Category Archives: legal news

Litmus tests: virtually unprovable

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President Obama has a big decision to make.

Who’s going to become the next nominee to the U.S. Supreme Court?

Now comes the inevitable question: Uh, Mr. President, do you have a litmus test that a nominee must pass?

Gee, how does the president answer that one? “Of course not! I don’t believe in litmus tests. My nominee will be the most qualified person I can find. He or she must be able to interpret law, not make it, and they must be studious as they ponder the constitutional decisions he or she must face.”

Actually, it is my considered opinion that answers like that are full of so much mule dung.

Of course there are litmus tests! The issue facing the politicians doing the appointing is that they dare not call them such.

Does anyone in their right mind believe that when, say, a president of the United States looks across a conference-room table at a prospective nominee that he or she doesn’t ask them The Question?

In a case such as this it might be: “Would you vote to uphold the Roe v. Wade abortion decision?” Or, “would you stand behind the Affordable Care Act?” How about, “would you continue to uphold the ruling that gay couples are guaranteed under the 14th Amendment to the Constitution to be married?”

Do presidents ask those questions? Sure they do. You know it. I know. The presidents know it. The people they interview know it.

Let’s not be coy, either. Presidents of both parties ask them in search of the correct answer. Does anyone really believe, for instance, that President Reagan didn’t at least know in advance how Antonin Scalia would lean on, say, the Roe v. Wade decision when he considered him for a spot on the court? Do you think he might have asked him directly? I believe it would have been a distinct possibility.

Are all these meetings open to public review? Are they recorded for posterity? No and no.

That’s why the “litmus question” is a monumental waste of time. The answers mean nothing to me.

If only presidents would be candid. “Sure, I have tests that candidates must meet. Hey, I was elected to this office and most voters who cast their ballots for me knew what they were getting. Elections have consequences.”

 

Timing determines ‘lame duck’ status

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I’ve noted before the importance of timing.

Perhaps it might have something — or everything — to do with the kerfuffle that’s consumed Washington, D.C., over President Obama’s upcoming attempt to fill a critical vacancy on the U.S. Supreme Court.

Justice Antonin Scalia’s untimely death created a political earthquake within minutes of the announcement that he had succumbed at a West Texas ranch. U.S. Senate Majority Leader Mitch McConnell, master of proper decorum that he is, declared about an hour later that the Senate would block any nominee that Obama would present for confirmation.

Other Republicans, namely the candidates for president, called Obama a “lame duck” and said the task of filling the vacancy belongs to the next president — who he or she is.

A reader of this blog commented on an earlier post that the president really isn’t a lame duck. He didn’t lose re-election in 2012, the commenter noted. Given that he won, he implied, the president is entitled to fulfill all the duties granted to his office by the U.S. Constitution.

Which brings up a question: Would we be waging this political fire fight had Justice Scalia died during the first year of President Obama’s second — and final — term rather than in the final year?

Surely the president’s foes wouldn’t suggest in early 2013 that filling a critical vacancy on the court — the next pick, after all, is likely to change the philosophical balance — should belong to the next president. The court would be short a justice for the next three years … maybe longer.

As it stands now, if McConnell and Gang succeed in blocking the president’s choice for the high court, the Supreme Court could be short a member until next summer. The court adjourns in June and won’t resume its duties until October 2017.

Hey, what difference does it make, correct? So what if the narrowly conservative court is short a member for the next 18 months?

McConnell showed his hand very early during Barack Obama’s time as president. He vowed to make Obama a “one-term president.” That, he said, would be his top priority as then-minority leader.

He failed to accomplish that mission, so he’s settling for the next-best thing by denying the president the opportunity to ensure the nation’s highest judicial panel remains whole.

Timing. Sometimes it really stinks.

Justice Sandoval, anyone?

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You’ve got to hand it to the White House media machine.

It puts out a report that has Washington all a-flutter, even if it appears to be the longest of long shots.

Or is it?

Nevada Gov. Brian Sandoval is being considered for that coveted spot on the U.S. Supreme Court.

Two things about Sandoval make this a remarkable consideration.

One: He is a former U.S. district judge whom the Senate confirmed overwhelmingly.

Two: He is a Republican.

Sandoval being vetted

It’s the second part of Sandoval’s resume that is most intriguing.

GOP senators, led by Majority Leader Mitch McConnell, have said they won’t consider anyone for the spot that President Obama wants to fill to replace the late Justice Antonin Scalia.

But are they really and truly going to slam the door shut on one of their own Republicans, someone they’ve endorsed already for a lower court post?

Sandoval is reportedly a moderate Republican. That, of course, doesn’t fit the profile desired by so many of the hard-right senators who will have to vote on whomever the president selects.

The chatter already has suggested that the president is going to nominate a centrist. He’ll forgo an ideological battle in order to get someone seated.

Gov. Sandoval is a long way from being nominated, let alone being considered for the job.

It makes me wonder: Is the president trying to stick it in the ear of the folks with whom he’s been fighting throughout his entire presidency?

 

 

 

Politics keeps coming around

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Rick Perry quite famously — at least was in Texas — declared that a Travis County grand jury indicted him only for political reasons.

The former governor faced charges of abuse of power and coercion of a public official after a Travis County jury charged him with those two felonies.

Perry would have none of it. He blamed it on Travis County Democrats who comprise the bulk of the voting population in the county where the state’s capital city of Austin is located.

Hey, he had demanded that the district attorney, also a Democrat, resign after she got caught driving drunk. Rosemary Lehmberg didn’t quit. So Perry vetoed money appropriated for her office to run the Public Integrity Unit.

Politics, politics, politics.

So, Perry played the politics game while condemning the indictments that came down.

What happened next might deserve a bit of scrutiny.

The Texas Court of Criminal Appeals today dismissed the remaining indictment against Perry, the one accusing him of abuse of power. He acted within the law when he vetoed the money for the DA’s office, the court said.

Did politics determine that decision? Well, I don’t know.

The state’s highest criminal appellate court comprises all Republicans. The same party to which Perry belongs.

Was the CCA decision to dismiss the indictment as politically motivated as the grand jury’s decision to indict the governor?

Perry said so when the grand jury returned the indictment. He’s not going to say the same thing about his political brethren on the state’s top criminal court.

Still, isn’t it a question worth pondering?

 

 

Respect this opinion … while disagreeing with it

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Rick Perry is free at last!

Free of the indictment that he said was politically motivated. Free of the cloud that threatened to rain buckets of trouble all over him. Free of the snickering from his foes.

The Texas Court of Criminal Appeals, the state’s highest criminal appellate court, has dismissed the indictment that charged the former governor with abuse of power. A lower court had tossed out another indictment that charged Perry with coercion of a public official.

This is one of the decisions that one can respect while disagreeing with the findings.

Texas Tribune story.

The system did its job.

A Travis County grand jury indicted Perry on charges of abuse of power over his veto of money for the Public Integrity Unit run out of the Travis County district attorney’s office. The DA, Rosemary Lehmberg, had pleaded guilty to drunken driving and served some time in jail. Perry said she should resign and if she didn’t he would veto money for the Public Integrity Unit, which is charged with investigating wrongdoing among public officials.

Lehmberg should have quit. But she didn’t. So Perry followed through on his threat and vetoed the money. I must add here that Lehmberg is a Democrat, while Perry is a Republican.

So, the grand jury indicted him — while Perry was finishing up his stint as governor and preparing to run for president of the United States. Perry accused the grand jury of playing politics. Travis County is a Democratic bastion; Perry, of course, is a Republican. I’ll point out, too, that the special prosecutor who presented the case to the grand jury also is a Republican.

I actually thought the lesser of the charges — the coercion part — had more staying power. Silly me. I didn’t expect a lower court to toss that one first.

I never liked the idea of a governor telling an elected county official to quit. That wasn’t his call to make, given that the district attorney is answerable only to the people who elected her. Gov. Perry tried to bully Lehmberg into doing his bidding and that — to my way of thinking — is fundamentally wrong.

As for the veto itself, the governor could have — should have — simply vetoed the money appropriated for the integrity unit without the fanfare he attached to it. That’s not the Perry modus operandi, however. He sought to make a show of it, which also is wrong — but not illegal, according to the Court of Criminal Appeals.

As for the politics of this case … if the governor alleged that the grand jury indictment was motivated by politics because Travis County comprises mostly Democrats, is it fair to wonder whether the top appellate court dismissal occurred because all its members are Republicans?

Hey, I’m just thinking out loud.

So, the case is over.

Now we can all turn our attention to the Greatest Show on Earth, which would be the Republican Party presidential primary campaign. Let’s bring out the clowns!

Oh, that silly thing called ‘public comment’

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A member of my family challenged me earlier today to recall a statement from a politician that seemed to contradict what President Obama has said about his upcoming nomination for someone to serve on the U.S. Supreme Court.

The president wants the Republican-controlled Senate to give the nominee a fair and thorough hearing and then a vote in a “timely fashion.” Democrats are angry that GOP senators are pledging that whoever gets the nod won’t get a committee hearing, let alone a vote.

One of those angry Democrats is Vice President Joe Biden.

Oh, but wait. He said something different in 1992 when a Republican was president. Then-Sen. Biden said President George H.W. Bush shouldn’t get a Supreme Court nominee approved in an election year.

My family member brought that statement to my attention and asked me whether I opposed it then.

My answer? I couldn’t remember the statement, let alone what I thought about it at the time.

White House defends Biden

The vice president has said that the statement has been “taken out of context.” Biden says that he added later in his Senate floor remarks that he’d consider a nominee if he or she were a moderate; Biden chaired the Senate Judiciary Committee at the time.

I, too, believe the Senate should consider a presidential appointment to the Supreme Court to fill the vacancy created by the death of Justice Antonin Scalia.

Which brings me back to where we started.

We hear so many things through so many channels, venues, forums and information-delivery systems that most of us can’t remember who said what, when they said it and in what context they said it.

If I’d heard it at the time I likely would have condemned it. However, that’s a hypothetical event, which politicians say they dislike. I’ll concede that I probably didn’t hear Sen. Biden say what he’s now acknowledged he said.

Sure, Biden would be wrong — if he favored obstructing future high court nominations and left it at that. He says now he had more to say than what’s being reported.

Fine …

None of this justifies today’s Senate leadership vow to obstruct the current president from filling a seat on the Supreme Court.

Americans have already decided who gets to choose

Senate Majority Leader Mitch McConnell, R-Ky., center, is joined by, from right to left, Majority Whip John Cornyn, R-Texas, Sen. John Thune, R-S.D., Sen. John Barrasso, R-Wyo., and Sen. Roger Wicker, R-Miss., as he speaks with reporters following a closed-door policy meeting on Capitol Hill in Washington, Tuesday, Feb. 23, 2016. The Senate will take no action on anyone President Barack Obama nominates to fill the Supreme Court vacancy, Senator McConnell said as nearly all Republicans rallied behind his calls to leave the seat vacant for the next president to fill. His announcement came after Republicans on the Senate Judiciary Committee ruled out any hearing for an Obama pick. (AP Photo/J. Scott Applewhite)

What part of the American electoral process don’t U.S. Senate Republican leaders understand?

Majority Leader Mitch McConnell said “the American people should decide” who gets to make the next appointment to the Supreme Court.

Texas Sen. John Cornyn of Texas, a member of the Senate Judiciary Committee, has echoed that sentiment.

McConnell said the Judiciary Committee will not conduct any hearings to decide whether to confirm whomever the president nominates. It’s malarkey, man.

OK, this isn’t an original thought, but it’s the best one I can come up with.

Americans already have decided who gets to fill the vacancy created by the sudden death of Justice Antonin Scalia. They decided it in two presidential elections.

Barack H. Obama won them both. He won the 2008 election by nearly 10 million votes; he was re-elected in 2012 by nearly 5 million votes.

Both times the young man gave every indication he would find someone to sit on the court with whom he — as a progressive Democrat — was ideologically comfortable. Two of his picks, Sonia Sotomayor and Elena Kagan — already have taken their seats on the court.

He gets to nominate a third individual to succeed Justice Scalia.

Yeah, he’s a “lame duck.” What difference does it make? None. He’s still the president. The Senate is still functioning.

So … let the president propose and let the Senate dispose.

Senators can stop hiding behind the cheap canard that the “American people” deserve a voice.

The people’s voice has been heard. Twice!

Act on the president’s court nominee

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I remain strongly in support of presidential prerogative.

It’s been one of my core beliefs ever since I started thinking seriously about policy, politics and government.

When I read stories over the past few days about how Senate Republicans plan to block President Obama’s pick for the U.S. Supreme Court — before even knowing who it is — it sends me into deep orbit.

The GOP is digging in. So is the White House.

In my view, the president’s constitutional authority should override the Senate’s role in this decision.

I’ll reiterate here something I hope hasn’t been lost on those who read this blog. My belief in presidential prerogative crosses party lines. This isn’t a partisan issue with me.

In 1991, Republican President George H.W. Bush nominated Clarence Thomas to the high court to replace Justice Thurgood Marshall. I stood behind the president on that pick while working for a newspaper in Beaumont. Did the president overstate Thomas’s qualifications for the court by calling the “most qualified man” he could find? Yes, he did.

But that was his call to make. George H.W. Bush was our president, who had been elected decisively in 1988. He earned the right to select someone with whom he felt comfortable. As for the allegations of sexual harassment that arose late in the confirmation process, well, I didn’t buy entirely into what was being alleged.

Four years earlier, President Ronald Reagan selected Robert Bork to the court. Was he the kind of jurist I would have picked? Heavens no! But that wasn’t my call to make. It belonged to the president. The Senate saw it differently and rejected Bork’s nomination to the court — despite Bork’s well-known brilliance and knowledge of constitutional law — on grounds that he would fundamentally reshape the direction of the Constitution.

The process worked as it was intended, even though I believed then as well in the principle of presidential prerogative.

Barack Obama is equally entitled — just as any of his predecessors have been — to put someone forward to sit on the nation’s highest judicial authority. The death of conservative icon Antonin Scalia has shocked us all. The court won’t stop functioning with only eight justices.

The larger problem, though, might lie in the Senate, where Democrats are vowing revenge if Republicans follow through with their threat to block the president’s court nominee from even getting a hearing.

The Senate could shut down. Government could stop. The upper congressional chamber could become a logjam of legislation approved by the House, which cannot become law over a dispute that Senate Republicans will have started.

For what purpose? To deny the president of the “other party” a chance to fulfill his constitutional duty, to which a majority of Americans entrusted to him twice with their votes.

Republicans want to wait for the next president to take office. They are gambling that the 45th president will be one of their own. It’s a risky gamble, though, that threatens to stymie everything else that their own constituents elected them to do — which is to govern.

It’s all about the court balance

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President Obama picked up the phone today and made a couple of important calls.

One of them went to Senate Majority Leader Mitch McConnell; the other went to Senate Judiciary Committee Chairman Charles Grassley. Both men are Republicans. The president is a Democrat.

The president informed the senators he intends to make a pick for the U.S. Supreme Court. And, according to White House press secretary Josh Earnest, Sens. McConnell and Grassley both voted in favor of President Reagan’s “lame duck” selection of Anthony Kennedy to join the court in 1988, which was just as much of an election year as 2016.

McConnell, though, says the current president should notpick the next justice. That task belongs to the next president, he said.

What has changed?

It’s the balance of the court. It means everything. Every single thing.

You see, the late Justice Antonin Scalia, the man Obama wants to replace, was a conservative stalwart on the court. The president is not a conservative; therefore, his appointee won’t echo the judicial philosophy of Justice Scalia.

The next justice — if he or she is approved by the current Senate before the end of this year — is likely to change the fundamental balance of the court, which has comprised a thin conservative majority.

Senate Republicans don’t want the court balance to change. They’ll do whatever they can to prevent the president from making the pick.

There’s just this one little issue that, by my way of thinking, should matter more than anything else. The Constitution grants the president the authority to make the appointment, which this president said he’s going to do. It also grants the Senate the authority to vote whether to approve or deny the appointment. It doesn’t require the Senate to act.

If the Republican-controlled Senate is going to stymie the president, then it faces a serious charge of obstruction. Senate Republicans keep denying the obstructionist label.

A failure, though, to act in a timely fashion on this appointment gives even the casual observer ample cause to suggest that, by golly, we have just witnessed a case of political obstruction.

If the president selects someone who is eminently qualified and who has a proven record of judicial moderation — which conservatives still will see a serious break with the conservative judicial record built by the late Justice Scalia — then shouldn’t the Senate give that nominee a fair hearing and a timely vote?

I would say “yes.” Without equivocation.

 

Justice Biden? Maybe?

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I’ll toss a name out there for President Obama to consider for the vacancy on the U.S. Supreme Court.

Joseph Biden.

The vice president told Rachel Maddow last night that he has “no interest” in serving on the court. The MSNBC host had asked him directly if he’d consider the appointment if it were offered. He has “no interest.”

Is that a blanket, categorical refusal to serve? No. It isn’t. It means, more or less, the same thing as when a politician says he has “no intention of running” for a particular office.

“No intention” can be parsed to mean that “no intention … at this moment.” So, when a politician says he or she has “no interest” in a particular job, one can possibly suggest that the pol is speaking in the present tense.

Biden predicted that Obama will pick a centrist. He said the president won’t likely pick a flaming liberal jurist in the mold of William Brennan to fill the seat vacated by shocking death of archconservative Justice Antonin Scalia.

He’s also said that a nominee should have GOP support.

Hmmm. Let me think. Who might that be?

Oh, how about the vice president? He’s got many Republican friends in the Senate. He’s proven his ability to work well with GOP lawmakers. He once chaired the Senate Judiciary Committee.

My hunch is that he’d be more of a moderate than a flamer.

OK, he’s also pretty long in the tooth. He might not want to stay in the public eye. The vice president has had a long public service career — and he’s just lost his beloved son, Beau, to cancer. Not only that, the president has given him a task to lead the effort to find a cure for the killer disease.

However, as a fan of the vice president, I happen to think he might be one court candidate who could pass senatorial muster.