Tag Archives: US Supreme Court

legal news

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

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

Executive authority now becomes OK, yes, Mr. President?

I recall hearing time and again during the 2016 presidential campaign that Barack H. Obama’s use of executive authority was somehow a bad thing.

The president shouldn’t govern by executive fiat, said many of his critics, such as the Republican nominee for president, Donald John Trump.

Hmm. Well, times have changed, haven’t they?

Trump is now the president. He’s assumed the role of chief executive of the federal government. By golly, the man has found that executive authority isn’t such a bad thing after all.

Indeed, as that supposedly “phony” 100-day threshold approaches, the current president is left to proclaim the only victories of his new term have come via executive order.

Oh, and he’s also suffered some embarrassment through this activity as well, such as when the federal judiciary knocked down two of his travel bans for those coming here from Muslim-majority countries.

Through executive authority, Trump is demonstrating his ability to use the power granted to him by virtue of his election. I get that. I respect the authority granted to the president and I won’t condemn him for using it, per se.

What boggles my mind is how he continues to get away with the rhetorical gymnastics he performs routinely and how he manages to bluster his way out of what he said earlier.

He said while campaigning he wouldn’t have time for golf; he said would be at the White House 24/7 working to bring back all those jobs that have gone offshore; he promised to repeal the Affordable Care Act and replace it with something else.

He’s done essentially two things during his first 100 days as president: He nominated a Supreme Court justice, who was confirmed by the U.S. Senate and he ordered a missile strike against Syrian military targets in response to Syrians’ use of chemical weapons against civilians.

Legislative accomplishment? Nothing, man. The president has relied almost exclusively on his executive authority — which he condemned when another president did the same thing.

State news

What’s with this Texas Senate gay marriage recusal nonsense?

Why do Texas Senate Republicans insist on making ridiculous statements about gay marriage?

The state Senate has approved a measure — with all GOP members and one Democrat joining them — that allows county clerks to recuse themselves from signing off on marriage licenses for gay couples.

Senate Bill 522, authored by Sen. Brian Birdwell, R-Granbury, allows county commissioners courts to appoint someone other than the county clerk to sign such a marriage license if the county clerk objects on religious grounds.

As the Texas Tribune reports: “It ‘guarantees county clerks and every American the free exercise of religion even when they are working for the government,’ Birdwell told his colleagues on Tuesday.”

Huh? Senate Democrats are perplexed at this. Why? Because current state law already allows county clerks to deputize an employee to carry out that duty.

What about the oath of office?

County clerks are entitled to follow their religious faith. I get that. Here is what I do not understand: I do not understand how they can place their hand on a Bible or some other holy book and then pledge to follow the laws of the land and uphold the U.S. Constitution.

I now shall refer to the U.S. Supreme Court, which in 2015 ruled that the equal protection clause of the Constitution guarantees the right of gay couples to marry. That means, if I understand this correctly, that gay marriage is now legal in all 50 states, which would require county clerks to perform the duties of their public office.

SB 522 now allows county clerks and judges to discriminate against people on the basis of their sexual orientation. Sure, they can cite their own religious objection. Existing state law, though, already allows them to step aside and hand the marriage license issuance duty to someone else.

Which brings me back to my original question: Why is the Texas Senate enacting legislation for which there is no need?

local news, political news, religious news, State news

Texas Senate deciding whether to defy U.S. Supreme Court

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I cannot believe the Texas Senate is considering a bill such as the one it is considering.

Senators are debating whether to allow county clerks to deny gay couples a marriage license.

Let’s see. How is this supposed to work?

The U.S. Supreme Court ruled two years ago in a landmark decision that gay marriage is protected under the equal protection clause of the U.S. Constitution. It ruled that every state in the country should allow same-sex couples to marry, which requires them to obtain the legal documentation necessary to become married — just as straight couples are required to do.

The highest court in the nation — to which Texas belongs — ruled that gay marriage is legal.

County clerks, thus, are required to obey the oath they take to honor the laws of the land. Isn’t that right? A handful of county clerks quit their posts rather than perform the duties required of them as a result of the court ruling. Those who remain, though, must fulfill the oath they take — regardless, it seems to me, of their own religious conviction.

Amarillo straddles a border separating Randall and Potter counties. Renee Calhoun and Julie Smith, who serve as county clerks in Randall and Potter counties, respectively, both declared they would issue licenses to gay couples who requested them.

Given the political nature of this discussion, I feel compelled to note that both Calhoun and Smith are Republicans. A healthy majority of Republicans are inclined to oppose gay marriage as a matter of principle, relying on their belief in biblical assertions that marriage should be performed only between one man and one woman.

To my way of thinking, there shouldn’t even be a bill considered in the Texas Legislature that would give county clerks an “out” if they chose to deny gay couples a license to marry.

The Supreme Court of the United States, acting as the final arbiter on these constitutional matters, has decided the issue once and for all. Gay marriage is legal and county clerks ought to be required to do the job to which they swore an oath to perform faithfully.

I must stipulate that they swear their allegiance to the Constitution, as secular a governing document as any ever enacted.

legal news

One last hope for Justice Gorsuch

I am going to reveal my own bias — once again — but here goes anyway.

Neil Gorsuch is going to become the next U.S. Supreme Court justice on Monday. The U.S. Senate confirmed him in a mostly partisan vote.

Donald Trump promised to select a conservative justice for the court and he delivered on his promise.

Fine. Trump is the president and he has the right to select anyone he wants.

Gorsuch’s testimony before the Senate Judiciary Committee was filled with the usual stuff that court nominees say, which is they cannot comment on issues that might come before the court. His reticence satisfied Senate Republicans and frustrated Senate Democrats.

He did, though, suggest that Roe v. Wade — the landmark 1973 decision that legalized abortion — essentially is “settled law.” He also said the president never asked him if he’d vote to overturn the ruling, adding that had Trump done so, that he (Gorsuch) would “have walked out of the room.”

My hope for the new justice is that he becomes more of an independent thinker than his critics believe he’ll be. There’s plenty of precedent on the Supreme Court for justices becoming something other than the presidents who appoint them had hoped.

President Eisenhower selected Chief Justice Earl Warren and William Brennan, both of whom became liberal stalwarts on the court; President Nixon selected Justice Harry Blackmun, who then wrote the Roe opinion in January 1973; President Ford selected Justice John Paul Stevens, who then joined the liberal ranks on the high court; President George W. Bush selected Chief Justice John Roberts, who then voted to preserve the Affordable Care Act.

No one should seek to predict how the new justice will comport himself on the court. Some, though, have done so. I am not nearly learned enough in matters of law to make such a prediction.

I do have my hope … and my bias that drives it.

national news, political news

Senate sees the end of collegiality

There once was a time when the U.S. Senate could be a place where senators disagreed but remained friends.

I believe those days are over. They perhaps have been gone for a lot longer than I realize. The confirmation battle over Judge Neil Gorsuch closes the deal.

Say goodbye to Senate collegiality.

Battle changes the dynamic

Gorsuch’s confirmation came on a fairly narrow vote. All Republicans voted to seat him on the U.S. Supreme Court; all but three Democrats voted against his confirmation.

Some of us — including yours truly — used to believe the federal judiciary somehow was insulated from partisan politics. Not true. Maybe it’s never been true.

Senate Republicans tossed the filibuster rule into the crapper to get Gorsuch confirmed. The Senate used to require 60 votes to quell a filibuster. Democrats launched a filibuster to block Gorsuch’s confirmation; Republicans answered by invoking the so-called “nuclear option” and changing the rule to allow only a simple majority to end a filibuster.

Democrats are angry that Donald J. Trump got elected president in the first place. Their anger metastasized with Trump’s appointment of Gorsuch after Republicans blocked Barack Obama’s nomination of Merrick Garland to succeed the late Antonin Scalia.

I’m not at all confident that either side is going to find a way toward some common ground — on anything!

I recall a story that former Republican U.S. Rep. Larry Combest once told me about his former boss, the late U.S. Sen. John Tower; Combest served on Tower’s staff.

Tower, a Texas Republican, was a fierce partisan. One day, as Combest recalled it, he and another equally ferocious partisan debater, the late Democrat Hubert Humphrey, were arguing on the Senate floor about some legislation. They were gesturing and shouting and saying some angry things while arguing their points, Combest remembered.

After a lengthy floor debate, the presiding officer gaveled the session closed, Combest said, and Sens. Tower and Humphrey walked toward the middle of the floor, shook hands — and walked out the door with their arms around each other.

My gut tells me those moments are long gone.

political news

End of judicial filibuster? A mixed blessing

I’ve long had a terrible conflict of emotions as it regards the filibuster, a tactic employed in the U.S. Senate designed to stall the progress of legislation … and appointments.

The Senate this week did away with its 60-vote rule to end filibusters. The rule change allowed the confirmation of Judge Neil Gorsuch to the U.S. Supreme Court.

But it’s the filibuster itself that gives me pause.

My own political bias clouds my view of what the Senate did as it regarded Gorsuch’s nomination. Given that the Republican-controlled Senate blocked an earlier high court nomination because a Democratic president had put a name forward to succeed the late Antonin Scalia, I saw some justification in what Senate Democrats sought to do with Gorsuch’s nomination.

But is the filibuster really an essential element of governance? I’ve long questioned it. A filibuster occurs when senators object to an issue before the body. They can filibuster in a number of ways, but the classic method is to hold the floor for hours, days, weeks — however long it takes — to talk about anything under the sun.

The Senate has had some champion filibusterers. I think of the late Wayne Morse from my home state of Oregon and the late Strom Thurmond of South Carolina. Those fellows could bluster seemingly forever on anything in order to talk a bill to death.

We operate our government on the principle of “majority rule.” The word “majority” doesn’t imply “super majority,” which is what the former Senate filibuster rule required. Majority means one vote greater than half. The Senate comprises 100 members; therefore, 51 votes constitute a majority. Shouldn’t that be enough to settle a policy argument on the floor of the Senate?

We elect presidents with a simple majority of the Electoral College. All it takes is 270 electoral votes, out of 538 total, to elect a president. Is there a more important electoral decision to be made than that? We don’t require in the U.S. Constitution a super-majority of electoral votes to choose a president. So, why do senators insist on filibustering and then require 60 votes to end it.

The filibuster seems to be an obstructionist’s tool. As one who believes in “good government,” this activity appears to me to work against that principle.

legal news

‘Shining moment’ carries baggage for McConnell

The Hill posted a story online with the headline “McConnell’s shining moment.”

The Senate majority leader, Mitch McConnell, is shining because the body he runs has confirmed Neil Gorsuch to a spot on the U.S. Supreme Court.

Pardon my anger, but the leader isn’t shining. He stands as a scoundrel, a thief who stole the seat from another judge who should have been confirmed in 2016.

McConnell is boasting that the most “consequential” decision he has made was his decision to block Barack Obama’s nominee, Merrick Garland, from testifying before the Senate Judiciary Committee. The consequence would be to block a vote on the Senate floor.

Hours after Justice Antonin Scalia died in early 2016, McConnell made clear his intention to prevent President Obama from filling the spot on the court. Some have praised McConnell for blocking the president. I choose to condemn him.

Politics takes over

Gorsuch’s confirmation today was totally expected. The Senate voted 55-44 to approve his confirmation. He earned his court seat on the basis of a rule change that McConnell orchestrated in which the Senate abandoned its 60-vote rule to end a filibuster. I get that the majority leader was within his rights to change the rule.

What happened in 2016, though, is the much more egregious transgression. McConnell played raw politics with Obama’s nominee. The U.S. Constitution gives the president the power to fill federal judgeships. Barack Obama fulfilled his duty. The Senate also has the right to reject a nominee.

The Senate, though, should have heard from Garland. It should have weighed this man’s credentials. It should have considered his qualifications. It should have received a recommendation from the Judiciary Committee.

And it should have cast an up-down vote on whether to confirm the president’s nominee.

Thanks to the majority leader’s obstruction, none of that was allowed to occur.

And to think that Mitch McConnell has the stones to accuse Democrats of playing politics with Supreme Court picks.  This man, McConnell, has set the standard for politicizing the highest court in America.

Gorsuch’s confirmation isn’t a “shining moment.” It is permanently soiled by political poison.

legal news, national news, political news

Judiciary becomes another political arm

I guess it was naïve of many of us to believe the federal judiciary would be above the partisan politics that stymies the executive and legislative branches of government.

I always thought the founders created a judicial system that would be immune from politics. Those silly men.

Gorsuch gets key endorsements

Neil Gorsuch stands before the U.S. Senate awaiting confirmation to the U.S. Supreme Court. Two Democratic senators — Joe Manchin of West Virginia and Heidi Heitkamp said today they would vote to confirm the judge nominated by Donald J. Trump to the nation’s highest court.

Senate Republicans need eight Democrats to join them to get to the magic number of 60 votes to confirm Gorsuch.

I have admitted this already, but Gorsuch is not my choice to become a high court justice. He is, though, the pick of the president, who has the constitutional authority to make these selections.

My hope would be that Democrats wouldn’t filibuster this nomination. They should save their ammo for when it really counts, such as when a liberal justice leaves the court. Gorsuch is a conservative who would replace the late Antonin Scalia, the iconic justice who died more than a year ago.

I also believe that this is a “stolen” seat that in reality belongs to Merrick Garland, who was selected by former President Barack Obama to succeed Scalia. Senate Republicans played pure politics by refusing to give Garland a hearing and a vote. That is to their everlasting shame.

That, I’m afraid to acknowledge, is how the game is played these days.

Judges have become political animals, just like the men and women who get to appoint and decide whether to confirm them to judicial posts. That’s too bad for the system.

legal news

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.