Tag Archives: Neil Gorsuch

SCOTUS justices provide satisfaction

I took more than a little bit of satisfaction from this week’s stunning decision from the U.S. Supreme Court that no president is above the law.

My satisfaction came in the form of two justices’ decision to side with the 7 to 2 majority that declared that Donald Trump cannot invoke presidential immunity no matter what, that a Manhattan, N.Y., prosecutor is entitled to obtain Trump’s financial records in a probe that could result in some serious criminal indictments.

Those two justices happen to Donald Trump’s two nominees to the highest court in America: Neil Gorsuch and Brett Kavanaugh.

Let’s presume Trump’s ignorance of the law and the Constitution for a moment and conclude that the president had hoped Justices Gorsuch and Kavanaugh would stand with him. I mean, Trump does demand loyalty even from members of an independent and co-equal branch of the federal government. The justices didn’t do as Trump no doubt wanted.

This gives me hope on at least one important matter. Gorsuch and Kavanaugh likely will sit in their high offices long after Trump leaves his office. Trump said he wanted to appoint rock-ribbed, true-blue conservatives to the federal judiciary, which is another way of saying he wants judges who will vote in his favor at all costs.

Neil Gorsuch and Brett Kavanaugh saw the question arising from the Trump finances case differently. They interpreted the law with no regard to how it might affect Trump’s continuing refusal to release his financial records to prosecutors.

I cannot predict whether Justices Gorsuch and Kavanaugh will continue to demonstrate their judicial independence on future cases. The Supreme Court term has ended; justices will return to the bench in October, just ahead of the November presidential election.

I am hoping the election will deliver a new president who then will take over the appointment powers from a president who doesn’t grasp that the concept of an independent judiciary is inscribed in our nation’s governing document.

I am going to hope that the men who ended up on the court because Donald Trump nominated them will continue to exhibit the independence they showed in determining that no one — not even the president of the United States — is immune from criminal prosecution.

SCOTUS ruling on gay rights may reverberate … forever

It is hard to measure the long-term impact of today’s Supreme Court decision on gay rights so soon after the fact; these decisions need time to slow-cook.

However, it’s a major ruling that carries many implications … which are for the betterment of the nation.

The court ruled 6-3 today that the 1964 Civil Rights Act prohibits people from being fired from their jobs over their sexual orientation. It strikes a blow for LGBTQ rights and sticks it in the ear of those who continue to harp on the notion that gay Americans do not deserve the same constitutional protections under the law as every American.

What’s more, the decision was authored by Justice Neil Gorsuch, a Donald Trump appointee. Three justices dissented: Clarence Thomas (appointed by President Bush 41), Samuel Alito (President Bush 43) and Brett Kavanaugh (Donald Trump). Joining Gorsuch, along with the four progressive justices was none other than Chief Justice John Roberts, another Bush 43 appointee.

The notion that Justice Gorsuch would side with the liberal wing of the court — plus the chief justice — suggests a potentially new and unseen direction for the court. Trump’s two picks, Gorsuch and Kavanaugh, were seen as taking the court more sharply to the right. Today’s ruling suggests something else might be occurring.

It is that justices given lifetime appointments to the nation’s highest court are relatively free of political pressure, that they are able to view the Constitution through more a dispassionate lens.

Gorsuch’s decision reminds me of the kind of veering from predicted paths that other justices have demonstrated. I think of Chief Justice Earl Warren (appointed by Dwight Eisenhower), Justice Harry Blackmun (selected by Richard Nixon), justice John Paul Stevens (nominated by Gerald Ford) and Justice Byron White (picked by John F. Kennedy). Those presidents thought they were getting justices who would adhere more to their political leaning, only to get surprised … bigly!

As we digest the meaning of today’s decision, though, I am grateful that Justice Gorsuch — at least on this ruling — has become something other than the judicial bogeyman many of us had feared.

SCOTUS upholds LGBT protection! Wow!

What in the world is Donald J. Trump going to say about this ruling from the U.S. Supreme Court?

The court ruled today that protections written into the 1964 Civil Rights Act protect gay and transgender Americans from employment discrimination … meaning they cannot be fired because of their sexual orientation.

What is arguably the most astonishing aspect of this 6-3 ruling is that the majority opinion is authored by Justice Neil Gorsuch, one of Trump’s two appointees to the highest court in the land.

Previous federal judicial rulings that have gone against Trump’s wishes have resulted in snarky comments from POTUS about “so-called judges.” I doubt he’ll say such a thing about Justice Gorsuch. Still, this ruling is a big … deal.

According to NBC NewsThe rulings were victories for Gerald Bostock, who was fired from a county job in Georgia after he joined a gay softball team, and the relatives of Donald Zarda, a skydiving instructor who was fired after he told a female client not to worry about being strapped tightly to him during a jump, because he was “100 percent gay.” Zarda died before the case reached the Supreme Court.

The Trump administration had urged the court to rule that Title VII does not cover cases like those, in a reversal from the position the government took during the Obama administration.

Twenty-one states have laws protecting Americans against discrimination based on sexual orientation. The ruling today now imposes federal law on all states, meaning that no one can be fired because they happen to be gay, bisexual or transgender.

Indeed, the U.S. Constitution’s equal protection clause does stipulate that all citizens deserve to be protected under the law. Justice Gorsuch’s ruling recognizes that fundamental tenet.

What’s more, it goes to show us all that once more in graphic fashion that presidents might not always get the kind of court rulings they desire when they select men and women for these lifetime jobs as federal judges.

This is an outstanding decision by the Supreme Court.

Obstructionism pays off for Sen. McConnell

Who says obstructionism doesn’t pay dividends … bigly?

U.S. Supreme Court Justice Antonin Scalia died in Texas in 2016. Within hours of his death, Senate Majority Leader Mitch McConnell announced that President Obama would not be allowed to fill the seat left vacant by the conservative icon’s death.

Obama nominated U.S. District Judge Merrick Garland to the court. McConnell didn’t even allow Garland a Senate Judiciary Committee hearing. The nomination didn’t go anywhere.

Donald John Trump defeated Hillary Rodham Clinton in the 2016 election. Trump then selected Neil Gorsuch for the high court. The Senate confirmed him.

Today, the court upheld Trump’s travel ban. The vote was 5 to 4. Gorsuch voted with the majority.

Obstructionism doesn’t pay? Oh, you bet it does.

Yep, elections do have serious consequences

Oh, brother. Is there any more proof needed about the impact of presidential elections than the decision today handed down by the U.S. Supreme Court?

The high court ruled 5-4 today to uphold Donald J. Trump’s travel ban involving countries from a handful of mostly Muslim countries.

The conservative majority voted with the president; the liberal minority voted against him.

There you have it. Trump’s travel ban will stand. He will crow about it. He’ll proclaim that the court is a body comprising men of wisdom; bear in mind that the three women who sit on the court today voted against the travel ban. Had the decision gone the other way, he would declare the court to be “too political,” he would chastise the justices’ knowledge of the U.S. Constitution (if you can believe it).

The court decision today has reaffirmed the president’s decision to discriminate against people based on their religious faith. Nice.

The partisan vote on the court today also has brought a smile to another leading politician: U.S. Senate Majority Leader Mitch McConnell, whose obstructionism in the final year of the Barack Obama presidency denied Trump’s predecessor the right to fill a seat created by the sudden death of Justice Antonin Scalia. The Constitution gives the president the right to nominate judges; it also grants the Senate the right to “advise and consent” on those nominations. The Senate majority leader decided to obstruct the president’s ability to do his job.

President Obama nominated a solid moderate, Merrick Garland, to succeed Scalia. McConnell put the kibosh on it, declaring almost immediately after Scalia’s death that the president would not be able to fill the seat. McConnell would block it. And he did.

A new president was elected and it turned out to be Donald Trump, who then nominated Neil Gorsuch, who was approved narrowly by the Senate. Gorsuch proved to be the deciding vote in today’s ruling that upholds the Trump travel ban.

Do elections have consequences? You bet they do.

Frightening, yes? In my humble view — given the stakes involved at the Supreme Court — most assuredly.

Get set to watch further politicization of federal judiciary

Now there are “reports” that Anthony Kennedy is considering an end to his judicial career.

The Supreme Court associate justice’s retirement, if it comes next week as some are thinking it might, is going to produce something I suspect the nation’s founders didn’t anticipate when they wrote the U.S. Constitution.

That would be the extreme politicization of the judicial selection process.

Those silly men. Sure, they were smart. They weren’t clairvoyant.

The present-day reality is that the process has become highly political. When did politics play such a key role in selecting these jurists? It’s hard to pinpoint the start of it all. Some might suggest it began with President Reagan’s appointment in 1987 of Robert Bork to succeed Lewis Powell, who had retired. The Senate would reject Bork largely on the basis of his vast record of ultraconservative writings and legal opinions.

Clarence Thomas’s nomination in 1991 by President George H.W. Bush also produced plenty of fireworks, owing to the testimony of Anita Hill, who accused Thomas of sexual harassment and assorted acts of impropriety.

On and one it has gone, through Democratic and Republican administrations ever since.

The founders wrote a provision into the Constitution that allows federal judges to get lifetime appointments. The idea was to remove politics from their legal writings. Indeed, some judges have taken seats on the U.S. Supreme Court with their presidential benefactors expecting them to toe a philosophical line, only to be disappointed when they veer along uncharted judicial trails.

It’s too early to tell whether Justice Neil Gorsuch will fall into that pattern. He was Donald J. Trump’s initial pick for the high court. The president might get to make another appointment quite soon. Then again, maybe not.

Whenever that moment arrives, you can take this to the bank: The next Supreme Court pick is going to ignite a whopper of a political fight if one side of the Senate sees a dramatic shift in the court’s ideological balance.

Something tells me the founders might not have anticipated these judicial nominations would come to this.

One last hope for Justice Gorsuch

I am going to reveal my own bias — once again — but here goes anyway.

Neil Gorsuch is going to become the next U.S. Supreme Court justice on Monday. The U.S. Senate confirmed him in a mostly partisan vote.

Donald Trump promised to select a conservative justice for the court and he delivered on his promise.

Fine. Trump is the president and he has the right to select anyone he wants.

Gorsuch’s testimony before the Senate Judiciary Committee was filled with the usual stuff that court nominees say, which is they cannot comment on issues that might come before the court. His reticence satisfied Senate Republicans and frustrated Senate Democrats.

He did, though, suggest that Roe v. Wade — the landmark 1973 decision that legalized abortion — essentially is “settled law.” He also said the president never asked him if he’d vote to overturn the ruling, adding that had Trump done so, that he (Gorsuch) would “have walked out of the room.”

My hope for the new justice is that he becomes more of an independent thinker than his critics believe he’ll be. There’s plenty of precedent on the Supreme Court for justices becoming something other than the presidents who appoint them had hoped.

President Eisenhower selected Chief Justice Earl Warren and William Brennan, both of whom became liberal stalwarts on the court; President Nixon selected Justice Harry Blackmun, who then wrote the Roe opinion in January 1973; President Ford selected Justice John Paul Stevens, who then joined the liberal ranks on the high court; President George W. Bush selected Chief Justice John Roberts, who then voted to preserve the Affordable Care Act.

No one should seek to predict how the new justice will comport himself on the court. Some, though, have done so. I am not nearly learned enough in matters of law to make such a prediction.

I do have my hope … and my bias that drives it.

Senate sees the end of collegiality

There once was a time when the U.S. Senate could be a place where senators disagreed but remained friends.

I believe those days are over. They perhaps have been gone for a lot longer than I realize. The confirmation battle over Judge Neil Gorsuch closes the deal.

Say goodbye to Senate collegiality.

Battle changes the dynamic

Gorsuch’s confirmation came on a fairly narrow vote. All Republicans voted to seat him on the U.S. Supreme Court; all but three Democrats voted against his confirmation.

Some of us — including yours truly — used to believe the federal judiciary somehow was insulated from partisan politics. Not true. Maybe it’s never been true.

Senate Republicans tossed the filibuster rule into the crapper to get Gorsuch confirmed. The Senate used to require 60 votes to quell a filibuster. Democrats launched a filibuster to block Gorsuch’s confirmation; Republicans answered by invoking the so-called “nuclear option” and changing the rule to allow only a simple majority to end a filibuster.

Democrats are angry that Donald J. Trump got elected president in the first place. Their anger metastasized with Trump’s appointment of Gorsuch after Republicans blocked Barack Obama’s nomination of Merrick Garland to succeed the late Antonin Scalia.

I’m not at all confident that either side is going to find a way toward some common ground — on anything!

I recall a story that former Republican U.S. Rep. Larry Combest once told me about his former boss, the late U.S. Sen. John Tower; Combest served on Tower’s staff.

Tower, a Texas Republican, was a fierce partisan. One day, as Combest recalled it, he and another equally ferocious partisan debater, the late Democrat Hubert Humphrey, were arguing on the Senate floor about some legislation. They were gesturing and shouting and saying some angry things while arguing their points, Combest remembered.

After a lengthy floor debate, the presiding officer gaveled the session closed, Combest said, and Sens. Tower and Humphrey walked toward the middle of the floor, shook hands — and walked out the door with their arms around each other.

My gut tells me those moments are long gone.

End of judicial filibuster? A mixed blessing

I’ve long had a terrible conflict of emotions as it regards the filibuster, a tactic employed in the U.S. Senate designed to stall the progress of legislation … and appointments.

The Senate this week did away with its 60-vote rule to end filibusters. The rule change allowed the confirmation of Judge Neil Gorsuch to the U.S. Supreme Court.

But it’s the filibuster itself that gives me pause.

My own political bias clouds my view of what the Senate did as it regarded Gorsuch’s nomination. Given that the Republican-controlled Senate blocked an earlier high court nomination because a Democratic president had put a name forward to succeed the late Antonin Scalia, I saw some justification in what Senate Democrats sought to do with Gorsuch’s nomination.

But is the filibuster really an essential element of governance? I’ve long questioned it. A filibuster occurs when senators object to an issue before the body. They can filibuster in a number of ways, but the classic method is to hold the floor for hours, days, weeks — however long it takes — to talk about anything under the sun.

The Senate has had some champion filibusterers. I think of the late Wayne Morse from my home state of Oregon and the late Strom Thurmond of South Carolina. Those fellows could bluster seemingly forever on anything in order to talk a bill to death.

We operate our government on the principle of “majority rule.” The word “majority” doesn’t imply “super majority,” which is what the former Senate filibuster rule required. Majority means one vote greater than half. The Senate comprises 100 members; therefore, 51 votes constitute a majority. Shouldn’t that be enough to settle a policy argument on the floor of the Senate?

We elect presidents with a simple majority of the Electoral College. All it takes is 270 electoral votes, out of 538 total, to elect a president. Is there a more important electoral decision to be made than that? We don’t require in the U.S. Constitution a super-majority of electoral votes to choose a president. So, why do senators insist on filibustering and then require 60 votes to end it.

The filibuster seems to be an obstructionist’s tool. As one who believes in “good government,” this activity appears to me to work against that principle.

‘Shining moment’ carries baggage for McConnell

The Hill posted a story online with the headline “McConnell’s shining moment.”

The Senate majority leader, Mitch McConnell, is shining because the body he runs has confirmed Neil Gorsuch to a spot on the U.S. Supreme Court.

Pardon my anger, but the leader isn’t shining. He stands as a scoundrel, a thief who stole the seat from another judge who should have been confirmed in 2016.

McConnell is boasting that the most “consequential” decision he has made was his decision to block Barack Obama’s nominee, Merrick Garland, from testifying before the Senate Judiciary Committee. The consequence would be to block a vote on the Senate floor.

Hours after Justice Antonin Scalia died in early 2016, McConnell made clear his intention to prevent President Obama from filling the spot on the court. Some have praised McConnell for blocking the president. I choose to condemn him.

Politics takes over

Gorsuch’s confirmation today was totally expected. The Senate voted 55-44 to approve his confirmation. He earned his court seat on the basis of a rule change that McConnell orchestrated in which the Senate abandoned its 60-vote rule to end a filibuster. I get that the majority leader was within his rights to change the rule.

What happened in 2016, though, is the much more egregious transgression. McConnell played raw politics with Obama’s nominee. The U.S. Constitution gives the president the power to fill federal judgeships. Barack Obama fulfilled his duty. The Senate also has the right to reject a nominee.

The Senate, though, should have heard from Garland. It should have weighed this man’s credentials. It should have considered his qualifications. It should have received a recommendation from the Judiciary Committee.

And it should have cast an up-down vote on whether to confirm the president’s nominee.

Thanks to the majority leader’s obstruction, none of that was allowed to occur.

And to think that Mitch McConnell has the stones to accuse Democrats of playing politics with Supreme Court picks.  This man, McConnell, has set the standard for politicizing the highest court in America.

Gorsuch’s confirmation isn’t a “shining moment.” It is permanently soiled by political poison.