Tag Archives: federal judiciary

Get set to watch further politicization of federal judiciary

June 25, 2017 kanelis2012

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.

International news

More ‘so-called judges’ deal blow to travel ban

May 28, 2017 kanelis2012

Donald J. Trump stepped into a serious political minefield when he labeled a federal jurist who disagreed with his ban on Muslims entering this country a “so-called judge.”

Mr. President, here’s a flash. More of those “so-called” judges have joined in rejecting your revised travel ban.

http://thehill.com/regulation/335359-trump-travel-ban-on-shaky-ground

The latest rejection comes from the 4th U.S. Circuit Court of Appeals, based in Virginia. The court ruled that the president’s second travel ban is as discriminatory against a certain religion as the first ban. The judges scolded him, too, for seeking to pursue a policy they deem to be unconstitutional.

It doesn’t look good for Trump’s effort to ban entry into this country to those who practice a certain religious faith. The 9th Court of Appeals is set to hear another case that was struck down by a federal judge in Hawaii; the 9th Court had rejected the first ban initially.

The case is likely to end up in the U.S. Supreme Court’s lap. Indeed, the nine men and women on the nation’s highest court well might decide against even hearing the case, which would let the lower-court rulings stand.

We are witnessing from the front row an exercise in the checks-and-balances that the nation’s founders intended in the 18th century when they drafted the U.S. Constitution.

They did well. Don’t you think?

national news, political news

‘I, alone … ‘ should have been given us a clue

May 23, 2017 kanelis2012 1 Comment

Donald J. Trump’s time as president has lasted all of about 122 days — give or take — yet it seems like forever already.

As I look back on this man’s stunning political ascent, I am struck by one moment that I believe in hindsight should have given us a clue on what we might expect.

He stood before the Republican National Convention this past summer in Cleveland and declared that “I, alone” can repair all the things he said are ailing the country.

Setting aside for a moment or two the myriad problems that are bedeviling this man and his administration — and which might cost him his office — that particular statement suggested to me at that moment that this fellow really doesn’t get it.

He doesn’t understand one of the principal tenets of governing, which is that he is participating in a team sport. It’s so critical to understand that notion at the federal level, where the founders established a triple-layered governmental system where one branch holds no more power than the other two.

The presidency is but one branch; it must work in tandem with the Congress. Waiting in the wings to ensure that the executive and legislative branches don’t violate the Constitution are the federal courts, comprising actual judges, not the “so-called” types who render decisions that might go against whatever the president wants to do.

Donald Trump ignores political decorum, custom and practice. As some have noted, he does so either out of ignorance or does so willfully. I’ll take Trump at his word that he is a “smart person,” which means he is invoking a willful disregard for how the federal government is supposed to work.

The concept of governing by oneself does not work. It cannot work. The president is getting a real-time civics lesson in how the nation’s founders established this government of ours. He has vowed to run the country like his business. Yeah, good luck with that.

A business mogul can fire people at will. He can order underlings around, make them do this or that task. He can threaten, bully and coerce others.

When he takes the reins of the executive branch of the federal government, all of that prior experience gets thrown out the window.

How does the president tell Congress — comprising 535 individuals with constituencies and power bases of their own — to do his bidding? And how does the president actually defy the federal judiciary, which the founders established to be an independent check on every single thing the president and Congress enact?

Yes, the Republican Party’s presidential nominee gave it all away when he stood there in Cleveland and bellowed “I, alone” can fix it.

No, Mr. President. You cannot. Nor should you have ever tried.

Moreover, I believe his repeated efforts to trample over Congress and the federal courts are going to bite him hard in the backside as he seeks to defend himself against the other troubles that are threatening him.

legal news

Break up the 9th U.S. Circuit? C’mon, get real

April 30, 2017 kanelis2012

Donald J. Trump keeps ratcheting up his open combat with the federal judicial system.

The president wants to break up the 9th U.S. Circuit Court of Appeals because — doggone it, anyway! — the judges keep issuing rulings with which he disagrees.

Poor guy. That’s how it goes sometimes, Mr. President.

The 9th Circuit has ruled against the president’s ban on refugees seeking entry into this country from majority-Muslim countries. That just won’t stand in Trump’s world. So his solution is to dismember the court, which is based in San Francisco and is considered to be arguably the most liberal appellate court in the federal judicial network.

He said lawyers shop for friendly judicial venues and the president believes the 9th Circuit is a favorite forum to hear cases pitting the federal government against anyone else.

Give me a break.

Conservative courts have ruled against liberal presidents. Indeed, liberal courts have ruled against conservative presidents as well. Have presidents of either stripe been so thin-skinned that they’ve sought to break up an appellate court? Not until this one took office.

Leave the court alone, Mr. President.

A better option for the president would be to craft laws that can withstand judicial challenge. Federal judges in Hawaii, Washington state and Maryland all have found sufficient fault with the Trump administration’s effort to ban refugees to rule against them. Appellate judges have upheld the lower court rulings.

In a strange way this kind of reminds me of when President Franklin Roosevelt sought to tinker with the federal judiciary by “packing” the U.S. Supreme Court with justices more to his liking; he sought to expand the number of justices on the nation’s highest court. He didn’t succeed — thank goodness.

To be sure, Trump isn’t the only recent president to bully the federal judiciary. Barack Obama called out the Supreme Court while delivering a State of the Union speech in 2010 over its Citizens United ruling that allowed unlimited political contributions by corporations. The president was wrong to do so — in that venue — with the justices sitting directly in front of him.

The nation’s founders sought to establish an independent federal judiciary that ostensibly should be immune from political pressure. The president is seeking to bully the court system through a number of methods: He calls out judges individually and criticizes the courts’ decisions openly and with extreme harshness.

The 9th U.S. Circuit Court of Appeals needs to remain intact and the president needs to live with the consequences of how it interprets the U.S. Constitution.

national news, political news

What has the president learned in 100 days?

April 27, 2017 kanelis2012

Let’s turn away for a moment from what Donald Trump might have accomplished during his first 100 days as president to what he might have learned during that time.

The president’s list of accomplishments is pretty damn skimpy.

His learning curve, though, has been steep. I hope it’s beginning to flatten out.

What’s the most glaring eye-opener for the president? It’s that you cannot run the federal government the way you run a business.

At virtually every turn along the way since taking office, the president has been forced to swallow that bitter pill. A man who became used to getting his way because he demands it has learned that the federal government is structured — on purpose — to function on an entirely different set of dynamics.

The nation’s founders crafted a brilliant governing document. When you think about it, while the U.S. Constitution grants the president significant executive authority, it does not imbue the office with ultimate governing authority. The founders divvied up power among three branches of government: executive, legislative and judicial.

It’s that darn legislative branch — the U.S. Congress — that has a say in what becomes law. Donald Trump’s business experience doesn’t mean squat to many of the 535 men and women who comprise both chambers of Congress. They, too, have their constituencies to which they must answer. Yes, the president represents the nation, but Congress — as a body — also represents the very same nation.

Can you govern the nation like a business? No. Never. Not a zillion years.

Trump needs to understand that governance is a team sport. He cannot threaten members of Congress if they resist his legislative proposals. He cannot exclude members of the “other” party from key negotiations. He must abandon the “I, alone” mantra — which he bellowed at the Republican National Convention this past summer — that threatens to haunt him for as long as he is president.

And then there’s the judicial branch. The federal judiciary comprises individuals who hold lifetime appointed jobs. Their mission is to ensure that laws do not violate the Constitution. The founders granted them independence from the executive and legislative government branches.

Those judges have the constitutional authority to knock down executive orders, or to put the brakes on laws enacted by Congress. They aren’t “so-called judges” whose status as “unelected” jurists doesn’t diminish their authority.

I hope the president has learned at least some elements of all this during his first 100 days. If he doesn’t, then we’re all going to be in for an extremely rough ride.

However, we’re all just spectators. The president will need to hold on with both hands if he has any chance of getting anything done during his time in office.

We are witnessing the consequence of electing someone with zero public service experience. Mr. President, the federal government bears no resemblance — none! — to the businesses you built.

legal news, national news, political news

No intention to lecture AG about the law, but really …

April 23, 2017 kanelis2012

I am acutely aware that Jefferson Beauregard Sessions is an educated man.

He went to law school; passed the Alabama state bar; served as a federal prosecutor; tried to become a federal judge in the 1980s, but was rejected by the U.S. Senate because of some things he reportedly said about black people; then he was elected to the Senate.

He now serves as U.S. attorney general, thanks to an appointment by Donald John Trump.

There. Having stipulated all of that, I need to remind the attorney general that he should not disrespect the tenet of judicial review that the nation’s founders established when they formed our republic more than two centuries ago.

I say this with no desire to lecture the AG about the law, or the U.S. Constitution.

However, when he pops off about a federal judge sitting on the bench “on an island in the Pacific,” he has disrespected one of the basic frameworks set aside by those founders.

The judge presides over a federal court in Hawaii, one of the nation’s 50 states. U.S. District Judge Derrick Watson ruled against Trump’s temporary travel ban on constitutional grounds. The travel ban is now heading to the 9th Circuit Court of Appeals.

You’ll recall, too, that the president himself referred to another federal jurist in Washington state as a “so-called judge” when he struck down an earlier travel ban involving refugees from seven Muslim-majority countries. Trump might need a lecture about the Constitution and the separation of powers written into it; he might need to be told about how the founders intended for the judiciary to be independent of political pressure. Given that Trump had zero government experience prior to becoming — gulp! — president, he might be unaware of the not-so-fine print written in the Constitution.

The attorney general should know better than to disparage a federal judge in the manner that he did.

An island in the Pacific? C’mon, Mr. Attorney General.

Suck it up. Let the courts do their job. Sure, you are entitled to challenge court decisions’ legality. However, let’s stop the petulant put-downs.

Same thing goes for you, too, Mr. President.

International news

Hey … what happened to the Russian hacking story?

February 11, 2017 kanelis2012

Events often overtake other events. News gets shoved aside when events bury them.

Such appears to be the case with the Russian hacking controversy.

Remember that one?

Donald J. Trump got elected president of the United States amid reports/rumors/allegations that Russian government computer geeks hacked into our electoral system in an attempt to aid Trump’s campaign.

The president has dismissed any kind of link. He has disparaged our intelligence agencies, which have concluded that the Russians played a role in hacking into our electoral process.

Isn’t it a big deal to have a foreign power — Russia, no less! — involved in such activity?

Well, it turns out that Trump has a way of changing the subject: executive order banning travel into the country from several Muslim-majority nations; strange confirmations of Cabinet officials; questions about his daughter’s line of clothing; his continual tweets criticizing federal judges; a Supreme Court nominee telling senators the president’s tweets are “disheartening” and “demoralizing.”

All the while, the Russian hacking story has been tossed aside. It’s been pushed to the back of the bottom shelf, way behind the other stuff.

We still need some definitive answers about the Russians supposedly did and how they might have affected the outcome of the 2016 U.S. presidential election.

national news

President gets real-time lesson on government limits

February 10, 2017 kanelis2012

Donald Trump had zero government experience when he became president of the United States.

He seemed to think he could step into the presidency, assume the role of CEO and everyone would do his bidding.

He is now finding out that it doesn’t work quite that way. He is learning in real time that the founders established a government that limits presidential power. They created a government that allows two other branches to rein in an executive branch that could overstep its authority.

Congress is controlled by men and women who belong to the same political party as the president. Thus, the legislative branch might roll over. This leaves the final check to the judicial branch, which is flexing its muscles in this struggle over Trump’s executive order that restricts travel to the United States from those who hail from seven Muslim-majority nations.

The struggle now seems headed to the Supreme Court. The nation’s highest court likely will get to decide whether to uphold two lower-court rulings that have stalled the execution of Trump’s executive order.

If the Supremes uphold the earlier rulings — either with an actual ruling or a tie vote created by the unfilled vacancy — then the president will have to consider another way to “make America safe again.”

Perhaps the next tactic he employs will be considered more carefully and executed with more thought than the cluster-fudge he rolled out with this refugee ban.

Will any of this humble the president? Will it give him pause to consider his next action? Probably not, but it still gives me some comfort to know that the founders knew how to create a government that works.

And just for the record, if the Supreme Court rules in Trump’s favor and overrules the lower courts, then I’ll consider that — as well — to be a demonstration of a functioning federal government.

However, my concern were that to occur would be that it would embolden a president to misread the limitations on power that the founders wrote into the framework that built this nation.

legal news

Founders got it right, as Trump is demonstrating

February 8, 2017 kanelis2012

Benjamin Franklin, Thomas Jefferson, John Adams, James Madison … wherever they are, must be enjoying what they are witnessing in the country they helped create.

They are possibly witnessing a supreme test of checks and balances as they intended for them to be used.

Donald J. Trump, the nation’s 45th president, is setting up a yuuuge fight with the federal judiciary. That would pit two of the three co-equal branches of government against each other.

Trump issued an executive order that bans refugees from seven Muslim-majority countries. He cited national security as his reason. He seemingly wants to ban Muslims from entering the country and is using “extreme vetting” procedures to find the bad guys among the refugees who are fleeing their native lands for the Land of Opportunity and Freedom.

A federal judge has ruled that the executive order is discriminatory on its face. A federal appeals court is considering whether to uphold the ban or side with the judge.

Trump, meanwhile, is embarking on a social media campaign to blast the judge who issued the order staying the president’s order, thus possibly enraging other federal judges — namely the eight individuals who sit on the U.S. Supreme Court who might be asked to issue the final ruling on the president’s order.

Thus, a showdown may be born.

The founders established an “independent judiciary” for the best reason possible: to protect federal judges from political coercion. They serve as judges for life. They are supposed to interpret the U.S. Constitution without pressure or coercion from politicians.

But wait! Trump is seeking to apply that very pressure by badgering the judges. He called the federal jurist who struck down the ban a “so-called judge”; he said the nation should “blame” him and the federal court system if a bad guy sneaks into the nation.

Trump is using Twitter to make his specious case against the federal judiciary.

All the while, the founders are looking down while patting each other on the back. “Yep,” they might say to each other, “this is precisely what we had in mind.”

High Plains Blogger