Tag Archives: Senate Judiciary Committee

Will the SCOTUS pick adhere to the RBG Rule?

I’ve been hearing some chatter in recent days about the RBG Rule, named after Supreme Court Justice Ruth Bader Ginsburg.

President Clinton nominated Justice Ginsburg to the high court in 1993 and she promptly made one thing clear: She would not comment on any question that she believed could compromise the integrity of a decision she might make in a future court hearing.

Her intention was to avoid revealing how she might rule.

The RBG Rule has stood the test of time over the past 25 years.

Donald J. Trump is set to select someone to succeed Justice Anthony Kennedy, who is retiring at the end of this month after 30 years on the Supreme Court.

Here’s my hope for the next pick: He or she should make the same pledge that RBG made in 1993. What’s more, liberal members of the U.S. Senate Judiciary Committee, which will consider the merits of this nomination, should honor that nominee’s pledge … if the nominee makes it.

There likely will be plenty of grist to pore through once the president reveals the identity of his nominee. I keep hearing that all the finalists the president is considering have considerable judicial experience and have developed lengthy and clearly defined paper trails that reveal much about their judicial philosophy.

Should whoever gets nominated be forced to answer how he or she would vote on, say, Roe v. Wade, or on the president’s travel ban, or on affirmative action, or campaign finance?

This nomination is likely to proceed to a relatively swift up/down vote on confirmation, despite the concerns of many that we ought to wait for the midterm election to determine the Senate composition. The Senate majority leader insisted on the completion of an election prior to considering someone to replace the late Antonin Scalia, right?

If the Senate is going to plow ahead with a confirmation process to determine who succeeds Justice Kennedy, then the RBG Rule needs to stand.

Judicial nominee hits the road after embarrassing moment

Matthew Peterson got himself nominated for a lifetime job as a federal judge.

Then he had to go before the Senate Judiciary Committee. Sen. John Kennedy, R-La., had the temerity to ask Peterson a series of questions.

Had he ever tried a criminal case? A civil case? Had he ever argued before an appellate court? Umm. No on all three questions.

The exchange went viral, thanks to Sen. Sheldon Whitehouse, D-R.I., sending out via Twitter. See the video here.

Peterson withdrew his nomination today. He told Donald Trump he didn’t want to be a “distraction.”

I baffled on where to begin with this one.

I’m glad Peterson pulled out. He doesn’t belong on the U.S. Court of Appeals in the District of Columbia. The young man needs some experience, um, trying cases in an actual courtroom. 

The most stunning aspect of this nomination is how in the world the president of the United States could put someone so wholly unqualified up for examination by the Senate judiciary panel. Did the president’s “fine-tuned machine” get all gummed up? It clearly failed to vet this fellow.

Good grief, man! I would think one of the questions one could ask a judicial nominee would be: Have you ever tried a case — in a courtroom? In front of a judge and a jury?

If the answer is “no,” then you move on to the next name on your list. Wouldn’t that work?

How about ‘extreme vetting’ of judicial nominees?

Donald John Trump wants to employ “extreme vetting” of immigrants seeking entry into the United States of America.

Fine, but how about vetting nominees to the federal bench, Mr. President? I mean, at least a cursory vetting might enable the president to nominate men and women who know certain basics about the law.

Matthew Peterson sat before the U.S. Senate Judiciary Committee this week and managed to utterly fluff simple questions about how he would apply certain legal tenets. He has been nominated to a spot on the U.S. Circuit Court in the District of Columbia.

He, um, didn’t do well at his hearing.

Check it out here.

Peterson has never tried a case. Senators asked him about his criminal law trial experience. None. His civil trial experience. None.

The video of Peterson stumbling and bumbling his way through the excruciating committee interview has gone viral, which is a rarity in itself, given that judicial nominee hearings usually aren’t the stuff of social media tittering.

The president has boasted of his administration running like a “fine-tuned machine.” Mr. President, a fine-tuned machine wouldn’t present judicial candidates who cannot answer basic questions from the men and women who must approve these nominations.

Mr. AG, Hawaii isn’t just an ‘island in the Pacific’

U.S. Attorney General Jeff Sessions said this on a radio talk show: “I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power.”

Hmm. An island in the Pacific? Was it, oh, Fiji? Palau? Tahiti?

Oh, no. The “island in the Pacific” is Hawaii, one of the 50 United States of America. Hawaii is governed by the very same federal government as all the rest of the states.

The object of the attorney general’s criticism, though, is a federal judge — a Hawaii native — who ruled against Donald J. Trump’s second travel ban that bars Muslims from several countries from entering the United States. The ruling came from U.S. District Judge Derrick Watson, who happens to live in Honolulu, Hawaii, U.S.A.

Sessions blows that dog whistle

Hawaii’s two U.S. senators have reacted strongly to Sessions’ statement, made on talk show host Mark Levin’s program. The Huffington Post reported: “Sen. Mazie Hirono likened his remarks about Watson to ‘dog whistle politics.’” That identifies the kind of coded remarks meant to appeal mainly to certain segments of the population. Republicans and Democrats both have their “bases” that respond instinctively to certain political “dog whistles.”

The Huffington Post also reported: “In a statement later Thursday, Hirono, who sits on the Senate Judiciary Committee that vets and confirms federal judges, called Sessions’ suggestion that Watson is somehow unable to carry out his duties impartially ‘dangerous, ignorant, and prejudiced.’

“’I am frankly dumbfounded that our nation’s top lawyer would attack our independent judiciary,’ she said. ‘But we shouldn’t be surprised. This is just the latest in the Trump Administration’s attacks against the very tenets of our Constitution and democracy.’”

I feel the need to stipulate once again: Hawaii isn’t some remote outpost. Judge Watson adheres to the same oath that the attorney general himself took when he joined the Justice Department.

These attacks on the “independent judiciary” have to stop.


Democrats sharpening their long knives

U.S. Senate Judiciary Committee Democrats are making it plain: They don’t want Judge Neil Gorsuch to take a seat on the U.S. Supreme Court.

Oh, my.

What these folks do not seem to understand — or choose to ignore — is this simple point: Judge Gorsuch’s confirmation to the nation’s highest court will not tilt the court’s ideological balance one tiny bit from where it was when the late Antonin Scalia served on it.

Not one bit. Not one iota.

Scalia, who died a year ago, was a conservative jurist, and an iconic one at that. Gorsuch is a conservative jurist. Yet we hear Democrats, such as Sen. Richard Blumenthal of Connecticut, declare his intention to all he can to block Gorsuch’s confirmation; that includes a “filibuster,” Blumenthal said.

Give me a break, man!

This fight is unwinnable. Gorsuch will need 60 votes in the Senate to be confirmed; if it appears he’ll fall short of the magic number, Senate Majority Leader Mitch McConnell, a Republican, will change the rules to allow a simple majority to confirm Judge Gorsuch.

So, what’s the big deal? Gorsuch at worst will mirror Justice Scalia’s view of the U.S. Constitution.

Democrats need to sharpen their long knives — and then put them back in their scabbards and save them for when it really matters.

Such as when a liberal justice leaves the court. That’s when the court’s ideological balance becomes the defining issue.

Not this time.

Big week awaits the president

Donald “Smart Person” Trump is going to have a big week.

Part of it might bode well for the president. The rest of it, well, possibly not so well.

* Neil Gorsuch takes the stand this coming week as the Senate Judiciary Committee grills him on why he should take a seat on the U.S. Supreme Court.

Gorsuch is Trump’s choice to fill the seat vacated by the sudden death of conservative icon Justice Antonin Scalia — more than a year ago! The seat should have been filled by President Obama, who picked Merrick Garland, but the Republicans who control the Senate stonewalled the president and blocked Garland’s confirmation.

Now we have Gorsuch. He’s a solid jurist. He’s a bit too conservative for my taste, but hey, Trump’s the president, not me. He gets to pick someone for the high court. The American Bar Association has declared Gorsuch to be “well qualified.”

* Then we get to hear from FBI Director James Comey, who’s going to have a thing or three to say about wiretapping and whether Trump has the goods on whether President Obama ordered the bugging of Trump’s offices in New York.

Comey has hinted broadly that Trump has fabricated the assertion that Obama committed a felony, which to my way of thinking is a defamatory accusation. Senators will get to grill Comey heavily on all of that.

It’s ironic in the extreme that Comey would turn on Trump, given the manner in which he torpedoed Hillary Clinton’s presidential campaign 11 days prior to Election Day with that letter to Congress announcing he was taking a fresh look at those “damn e-mails” that dogged Hillary’s campaign from its outset. Trump was ecstatic about the disclosure of the letter and just couldn’t say enough positive things about the FBI director.

I wonder what he’s going to say if and/or when Comey debunks this ridiculous notion that President Obama bugged Trump Tower.

Let’s all stay tuned. Get the popcorn ready.

Get ready for hot seat, Mr. Deputy AG-designate

Rod Rosenstein.

That name, right there, well might become the most-watched in Washington, D.C., behind — quite naturally — the name of the president of the United States.

Rosenstein has been picked by Donald J. Trump to become the deputy U.S. attorney general.

Why is this fellow so important right now? Because his boss, Attorney General Jeff Sessions, has recused himself from anything to do with an investigation into whether Trump was too cozy with Russian government officials. That means Rosenstein, by all accounts a hard-nosed prosecutor, will get to decide whether to appoint a special prosecutor to investigate the Trump-Russia matter.

Rosenstein’s confirmation hearing focused almost exclusively on Sessions, Trump and the Russians. Senate Judiciary Committee Democrats sought to pin him down, trying to get him to commit to picking a special prosecutor. Rosenstein didn’t give that one up — to no one’s surprise.

Unlike Senate and House Republicans who say it’s “too early” to determine whether there’s a need for a special counsel, I happen to believe one should get the call. There needs to be a thorough investigation of what the president knew about the Russian effort to influence the 2016 presidential election, when he knew it, whether he colluded with the Russians. We also need to know whether Trump or someone from his campaign staff sought to renegotiate sanctions leveled against Russia by the Obama administration over the Russians’ meddling in our electoral process.

Rosenstein isn’t your ordinary, run-of-the-mill deputy AG. Folks in that job usually blend into the woodwork, never to be seen or heard from again once they take office.

Not this guy.

Assuming the Senate confirms him — and it should — Rosenstein is about to settle into one of the hottest seats in Washington.

Do the right thing, sir. Pick that special counsel.

Sessions needs to talk once more to Senate Judiciary panel

That’s it? The U.S. attorney general won’t have to testify any more to the Senate Judiciary Committee?

That’s the decision of Committee Chairman Charles Grassley, R-Iowa, who said he has no plans to call AG Jeff Sessions back to Capitol Hill to explain himself.

It seems to me that the attorney general has some serious ‘splainin to do.

He told Judiciary Committee members during his confirmation hearing that he didn’t have any meetings with Russian government officials. Then, later, he thought differently about it said, yep, he did talk to the Russian ambassador to the United States.

This ought to be fleshed out a little bit.

What did he discuss? Did he talk to him about big things, such as, oh, whether the Russians were trying to influence the presidential election? Or how about whether the incoming Donald J. Trump administration would take back the sanctions that the Obama administration had leveled against the Russians for — that’s right — trying to influence the election.

Or … maybe it was just a casual conversation. “How’s the weather in Moscow in these days, Mr. Ambassador?”

Sen. Al Franken, a Minnesota Democrat and one of the Judiciary panel members, wants Sessions to come back to The Hill to testify.

I think he should, too. Chairman Grassley surely cannot believe he’s heard all there is to hear from the attorney general.

Imagine this breakfast chit-chat


U.S. Senate Judiciary Committee Chairman Chuck Grassley is going to have breakfast next Tuesday with Merrick Garland.

Yep, he’s going to break bread with the Supreme Court nominee whose nomination he intends to block.

I’m trying to imagine how this conversation will proceed. Here’s what I have come up with:

Grassley: Welcome, Judge. I’m glad you could find time to meet me for breakfast.

Garland: Thank you, Mr. Chair …

Grassley: Oh, call me Chuck.

Garland: Sure thing … Chuck. (laughter)

Grassley: Let’s get down to brass tacks. I don’t think the committee I chair should consider your nomination. In fact, I’m on board as saying that the next president should make the nomination. The current president is a lame duck, you know. This election could change everything.

Garland: I get that. But why are we meeting? I’ve read the papers. I know what you’ve said.

Grassley: I just wanted to get together so I could explain in detail …

Garland: Detail? What detail? You don’t support President Obama. You’ve never supported him. Look, he sought to pick someone who wouldn’t rock the court. He looked for a moderate judge. He found one. Me. My time on the D.C. Circuit Court has been the model of moderation.

Grassley: But the Supreme Court balance is, well, in the balance. Antonin Scalia was a stalwart conservative justice. We need to maintain that balance on the court.

Garland: Why the need? Didn’t a majority of voters re-elect Obama three years ago? Didn’t they do so knowing full well what kind of judge he’d appoint if given the chance. I mourn Scalia’s death, too. He was a brilliant jurist. He had a seriously rigid point of view. But I’m no slouch, either. I just don’t lean nearly as far to the left as Scalia did to the right. He could have picked a flaming lefty activist. I’m neither a lefty or an activist.

Grassley: I get that, Judge. You do understand that we on the committee are politicians, correct? We’ve got political interests. I happen to like my job as a senator from Iowa. I’ve been doing it for some time. I’d like to keep doing it. We’ve got this faction within our party that won’t tolerate compromise. It won’t tolerate me or any other of my Republican ilk from compromising with those Democrats.

Garland: So, you’re not going to allow the president, who has another nine months in office, to fulfill his duty because you’re getting pressure from constituent groups and political action organizations?

Grassley: I wouldn’t put it quite that way.

Garland: But that’s what it sounds like to me. You know what? I just lost my appetite. Thanks for the invitation, Chuck.

Grassley: Uh, judge? On second thought, you now may call me “Mr. Chairman.”



If only the VP hadn’t said what he said …


Vice President Joe Biden delivered a stern message today to some university students and faculty members

about the obstruction occurring in the U.S. Senate.

It’s threatening the core of our republic, he said. Senate Republicans must not obstruct President Obama’s effort to fill a Supreme Court vacancy; they must allow nominee Merrick Garland to have a hearing, then they must debate the merits of his nomination and they must then vote on it.

True enough, Mr. Vice President.

But what about those remarks you made in 1992 about whether President George H.W. Bush should be able to nominate someone to the high court in an election year? Today’s Republicans are seeking to block Obama’s pick because this, too, is an election year and they want the next president to make the selection.

The GOP has beaten the vice president over his remarks then.

What they don’t say is that Biden also declared that he would support a “consensus candidate” in an election if one were to be presented to the Senate Judiciary Committee, which Biden chaired at the time.

Biden told the Georgetown law students and faculty members: “Dysfunction and partisanship are bad enough on Capitol Hill. But we can’t let the Senate spread that dysfunction to another branch of government, to the Supreme Court of the United States.”

It’s fascinating to me that then-Sen. Biden’s remarks now have become known as the “Biden Rule,” which has never existed.

I won’t defend Biden for making his remarks in 1992. He was wrong to suggest that a sitting president shouldn’t be allowed to perform his job if he had been given the chance to do so. President Bush did select a Supreme Court justice in 1991, when he nominated Clarence Thomas to take the seat vacated by the death of Thurgood Marshall.

However, I won’t condemn Biden for holding that view. He did, after all, add the caveat that he would support a consensus candidate for the Supreme Court.

The here and now stands on its own.

The vice president is correct to insist that today’s Senate should stop its obstruction and allow the president to fulfill his constitutional duty — and do its own duty to give an eminently qualified nominee the fair hearing he deserves.