Tag: Supreme Court

Senator McCaskill Succumbs – Like Her Colleagues, She Is Unable to Elevate Principle Above Politics

We’ve ordered one fresh copy of “Profiles in Courage” for U.S. Senator Claire McCaskill.  Her political analysis regarding the Gorsuch confirmation process is spot-on.  She understands the larger war within which the Gorsuch nomination is a small (yes, small) battle.  No doubt Senator McCaskill is capable of understanding and articulating the key principal from the Democrats’ perspective.  But in the weakest tradition of partisanship, she sacrificed the major principles for the minor one. Senator McCaskill succumbs to partisanship.

She is a willing co-conspirator in the Democrats’ theft of the advise and consent responsibility from a long history of bipartisan respect.  She, and most Senate Democrats, act as if political warfare is and should be the norm.  We won’t review the history of Supreme Court nominations, other than to note that this is the first (and only) time in American history that a nominee is the victim of a solely partisan filibuster.  Shame, shame, shame.

McCaskill Succumbs Continue reading “Senator McCaskill Succumbs – Like Her Colleagues, She Is Unable to Elevate Principle Above Politics”

Death of the Filibuster – Brought to You By Our Principled U.S. Senators

The death of the filibuster is at hand, at least for Supreme Court nominations.  But slaying of the filibuster dragon requires a whole bunch of U.S. Senators to raise their hands on the Senate floor and proclaim for all to hear, “I am a hypocrite.”  You’ll see why below.

This hypocrites hall of fame list includes each and every Senator, as it turns out, who has said they will filibuster the Gorsuch nomination.  But before we put our Scarlet Letter around the necks of each of those likely luminaries, let’s pay homage to the scant few who stand for some principle. Any principle.  To the few who understand that the business of the United States requires accommodation, compromise, and respect in order to move forward the business of the people, if only in small steps. So who populates that list?

Hat’s Off List

First and foremost, a large tip of the hat to West Virginia Senator Joe Manchin.  Sure, he’s up for re-election in a State President Trump won by over 40 percentage points.  And yes President Trump made his big political move to support coal the other day.  Manchin may have his own personal political reasons for refusing to filibuster – can you say, political survival? But supporting a vote on the nominee is still supporting a vote, so a large tip of the old visor to Senator Manchin.

Second, a small tip of the hat to the Senate’s most senior Democrat, Vermont’s Pat Leahy, who said he’s “not inclined to filibuster” the nomination.  But that “inclination” was not a final decision, even for the allegedly-principled Leahy: “I am never inclined to filibuster a [Supreme Court nominee].  But I need to see how Judge Gorsuch answers my written Qs, under oath, before deciding.”  Leahy is the former Chairman of the Judiciary Committee.  Having presided over two Supreme Court nominations by President Obama, he should know better.

Death of the filibuster

 Death of the Filibuster – The Hypocrites List

This list is a bit longer.  Actually, a lot longer.  So sorry, but we just report the facts, we don’t make them.  The death of the filibuster is no easy matter.  But we’ll start at the top and work our way down:

Senate Minority Leader Charles Schumer

The first rule for the Senator in the leadership position is to – lead.  It looks like our Minority Leader also leads our hypocrites list.  You be the judge. Here’s the principled Senator, in his own words:

Regarding a vote on the Garland nomination: “Our system of checks and balances requires nine Supreme Court justices.  Playing politics only weakens our democracy.  The Senate’s job is to hold hearings and vote on nominees.  The Senate has a responsibility to give advice and consent on Supreme Court nominees and stop playing judicial politics.”

Not one to play politics with this advice and consent responsibility, here’s New York’s senior Senator now:

Regarding a vote on the Gorsuch nomination: “I say if this nominee cannot earn 60 votes – a bar met by each of President Obama’s nominees and George Bush’s last two nominees – the answer isn’t to change the rules.  It’s to change the nominee.”

Editor’s Note: Excuse us, Senator Schumer, but could you point us to the Constitutional provision requiring 60 affirmative votes in the Senate for confirmation of a Supreme Court nominee.  We know there are a couple of Constitutionally-mandated Senate super-majority vote necessities – treaties and impeachment come to mind – but we don’t recall the one regarding the Supreme Court.

Other Nationally Prominent Senators

The light will shine on whomever it must.  Try to find the guiding principal behind the advice and consent philosophies of these leading Senators:

Bernie Sanders, Vermont, and former Presidential candidate

Regarding a vote on the Garland nomination:  “I call on . . . Leader McConnell to bring the [Garland] nomination to floor of the Senate if Judge Garland is approved by the Judiciary Committee.”

Regarding a vote on the Gorsuch nomination: “I will not support Republican efforts to change the rules to choke off debate and ram the nomination through the Senate.”  He supports the filibuster.

Elizabeth Warren, Massachusetts

Regarding a vote on the Garland nomination:  The Senator’s tweet – “Heading to the Senate floor now to tell the @SenateGOP:#DoYourJob and give judicial nominees a vote.”

Regarding a vote on the Gorsuch nomination: “I believe Judge Gorsuch’s nomination should be blocked.”

Dick Durbin, Illinois, and Senate Minority Whip

Regarding a vote on the Garland nomination:  “There’s no excuse for the Senate to ignore its constitutional responsibility – time to give Judge Garland a public hearing and a vote.”

Regarding a vote on the Gorsuch nomination: “I just announced that I’ll be voting against Gorsuch and for the filibuster – basically require 60 votes.”

Editor’s Comment:  Another leading light pointing somewhere into the ether to find that Constitutional 60-vote requirement. Keep looking, Senator.

Tim Kaine, Virginia

The former Vice Presidential candidate’s views:

Regarding a vote on the Garland nomination:  The Senator’s tweet – “Senate has an obligation and consitutional duty to advise and consent on the President’s [Supreme Court] nomination.  It’s part of the job description.”

Regarding a vote on the Gorsuch nomination: “The way I look at it is the Supreme Court is the only position that requires you to get to a 6o-vote threshold, which means it mandates that there be some bipartisanship and that is appropriate.  Life tenure.  Highest court in the land.  Should have to get to 60 votes.”

Editor’s Note: As we observed, there is no 60-vote threshold.  The Senator is incorrect.  He was referring to the Senate’s filibuster-debate cloture rule.  As to “bipartisanship”, he couldn’t be more wrong.  Supreme Court advise and consent should involve no partisanship at all.  In theory (and in today’s world, that’s all we have left) the nominee should be considered on the merits, and that’s it.

Cory Booker, New Jersey, Talked-About 2020 Presidential Candidate

Regarding a vote on the Garland nomination:  He tweeted “No Dem consoled Congress denied hearings or a vote.  This shouldn’t be about partisanship but about doing their job.”

Editor’s Comment: No, Democrats would never deny a vote, Senator Booker, of course not.  And you are right – this shouldn’t be about partisanship.

Regarding a vote on the Gorsuch nomination: “I’m going to oppose Judge Gorsuch every step of the way.  A 60-vote threshold is not something new for Supreme Court nominees to overcome.  It helps ensure that presidents seek nominees whose views are in the mainstream.”

Editor’s Comment: No, Senator, the 60-vote threshold for confirmation is something new.  And we all know that “mainstream” is the code-word for “people who share my political views.”  Yes, that’s certainly not partisan.

Others

So we grew tired of publishing a full compilation.  But here’s the current list of other Senators who will filibuster a floor vote on Judge Gorsuch. And in each case, they took the opposite view regarding Judge Garland.

  1. Patty Murray, Washington
  2. Tom Carper, Delaware
  3. Bill Nelson, Florida
  4. Ron Wyden, Oregon
  5. Al Franken, Minnesota
  6. Ed Markey, Massachusetts
  7. Chris Van Hollen, Maryland
  8. Martin Heinrich, New Mexico
  9. Amy Klobuchar, Minnesota
  10. Maggie Hassan, New Hampshire
  11. Jeanne Shaheen, New Hampshire
  12. Gary Peters, Minnesota
  13. Debbit Stabenow, Michigan
  14. Kamal Harris, California
  15. Chris Murphy, Connecticut
  16. Jack Reed, Rhode Island
  17. Mazia Hirono, Hawaii
  18. Sheldon Whitehouse, Rhode Island
  19. Tammy Baldwin, Wisconsin
  20. Jeff Merkley, Oregon
  21. Bob Casey, Pennsylvania
  22. Tom Udall, New Mexico

Death of the Filibuster – The Principle

So we’re headed to the death of the filibuster.  Is that a good thing or a bad thing?   Some claim its death gives us more democracy.  Others fear it just grants a small majority further, and enduring, control over the lives of the minority.  A fair debate.

But it’s a list of principled men and women, yes indeed, who walk the Senate’s hallowed halls.  They bring us the death of the filibuster. Not because it is right or wrong to do so.  But because they are pure partisans, through and through.

Confirm Gorsuch? Shame on the Senate For A Broken Confirmation Process

The Supreme Court confirmation process is hopelessly politicized. Should we confirm Gorsuch?  Democrats and Republicans have jointly destroyed legitimate consideration of any nominee.  They ignore what once were the traditional criteria for confirmation. Labeling and mischaracterization rule the day. A nominee from a President of one party is anathema to the other party.  The opposition party, in turn, battles to the death to defeat the nominee. And they portray the nominee, whoever he might be, as a villain. He is either an enemy of the people or an enemy of free markets. A person who won’t side with “the little guy”, or one who eviscerates the Second Amendment.

The founders intended a Senate as a deliberative body.  Their Senate would attract thoughtful, educated people not easily swayed by the less well-informed electorate or the temporary issue of the day.  It would be positioned to dispassionately reflect, insulated from emotion.  The Senate would advise on the character, capabilities and qualities of a Supreme Court nominee.

It was once and for long that way.  But that is now lost, the inevitable consequence of a deep polarization.  Of a fundamental vilification of our countrymen.  And of a determination to put us all at each other throats for fleeting political advantage, until the next round, when our opponent surely then prevails.  And then once again.

For those among us who are older, who remember a time when political difference yielded to political compromise, there is a nagging and growing despair that our younger generation learn only of hostility.  Their experience is devoid of a common purpose, of a sense of community and of a common endeavor.  They learn to despair of their political opposites. They find purpose only in winning for themselves, and in defeating their opponents.  And they believe deeply and exclusively in faction.  And to shout down their countrymen with whom they disagree, until their countrymen are silenced completely.

How Can the Senate Confirm Gorsuch?

Confirm Gorsuch

If the American people want a Supreme Court justice who is human, humane, thoughtful and compassionate, then consider the thoughts and words of the current nominee.  Should we confirm Gorsuch?

Here is a man who could have easily been nominated by a 1960’s Democrat.  And if he were, most surely today’s Republicans would, to a man (and woman), line up against him.  The American people are entitled to more than the simple default that a nominee of a President from one party is unacceptable to each and every Senator of the other party.  And must be defeated, and if necessary destroyed.

So here are the words of nominee Neil Gorsuch.  Do the philosophies embodied in these words allow any Democratic Senators to confirm Gorusch?  Are not these thoughts the prerequisite to confirm Gorsuch, or anyone?

Belief in the Rule of Law

[J]udges taught me about the rule of law and the importance of an independent judiciary, how hard our forebearers worked to win these things, how easy they are to lose, and how every generation must either take its turn carrying the baton or watch it fall.

Belief in Applying the Law Impartially

[T]hese days we sometimes hear judges cynically described as politicians in robes. Seeking to enforce their own politics rather than striving to apply the law impartially. But I just don’t think that’s what a life in the law is about.

 Belief in Following the Law, No Matter Where it Leads

As a judge now for more than a decade, I have watched my colleagues spend long days worrying over cases. Sometimes the answers we reach aren’t ones we would personally prefer. Sometimes the answers follow us home and keep us up at night. But the answers we reach are always the ones we believe the law requires. For all its imperfections, the rule of law in this nation truly is a wonder — and it is no wonder that it is the envy of the world.

Supreme Court Justices’ Disagreements Are About The Law, Not About Political Opinions

Once in a while, of course, we judges do disagree. But our disagreements are never about politics — only the law’s demands. Let me offer an example. The first case I wrote as a judge to reach the Supreme Court divided 5 to 4. The Court affirmed my judgment with the support of Justices Thomas and Sotomayor — while Justices Stevens and Scalia dissented. Now that’s a lineup some might think unusual. But actually it’s exactly the sort of thing that happens — quietly, day in and day out — in the Supreme Court and in courts across our country. I wonder if people realize that Justices Thomas and Sotomayor agree about 60% of the time, or that Justices Scalia and Breyer agreed even more often than that. All in the toughest cases in our whole legal system. . . .

Belief In Mutual Respect and Consideration of Different Viewpoints

[I]n the West we listen to one another respectfully, we tolerate and cherish different points of view, and we seek consensus whenever we can. My law clerks tell me that 97% of the 2,700 cases I’ve decided were decided unanimously. And that I have been in the majority 99% of the time.

Belief That Courts Apply the Laws as Made by the Congress – Courts Should Not Be the Lawgivers

When I put on the robe, I am also reminded that under our Constitution, it is for this body, the people’s representatives, to make new laws. For the executive to ensure those laws are faithfully enforced. And for neutral and independent judges to apply the law in the people’s disputes. If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk. And those who came to court would live in fear, never sure exactly what governs them except the judge’s will. As Alexander Hamilton explained, “liberty can have nothing to fear from” judges who apply the law, but liberty “ha[s] every thing to fear” if judges try to legislate too.

Belief in Applying the Law to The Facts Presented

[M]y decisions have never reflected a judgment about the people before me — only my best judgment about the law and facts at issue in each particular case. For the truth is, a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.

Confirm Gorsuch? – A Life in the Service of the Law

Written on [a judge’s] tombstone over 200 years ago was this description:

As a lawyer, he was faithful and able;  as a judge, patient, impartial, and decisive;

In private life, he was affectionate and mild; in public life, he was dignified and firm.

Party feuds were allayed by the correctness of his conduct; calumny was silenced by the weight of his virtues; and rancor softened by the amenity of his manners.

These words stick with me. I keep them on my desk. They serve for me as a daily reminder of the law’s integrity, that a useful life can be led in its service, of the hard work it takes, and an encouragement to good habits when I fail and falter. At the end of it all, I could hope for nothing more than to be described as he was. If confirmed, I pledge that I will do everything in my power to be that man.

Should we confirm Gorsuch?

Civil Property Forfeiture in the United States – An Unconstitutional Approach that Must End

Courts currently interpret the Constitution to permit government seizure of assets from persons who have not been charged with a crime.  How can this possibly be constitutional?  How can a society so fundamentally based on the rule of law and individual due process permit the seizure of private property by highwaymen wearing law enforcement uniforms?  Can civil property forfeiture in the United States in the 21st century be acceptable? At last, it appears, perhaps the Supreme Court will soon be ready to reconsider this whole subject matter.  Justice Clarence Thomas suggested as much, armed with powerful statements casting real doubt on the constitutional validity of civil property forfeiture processes in the U.S.

Civil Property Forfeiture

Let’s outline this subject philosophically.  We do so unencumbered by the long, winding, and arguably tortured history of civil forfeiture laws in the United States.  We also do so without the use of labels that tend to color conclusions. Continue reading “Civil Property Forfeiture in the United States – An Unconstitutional Approach that Must End”

New Immigration Executive Order From President Trump, and the Many Flaws in the Ninth Circuit’s Ruling

The Ninth Circuit Court of Appeals ruling on the Trump immigration order (the “Trump Order“) is flawed on several levels.  The court’s analysis is shockingly poor and disturbing for a variety of reasons.  We do not reach this conclusion because we agree with the Trump Order, for we take no position on it.  Rather, the court’s ruling would set dangerous precedents, particularly regarding a president’s power to act quickly to protect the country.  At the least, the key parts of the ruling addressing (or failing to address) constitutional issues for non-resident aliens will likely not survive the Supreme Court.  But the court’s ruling makes clear at least one thing.  The Trump Order was poorly drafted.  President Trump will likely soon follow with a new immigration executive order, if he truly believes national security requires it.

We briefly look at the what and why of a new order.  Then we provide a detailed review of the numerous flaws in the Ninth Circuit’s analysis. Continue reading “New Immigration Executive Order From President Trump, and the Many Flaws in the Ninth Circuit’s Ruling”

Judge Gorsuch’s Path to Confirmation is Open – His Fate is in His Own Hands

The road for Supreme Court confirmation for Judge Neil Gorsuch is clear. The likelihood of Democrats using the filibuster to prevent a vote on Judge Gorsuch is diminishing.  There are now three avenues towards confirmation, and the first and easiest (an actual direct vote) is becoming more probable.  Judge Gorsuch’s path to confirmation thus appears wide open.  His fate is likely in his own hands.  He will have to successfully navigate the waters of the Senate hearing process, which no doubt will be hazardous – but the way is open.

Judge Gorsuch's Path
Supreme Court Nominee Neil Gorsuch

Let’s take a look at the three available roads to confirmation, and why it is highly probable Judge Gorsuch will have his vote. Continue reading “Judge Gorsuch’s Path to Confirmation is Open – His Fate is in His Own Hands”

Judge Gorsuch is His Own Man – His Criticism of Trump Proves It

Democrats wondered aloud, and loudly, whether Judge Neil Gorsuch was independent of President Trump. Well we now know that, indeed, Judge Gorsuch is his own man.  Just three days ago a Washington Post story styled “Trump Blasts at Judge Raise Questions for Gorsuch on Independence” highlighted Democrats doubts.  Democrats, the Post stated, challenged Judge Gorsuch “on an important but elusive issue.  Is Gorsuch independent enough, they ask, to stand up to the president who picked him?”  Today we received the most reassuring, and gratifying, answer.  Judge Gorsuch is independent.  He can think for himself and is beholden to no one.  He is no lackey to President Trump. Continue reading “Judge Gorsuch is His Own Man – His Criticism of Trump Proves It”

Democrats Supreme Court Blueprint – Avoid Nuclear War

The Democrats Supreme Court blueprint for the Neil Gorsuch fight is evolving.  And it must. Democrats must cool off from the first weeks of the Trump presidency or they risk stumbling into a disaster.  They must focus dispassionately on their long-game.  And there’s a very important long-game to be played, with very serious consequences to the Democrats and their agenda if they play it wrong.

The Republicans Will Not Allow the Court’s Ideological Balance to Shift

The Court’s composition with Justice Scalia was reasonably divided.  Four progressives, four “conservatives,” and one swing vote.  His death opened a seat on the conservatives side.  His replacement with another conservative justice does not alter the Court’s balance.  The Republicans will not tolerate a shift. Continue reading “Democrats Supreme Court Blueprint – Avoid Nuclear War”

More Political Hypocrisy – The Sad Tale of Senator Jeff Merkley

Our campaign against political hypocrisy continues.  This has become a full-time avocation.  The latest sad entry comes from Oregon Senator Jeff Merkley, one of the key architects of the November, 2013 change to the Senate filibuster rules.  It seems that Senator Merkley, a strong proponent of eliminating the filibuster, has become the filibuster’s greatest champion.  It took less than four years, and a change in the party of the presidency, for this remarkable turnaround.  It’s another example of why faith in our political leaders is at an all-time low.  When will anyone – anyone – stand up on consistent principles?  It’s more political hypocrisy.

The principled Senator Merkley has a deep and enduring respect for his Constitutional responsibilities.  So, according to Senator Merkley, should the filibuster be available to the minority side in the Senate?  Well of course not – except when “we” are the minority.  All of which somehow allows him to claim the moral high ground when it comes to U.S. Supreme Court nominations.  Is there more political hypocrisy here?  You be the judge. Continue reading “More Political Hypocrisy – The Sad Tale of Senator Jeff Merkley”

The Constitutionality of Trump’s Immigration Ban: Is it Permissable? – A Debate

This debate involves the constitutionality of Trump's Executive Order "Protecting the Nation From Foreign Terrorist Entry Into the United States" (the "Order").  The debate also offers statutory analysis for and against the legality of the temporary ban.  Readers may weigh-in with their view.

Before jumping into the debate, there are several key elements, among others, to consider.

First, the President's authority to act.  President Trump cites both his Constitutional authority as President, and authority under relevant statutes.  The laws he relies on include the Immigration and Nationality Act (INA), and Section 301 of Title 3 of the United States Code.

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