Category Archives: legal news

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Clinton, Sanders differ on SCOTUS approach

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Democratic presidential candidates Hillary Rodham Clinton and Bernie Sanders differ on quite a bit these days.

One of the more intriguing differences is seen in how they want the vacancy on the U.S. Supreme Court to be filled.

Sanders would pull the nomination of Merrick Garland — who President Obama has appointed to replace the late Justice Antonin Scalia — off the table if he is elected president in November. He then would pick someone of his choosing.

Clinton doesn’t even think that’s a topic for discussion. She said this week that Obama is president until January and he deserves to have his pick for the court considered by the U.S. Senate.

She also takes sharp aim at the reason Senate Majority Leader Mitch McConnell gives for obstructing this nomination, for wanting the next president to make the choice. McConnell said “the American people deserve a voice” in determining who that person should be.

Fine, said Clinton. “I was one of the 65 million people who voted” for President Obama’s re-election in 2012, she said, adding that McConnell is now trying to silence her voice, along with tens of millions of other voters who choose Obama over Republican nominee Mitt Romney.

You got that right, Mme. Secretary.

I, too, am among the nearly 66 million Americans who cast their ballots for the president. I don’t like being silenced any more than Clinton does. Nor should the rest of those who cast their ballots for the president.

Don’t we operate in a system that grants power to the candidate who gets more votes than the other person?

Yes, we have one president at a time. The man in the hot seat right now still has all the power entrusted to him by the U.S. Constitution.

Let this nomination go forward, Mr. Majority Leader. Americans’ voices have been heard.

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Can POTUS interpret Senate silence as ‘consent’?

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Who is Frederick W. Ford?

Never heard of him? Neither had I until I saw an article posted on LinkedIn. He’s a lawyer and mediator. I guess he’s pretty knowledgeable about constitutional law and related matters.

He has posited a fascinating idea for President Obama to consider.

Let silence be your guide. That’s his notion that the president ought to follow with regard to placing Merrick Garland on the Supreme Court.

The article is attached to this blog post. I encourage you to read it all of it. The crux of his argument is that the Senate has the constitutional duty to “advise and consent” to the nomination of federal judges. But what if the Senate remains silent on the issue? What if senators don’t hold hearings and don’t debate the nomination fully?

Ford said the president can take their silence as a form of tacit “consent.” He lays it out there in a lot legal mumbo-jumbo that, frankly, I don’t get; a lot of it is in Latin and I don’t speak the language.

I get the sense that Ford thinks Obama ought to do it. Just call a swearing-in ceremony and have the man take his oath — and then take his seat on the bench when it reconvenes this October.

Senate Republicans want to wait for the next president to make the appointment.

The current president doesn’t want to wait.

Wouldn’t that simply send the Senate into apoplectic shock if Barack Obama follows the advice offered by someone named Frederick W. Ford?

 

 

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

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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.

 

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Listen to the VP, senators, about doing your job

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biden

Vice President Joe Biden is going to lecture the U.S. Senate on something about which knows a thing or two.

He wants his former colleagues to do the job they took an oath to do, which is vote on whether to approve a nominee to the U.S. Supreme Court.

Biden will deliver his message in remarks at Georgetown University.

At issue is the nomination of Merrick Garland to fill the seat vacated by the death of Antonin Scalia. Senate Republicans — many of them, anyway — are digging in on the nomination. They don’t want to consider a Barack Obama appointment, contending that it’s too late in the president’s second term. He’s a “lame duck,” therefore, the task of appointing a justice should fall on the next president.

That, of course, is pure malarkey.

Barack Obama is president until Jan. 20, 2017. He wants to fulfill his constitutional duty and he’s urging the Senate to do so as well.

Oh sure. The balance of the court is hanging here. Scalia was a devout conservative ideologue — and a brilliant legal scholar. Garland is a judicial moderate; he’s also a scholar; a man viewed widely as supremely qualified.

How does Biden — who served in the Senate for 36 years before being elected vice president — figure in this?

As vice president, he’s the presiding officer of the Senate. Of course, he votes only to break ties. He doesn’t actually run the place. That task falls on the majority leader, who happens to be a Republican, Mitch McConnell of Kentucky.

It’s been McConnell’s call to obstruct this nomination.

Biden, though, does have a number of friends in both parties who serve in the Senate. Is there any hope that he can get through to them? Probably not, but when you’re vice president of the United States, you have the bully pulpit from which to preach an important message to those who need to hear it.

 

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Well stated, Mr. Chief Justice

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How about that John Roberts?

The chief justice of the U.S. Supreme Court has rebuked the U.S. Senate — here it comes — for playing politics with the appointment of the next justice on the nation’s highest court.

Chief Justice Roberts did not know he was doing so when he made the remarks, as they came just a few days before the shocking and tragic death of Justice Antonin Scalia.

He noted the partisan nature of the votes for recent appointees to the court. According to the New York Times: “Look at my more recent colleagues, all extremely well qualified for the court,” Chief Justice Roberts said, “and the votes were, I think, strictly on party lines for the last three of them, or close to it, and that doesn’t make any sense. That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees.”

The court, of course, has a vacancy to fill. President Obama has selected D.C. Circuit Court Chief Judge Merrick Garland to fill the seat. Senate Republicans say they want the next president to make the call, denying the current president the opportunity to fulfill his constitutional responsibility.

Chief Justice Roberts, served with Garland, surely must believe his judicial colleague is as “extremely well qualified” as justices Alito, Kagan and Sotomayor — whose confirmations were approved on largely partisan votes.

Roberts is on point with his call to consider these nominations on the merits of the individual’s qualifications.

No one has heard hardly a whimper from anyone questioning whether Merrick Garland is qualified to determine the constitutionality of federal law.

The opposition is being mounted for purely political reasons.

John Roberts says such posturing should stop.

I happen to agree with him.

As the chief said in his remarks preceding Scalia’s death: “We don’t work as Democrats or Republicans and I think it’s a very unfortunate impression the public might get from the confirmation process.”

 

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Paxton gets no ‘love’ from hometown court

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If the embattled Texas attorney general was expecting to get some favorite-son treatment in his home county …

He’s mistaken.

Ken Paxton faces a possible trial on charges that he solicited investment business without notifying the proper state authorities that he was being compensated. A Collin County grand jury indicted him on the felony charges, to which the McKinney Republican has pleaded not guilty.

Paxton represented the suburban community north of Dallas in the Texas Legislature before being elected in 2014 as the state’s top lawyer.

Now a judge — also in Collin County — has tossed aside a motion to cap the money being to the special prosecution team that’s been appointed to represent the state.

Paxton’s lawyer lacked jurisdiction to file the motion, according to Judge Mark Greenberg.

I’m not going to pre-judge this case. The proceedings to date, though, seem to suggest that AG Paxton might be in for rough ride if this case goes to trial in Collin County.

Perhaps the most fascinating aspect of this case so far has been that Paxton has been indicted by a hometown grand jury and has been delivered setbacks by a court in his hometown as well.

Remember when former Republican Gov. Rick Perry blamed the grand jury in Democrat-friendly Travis County of playing politics when it indicted him for abuse of power?

Paxton can’t make the same argument.

This case could get interesting.

 

 

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Hulkster gets what? $115 million?

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Hulk Hogan is no Erin Andrews.

Yet the two celebrities share something in common. They’ve both received mammoth jury awards after they sued for invasion of privacy.

Andrews’ award has been universally hailed after a jury granted her $55 million in a suit against a hotel chain; she was video recorded in the nude in her hotel room. The ESPN reporter was embarrassed to tears during the trial over the incident — in which the video went viral.

Hogan’s case is quite a bit different.

Gawker.com video recorded Hogan — the well-known former professional wrestler — having sex with his best friend’s wife. That video, too, went viral. Hogan — whose real name is Terry Bollea — sued for invasion of privacy.

A St. Petersburg, Fla., jury today gave the Hulkster $115 million. More than twice the award Erin Andrews got!

I offered a view about Hogan’s suit in an earlier blog.

I backed his lawsuit because his case also seemed to be as legitimate as Andrews’.

However, I just cannot muster up the level of sympathy for the Hulkster as I can for Andrews. I mean, come on! The guy was engaging in some truly disgusting behavior when someone recorded him.

Maybe the St. Pete jury was trying to send some sort of message to would-be stalkers and gawkers. It is that even celebrity pro wrestlers have a level of privacy that shouldn’t be breached.

Whatever the case, I’m not going to cheer this verdict the way I did the earlier one.

 

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Does the GOP really want a mainstream jurist on the court?

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We hear it constantly from the right side of the political spectrum.

Courts shouldn’t be full of “judicial activists.” The culprits, in their eyes, usually come from the left. Those liberals are just too prone to “legislate from the bench.” Or so it goes from the right-wing mantra machine.

How did Barack Obama answer that with his choice for the U.S. Supreme Court? The president chose as mainstream, moderate and even-tempered a fellow as he could find. Merrick Garland deserves to take his seat on the nation’s highest court.

His record is exemplary. His temperament and judicial philosophy would seem to fit the bill perfectly for Senate Republicans who hold the key to whether Garland even gets a hearing, let alone a vote by the full Senate.

Now, though, all those qualities that conservatives say they admire in a judge don’t apply. Garland must be too, uh, moderate. Too measured. Too studious. Too mainstream.

Compared to the individual he would replace — the late Justice Antonin Scalia — perhaps there’s some merit to the criticism in the eyes of the Senate Republican caucus.

What they want is another Scalia.

Yes, the late justice was a brilliant legal scholar. He called himself a “strict constitutionalist”; to be honest, I’m not smart enough to argue that point.

I am reasonably intelligent enough, though, to know that he was rigid in his approach to interpreting the Constitution. He was an ideologue. However, his ideology fit nicely with the politicians who control the Senate.

Garland’s doesn’t. He’s too centrist. Too moderate and mainstream.

One man’s ideological purist is another man’s near-perfect fit for the job of interpreting the Constitution.

So, it’s fair to ask: Do the Senate Republicans who keep insisting that the next president make this pick really oppose the current choice on judicial and philosophical grounds, or are they just playing politics?

 

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Garland the perfect choice for SCOTUS … normally

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Under normal circumstances — without such historic potential consequences on the line — President Obama’s choice for the U.S. Supreme Court would be considered damn near perfect.

Merrick Garland fits the bill — to the letter.

Brilliant legal scholar; strict adherent to the Constitution; moderate judicial philosophy; meticulous writer; tremendous personal story; varied legal career in private practice and as a federal prosecutor; many years of experience on the federal bench; virtually unanimous admiration among his peers.

Then again, he’s got this particular problem that is not of his making.

He’s been chosen to the highest court in the land during an election year. That, by itself, isn’t a deal breaker. Except that Republicans who control the U.S. Senate, which must confirm the appointment, have made it one.

They’ve declared that Obama shouldn’t get to pick someone to replace the late conservative ideologue Antonin Scalia during the heat of a presidential election campaign. They want to hand that duty over to the next president who, they hope, will be a Republican.

They’ve declared that the current president doesn’t get to his job, which the U.S. Constitution says includes making appointments to the federal bench. He’s made a big choice. Garland is been named to fill some huge shoes on the Supreme Court.

His only drawback, if you want to call it that, is that he isn’t the rock-ribbed, ironclad conservative in the mold of Scalia. Oh, no. Garland is a moderate. He’s a mainstream, thoughtful jurist with a gleaming reputation for careful legal scholarship.

What, do you suppose, will be the American Bar Association’s rating of this guy, when the ABA decides to make that declaration? I’ll predict he’ll get the highest recommendation possible from the bar.

So what in the world is holding up his confirmation? It’s the obstruction of the Senate Majority Leader, Mitch McConnell, who vows to block any attempt even to conduct a confirmation hearing before the Senate Judiciary Committee.

And to think that McConnell had the brass to say that the president is “politicizing” this pick by criticizing Republicans’ effort to block it.

The stunning lack of self-awareness here is beyond belief. It’s McConnell and his Senate lieutenants who have politicized this process by stating that the 44th president of the United States shall not have his judicial appointment even considered for confirmation.

Why? Because they hope to get one of their fellow Republicans elected president this November.

Something tells me McConnell and his gang of Senate GOP obstructionists are flirting with political disaster if they insist on continuing to play this foolish game.

 

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Let’s talk, Mr. Senate Majority Leader

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Every effective American politician has a consigliere — a wise man, or perhaps a wise woman — who’ll tell them the unvarnished truth.

JFK had Bobby; George H.W. Bush had Jim Baker; Ronald Reagan had Nancy.

I’m wondering this morning who in Senate Majority Leader Mitch McConnell’s inner circle fills that role. Hmm. It might be his wife, Elaine Chao, a former labor secretary during W’s administration.

Whoever it is, are they having a serious, candid and frank discussion with the boss? Are they hunkered down in some ante room in his spacious office in the Senate wing of the U.S. Capitol Building?

Here’s a thought, offered from the Flyover Country Peanut Gallery, on how that talk might proceed:

McConnell: OK, I sense we have a problem with this Supreme Court pick. I’ve declared my intention to block whoever Barack Obama nominates. I’m trying to stand on some sort of principle but my knees are buckling just a little.

Wise Man: And they should, Mitch. You’ve boxed yourself into a corner. Did you think Obama was going to pick some flaming, judicial activist liberal? He didn’t. He went with this Merrick Garland fellow. Everyone loves the guy. You love the guy. Hell, Mitch, you voted to confirm him to the D.C. court nearly 20 years ago.

McC: True. But that was then. The stakes this time are gigantic. They’re y-u-u-u-u-ge! (Laughter). I hope you don’t mind my saying it that way. Antonin Scalia’s death upset everything. He was one of our guys. Now Obama has picked one of their guys to replace Scalia. The balance of the court will change.

WM: So, what’s your point? Did you think Obama was going to select an archconservative like Scalia? We all knew this would happen if one of our guys died. But hey, he didn’t pick a flamer, Mitch. He picked a mainstream moderate judge. Hasn’t he done well on the D.C. court?

McC: Yeah, he has. He’s been the kind of judge I said he was when I spoke in his favor in 1997. I get that he’ll be that kind of justice on the Supreme Court, too. But it’s different now. I’ve got those TEA Party yahoos who want me to dig in. They insist — in that way of theirs — that Barack Obama’s re-election doesn’t really count. And you don’t need to remind me of what I said early in Obama’s presidency about making him a “one-term president” being my top priority. I get that it didn’t work out.

WM: So, consider this, too. We’re about to nominate Donald Trump as our candidate for president. The Democrats are going to nominate Hillary as their candidate. Trump vs. Clinton. One of them will get to pick the next Supreme Court justice if we continue to obstruct this selection. Who between them do you want? Trump, who you’ve criticized before for the outrageous accusations he has made along the campaign trail? Or Clinton, who the TEA Party wing hates nearly as much as it hates Obama? Don’t you think maybe that Merrick Garland is going to be the best choice we’re going to get?

McC: I get your point. But what about the principle we’re standing on here? What about giving in to the Democrats? I’m going to get fried if I cave in.

WM: Well, Mitch, a lot worse is going to happen to you if we obstruct this nomination, Hillary makes a huge campaign issue of it, wins in a landslide and the Democrats retake the Senate.

McC: How do you propose I back off? How do I justify this to my base — our base?

WM: Look, Mitch. I might be a wise man. But I’m not a magician. You figure it out.