here’s what he talks about. He talks about research undertaken by a major, very credible British firm, and this British nonprofit known as Cochrane. It is considered, he says, the gold standard for its reviews of healthcare data. It has come back looking at the American approach to Covid-19, and it’s come back with a startling and very important argument. The argument is this, the mandatory wearing of masks made absolutely no wide scale impact on the fight against Covid-19 whatsoever. It was feelgood politics that was packaged as science. Now, to have this appear in the pages of the New York Times, let me just say, just think for a minute, this is a major development, because this is the kind of argument that at least many people on the talking head shows on Sunday, and especially many people in government would say, this is a fringe argument.

Well, the point by Bret Stephens, remember, arriving in the New York Times, citing one of the most influential British think tanks when it comes to medicine, that makes it impossible to dismiss is some argument coming from the fringe. Stephens cites a conversation between Tom Jefferson, who’s an Oxford University epidemiologist and the lead author of the study, with the journalist Maryanne Demasi. So the question is, did the masks make a difference? Professor Jefferson said, “There’s just no evidence that the mask made any difference, full stop.” Those are his words, including full stop.

But the question then came, what about N95 masks as opposed to lower quality surgical or cough mask? His response, “Makes no difference, none of it.” And then the question, what about the studies that initially persuaded policymakers to impose mask mandates? “They were convinced by non-randomized studies, flawed observational studies.” Then came the question, what about the utility of masks in conjunction with preventative measures, such as hand hygiene, distancing, or air filtration?

His response, “There’s no evidence that many of these things make any difference.” Now, one of the most important dimensions of this argument appearing in the New York Times is, as I said, number one, it appeared in the New York Times, that says a very great deal, but it also raises one of the most fundamental questions that Christians need to consider. And that is something that comes up again and again and again and has for years on The Briefing.

When someone invokes science, they are not necessarily invoking anything that is classically defined as science. Or even if they’re doing, so let’s say they’re actually dealing with some kind of credible scientific data, they often cherry-pick the conclusions to meet their ideological expectations. And that’s exactly what is documented in this study and that’s exactly what was going on. Now, here we have another problem, and as a theologian or philosopher, this would be called an epistemological problem.

How do people, how do American citizens have any way to know what the truth is when cultural authorities are using the authority of science, not to mention the coercive power of the federal government, to press what they declare to be the truth on the people? Now, we have an alternative news ecology in the United States, because of the freedom of the press and also the ability of commercial interests to support the press, and even to publish.

But the reality is we are looking at a war of ideas, and what I want you to understand is that this is not a fair fight. It’s not a fair fight, because when you have the mainstream media over here, you have political authorities, including the administrative state, and of course, in the case of Joe Biden, an elected President of the United States, you’ve got the full force of the American government pressing down saying this is the truth. This is the official government-supported truth. You have the national health establishment saying this is the truth. You have the authority of science invoked.

But then in retrospect, it turns out that much of the argument that was supposedly based in epidemiology and public health, and we discussed the fact that public health as a discipline is also inherently ideological, the fact is a lot of it turns out, in retrospect, to have been basically hot air. And that’s where you’re faced with two and only two alternatives. Either the hot air was well intended or it’s not. And the fact is, the bottom line is still the same. A lot of it turns out to have been hot air. Stephens is right, as he concludes his article with this, “The last justification for masks is that even if they proved to be ineffective, they seemed like a relatively low cost, intuitively effective way of doing something against the virus in the early days of the pandemic.”

But he says, and he’s right about this, “Do something is not science and it shouldn’t have been public policy. And the people who had the courage to say as much deserve to be listened to, not treated with contempt. They may never get the apology they deserve, but vindication ought to be enough.” I want to note something in what he said, other than the bottom line, which is indisputably true, and that comes down to this. Where he says that the wearing a mask seemed to be “a relatively low cost, intuitively effective way of doing something.”

That’s where I just want to point out, and Christians need to understand this, that we as human beings want to do something. When there’s a problem, we want to do something about it. But just doing something does not necessarily equate to doing something helpful, and that’s where we need a lot of thoughtful consideration.

But that thoughtful consideration has to be based upon what is objectively true. And what we need is a government that says when it doesn’t know what is objectively true, it’s not going to claim otherwise. But one of the most important points made here is one I just come back to again and again on The Briefing, and that is that the issue of trust is also a part of the epistemological equation. In other words, how we know. And so that’s true. When a parent talks to a child, the child knows to trust the parent, and that has a great deal to do with how knowledge is transferred from the parent to the child. This has to do with the church, where on the basis of the Bible is the word of God. When the preacher says this is so, well, it is so, on the basis of trust.

And we trust the preacher, because he is honestly straightforwardly preaching the word of God. When it comes to authorities in our society, however, what we have is a widespread breakdown of that trust, and it’s broken down because there are so many examples of where these authorities are simply not trustworthy.

But here’s where we have to come back as Christians and say that it’s actually extremely difficult to imagine how you can have a society that has any kind of social cohesion, not to mention policy and moral consensus, if indeed no one can trust anyone when it comes to some of the most contentious and controversial, sometimes even the most urgent questions of our day.

Part IV

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The Disease Formerly Known as Monkeypox: Dangerous Development of Mpox Found to Have Links with H.I.V.

But one final issue today before we leave, a similar set of issues, and this has to do with another report that came out just this week. And I want to read it to you in terms of the headline that appeared in the Times, because this just tells you a great deal about the moral confusion of our age.

And it’s even hard to say this headline, not because there are any bad words in it, simply because there are non-words in it. So let me tell you the way the headline is written. “Mpox poses serious risks to patients with HIV.” So here we have a disease known as mpox. But wait just a minute, this is actually monkeypox that was talked about. So you know how sometimes these days you have celebrities who change names and they are known as the artist formerly known as, well, whatever?

Well, now it’s the case with diseases. mpox is actually the disease formerly known as monkeypox. Why was its name changed? Well, it’s not because monkeys organized a campaign to change the name of the disease. It is because it was claimed to be derogatory to name this disease monkeypox. By the way, why was it monkeypox? For the simple epidemiological reason that it emerged among, well, wait for it, you figure this out, monkeys.

But this particular article links two different health crises. One is what is now called mpox and HIV. Now remember, HIV is the virus that produces AIDS. Now, what is common? Now, let’s just think about this for a moment and, at this point, trust me, I’m going to keep this careful, but what links mpox, as it is now known, and HIV? Well, what links those two problems is the means of transmission. The primary, most vulnerable means of transmission, which is sexual relations between two men. We’ll just leave it at that.

But even as that is the common link, you actually don’t see that conceded in the public conversation. It’s as if the disease formally known as monkeypox, now mpox, which now we are told poses serious risks. And by the way, these are awful complications that are described here to patients with HIV.

When it comes to confronting this epidemic, this public health problem and trying to stop it, let me tell you, in our confused society, the one thing you can’t say, and that is that the way you stop transmitting it is to stop transmitting it.