Tag Archives: US Supreme Court

Rethinking the notion of ‘presidential prerogative’

I long have believed in the concept of presidential prerogative, meaning that presidents have the right to appoint people to high office assuming those people are qualified to do the job to which they have been appointed.

U.S. Senate Majority Leader Mitch McConnell, however, has disabused me just a little bit from that long held belief.

McConnell ignored presidential prerogative in 2016 when he blocked President Obama’s nomination of Merrick Garland to the U.S. Supreme Court. There was a year left in Obama’s tenure as president; Antonin Scalia had died and Obama selected a true-blue moderate to the highest court in America.

McConnell blocked it. He said the Senate shouldn’t consider a Supreme Court nomination during an election year.

His obstructionism infuriated many Americans. Me included. I believed the president had the right to select whoever he wanted, given that he had been re-elected in 2012. I also have said the very same thing about presidents regardless of party over many years. You can look it up. Honest. I have.

Now, though, we have another president getting ready to select someone to succeed Justice Anthony Kennedy, who is retiring at the end of July. I normally would give Donald Trump the green light on this one. Except that McConnell laid down a rule that he forced the Senate to obey in 2016.

Two years later, doesn’t that rule still apply? Hey, what’s good enough then should be good enough now.

Do the people deserve to be heard this time?

U.S. Senate Majority Leader Mitch McConnell had this to say in February 2016 as it regarded President Barack Obama’s desire to nominate someone to replace the U.S. Supreme Court Justice  Antonin Scalia: The American people should have a voice in the selection of their next Supreme Court Justice.

Hmm. What do you think of that?

Here we are, in June 2018. The Supreme Court has just been opened up yet again. Justice Anthony Kennedy has announced his retirement. Sen. McConnell said he intends to push for a Senate vote by this fall.

Hey! Wait a minute!

We have an election coming up. One-third of the Senate, which must confirm the next appointee, is on the ballot. It could swing from narrow Republican control to Democratic control after the November midterm election.

Don’t the “American people” have the right to be heard in the selection of the next Supreme Court justice? Don’t they, Mr. Leader?

That was his bogus rationale in blocking Merrick Garland’s nomination from President Obama in 2016. The president had a year left in his tenure. We had a presidential election coming up later that year. McConnell said “no way” on the nomination. He blocked it. He obstructed the president. He then — in a shameful display of a lack of self-awareness — accused Democrats of “playing politics” when they insisted that the Senate hold confirmation hearings and then vote on Garland’s nomination.

If anyone “played politics” with that nomination, it was Mitch McConnell!

Now, the leader wants to fast-track the latest Supreme Court nomination on the eve of an equally important election that could determine the ideological and partisan balance in the body that must confirm this nomination.

Does this election count as much as the 2016 presidential election? Aren’t U.S. senators members of a “co-equal branch of government”? Or is the majority leader going to play politics yet again by ramrodding this nomination through — before the people have the chance to have their voices heard?

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.

It’s about her sexual orientation, period!

An item I posted on this blog about Stacy Bailey’s suspension from her teaching job in Arlington, Texas, provoked a fascinating exchange along some of my social media contacts.

Bailey was kicked out of the classroom after she showed her elementary school students a picture of her and now-wife. Mansfield Independent School District officials acted as they were allowed to do under Texas law, which enables them to punish an employee based on their sexual orientation.

One of my social media contacts suggested that Bailey should have known better than to show the students a picture with her same-sex significant other. Another of my social media friends said that teachers shouldn’t ever engage in such a personal matter with students.

Back and forth it went.

https://highplainsblogger.com/2018/06/get-set-for-another-key-court-decision-on-being-gay/

I come down in this manner. The only reason Bailey was suspended by Mansfield ISD is because of her sexual orientation. Had she shown the students a picture of her with her husband, there wouldn’t even be a discussion about it. No student would have said a word to Mom and Dad about it. There would be no hubbub.

This story revolves exclusively around the sexuality of a teacher who, by all accounts, does a good job of educating the children in her classroom.

It has not a thing to do with the idea of showing a picture of her with a loved one, per se. It has everything to do with the fact that her loved one happens to be of the same gender as the teacher.

That is where I hope this gets case gets argued. Bailey has filed a complaint and my hunch is that it’s going to end up in the very highest of the Texas judicial system. It well could wind its way into the federal system as well, possibly as high as the U.S. Supreme Court.

Stacy Bailey had better prepare herself to be the next big test case for the cause of Equal Protection, which is stipulated in the U.S. Constitution. Either she is entitled to the same rights of such protection as every other American — which the Supreme Court endorsed when it legalized gay marriage — or she isn’t.

My hope is that the court would affirm her rights to such protection as a U.S. citizen.

This woman’s sexual identity — and nothing else — is at the center of this dispute.

Get set for another key court decision on being gay

Step up, Stacy Bailey. I think you’re about to become a national celebrity and a lightning rod for a highly emotional talking point.

Bailey once taught in an elementary school in the Mansfield (Texas) Independent School District in Arlington. Then she got suspended by the school system. Why? Because she showed her students a picture of her wife.

The Mansfield ISD is empowered to suspend or even fire employees based on their sexual orientation. Oh, brother. This needs to be litigated and the courts need to do what it did for the issue of gay marriage, which the U.S. Supreme Court ruled in 2015 that same-sex couples can marry in all 50 of our United States.

Texas is one of 28 states that allows employers to take such punitive action.

As Fox News reported: The school district released a statement saying they are and have always been “an inclusive, supportive environment for LGBT staff for decades.” Action was taken against Bailey, they say, because allegedly “her actions in the classroom changed.”

Bailey was removed from the classroom after a parent complained that she showed a picture of her and her then-girlfriend and now-wife to her students.

Read the entire Fox story here.

I am unaware of how the MISD defines how her “actions in the classroom changed.” If the “change” involves merely showing students a picture of the teacher and her wife, then I believe the Mansfield district has a serious problem on its hands.

The U.S. Supreme Court legalized gay marriage on the basis of the Equal Protection Clause stated in the U.S. Constitution. To my way of thinking, “equal protection” applies to Stacey Bailey. She and her spouse are entitled to be married and to live together just like all Americans.

How in the world does that affect her ability to teach children?

Fox News reported this about the Civil Rights Act of 1964: The statute says, “It shall be an unlawful employment practice for an employer… to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

“The questions is whether ‘sex’ covers sexual orientation and gender identity issues,” attorney Sandra Mayerson told Fox News.

If the court system doesn’t rule in Bailey’s favor eventually, my hope then rests with Congress and whether our nation’s lawmakers will have the courage to insert the words “sexual orientation” into the Civil Rights Act.

It’s only right.

Please stay put, Justice Kennedy

I want to join a chorus of those who want U.S. Supreme Court Associate Justice Anthony Kennedy to stay right where he is.

He is on the nation’s highest court and is reportedly, allegedly, supposedly considering retiring sometime this year.

I don’t want him to go. I want him to remain as a key “swing vote” on the court, giving it some semblance of balance. The consequences of a Kennedy departure could have — in my humble view — a potentially devastating impact on the way of life for millions of Americans.

The New York Times editorialized over the weekend about its desire that he stay on the court. Read the editorial here.

Yes, I understand that “elections have consequences.” I have taken particular note of that when previous presidents have made critical federal judicial appointments.

This president could shape the high court’s makeup for decades with yet another appointment. Donald Trump already has picked a solid conservative, Neil Gorsuch, to the Supreme Court. What would another Trump pick do? Hmm. Let’s see.

It could revoke a woman’s right to determine whether she wants to end a pregnancy; it could mean the end of same-sex marriage, which the court has determined was guaranteed under the Equal Protection clause of the Constitution; it could roll back civil rights guarantees that previous courts have upheld repeatedly.

President Reagan appointed Justice Kennedy to the court in 1988. The president counted on Kennedy being a reliable “conservative” voice on the court. Kennedy hasn’t filled that bill. He has sided with conservatives and with liberals. He’s a swing vote. Kennedy presence on the court produces a certain drama as the public await key court decisions.

He’s now 81 years of age. It’s been reported that he wants to hang up his robe and spend more time with his grandchildren. I get it. Honest. I do. But why not wait another two years, until after the 2020 election? If Trump gets re-elected, then he could quit if he really wants out. If the president is not re-elected and the nation regains its political sanity and elects someone with a clue about how government works, then he surely can retire from the bench.

Just … not yet, Mr. Justice.

Why not just ‘mend’ the 2nd Amendment?

President Gerald R. Ford thought he was appointing a conservative jurist to the U.S. Supreme Court in 1975 when nominated John Paul Stevens.

Wrong, Mr. President. The justice turned out to be a liberal icon on the court. The retired justice has ignited a wildfire. He writes in a New York Times essay that it’s time to — gulp! — repeal the Second Amendment.

Justice Stevens is 97 years of age but he still has a razor-sharp mind. He’s a learned and brilliant man.

That all said, I happen to disagree with him on the need to repeal the amendment that says the “right to keep and bear Arms shall not be infringed.”

Stevens writes, in part: Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that “a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Today that concern is a relic of the 18th century.

Read the entire essay here.

I don’t intend to suggest I can match Justice Stevens’s intellectual wattage. I just want to offer the view that the Second Amendment contains no language that I can identify that says it must remain sacrosanct.

With the March For Our Lives emboldening literally millions of young Americans to seek legislative remedies to the spasm of gun violence, I am going to cling tightly to the view that those remedies exist somewhere in the legislative sausage grinder. And those remedies can be enacted without repealing the Second Amendment.

I know what the amendment says and nowhere does it ban any reasonable controls on the purchase, sale or the possession of firearms. Gun-rights proponents keep insisting that any legislation that seeks to impose tighter controls on gun purchases launches us down some mysterious “slippery slope.” They fill Americans with the fear that the government is coming for their guns; they’ll be disarmed and made vulnerable to governmental overreach.

That is the worst form of demagoguery imaginable.

Surely there can be some way to allow “law-abiding Americans” to purchase firearms while keeping these weapons out of the hands of lunatics. This can be done under the guise of a Second Amendment guarantee that Americans can “keep and bear Arms.”

SCOTUS gives Dreamers a reprieve; get to work, Congress

Several hundred thousand U.S. residents have just been given a reprieve from a most unlikely source: the Supreme Court of the United States.

The court today declined to consider a Trump administration request to expedite a decision on whether a plan to revoke a Deferred Action on Childhood Arrivals directive issued by Donald Trump.

This means the so-called “Dreamers,” those who affected by DACA, have more time to remain in the United States even though they were brought here illegally by their parents when they were children.

According to Politico: The Justice Department had asked the justices to skip the usual appeals court process and review a district court judge’s ruling requiring the administration to resume renewals of the Deferred Action for Childhood Arrivals program.

The Supreme Court declined the request Monday with no justices dissenting. The high court could still weigh in later, but the move suggests the justices want to allow one or more appeals courts to take up the question before considering it.

A federal judge has blocked the administration’s plan to cancel President Barack Obama’s DACA order. The issue is now before the 9th U.S. Circuit Court of Appeals. The Justice Department wanted the court to allow a sped-up process to resolve it in time for the March 5 deadline that the president had set for Congress to come up with a legislative solution for DACA recipients.

I would have thought the Supreme Court would side with the administration, given its ideological bent. Silly me. The court has given DACA recipients more time to stay in the United States, the only country many of them have ever known.

Now, to Congress, I want to offer this word: Get to work to find a solution. These U.S. residents must not be deported and returned to nations they do not know.

High court to settle redistricting dilemma?

I don’t expect the current U.S. Supreme Court to decide that Texas’s legislative and congressional boundaries were drawn in a manner that discriminates against people of color.

Why not? Because its ideological composition would tilt toward those who dismiss such concerns.

The court will decide Abbott v. Perez sometime this year. It involves the manner in which several districts were drawn. Critics say that Hispanics were denied the right to choose a candidate of their own because of the way a San Antonio-area district was gerrymandered.

I’ll set aside the merits of the case that justices will hear. I want to concentrate briefly on the method the states use to draw these districts.

They are done by legislatures. The Texas Legislature is dominated by Republican super-majorities. The custom has been that the Legislature draws these boundaries to benefit the party in power.

Legislators don’t like being handed this task at the end of every census, which is taken at the beginning of each decade. The late state Sen. Teel Bivins of Amarillo once told me that redistricting provides “Republicans a chance to eat their young.” I’ve never quite understood Bivins’s logic. To my mind, the process allows the party in power to “eat the young” of the other party.

The 1991 Texas Legislature redrew the state’s congressional boundaries in a way that sought to shield Democrats, who controlled the Legislature at the time. The Legislature divided Amarillo into two congressional districts, peeling Republicans from the 13th Congressional District to protect then-U.S. Rep. Bill Sarpalius, a Democrat. Sarpalius was re-elected in 1992, but then lost in 1994 to Republican upstart Mac Thornberry.

https://highplainsblogger.com/2014/04/gerrymandering-not-always-a-bad-thing/

My own preference would be to hand this process over to a bipartisan commission appointed by the governor and both legislative chambers. I favor taking this process out of politicians’ hands. Their aim is to protect their own and stick it to the politicians — and to voters — from their other party.

Perhaps the Supreme Court’s decision might include a dissent that spells out potential remedies to what I consider to be a political travesty.

One can hope.