Tag Archives: SCOTUS

SCOTUS chief to get his feet wet at the highest level imaginable

U.S. Chief Justice John Roberts is a serious man who takes his responsibility as seriously as is humanly possible. Of that I have not a single, solitary doubt.

However, I heard something tonight that made my jaw drop. It was that Chief Justice Roberts, who today took an oath to preside over a U.S. Senate trial of the Donald John Trump, has never tried a case in court.

Yep, this will be the first trial over which he will preside.

President Bush appointed Roberts to the D.C. Court of Appeals in 2003. An appellate court doesn’t hear witness testimony; it doesn’t rule on court objections. It hears lawyers argue their cases. Then the court decides which side wins the argument.

After that, Roberts got the nod in 2005 to become chief justice of the nation’s highest court. He does more of the same thing he did at the lower-court level.

Prior to the D.C. court appointment, Roberts worked in private practice, then went to work for the attorney general’s office during the time William French Smith was AG during the Reagan administration.

Trial court experience? None, man. Now he’s been dragged into the role of presiding judge in the U.S. Senate, where he will be charged with keeping order. He’ll get to rule on whether witnesses will be called, although the Senate can overturn whatever ruling he issues.

Still, it is mind-boggling to think that the chief justice’s first actual trial involves a case involving whether the president of the United States keeps his job.

I am certain the chief justice is up to the challenge that awaits him.


McConnell exhibits stunning lack of self-awareness

(Photo by Alex Wong/Getty Images)

Of all the statements, assertions, pronouncements and declarations I keep hearing while we watch this impeachment drama unfold, I keep circling back to what keeps coming out of the mouth of Senate Majority Leader Mitch McConnell.

The Kentucky Republican keeps hurling “partisan political” accusations at his Democratic colleagues in the Senate and in the House of Representatives. When I hear him accuse House Speaker Nancy Pelosi of acting as a purely partisan politician, I find myself thinking: Dude, do you not remember your own political history? 

Of course he does!

I harken back to the Mother of All Partisan Acts when in early 2016 he declared that President Obama would not be able to select someone to sit on the U.S. Supreme Court. Justice Antonin Scalia died suddenly that year; Obama sought to nominate Merrick Garland to succeed him; McConnell put the brakes on it, declaring that the president’s nominee would not get a Senate hearing in an election year.

Democrats were rightfully outraged. It was an act of supreme partisanship, just as he has continued to exhibit his partisan bona fides during the run-up to the Senate impeachment trial that has commenced.

Speaking of that … for the Senate majority leader to accuse anyone else of partisan game-playing is akin to getting a lecture on marital fidelity from, oh, you know who.

Chief justice delivers message worth heeding

U.S. Supreme Court Chief Justice John Roberts is a champion of an independent federal judiciary and seeks to instill a civics awareness in the nation he serves.

So it is that the chief justice has delivered in his annual state of the judiciary message a stern warning that needs to be taken to heart.

Roberts said the nation must be more aware of government, of civics and should beware of “fake news,” especially those who deliver it under the guise of “information.”

The chief justice is about to assume a most remarkably high profile post as the presiding judge in the impeachment trial of Donald J. Trump. On the eve of that historic event, he is seeking to deliver the nation from the dangers of false narratives, bogus news reporting and the “fake news” that the president himself is so adept at delivering.

As Politico reported: “In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government and the protection it provides is ever more vital,” Roberts said in his annual New Year’s Eve message summing up the work of the federal judiciary.

Some critics have taken Roberts’ message as a direct criticism of Trump. Hmm. I won’t march precisely down that path. However, I do believe that the president has fed our social media fascination with much of the fiery rhetoric he spouts.

Trump has, for instance, insisted that the federal judiciary is politically biased when it doesn’t rule the way he prefers. Roberts did issue a stern rebuke of that notion a year ago when he declared: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” 

The chief justice is seeking to restore dignity to the discussion of the federal courts. I wish him well. If only the public that feeds at the trough of innuendo and insult will listen.

Mr. Majority Leader: Just do your job!

(Photo by Salwan Georges/The Washington Post via Getty Images)

The more I think about it, the more persuaded I become that U.S. Senate Majority Leader Mitch McConnell is incapable of doing the job he took an oath to do.

He swore to be faithful to the U.S. Constitution. The nation’s governing document empowers the chief justice of the U.S. Supreme Court to preside over a trial of the president, and that empowerment allows the chief justice to administer an oath to senators who then vow to administer “impartial” justice in determining a president’s guilt or innocence.

Why, then, does Mitch McConnell declare his intention to violate that oath by saying he has no intention of being an “impartial juror” in the upcoming trial of Donald Trump, who’s been impeached by the House of Representatives on charges of abuse of power and obstruction of Congress.

If McConnell will not adhere to the constitutional provisions set forth in the trial, then he needs to recuse himself from the trial itself. He isn’t the only senator who’s vowing to less than impartial. Fellow Republican Sen. Lindsey Graham has declared that he doesn’t need to hear any evidence, that he’s made up his mind that Trump did nothing wrong. Yep, it’s a done deal, says Graham.

To be fair, there likely are some Senate Democrats who also have made up their minds. I do not recall hearing them declare it publicly and brazenly as McConnell and Graham have done. These men’s bias is stated and well-known.

It is amazing in the extreme to hear the Senate majority leader say without hesitation or reservation that he won’t be faithful to the oath that Chief Justice John Roberts will administer to the 100 senators who will act as jurors in the latest trial of the century.

It makes me wonder if the chief justice has any authority to determine whether senators are in contempt of the Constitution.

One can hope …

How is McConnell able to serve as a Senate ‘juror’?

I am baffled. The U.S. Senate majority leader is seeking to grease a pending Senate trial in favor of the president of the United States.

And this will occur after he takes an oath administered by the chief justice of the U.S. Supreme Court to be an impartial juror.

How does that work?

Mitch McConnell is working with the White House to ensure a favorable outcome for Donald Trump, who’s about to be impeached by the House of Representatives. The Senate will get the matter and will conduct a trial to determine whether Trump should be convicted of two high crimes and misdemeanors: abuse of power and obstruction of Congress.

All 100 senators will serve as jurors in a trial presided over by Chief Justice John Roberts. But how in the name of impartial juris prudence can Majority Leader McConnell perform the duties he will swear he will do if he’s attempting to rig the outcome in favor of the president?

This isn’t how you’re supposed to do it.

I get that the trial isn’t strictly a judicial affair, that it’s tinged with politics through and through. However, there is supposed to be a certain level of judicial decorum involved when the jurors take an oath to judge the evidence fairly and with an open mind.

For the leader of the Senate to work against that very oath is a serious violation of the duties he is supposed to perform.

Trump takes it all back: Now he wants to hide tax returns from us

Donald Trump once said he would release his tax returns once the Internal Revenue Service completed what he called a “routine audit.”

Then he equivocated.

Oh, and then he said he would do what he promised to do in the first place.

Then he walked it back again.

Now he is digging in even more deeply. Manhattan (N.Y.) District Attorney Cyrus Vance Jr. subpoenaed Trump’s tax returns as part of the DA’s probe into the hush money payment Trump made to the porn star who said she had a fling with the future president. Trump denied the fling, but paid her the money to keep her quiet. About what? Go figure, man.

A judge ruled that the DA’s request is valid. Then the U.S. Supreme Court put a hold on the release. Now the president is asking the high court to void the demand. He doesn’t want to do what he promised to do way back when he was running for the presidency.

Does this mean that Trump’s initial promise was as empty as most of the platitudes that fly out of his mouth?

I am one of those Americans who wants to see the returns. The president asks Congress to set tax policy, which means you and I have every right to know whether the president is paying his fair share of taxes. It’s been the custom of presidents and presidential candidates to release personal tax returns; the custom dates to 1976.

That’s why I have been yammering for those returns. I’ll keep yammering until we see ’em.

I feel the need to remind Donald Trump that he works for us. We are the bosses. Not him! I am one of those bosses who demands to see what I now believe my “employee” is hiding from me.

If it’s all above board, there shouldn’t be a reason in the world for Trump to ask the Supreme Court to intervene on his behalf. Isn’t that how it should work?

Next SCOTUS vacancy could cause a major eruption

Photograph by Fred Schilling, Supreme Court Curator’s Office.

I will not pussyfoot around this issue.

If Donald J. Trump is handed another opportunity to nominate someone to the U.S. Supreme Court, particularly if the nominee would succeed one of the court’s liberal justices, all the battles we saw during his two prior confirmation efforts will pale in comparison.

Justice Neil Gorsuch was Trump’s first appointment. He succeeded a conservative icon on the court, the late Antonin Scalia. Justice Brett Kavanaugh was Trump pick No. 2. Kavanaugh succeeded Anthony Kennedy, who retired. Scalia leaned hard right; Kennedy was also a conservative, but voted on occasion with the liberal wing of the court.

The current court comprises a 5-4 conservative majority, which appears to more solidly conservative with Justice Kavanaugh sitting in place of Justice Kennedy.

The latest justice to come into public view has been Ruth Bader Ginsburg, who has been battling health issues lately. She has suffered from cancer; she has fallen at home; she recently was hospitalized for chills and fever. Justice Ginsburg is back home and will be back at work at the court soon.

Ginsburg vows to stay on the job. I pray that she is able to outlast the presidency of Donald Trump.

If not, though, then we had best settle in for the proverbially bloodiest political battle we will have witnessed since, oh, 1991 when President Bush nominated archconservative Clarence Thomas to replace ultraliberal Thurgood Marshall on the highest court in America.

You can rest assured that Donald Trump will do nothing to enrage the hard-right base that clings to its support of the president. He will select someone who adheres to that far-right philosophy, thus cementing the court’s conservative majority possibly for generations.

The framers established a lifetime appointment process for the federal judiciary ostensibly to remove politics from the judicial branch of government. Sadly, that notion has not held up over the centuries since the founding of our republic.

If the current president is handed another opportunity to select a justice to the Supreme Court, you will see what I mean.

I guarantee it.

Principled stands occasionally rub us the wrong way

If one is going to argue a point on principle, then fairness dictates that the principle must stand no matter whose policy is the subject of the discussion of the moment.

With that, I have to declare that my vigorous opposition to Senate Majority Leader Mitch McConnell’s decision to play politics with President Obama’s authority to appoint a Supreme Court justice compels me to make a declaration that is going to anger some readers of this blog.

It is that Donald Trump deserves to be treated fairly if the time comes for him to make a SCOTUS nomination during the heat of a presidential campaign.

I heard the news about Justice Ruth Bader Ginsburg’s hospitalization over a fever and thought what many of you thought as well: What if she can no longer serve on the nation’s highest court? I hate harboring macabre thoughts, but realism requires us to recognize that the justice is 86 years of age and has been battling cancer.

OK, that said, she also is a noted progressive jurist appointed to the high court in 1993 by President Clinton. She is the second-most senior tenured justice on the court, behind archconservative Justice Clarence Thomas, appointed in 1991 by President George H.W. Bush.

The politics gets stickier than pine bar on a baseball bat.

Conservative icon Antonin Scalia died suddenly in early 2016. President Obama wanted to nominate Merrick Garland to succeed him. Garland is known as a judicial moderate who tilts a bit to the left. McConnell intervened. He said under no circumstances should Obama, a lame duck, should be allowed to fill that vacancy. He blocked Obama’s choice in the Senate, which has confirmation power.

Many of us went ballistic. I was one of millions of Americans who were enraged at McConnell’s power play. How dare he interfere with the president’s constitutionally granted authority? He wanted to wait for the 2016 election to play out before handing the matter over to the next president. It was a raw partisan act and it was wrong.

I argued the point on the principle of presidential authority taking precedence.

So, here we are today.

Another president is in office. Donald Trump has selected two high court justices already. If he gets a chance to select a third one in the event that Justice Ginsburg retires or … well, you know … then he gets to nominate a justice to succeed this progressive icon.

We all know what the reaction will be. It will mirror the reaction that erupted in progressive circles when Scalia died and Garland got the nomination. Only this time conservatives will argue that the president deserves to have his nominee seated; progressives will seek to block it, perhaps in the manner that McConnell did.

It would be as wrong to block Trump as it was to block Obama.

The more reasonable — and principled — option would be for Democrats to regain control of the Senate after the 2020 election. Then the Senate could exercise its appointment power when a conservative justice’s spot on the court is vacated. Voters also can kick Trump out of office, presuming he survives the pending impeachment and Senate trial, and elect someone who will forgo the ultra-right-wing agenda favored by the incumbent.

Given my own often-stated bias, I take no pleasure in making this declaration. I feel I must … in the name of principle.

In the meantime, I intend to pray real hard for Justice Ginsburg’s good health.

DACA appears to be on the ropes at SCOTUS

The word out of Washington, D.C. is out: The U.S. Supreme Court’s conservative majority appears to be readying a decision that will enable the deportation of U.S. residents who were brought here illegally as children by their parents.

Donald Trump sought to have them sent back to their country of origin, even though these individuals know only life in the United States. They are the Deferred Action on Childhood Arrivals recipients.

DACA might be on the ropes.

The court will issue its decision in mid-2020, at the height of the presidential election. One should be wary of trying to predict what the court will rule.

The president has seated two new members on the court, giving him a narrow but solid conservative majority. I realize that elections have consequences and we well might learn next year just how dramatic those consequences can get.

President Obama issued an executive order that granted temporary amnesty from deportation for DACA recipients. Trump took office and then rescinded that order. Critics, such as yours truly, have called the rescission a heartless act. DACA recipients by and large have grown up as de facto Americans. They aren’t citizens, but they are full-fledged residents of this country. Many of them have become successful in many endeavors.

What would happen to them if they are sent to countries they do not know?

Well, the highest court in America will deliver its decision in due course. The hearing today, according to those who heard it, suggests the court is leaning heavily toward backing Trump on DACA.

This well could be a sad moment for many hundreds of thousands of U.S. residents.

Federal bench: to date the silent issue of 2020 campaign

Let’s see, we’ve had two rounds of Democratic Party presidential primary debates, with 20 candidates beating the hell out of each other over a number of issues and, yes, drawing some blood from the Republican president of the United States, Donald John Trump.

I’m waiting, though, for discussion about what the Democrats plan to do about one of the serious consequences of the 2020 election: appointing judges to federal benches all over the nation.

This is where we learn about how “elections have consequences.”

Barely halfway through the president’s term in office, he has been able to seat two new justices to the nation’s highest court. Trump has solidified — so far — the court’s conservative majority. He replaced one conservative icon, the late Justice Antonin Scalia, with another reliable conservative jurist, Neil Gorsuch; he put another conservative on the court, Brett Kavanaugh, to succeed moderate/swing justice Anthony Kennedy, who retired.

He’s already sprinkled his brand of judicial conservatism — however he defines it — on federal courts across the nation.

Count me as a voter who does not want to see the federal bench populated by right-wing zealots shrouded in black robes. Trump has promised to carry through with that threat/promise, in so many words.

I am waiting for Democrats to speak openly about the judicial appointment issue as they talk to and about each other during the primary campaign. I want some assurance that they will look for men and women of impeccable integrity, who have no personal “history” to which they must answer and who understand fully how to interpret the U.S. Constitution without putting a rigid right-wing spin on what they think the framers intended when they wrote the document more than two centuries ago.

States that have long-term governors understand the importance of these appointments. Rick Perry served as Texas governor longer than anyone else in state history and he appointed more judges to state courts than anyone else as well. Gov. Perry’s legacy will stand with those appointments, for better or worse, even as they stand for election and re-election in the years to come.

For the federal bench, though, the stakes are even more profound. These judges are appointed to serve for as long as they live, if they choose to do so. Federal judges are the living, breathing embodiment of how consequential presidential elections can become.

Let’s be sure to air these issues out with clarity and conviction.