Category Archives: legal news

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Oh, that silly thing called ‘public comment’

February 24, 2016 kanelis2012

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.

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Americans have already decided who gets to choose

February 23, 2016 kanelis2012 2 Comments

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!

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Act on the president’s court nominee

February 22, 2016 kanelis2012

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.

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It’s all about the court balance

February 20, 2016 kanelis2012

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.

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Justice Biden? Maybe?

February 19, 2016 kanelis2012

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.

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Obama should have decided to attend funeral

February 18, 2016 kanelis2012 4 Comments

No one asked me for advice on this, but I’ll offer it unsolicited — and without reservation.

President Obama should have decided to attend the funeral this weekend for the late Supreme Court Justice Antonin Scalia.

To me, it’s a no-brainer.

The president will not attend. Vice President Joe Biden and his wife, Jill, are going to attend, as they share Scalia’s Catholic faith.

But look at it this way. The optics of seeing the president of the United States paying his respects at the funeral of someone with whom he had profound political and judicial disagreements are invaluable.

Yes, the president will attend a ceremony at the Supreme Court building to honor the late justice. He also has been quite gracious in his public comments in reaction to the shocking news of Scalia’s death while on a hunting trip in West Texas.

Indeed, some on the right have given Obama a pass on attending. Scalia’s own son even has suggested that the president made the right call by deciding against attending the justice’s funeral.

However, Obama has given his fierce critics in the conservative media ammunition now to fire at him for declining to attend the funeral. White House press officials haven’t disclosed how the president will spend Saturday while much of official Washington and the nation’s legal community is honoring the memory of Justice Scalia. My hope is that he lays low and spends it quietly.

He’s got a huge decision to make — possibly within the next few days. It involves his choice to succeed Scalia — a gigantic and booming voice for conservatives on the court. Senate Republicans don’t even want to consider an appointment. Others insist that the president make the choice. I am one of those who believes the president should fulfill his duties by selecting a nominee for the high court.

OK, so no one asked me for my opinion about the funeral. Why should they? I’m way out yonder in the political peanut gallery far from the government epicenter.

It’s just that as someone noted in the link attached to this blog post indicated, if you’re questioning whether you should go to the funeral … go to the funeral.

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‘Lame duck’ needs finer point . . . perhaps

February 17, 2016 kanelis2012

An acquaintance of mine asked an interesting question regarding President Obama’s upcoming battle over how he intends to fill a key vacancy on the U.S. Supreme Court.

He wondered how one should define the term “lame duck”?

His understanding of the term meant that an officeholder became a lame duck when his or her successor in office had been determined.

Here’s how the American Heritage Dictionary defines the term: “An elected officeholder continuing in office during the period between and election and inauguration of a successor.”

My reaction was that the definition of the term has become a bit more “fluid” these days.

Senate Republicans say they don’t want Obama to fill the vacancy created by the death of Supreme Court Justice Antonin Scalia because he’s a “lame duck” president. They want the next president to make the call.

I tend to have a broader view of the term “lame duck.” I suppose one could argue that any president who wins a second term becomes a lame duck the moment the election returns are finalized. The Constitution prohibits the president from running again, so the clock begins ticking on the president’s term. If that reasoning holds up, then the American Heritage dictionary definition could be interpreted as being germane.

Whatever the case, or however one defines the term, there remains an indisputable truth. The president is in office until the very moment the successor takes the oath of office.

Therefore, the president is entitled — lame duck or not — to all the perks, privileges and power that the office commands.

President Obama is entitled to appoint someone to fill the late Justice Scalia’s seat on the Supreme Court. The Senate, thus, is entitled — and obligated, in my view — to consider that appointment in a timely manner and then vote on whether to approve it.

The president’s lame-duck status should not be an issue.

But it has become one, thanks to the obstructionists who are now in charge of the U.S. Senate.

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Obama, GOP both spoiling for a fight to the finish

February 17, 2016 kanelis2012 3 Comments

Here’s where we appear to be standing with regard to that vacancy on the U.S. Supreme Court.

President Obama said today he intends to select an “indisputably qualified” person to fill the seat vacated by the sudden death of Justice Antonin Scalia.

U.S. Senate Republicans say they intend to block anyone the president nominates.

Who’s on the right side? In my view, it’s not even close.

The president is right. GOP senators are wrong.

Indeed, it’s looking now as though that no matter who gets the call from the president that he or she is going to face a serious fight.

My hunch now is that Barack Obama welcomes the fight. Why? He will wage it from a position of strength.

He’s got the Constitution on his side.

This appointment could change the makeup of the court, which has a slim conservative majority among its members.

Right there is the crux of Republican obstructionism.

Justice Scalia was the shining light among the conservatives serving on the court. He led what’s been called a “conservative renaissance.” His brilliance was beyond question. So was his commitment to conservative principles.

President Obama has another year left in his term. Some have suggested that if Republicans were to get their way, they effectively would eliminate the fourth year of the president’s term. They oppose — on some made-up principle — the idea of a lame-duck president making an appointment to the Supreme Court. They want the next president to make the call.

Well, as Obama said today, those who claim to adhere to strict constitutional principles are creating them out of thin air. The Constitution says the president should nominate people to the federal bench and that the Senate should vote up or down on those nominations.

Both sides are spoiling for a fight. So, let’s have at it.

Barack Obama is set to throw the first punch when he nominates someone to the highest court in the land.

Go for it, Mr. President.

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It’s wrong now … and was wrong then

February 16, 2016 kanelis2012 1 Comment

I believe it was that great fictional Native American sidekick — Tonto — who said to the Lone Ranger, “Two wrongs don’t make a right.”

Thus, it amuses me when I hear critics of this blog and others take note of Democratic U.S. Sen. Chuck Schumer’s declaration in 2007 that the Senate shouldn’t approve any of President Bush’s Supreme Court appointments.

They bring that up to — more or less — justify a statement by Republican U.S. Sen. Mitch McConnell to do the same thing regarding the vacancy on the U.S. Supreme Court.

If Schumer can make a wrongheaded declaration then it’s OK for our guy to do it, they seem to suggest.

Schumer was wrong then and McConnell is wrong now.

Neither man has distinguished himself on this matter of constitutional authority and presidential prerogative.

So, Schumer’s assertion in 2007 got past me. He absolutely was wrong to say what he said. The U.S. Constitution gives presidents the authority to make appointments to the federal bench and I’ve long given deference to the presidents’ prerogative on these issues. If the president nominates a qualified individual to these posts, then the Senate should grant the appointee a fair hearing — and then vote.

George W. Bush was re-elected in 2004 with voters knowing he would appoint conservative judges to the federal courts. His final Supreme Court appointment came in 2006 when he selected Samuel Alito. Thus, Schumer’s ill-advised admonition a year later became a moot point.

It doesn’t give Senate Majority Leader McConnell any license to erect barriers to the current president doing what he was re-elected to do.

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Mitch McConnell: chief obstructionist

February 16, 2016 kanelis2012

Mitch McConnell declared out loud and in public shortly after Barack Obama became president that his top priority would be to make Obama a “one-term president.”

His wish went unfulfilled when the president won re-election in November 2012.

Now that McConnell is the Senate majority leader, he’s made another pledge. He is going to oppose the president’s next appointment to the U.S. Supreme Court.

Does he know who the president will nominate? No. Does he have any inside information on Obama’s short list? Again, no.

But without the faintest idea who the president will select, the Senate’s leading Republican is going to obstruct the president. He vows to prevent the president from doing what the Constitution empowers him to do. For that matter, he and other Republicans are going to prevent the Senate from doing what the Constitution requires of that body.

Obama is going to nominate someone to replace the late Antonin Scalia on the U.S. Supreme Court. He’s entitled to put someone forward. The Senate also has the power to consent to the nomination.

There’s much that boggles the mind about the eruption that has occurred since Scalia’s untimely death. I cannot quite rank them in order, but McConnell’s declaration that he intends to block any nomination to be considered must rank near the top.

Yes, the stakes are huge. The president is a liberal/progressive politician who likely will select someone who is a good bit to the left of the man who led the Supreme Court’s conservative movement. Thus, Senate conservatives are vowing to protect their court majority — as best they can — by seeking to hold up this confirmation until after the November election. Their hope is that a Republican will win the presidency.

We have a president with one year left in his term. As they say, elections have consequences. A majority of Americans re-elected President Obama understanding full well how he would fill a vacancy on the highest court in the land if he was given the chance to do so.

He now has that chance.

Meanwhile, the nine-member high court has been reduced to eight members. The even split among the justices could produce some tie votes on key cases yet to be argued before the court.

This is not good governance.

High Plains Blogger

Category Archives: legal news

Oh, that silly thing called ‘public comment’

Americans have already decided who gets to choose

Act on the president’s court nominee

It’s all about the court balance

Justice Biden? Maybe?

Obama should have decided to attend funeral

‘Lame duck’ needs finer point . . . perhaps

Obama, GOP both spoiling for a fight to the finish

It’s wrong now … and was wrong then

Mitch McConnell: chief obstructionist

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