This article first appeared in the American Spectator: https://spectator.org/biden-presidential-disability/)

It appears increasingly unlikely that President Joe Biden can finish this year, let alone his term, in the Oval Office. One need not be a physician to see the substantial cognitive decline that’s occurred even since Biden was a candidate. Sooner or later, Biden may either be persuaded to voluntarily resign or face a first-ever formal challenge to a president’s continuance in office, per the 25th Amendment.

To date, we have managed reasonably well in the face of presidential disability, with the signal exception of the Lincoln assassination. His death unleashed demons that dashed Lincoln’s hopes for the aftermath of America’s most ruinous war that, “with malice towards none and charity for all,” would “bind up the nation’s wounds.” Today’s emerging grave crisis comes at a time that manifests the most savage domestic partisanship since the Civil War, exacerbated by the malignant accelerants of mass and social media and exploited by a coterie of political, financial, cultural, and globalist elites. Society is still reeling from 18 months of pandemic hell and summer 2020’s protected orgiastic rioting. The latter triggered nationwide destruction of once-revered national symbols and left major American cities devastated, with spiraling crime and sputtering economies. Never in my 74 years of life — not even at the height of the Cold War, save for the transient fortnight of 1962’s Cuban Missile Crisis — has the famed first verse of William Butler Yeats’s poem, “The Second Coming” (1919), seemed more apt:

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

In a historical coincidence, 1919 marked the first great 20th-century leadership crisis in America, that being the year that Woodrow Wilson suffered a massive, permanently debilitating stroke. Then, in 1945, came Franklin Roosevelt’s death, less than 100 days into a term for which he should never have run; it left Vice President Harry Truman scandalously unprepared by the dying FDR, who never even told Truman about the atomic bomb. Fortunately, Truman rose to the occasion. The third crisis was after John F. Kennedy’s assassination, when an orderly succession by Lyndon Johnson was handled as well as could be hoped without the formal guidance that a constitutional amendment would have provided. Johnson made the 25th Amendment a primary project for his administration and succeeded in winning ratification halfway through his one full term, to his great credit.

But our story begins nearly two centuries earlier, when the 1787 Grand Convention yielded a Constitution that was a marvel, without equal on the planet, but also without addressing the grave issues attendant to presidential and vice-presidential disability. To be fair, the Framers were dealing with immense, complex, and vexing issues of fundamental structure, powers, and rights, all from scratch and within a narrow window of time. Had this been missed, it might well have doomed hopes for “a more perfect union” for decades, perhaps forever.

From Washington Through Taft (1789–1912)

In the nation’s early days, presidential and vice-presidential disabilities were minimal. Two vice presidents who served under James Madison died while in office (George Clinton, 1811, and Elbridge Gerry, 1812); a third vice-presidential vacancy occurred in 1832, when John C. Calhoun resigned to accept an appointment as senator for South Carolina. In all, during Madison’s two terms, the nation was without a vice president for over three years. The only presidential disability of consequence was when Madison was sidelined for four months in 1813 with an illness never definitively diagnosed.

The 1840s and 1850 were to provide several dramas. William Henry Harrison died of pneumonia one month after his March 4, 1841, inaugural address, which ran more than two hours and was delivered in a cold rain. John Tyler succeeded him. Though Tyler was not required by the Constitution to take an oath when ascending to the presidency — the Framers thought a vice president having taken the vice-presidential oath sufficed — Tyler insisted on being formally sworn in, establishing a precedent followed ever since. Similarly, Millard Fillmore succeeded Zachary Taylor in 1850, and Andrew Johnson did so upon Lincoln’s murder by John Wilkes Booth in 1865.

The first protracted presidential crisis came with the shooting of James Garfield by a disgruntled office-seeker on July 2, 1881. Garfield lingered for 79 days and died on September 19. Chester Arthur, who had never held office higher than New York City port commissioner, became president. At the time, not only was the vice presidency now vacant, but the offices of president pro tempore of the Senate and speaker of the house, the only two in line of succession per a 1792 law, were also vacant.

Had Arthur died before Grover Cleveland was sworn in on March 4, 1885, the only procedure available was to call a special election. Not until the 1886 federal election law was passed were Cabinet officials placed officially in the line of succession. The 1886 law, passed during Grover Cleveland’s first term, added the then-existing seven Cabinet officers to the succession list in the order that departments had been created, beginning with the State Department and Treasury Department.

Cleveland’s second term was marked in early 1893 by developing a cancerous tumor in his right jaw while on vacation. He underwent emergency surgery, during which part of his jaw was removed to be replaced by an artificial implant. It was five weeks before he returned to Washington. Of this drama, not only was the public unaware; only one member of the Cabinet knew. Worse (not making this up), Vice President Adlai Stevenson (whose son was to lose twice to Eisenhower, six decades later) was kept in the dark. It was not until 1917 that the episode was made public. In the interim, on September 6, 1901, an anarchist gunned down William McKinley, who died eight days later, which made Theodore Roosevelt president.

Then the you-know-what really hit the fan.

From Wilson Through Eisenhower (1913–60)

Woodrow Wilson fell ill in September 1919. He was in the later stages of a punishing nationwide tour searching for support for ratification of the Treaty of Versailles and entrance into the nascent League of Nations. He returned to Washington on September 28, and on October 2, he was laid low by a massive stroke that paralyzed his left side. Thus ended any serious chance of Wilson achieving his cherished twin goals (albeit, both battles were already steeply uphill). For more than six months, Wilson hardly saw anyone and was only able to do minimal work for the remainder of his term. From October 2, 1919, to March 4, 1921, when Warren Harding became president, the nation was without a fully functioning president.

In his magisterial biography, historian August Heckscher wrote that warning signs had preceded Wilson’s collapse for decades. As early as 1896, he had endured episodes of “neuralgia,” and in 1906, he suffered a stroke that left him nearly blind in one eye. In the run-up to the final sequence of strokes that felled him, he was hit with a series of transient ischemic attacks (mini-strokes).

Because there is archival film footage of Wilson’s presidency, there is a tendency to think of his tenure as a genuinely modern presidency. Yet this was hardly the case. The first transcontinental telephone call was made in 1915; it was not until 1920 that the first commercial broadcast radio station went on air (in Pittsburgh). Actual nationwide broadcast radio made FDR the first radio president, yet it was not until 1934 that telephone service reached 50 percent of Americans. And it was not until the presidency of Harry Truman that, in 1948, the first regular over-the-air nationwide broadcast television programs made their debut.

Thus was made possible what amounted to a sub-silent regency on the part of Edith Bolling Galt, the prominent socialite and second wife of Wilson; Wilson’s personal secretary, Joseph Tumulty; and the president’s physician, Dr. Cary Grayson. A few Cabinet members knew —notably, Secretary of State Robert Lansing, who confronted Tumulty and Grayson the day after the president’s massive stroke. He told them that the vice president should step in, per the Constitution’s 12th Amendment — “in the case of the death or other constitutional disability of the president” — given Wilson’s manifest inability to carry on. Asked by Tumulty, who would decide Wilson’s inability, Lansing replied that Tumulty and Grayson should do so. Tumulty and Grayson adamantly refused. By October 4, Grayson had concluded that Wilson would never recover. Heckscher wrote, “Thus begun, with the silent ascent of some, and the active maneuvering of others, such a coverup as American history had not known before.”

Vice President Alfred Marshall, whom Wilson thought “a small-calibre man,” was kept in the dark. For his part, Marshall was in no mood to accept designation as acting president, fearful of the first lady. Reputedly he said, “I am not going to get myself entangled with Mrs. Wilson.” Lansing, for his part, convened the Cabinet some 20 times during the worst months of Wilson’s illness, to make essential decisions before Wilson’s minimal — more accurately, pseudo — recovery.

Warren Harding was stricken in late July 1923 while on tour, succumbing to cerebral thrombosis (blood clot) on August 2, and was succeeded by Calvin Coolidge.

Fast forward to 1945. FDR traveled some 5,300 miles each way to an arduous February summit in Yalta and had a week-long summit meeting with Stalin and Churchill sandwiched in between. While he was taking much-needed rest at his home in Warm Springs, Georgia, after his journeying, he died of a massive cerebral hemorrhage on April 12. FDR’s physicians had examined him in early 1944 and realized he was gravely ill, but the diagnosis was not even shared with FDR’s family.

Dwight Eisenhower’s eight years were marked by three notable health crises in his second term. “Ike” had a heart attack in late September 1955 and could not meet with his Cabinet for two months. He did not fully recover until mid-January 1956. That June, Ike had surgery to remove an obstruction in his intestine. It was two months before he could resume a full schedule. In late November 1957, Ike had a minor stroke that left him with difficulty speaking, but he was back at work within a week.

Two days into this last ordeal, Ike told his inner circle, “If I cannot attend to my duties, I am simply going to give up this job. Now, that is all there is to it.” Top Eisenhower aide Sherman Adams then alerted Vice President Richard Nixon that he might become president in 24 hours. The popular Ike finished his second term, but unbeknownst to all at the time, the American — and world — stage was set for the political shock of a lifetime.

Kennedy and Beyond

America weathered major presidential health crises several times by narrow margins, albeit not without key business at times being delayed or not done at all. But then came November 22, 1963, and America’s lucky streak ended on a scorching day in Dallas. The impact upon the American polity was captured in an exchange between Washington Post columnist Mary McGrory and Daniel Patrick Moynihan. She recalled saying to Moynihan, then an assistant secretary of labor, “We will never laugh again.” Moynihan replied, “Mary, we’ll laugh again, but we’ll never be young again.”

Part II on this complex subject will begin with the calamitous JFK assassination, and end with the 1967 ratification of the 25th Amendment

John Wohlstetter is a senior fellow at the Gold Institute for International Strategy (www.Goldiis.org) author of Sleepwalking With the Bomb (Discovery Institute Press, Second edition 2014).

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(This article was originally published in The Epoch Times: https://www.theepochtimes.com/how-to-keep-the-taliban-flush-with-bombs_3919804.html)

A terrorist can really express himself with 5,000 metric tons of explosives. That’s precisely why specialized teams of U.S. troops and contractors in Afghanistan helped account for and secure huge stockpiles of munitions stored at eight key sites across the country.

But not anymore. Those Americans have already headed home, and any remaining folks capable of assuming the mission are withdrawing along with all the other Americans ordered out by President Joe Biden.

The Afghan National Army (ANA) colonel left holding the bag and responsible for this ammo is worried. “What happens when everything turns bad,” he asked, “and this stuff ends up in enemy hands?”

His old boss, ANA General Hotak, former Chief of Munitions Management for the Afghan Ministry of Defense, may have provided the answer. “There are enough explosives here to supply operations for the next twenty-five years,” he said.

Retired U.S. Army Special Forces Colonel Ron MacCammon agrees. “This stuff is all vulnerable to Taliban advances and tribal and militia influences if the situation deteriorates. Some of this ammunition could easily find its way into the hands of malign actors and turn up in global terrorist or criminal networks.”

MacCammon should know. He spent years in Afghanistan directly involved in specific U.S. programs purposed to keep this stuff out of enemy hands. After ten years of Soviet military presence there and twenty years of American presence, it’s not surprising that the stockpiles, acknowledged and clandestine, are overwhelmingly of U.S. and Soviet origin.

The bulk of the tonnage is of small arms ammunition, but also included are large quantities of other classes of munitions, such as hand grenades, 82 mm and heavier mortars, RPGs and other light anti-tank weapons, Soviet-era anti-tank landmines, and various other explosive compounds including Composition C4. Of course, that’s just what’s on the books. The ANA has always maintained other munitions in other bunkers that they keep off-limits to American eyes.

The locations of the eight major munitions storage sites are known to everyone, including the Taliban. Located at various points along Afghanistan’s Ring Road, each site contains dozens of bunkers, depots, or 40-footlong containers. We know the tonnages and types of munitions at each major site but one.

That one is close to the capital, and the ANA are very reluctant to disclose the capabilities they keep close to the capital, so they haven’t told us much about what they keep there. It’s safe to say that its quantities are substantial, and its types of munitions include “specialty items.”

What are “specialty items”? Things like MANPAD surface to air missiles. Yeah, those. All told across all sites we’re talking nearly 5,000 metric tons.

To make matters worse, with the departure of American expertise, so went Afghan willingness to continue using the computerized munitions accountability system we helped install. Now the state of the art in munitions accountability for the ANA is a pencil and ledger system. No joke.

In fairness, an experienced international NGO supported by U.S. and E.U. funding is now providing munitions management assistance to the ANA. The problem is members of this same NGO, likely in fear of running afoul of Taliban desires, have a reported history of refusing to clear IEDs emplaced by the Taliban. That doesn’t exactly inspire confidence the members of this NGO will resist Taliban desires in the future.

So it’s not like we don’t know that this stuff is vulnerable. It just seems we don’t care.

Here’s when we WILL care—when a platoon’s worth of next-generation shoe bombers get their hands on several hundred pounds of C4, for example. C4 is 30 percent more powerful than the so-called Mother of Satan, TATP, the explosive that al-Qaeda member Richard Reid used in his attempt to bring down American Airlines Flight 63 in 2001. According to FBI sources Reid used only 10 ounces. Imagine how creative al-Qaeda members can be should they take possession of 5,000 metric tons of explosives.

We can reduce the likelihood of such an atrocity and worse from occurring, and doing so is squarely in our national interest, but doing so will require the honesty and the courage to say, “You know what? I was reckless. We need to put enough American combat power back on the ground to secure these munitions until they can be destroyed or otherwise rendered safe.”

A man who knows more than a little about violence in Afghanistan is Ahmad Massoud, son of the late Ahmad Shah Massoud, former commander of the Northern Alliance who was assassinated by order of Osama Bin Laden two days before 9/11. When I asked Massoud about the likelihood of these munitions finding their way into Taliban hands, he replied, “That is certain, so we should thank God that Afghanistan doesn’t have a nuclear weapon.”

Amen.

Ernie Audino is a retired brigadier general, U.S. Army. He serves on the staff of U.S. Congressman Michael Waltz and is a senior military fellow at the Gold Institute for International Strategy and at Soran University in the Kurdistan Region of Iraq. He is the only American general officer to have previously served a full year on the battlefield embedded with Kurdish peshmerga forces.

For decades now our Western society has made a success out of democracy and an economy based on free market forces. It is no coincidence that the two go hand in hand, because in an environment where people have the freedom to think and act, innovation and progress arise. Another key component of this success was affordable and reliable energy. The prosperity that these three components have brought us has also ensured that we have made great strides in improving the environment and living standards especially in the Western part of Europe.

But the economic freedom that has brought us so much may well be over. Today, ‘Fit for 55′ is presented as part of Frans Timmermans’ Green Deal, a mega package of legislation from the European Commission to ‘green’ the economy.

Updates to existing EU laws:

● Revision of the EU emission trading scheme (EU ETS)

● Revision of the regulation on land use, land use change and forestry (LULUCF)

● Revision of the effort sharing regulation (ESR)

● Amendment to the renewable energy directive (RED)

● Amendment to the energy efficiency directive (EED)

● Revision of the alternative fuels infrastructure directive (AFID)

● Amendment of the regulation setting CO2 emission standards for cars and vans

● Revision of the energy taxation directive

New legislative proposals:

● New EU forest strategy

● A carbon border adjustment mechanism (CBAM)

● A Climate Action Social Facility

● ReFuelEU Aviation – on sustainable aviation fuels

● FuelEU Maritime – on greening Europe’s maritime space

The Commission claims that this package will modernize the economy, stimulate innovation and provide a competitive advantage over other economies. But when politicians (especially EU politicians!) talk about innovation and competitiveness, alarm bells go off in my head.

A European planned economy and a display of lost faith in the free market

All aspects of our economy will be affected by this proposal. The European Commission is embarking on a risky venture in which it not only says ‘what’ should be done, but also ‘how’ it should be done. The government seizes the entrepreneur’s seat and consumers’ hands are guided with respect to their consumption behaviour. Fit-for-55 is an outright planned economy. Progress happens when creative entrepreneurs have the space to turn ideas into reality. Regulation follows innovation, not the other way around. That should be the guiding principle. What the package makes clear is that the European Commission has definitively lost its faith in the free market.

What does this mean for the climate?

The EU itself estimates that this increased ambition from 40% to 55% reduction of greenhouse gases compared to 1990 will cost 1,300 billion euros. However, according to the more realistic estimate of Bjørn Lomborg, the costs will amount to 4 to 5 thousand billion euros. If all EU targets are met, the final result will be an immeasurably small temperature reduction of just 0.04°C. Environment, nature and landscape will suffer major damage and there will be no sign of a temperature reduction.

The Commission’s climate plans are insanely expensive, will take away many of our freedoms and have next to no effect on the climate. Our economy is being put at risk with production costs and consumer prices rising sharply. If this new ‘green economy’ really is the revenue model the Commission believes it to be, we would not need all this legislation. There is a real danger that the competitive position of the countries within the EU will be damaged compared to China, the United States and also emerging economies such as India.

Nuclear power is the only option

Does that mean we should do nothing then? No, certainly not, we must continue what we were doing, which is investing responsibly in an even better future. Politicians may determine the real goals, but in a technologically neutral way. The execution should be left to the market. After all, every investment must be able to be recouped properly and subsidies should never become a permanent instrument. This applies to both energy generation and investments in insulation.

The proposed solutions must contribute to a better future, but the Commission continues to insist on biomass as a large component on the path to carbon neutrality. Complete forests go into the oven, which is at odds with the set goals. Trees absorb CO2 and are important for biodiversity. Combustion for energy generation also releases more CO2 and air pollution than gas. Wind turbines and solar meadows are not efficient, and generating energy in this way comes at the expense of nature, landscape and public health.

In fact, investing in nuclear energy is currently the only solution to phase out fossil fuels in the long term. Nuclear energy is reliable, has a high energy density and is therefore efficient, so that nature and landscape are spared. It also emits no air pollution at all and, contrary to what activists say, the waste is very manageable. France has proven this for decades.

But the Commission, with all its ambitious plans, has not yet included this form of energy generation in its taxonomy plans. As a result, there is no economic level playing field with respect to solar, wind energy and biomass.

Recently, two EU scientific councils published their conclusions on nuclear energy. In general, the reports confirm the previous conclusions of the Commission’s Joint Research Center (JRC) that nuclear energy is an important tool in phasing out fossil fuels and does not cause serious damage to the environment. This means it meets an important condition for being included in the taxonomy. Nuclear energy is also part of the solution in the IPCC scenarios, and NASA previously calculated that current nuclear energy has saved millions of lives because it has prevented air pollution.

Conclusion

In summary, all major success factors of our Western society are currently under pressure because of these Fit-for-55 plans. Free market forces are changing into a planned economy and energy generation is becoming less efficient and therefore more expensive for companies and consumers.

But the greatest danger lies in the threat to democracy. With this package of measures, citizens will no longer have any say in what our society should look like for the next 30 years. That has already been determined in the Berlaymont building. And that is eerily similar to the situation that the people of the former Soviet Union left behind 30 years ago.

Robert Roos worked for ten years as an employee in engineering and construction companies on big projects in the oil and gas industry and also in the infrastructure industry. Now as a Member of European Parliament, he sits on the Committee on Industry, Research and Energy. Roos is a Honorary Distinguished Fellow at the Gold Institute for International Strategy.

This Article first appeared in the American Spectator https://spectator.org/supreme-court-packing-democrats-stephen-breyer/)

By: John C. Wohlstetter

In a previous American Spectator article, “Dems to Supremes: Shape Up or Pack Up!,” I examined the lessons to be drawn from Franklin Roosevelt’s failed 1937 effort to pack the Supreme Court by raising the number of justices from nine to 15.

Roosevelt proposed that a new justice should be added for each sitting justice who is age 70 or older. Had Roosevelt been successful with his plan, the aging justices who blocked his New Deal programs would be nullified and the Court’s ideological balance would have shifted to the left.

FDR claimed that adding justices was all about lessening the justices’ workload. But court-packers today accept the real reason behind FDR’s plan: to change the Court’s ideological course. The motive FDR initially disclaimed, Democrats openly embrace.

Round Two: Court-Packing Redux

In 1937, Justice Owen Roberts, a swing justice appointed by Herbert Hoover in 1932, began providing narrow majorities that upheld New Deal legislation. Some have interpreted these rulings as clever political maneuvers that intentionally protected the Court’s integrity. And many believe that this judicial shift saved the Supreme Court from FDR’s court-packing plan. 

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These rulings include West Coast Hotel Company v. Parrish, which upheld Washington state’s minimum wage law for women, and Jones & Laughlin v. NLRB, which upheld the Wagner Labor Relations Act, a law that enacted broad federal protections for labor unions.

Both cases were decided 5-4. They marked the death knell of the Court’s doctrine of “substantive due process,” under which infringements upon freedom of contract were treated as violations of the Fifth Amendment’s Due Process clause.

The shift by Roberts gave rise to the famous quip about the Court’s volte-face: “the switch in time that saved nine.” And, a generation before that quip, there was Finley Peter Dunne’s Mr. Dooley (rendered in modern English): “No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns.”

The Left Resurrects the Court-Packing Plot

Democrats in recent years have tried to redefine “court-packing” as “court reform” so that it encompasses not only adding justices but also principles of constitutional and statutory jurisprudence. Proponents even chose a new weasel verb — “restructuring.” FDR had used “reorganization.”

This tactic draws from the practice of totalitarian countries that describe themselves as democratic people’s republics to blur the distinction between their dictatorships and genuinely free countries. This sanitizes their tyrannies — at least in the eyes of some observers.

In 2019, five senators filed an amicus brief in a gun regulation case in which they warned the Court that its rulings could undermine its “legitimacy.” And during the 2020 presidential campaign, Joe Biden was coy about whether or not he’d pack the Court, saying that he’d decide after the election. Most recently, Nancy Pelosi accused the conservative justices (plus Chief Justice John Roberts, a swing vote) of threatening voting rights.

For her part, Justice Ruth Bader Ginsburg said that nine was the correct number and that FDR was wrong to try to pack the Court. Justice Stephen Breyer has also come out — firmly — against repeating FDR’s effort.

The American Bar Association also issued serial declarations defending “judicial independence” in 1998, 2005, 2017, 2018, and<a href=”https://www.americanbar.org/news/abanews/aba-news-archives/2019/08/annual-2019–panel-to-address-so-called-judges–other-attacks-on/”> 2019. From these, collectively, come twin takeaways. First, as Justice Sandra Day O’Connor said, “Criticism is fine, but retaliation and intimidation are not.” Second, the 1998 document sees a difference between “intemperate criticism” of a judge’s decision versus a “political” threat to impeach a judge if a case is not decided “favorably.” The former is undesirable; the latter is indefensible.</a>

Donald Trump has pilloried the Court, often intemperately, for which most of the media and their allies in law and academia have lambasted him. But with today’s media, Pelosi and the Democrats get a pass for their attacks on the Court. 

Round Three: Justices and Some Long Goodbyes

Apologies to Raymond Chandler, whose detective story The Long Goodbye features all sorts of skullduggery not to be found on the more mundane lives of America’s 115 justices (17 have served as chief justice). They are frequently in no hurry to leave the bench. In one of the neatest tales from Court annals, one justice, Charles Evans Hughes, was appointed twice. He was first appointed by William Howard Taft in 1910 as associate justice and stepped down in 1916 to run for president. After serving as secretary of state under Warren Harding, Hughes returned to the Court in 1930 as chief justice, appointed by Herbert Hoover. He replaced Taft, who had originally appointed him in 1910; he voluntarily stepped down in 1941 at age 79, albeit in full possession of his faculties, and died at age 86 in 1948. Though appointed twice, he is counted only once in the total number of justices, as are several others who served as associate justice and were subsequently appointed chief justice.

Alas, not all justices have chosen to “go gentle into that good night” of serene retirement. As told in law processor Henry Abraham’s superb 1999 book, Justices, Presidents and Senators, several cases have offered backstage — and at times front stage — drama. Genuinely poignant are the interleaved stories of Justices Robert Grier and Stephen Field. Appointed in 1846 by James Polk, Grier reluctantly retired in 1870, shortly before his death, age 76, later that year. Field, appointed by Honest Abe in 1863, had been tasked in 1869 by his fellow justices with a melancholy errand: approach the senile Grier to tell him that his time had passed. Shortly after, Grier assented. Then in 1897, Field was no longer able to serve. In his senescence, he found himself being asked to retire by John Marshall Harlan Sr. But Field refused, exclaiming, “Yes, and a dirtier day’s work I never did in my life!” But nine months later, Field succumbed to the inevitable and died two years later.

The next major impasse came with Justice William O. Douglas, who was appointed by FDR in 1939 and was the last justice born in the 19th century (1898). The end drew nigh when Douglas suffered a massive stroke on the last day of 1974, rendering him partially paralyzed and also mentally debilitated. Seven of his eight fellow justices agreed to postpone major cases until Douglas departed. It took former Justice Abe Fortas to persuade Douglas to make his exit in the middle of the Court’s fall 1975 term. At 36 years, Douglas remains the longest-serving justice; he died in 1980.

Democrats Look to Manipulate the Court

This brings us to the drama surrounding the late Justice Ruth Bader Ginsburg. Born in 1933 and appointed by Bill Clinton in 1993, RBG endured numerous bouts with cancer, radiation, and chemotherapy. She died on September 18, 2020, 47 days before the November 4 election. During the Obama years, she was repeatedly approached and asked to retire so that a Democratic president could appoint a younger left-wing justice. Even after a meeting with the president, she demurred, reportedly stating that the Republicans would filibuster any Obama replacement and that her goal was to serve to age 90, as had her fellow jurist, Justice John Paul Stevens. No one spoke of this publicly, however. RBG was also caught falling asleep during oral arguments, which was ignored in the mainstream press.

In 2013, then-Senate Majority Leader Harry Reid exercised the infamous “nuclear option” by amending Senate Rule 22 so that nominations to the federal district and appeals courts could not be filibustered; the Supreme Court was exempted, as no vacancies had occurred. Democrats got a taste of their own medicine when, in 2017, Republicans amended Rule 22 to end the filibuster for the High Court, enabling Trump to appoint three justices during his presidency. 

Mindful of the debacle caused by Ginsburg’s perceived obstinacy, voices on the left are calling publicly for Breyer to retire while a Democrat occupies the Oval Office. Had he wished to do so this year, he’d have announced by the Court’s last day, July 2, to give enough time for the administration to put a replacement on the Court in time for the October 4 start of the Court’s fall term. If anyone still harbored hopes that Breyer would step down, he<a href=”https://www.msn.com/en-us/money/companies/breyer-hires-four-law-clerks-for-next-term-high-court-confirms/ar-AALI77a”> just hired his four law clerks for the Court’s full 2021–22 term.</a>

So Breyer’s hinge point moments will be at the end of the Court’s first 2022 term or first 2024 term, before the fall elections in those years. But Breyer is now an incredibly influential justice. As a moderate liberal, he is better positioned to appeal for votes from the other justices than are the strongly progressive Kagan and Sotomayor.

Bottom Line

Expect Justice Breyer to stay for the foreseeable future. Breyer relishes his station, one that gives him vast influence in American life. Justices often wield far more power than any member of Congress, and in some cases have proven even more influential than presidents.

Doubtless Breyer will be apprised as July 2022 draws near as to what the odds appear to be for a GOP takeover of the Senate. And if he stays, a similar assessment will be made in 2024. But if Ginsburg, a far more ideological justice than Breyer has been, and one in failing health to boot, refused to step down, one should not make a book that Breyer, if his health holds, will step down in either year.

Put plainly, Justice Breyer has said publicly — and avowedly means — that law is what guides him, not partisan politics.

(This article first appeared in the American Spectator Magazine: https://spectator.org/supreme-court-packing/)

President Joe Biden’s tirade against a Supreme Court decision that didn’t go his way elevates the future of the Court to a new level of intensity and, hence, political priority.

Let’s begin with the president’s July 1 tweet reacting to the Court’s Arizona election law ruling:

Today’s decision by the Supreme Court undercuts voting rights in this country — and makes it all the more crucial to pass the For the People Act and the John Lewis Voting Rights Act to restore and expand voting rights protection.

On its face, the tweet simply criticizes the Court’s decision. But in the context of calls from senior Democrats to pack the Court unless it mends its ways, it translates into calling for rulings that conform to Democratic Party goals.

The Democrats aim to add justices to shift the Court’s balance leftward to erase the current conservative majority. Consider Sen. Chuck Schumer’s blatant 2020 threat warning the Supreme Court justices ahead of a decision on a Louisiana abortion case which tested Roe v. Wade.

I wanna tell you Gorsuch, I wanna tell you Kavanaugh, you have released the whirlwind and will pay the price, you won’t know what hit you if you go forward with these awful decisions.

Then there are two inappropriate intrusions by President Barack Obama: his 2010 attack on the Court’s free-speech ruling in the Citizens United case during his State of the Union address and his 2012 veiled warning to the Court in advance of its decision on Obamacare to not engage in “judicial activism.”

To her (rare) credit, House Speaker Nancy Pelosi has stopped the House from considering court-packing legislation. But Sen. Sheldon Whitehouse, who sits on the Judiciary Committee — and who, one hopes, never is elected to the Oval Office — bragged that his 2020 attack on Amy Coney Barrett during her confirmation hearing might have saved Obamacare, which was upheld in June. The none-too-subtle senator crowed, “If we hadn’t done that, maybe they would have” killed the law. “It may be [saved],” he added, “because we did so many warnings.”

Round One: FDR’s 1937 Court-Packing Debacle

The predicate for examining the 2021 court-packing debate is to review its infamous 1937 historical antecedent. The late Chief Justice William Rehnquist devoted an entire chapter in his 1987 book The Supreme Court: How It Was, How It Is to Franklin Roosevelt’s failed 1937 attempt to pack the bench.

Rehnquist set the stage for the first and so far only attempt to pack the Court by noting that in the 72 years from 1861 to 1933 — 18 presidential terms — Republicans controlled the White House for 56 years, excepting only Andrew Johnson (1865–69) Grover Cleveland (1885–89 and 1893–97), and Woodrow Wilson (1913–21). FDR then served continuously from 1933 until his death in 1945, just shy of three months into his fourth term.

FDR’s power reached its apex after his 1936 landslide over Alf Landon, who carried only his native Vermont and Maine. In addition to winning 46 states, FDR brought his party to epic heights in the House and Senate. Democrats began 1937 holding a 333-89 edge in the House and a 76-18 edge in the 96-seat Senate.

During FDR’s first term, three Court decisions landed the Supremes in hot water with the administration and its allies in Congress. The Supreme Court decided these cases on what New Dealers called Black Monday (May 27, 1935).

The first case, Humphrey’s Executor v. U.S., involved FDR’s attempt to remove a member of the Federal Trade Commission, whose members are confirmed by the Senate. The Court held that the president lacked the power to do so.

The second case, Louisiana Joint Stock Land Bank v. Radford, involved a complex mortgage security interest the bank held on a farmer’s property and sought to take much of the property without paying “just compensation” per the Fifth Amendment. Rehnquist summarized the holding: “[H]owever great the urgencies created by the farm depression, Congress could not deprive the mortgage holder of so much of his security without paying compensation for it.”

In the third case, Schechter Poultry Corp. v. U.S., the Court struck down the National Industrial Recovery Act, thus invalidating the jewel in the New Deal crown. It held that Congress could not delegate its legislative authority in full to administrative agencies (the “non-delegation doctrine”).

But the proverbial judicial straw that finally broke the presidential camel’s back was the January 1936 Court decision U.S. v. Butler. The Court struck down the Agricultural Adjustment Act as an unconstitutional use of the federal taxing power to invade regulatory provinces ceded by the Constitution to the states.

FDR’s first version of his plan, unveiled February 5, 1937, would have added one new seat for each sitting justice over 70 — then six of the nine members of the Court — who did not elect to retire before the plan became law. At the time, there were four conservative justices, collectively termed by their critics “the four horsemen” (of the judicial apocalypse): Willis Van Devanter, George Sutherland, and Pierce Butler. Three justices were liberals: Louis Brandeis, Harlan Stone, and Benjamin Cardozo. Two justices were considered “swing” votes, both appointed by Hoover: Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts.

FDR justified his court-packing plan on the age of the justices and their alleged inability to meet the Court workload. That flopped in the press — then mostly anti-FDR — with major papers controlled by what the blue-blood FDR termed “economic royalists.”

Chief Justice Charles Evans Hughes issued a letter, co-signed by justices Brandeis and Van Devanter, in which he vehemently denied that the Court could not handle its workload. One top FDR adviser, Robert H. Jackson, later said that this letter doomed FDR’s packing plan.

As Rehnquist recounts, the administration planned to start in the House of Representatives (where most legislation is supposed to originate) because its members are up for reelection every two years, and thus a popular president could put tremendous pressure on members to vote his way on major issues. But the House Judiciary Committee chairman, Hatton Sumners of Texas, was adamantly opposed to any plan to pack the Court, telling colleagues, “Boys, here’s where I cash in.”

Republicans in the Senate opposed FDR’s plan, but they remained silent, fearing that if the packing plan was viewed as a partisan issue it would turn out like the 1936 Democratic landslide. The Senate Majority Leader, Joe Robinson of Arkansas, would manage the legislative effort on behalf of FDR. The Democratic opposition in the Senate was led by Burton Wheeler, a gilt-edged progressive who had ardently campaigned for FDR in 1936, having supported the latter’s first-term accomplishments.

As opposition grew to FDR’s original scheme, Justice Van Devanter announced his retirement on May 18, some six weeks before the end of the Court’s first 1937 term. And on July 2, FDR unveiled a revised plan, having been told that there were not enough votes in the Senate to pass his first version. The age at which an additional justice would be added to the Court was raised to 75 with a limit of one new justice per year. Rehnquist notes that this was a minimal retreat. Given one appointment each in 1937 and 1938 plus replacing Van Devanter, FDR would have put three new justices on the Court within the first year.

Matters came to a head in mid-July when Joe Robinson dropped dead of heart failure. With some senators having personally pledged to Robinson that they would support the bill, the plan was dead upon his demise. The final Senate vote to recommit the bill was 70-20.

Rehnquist adds that supporters of the plan took a “lose a battle, win the war” view in that within four years FDR had replaced six of the nine justices. In all, FDR put eight justices on the bench.

Bottom Line: In light of her intense partisanship, Nancy Pelosi’s decision to avoid court-packing may fairly be termed astute political calculation. But it still goes into the record books. Comparing 1937 to the last decade’s assaults, what emerges most clearly is that (a) Democrats seem more united today than in 1937 in favoring court-packing, and (b) the dominant media has switched sides, from overwhelmingly opposing FDR’s plan to favoring or leaning towards such a move.

Rounds two (today’s court-packing) and three (calls on Justice Stephen Breyer to retire) will be covered in a second article.

The Gold Institute for International Strategy deplores the actions of the PYD (Partiya Yekîtiya Demokrat – Democratic Union Party) on June 20th, in closing the offices of Kurdistan 24, the premiere source of information from all regions of Greater Kurdistan.

The measure, taken without notice or explanation, casts doubts on the commitment of the administration of Rojava to elemental freedoms, the very freedoms the Kurdish people have fought tirelessly for decades to obtain.

Indeed, this is the second time the offices of Kurdistan24 have been closed, despite the PYD’s assurances that it seeks a “democratic solution that includes the recognition of cultural, national and political rights, and develops and enhances their peaceful struggle to be able to govern themselves in a multicultural, democratic society” for Rojava. Censorship of the press and persecution of ideas does not seem the proper vehicle to reach those lofty goals.

Around the world, many look to Kurdistan 24 to obtain first hand, unbiased reporting of events in all four Kurdistan regions in Syria, Iraq, Iran and Turkey, and we view its censorship as a troubling development, made more serious by the subsequent closing of the Semalka border crossing.

We hope that these ominous events do not herald a new era of authoritarianism returning to the Autonomous Administration of North and East Syria and look forward to the free society Syrian Kurds have fought so valiantly to obtain.

I have long said that foreign policy is generally a non-partisan issue. While domestic issues (i.e. taxes, education, healthcare etc) often are, foreign policy is not. That is no longer. Over the last 5 months the Biden administration has implemented a highly partisan global strategy that turned international sentiment toward the notion that the U.S. can no longer be counted on to support our allies.

At the Gold Institute, I have the opportunity to spend a great deal of time with law makers from across the globe. Recently one particular European lawmaker said to me “It is by far today more dangerous to be friend of the USA than foe. Although times in which friends of freedom automatically considered themselves friends of the USA may have passed. This administration is so alien to everything we cherished that many people around the world are wondering if it’s definitely gone, the Paradise Lost.” This view that the U.S. can no longer be counted on as the global defender of freedom and western values is growing stronger and faster abroad than possibly even at home.

The need for the Gold Institute for International Strategy is now ever more important. There are few institutes in Washington DC that work hand in hand with global leaders to not only provide solutions, but more importantly the strategic blueprint with which to implement those very policy prescriptions. Our global fellows, located throughout the U.S., Europe, and the Middle East, are the best of the best practitioners – people who have spent their time in the trenches and have reached the top in their respective fields.

The Biden administration’s Middle East policy is designed for destabilization; JCPOA 2.0, a stated timeline for removal of forces from Afghanistan, a leftist [anti-]Israel policy, hesitancy to support Egypt in negotiations regarding Ethiopia’s Renaissance Dam project and a vague Iraq policy, just to name a few examples of the Biden destabilization plan. For this reason, I am thrilled to introduce our new Senior Fellow, former Deputy Assistant Secretary of Defense for the Middle East Simone Ledeen. Her extensive experience in the Middle East, at DoD and the Treasury Department will provide the Institute and all those who engage with us an understanding and sustainable policy path forward.

Shortly before leaders from Israel, United Arab Emirates and Bahrain joined President Trump on the South Lawn of the White House to sign the Abraham Accords, an ambassador from an Arab country expressed to me his feeling that regional countries felt the imperative to sign the accords prior to the elections to hedge bets against a possible Biden administration pro-Iranian policy. It is now clear that the Abraham Accords are necessary to stability in the Gulf region as NATO is to Europe and North America. The Gold Institute fellows have been providing guidance to the senior policy makers across the globe on this since conception.

On the international stage our fellows are also deeply involved in matters concerning Turkey, Human Rights, Climate Change, global antisemitism, the resurgence of the likes of the Muslim Brotherhood and ISIS as well a whole host of other concerns.

Other fellows have been diligently working on domestic matters to include human trafficking and a policy and proactive law enforcement response to the rise of anti-Semitism. For this reason, I am pleased to let you know that retired NYPD Detective Investigator Mark Black has joined the Institute as a senior fellow. His long-time focus in counterterrorism, intelligence division and computer crimes will undoubtedly add greatly to the Institute’s impressive roster of fellows as well as our work and influence globally.

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