Tag Archives: US Supreme Court

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Trump vs. The Judges: Pulling for the folks in the robes

Donald J. Trump’s fight with the federal judiciary could be shaping up to be a donnybrook.

The president instituted a temporary restriction on travelers seeking to enter the United States from seven Muslim-majority countries; then U.S. District Judge James Robart in Washington state struck it down, prompting Trump to call Robart a “so-called judge” and said the nation should blame him if a terrorist sneaks into the country and does harm.

There’s more. The 9th Circuit Court of Appeals is hearing the Trump administration’s appeal and the three-judge panel that heard the case is sounding skeptical of the president’s order.

The plot thickens. If the 9th Court rejects the appeal, then it goes to the U.S. Supreme Court, which at the moment stands at eight members. Suppose, then, that the high court deadlocks — with the four conservative justices voting in favor of the ban and the five liberals oppose it. The lower-court ruling stands.

There’s some chatter now about whether the Supreme Court will be affected in some manner by the untoward things the president has said about the federal judiciary.

Has Trump crossed a serious line? Some scholars believe the president’s Twitter tirades against Robart in particular and the federal bench in general crosses the separation of powers line between the judicial and executive branches of government.

Get a load of this from The Hill:

“The criticism extends beyond judicial scholars.

“Rep. Mark Sanford (R-S.C.) warned that Trump’s attacks, if they continue, threaten not only to undermine the separation of powers but also the president’s own policy agenda.

“’We’re a nation of laws and not men, and this idea of ‘follow me because I say so’ is completely at odds with the Founding Fathers’ intent,’ said Sanford, a Trump supporter who has also criticized the president on certain issues.

“’I learned a long time ago in politics [that] attacking the person or the group that will decide your fate on a given issue generally doesn’t work out that well,’ he added.”

This is yet another matter of governance that the brand new president just doesn’t seem to understand.

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Catfight over Gorsuch? Wait until the next justice leaves the court

“So, are you ready for the catfight that’s going to erupt over this guy Trump has picked for the Supreme Court?”

That was the question posed to me today by a colleague of mine.

The reference, of course, was to Donald Trump’s nomination of Judge Neil Gorsuch to the highest court in the land.

“Catfight? Over this? Naw. The earth is going to open up and quake when the next justice leaves the court,” I said, referring to the possibility that either Justices Ruth Bader Ginsburg, Stephen Breyer or Anthony Kennedy might leave the court.

That, I said, will produce the “mother of all catfights.”

Gorsuch’s nomination doesn’t change a thing on the court. The president is seeking to place a judicial conservative on the court to replace another conservative’s seat, that of the late Antonin Scalia, who died in February 2016.

Yes, Senate Democrats are enraged. Not at the selection of Gorsuch, necessarily, but over the treatment that President Obama got when he nominated Merrick Garland this past year to succeed Scalia.

My own thought is that Gorsuch is likely to be as good a choice as Democrats are going to get, given Trump’s insistence on picking a conservative judge.

No, the real donnybrook will occur when one of the liberals or swing justices decides to leave … or is unable to serve.

My own advice to Democrats would be to pick their fights carefully. Sure, they battle Gorsuch’s nomination. They’ll insist on keeping the 60-vote majority required to approve a Supreme Court nomination. Republicans might decide to invoke the “nuclear option” and allow a 51-vote majority.

I have no real clue as to which way this fight will go.

It might serve Democrats better to hold their fire for the next vacancy when — or if — it occurs during Trump’s time in office.

Given the tenuous ideological balance of the court, with its slim conservative majority, I sincerely doubt that Justices Ginsburg and Breyer — both picked by President Clinton in the 1990s — are going to resign amid the political climate that has fallen over Washington.

As for Justice Kennedy, one of President Reagan’s picks, well, that might be another matter.

Whatever happens, the serious political bloodletting is yet to occur.

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Say ‘no’ to term limits for justices

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Donald J. Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court has spurred a discussion that needs to end.

It involves whether there should be term limits for Supreme Court justices.

The nation’s founders didn’t create a perfect government after the American Revolution. They got a few things wrong: Women didn’t have the right to vote; they allowed human beings to own other human beings.

They got a lot of things quite right. One of them was to establish an independent federal judiciary where judges are given lifetime jobs upon being confirmed by the U.S. Senate.

Article III, Section 1 of the U.S. Constitution provides that “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour …”

There you go. If judges behave themselves and do the job to which they take an oath, they can stay for as long as they want. That holds true for Supreme Court justices especially.

Some progressives are alarmed that Trump has appointed a conservative judge to replace an iconic conservative justice, Antonin Scalia, who’s been dead for nearly a year. Let’s limit the terms of justices, they contend.

Hey, I’m on their side most of the time. Not here. The founders had this idea that judges should be free of political pressure. Thus, the lifetime appointment gives them a measure of independence to interpret the U.S. Constitution according to what they believe it tells them.

http://blog.independent.org/2017/02/01/term-limits-for-supreme-court-justices/

History has provided ample demonstration of that independence from judges who didn’t rule quite the way their presidential benefactors wanted. They find their own voice and serve as a check on the legislative and executive branches of government.

I see virtually nothing wrong with judges serving for the rest of their lives on the federal bench — even those with whom I disagree; and believe me, I am sure I will dislike most, if not all, of Neil Gorsuch’s rulings from the high court bench when or if he is confirmed by the Senate.

Then again, given the freedom to interpret the Constitution as broadly or narrowly as he chooses, Gorsuch could surprise us all and join the ranks of men such as Earl Warren, William Brennan, Byron White, John Paul Stevens and Harry Blackmun — all of whom broke with how legal experts expected them to rule.

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Principle pushes against politics

I just hate it when principle runs smack head-on into real-time politics.

The nomination of Neil Gorsuch to the U.S. Supreme Court has created just such a conundrum — at least for me.

The principle involves whether to fill the ninth seat on the nation’s highest court, an argument I made when President Barack Obama nominated Judge Merrick Garland to fill the vacancy created by the death of Justice Antonin Scalia.

It wasn’t to be for the Garland and the president; Senate Republicans threw up their roadblock and obstructed the nomination by refusing even to consider it.

They were wrong!

Now a new president has nominated Gorsuch to Scalia’s vacant seat. Senate Democrats are threatening to do all they can to obstruct it, to block Donald Trump’s nominee from taking his seat on the bench.

I’m swallowing real hard as I write this, but it is just as wrong for Democrats to obstruct this nominee as it was for Republicans to obstruct Merrick Garland.

The principle of presidential prerogative stands firm in my view.

So does the need for the Supreme Court to be whole. It needs nine seats occupied to avoid tie votes that in effect send important cases back to lower-court rulings.

At one level, I sympathize with Democrats’ rage at the way their GOP “friends” played raw politics with Garland’s nomination. The GOP leadership took a huge gamble on the hope that a Republican would be elected president. The odds of that gamble paying off seemed to lengthen considerably when Donald Trump won the GOP presidential nomination this past summer.

Trump fooled a lot of us by defeating Hillary Rodham Clinton.

Now it’s Donald Trump’s turn to nominate people to become justices on the highest court in America.

By all accounts, Gorsuch is qualified. He’s not my ideal justice candidate. To be candid, given Trump’s seeming lack of ideological conviction, I’m not at all certain he even fits whatever core values inform the president’s thinking.

The fundamental point, though, is whether it is right for Democrats to threaten to keep the seat vacant for another year — or perhaps for the entire length of time a Republican president is recommending potential justices.

It is not right!

Judge Gorsuch deserves a Senate committee hearing and a full vote in the Senate — just as Judge Garland did.

Principle ought to matter more than politics — even when one’s political sensibilities are being trampled.

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GOP’s amnesia surely must be cured

I cannot believe a Republican U.S. senator from Pennsylvania actually said this. But he did.

“We did not inflict this kind of obstructionism on President Obama.”

That came from Patrick Toomey.

It takes my breath away. I might need some smelling salts before I get done with this blog post.

Oh … yes you did, senator!

I get that Donald Trump’s selection of Neil Gorsuch as the next Supreme Court justice has angered Democrats. I also get that the president is entitled to nominate someone of his choosing.

What I do not get is the crass, brassy and classless argument from Senate Republicans — namely Sen. Toomey — that they didn’t obstruct President Barack Obama’s efforts to govern.

Good grief, dude! You made it your top priority!

The hands-down example of obstruction occurred after Antonin Scalia died suddenly while vacationing nearly a year ago in Texas. The Supreme Court justice’s corpse was still warm when Senate Majority Leader Mitch McConnell declared that the Senate GOP would block anyone selected by the then-president to succeed Scalia.

President Obama unveiled Merrick Garland as his nominee to the Supreme Court. McConnell held firm on his pledge. He blocked the nomination. He obstructed the president from fulfilling his constitutional duty to nominate a candidate for a federal judgeship.

Then, as if he had forgotten what he had done, McConnell accused the president and Senate Democrats of “playing politics.”

Are you bleeping kidding me, Mr. Majority Leader?

So here we are. Another president has picked another judge to the highest court. Democrats are furious at the treatment an earlier nominee got from their Republican colleagues.

And Republicans now are saying out loud — and apparently without a hint of shame — that, by golly, they didn’t obstruct a president from the opposing party.

They need treatment for their selective amnesia.

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Hold on! Court balance won’t change

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All this hyperventilating over Donald Trump’s choice for the U.S. Supreme Court is making me dizzy.

The president tonight brought out Neil Gorsuch, a judge on the 10th Circuit of Appeals, as his nominee for the nation’s highest court.

He’s a conservative, just as Trump promised. He is a “strict constitutional constructionist,” again as Trump vowed. He’s also a disciple of the late Justice Antonin Scalia, as Trump pledged.

Now we’re hearing talk about the “nuclear option” that Senate Democrats might employ to stop Gorsuch’s confirmation. They’ll oppose this fellow, seemingly as payback for the shabby treatment Senate Republicans leveled against President Obama’s choice to succeed Obama. Remember that? Senate GOPers said within hours of Scalia’s death that they would block anyone the president nominated. Obama selected Merrick Garland and the Senate didn’t even give him a hearing and a vote.

Let’s take a deep breath here.

I want to make a couple of points.

One, I detest the notion of Donald Trump nominating anyone to the court. But he won the presidency without my vote. He won enough electoral votes to take the oath of office. Thus, he earned the right to choose anyone he wants.

Gorsuch isn’t my kind of justice. But someone else is the president.

Two, the ideological balance of the U.S. Supreme Court is not going to change when — or if — Gorsuch is confirmed. Scalia was a conservative icon. He was a heroic figure among political conservatives. Placing another judicial conservative on the high court restores the court’s narrow 5-4 conservative bent.

I feel compelled to note that the court — with that narrow conservative majority — made two decisions that riled conservatives, um, bigly. It upheld the Affordable Care Act and it declared same-sex marriage to be legal under the 14th Amendment’s equal protection clause.

Would a Justice Gorsuch change that equation? I don’t see it. A nominee to succeed, say, one of the liberals on the court would most assuredly prompt a titanic political battle … as it should.

None of this will matter, of course, to Senate Democrats who are enraged at the president over many — seemingly countless — issues. His behavior in the first 10 days of his presidency, culminating with his firing of an acting attorney general over her refusal to defend Trump’s paranoid refugee ban, has angered Democrats to their core.

Thus, the fight is on.

It pains me to acknowledge it, but I must. Donald Trump vowed to nominate someone from a list of 20 or so jurists he revealed during his campaign. He has delivered on his pledge.

Judge Gorsuch isn’t to my liking. Moreover, my candidate lost. The other guy won. As they say, elections do have consequences.

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Trump creates a ‘word game’ for some of us

Word games. We all play them. OK, some of us do. Maybe even most of us do.

I have concocted a word game of my own. It involves the 45th president of the United States and it goes like this: I refuse, early in the presidency of Donald J. Trump, to type the words “President” and “Trump” consecutively. (Please note I didn’t do so just now.)

I am using High Plains Blogger as my insignificant form of protest over Trump’s election this past November.

Please do not misconstrue my intent. Nor should  you ascribe anything other than one voter’s displeasure at the outcome. I do not intend to launch any kind of public demonstration. I won’t carry a sign on the courthouse square or shout down a Trumpkin whenever I encounter one — and believe me, living here in the Texas Panhandle, they’re everywhere.

Moreover, my refusal to type those two key words consecutively does not mean I refuse to accept the fact that Trump is the duly elected president of the United States. I know how the U.S. Constitution works. Trump won the election. He got enough Electoral College votes to qualify him as president. He is a “legitimate president.” And as near as I can tell, he was born in the United States of America, too!

There. I’ve just repeated something I’ve stated already. So, those of you who are inclined to put words in my mouth, you are welcome to resist doing so now.

Back to my point.

It is quite possible I will grow weary of playing this word game. Given that I tire occasionally of playing games of any kind, I have given you some advance notice of what might transpire. I cannot predict when that will occur. I cannot predict when I’ll succumb to the temptation to attach the presidential title directly in front of Donald Trump’s name.

It might occur when the president does something that I can support with a full-throated cheer. I don’t know what that would be. It could occur if he declares that Vladimir Putin is a really bad guy and that he’ll add more anti-Russia sanctions on top of what his predecessor enacted; he might deliver a soaring State of the Union speech that hits many of the hot-button issues near and dear to my heart; he could nominate someone to the U.S. Supreme Court who isn’t a right-wing ideologue but instead is a mainstream centrist in the mold of, say, Merrick Garland — who got stiffed by Republicans when he was nominated by Barack Obama.

I don’t know. I’m waiting for the moment when my pique will pass.

In the meantime, I’ll keep playing my word game. Humor me.

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Next up: Supreme Court nomination

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U.S. Senate Minority Leader Chuck Schumer has thrown down the gauntlet: He is prepared to fight to keep the vacancy on the U.S. Supreme Court unfilled for the next year, maybe longer.

Don’t do it, Mr. Leader.

The president is going to nominate someone to fill the vacancy created nearly a year ago by the death of Justice Antonin Scalia. President Obama nominated Merrick Garland to replace Scalia, but Senate Republicans blocked the nomination in a brazen display of petty partisanship by refusing to give Judge Garland a hearing and a vote.

They were as wrong and petty as could be.

We now have a new president and Donald J. Trump is as entitled to make his selection as Barack Obama was entitled. Thus, the Senate should proceed with confirmation hearings and then a vote.

I’ve noted many times already on this blog about my belief in presidential prerogative. Yes, the Constitution also grants the Senate the right to “advise and consent” to whomever the president nominates.

Schumer, though, should at least wait to see who the president nominates before deciding whether to block an appointment.

I agree with Schumer and Senate Democrats on this point: Trump should select a mainstream candidate. The president need not pick a fight with Democrats just for the sake of picking a fight. If he presents a nominee who is considered to come from the right-wing fringe of the judicial/political spectrum, then perhaps the Senate has grounds to protest the nomination.

Blocking a Trump nominee just for the sake of blocking someone — or to exact revenge — is no more acceptable than the idiotic effort to block an Obama nominee.

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How do ex-presidents cope with it all?

Try putting yourself into a spot that most of us — at least everyone within my sphere of friends and acquaintances — will never experience.

That would be transferring oneself instantaneously from being the most powerful human being on Earth to being just another ordinary guy.

My mind does tend to wander into strange places at times. This is one of them.

After the election of a new president, I try to transport myself into the shoes of the individual who goes from being Somebody to a relative Nobody. How does that feel? Is there a palpable, discernible sense of great weight being lifted from one’s shoulders? Is there a temptation to thumb one’s nose at the successor or offer a snarky “Take it away, pal”?

Or is there a temptation to worry oneself silly over this or that crisis?

Barack Obama might be feeling a little weird today as he continues his transition to husband, father, son-in-law, friend, next-door neighbor.

MSNBC commentator Chris Matthews — who in a previous life served as a speechwriter for President Carter and was on hand to watch his boss hand it over to President Reagan in 1981 — offered an observation the other day I found so very fascinating.

He said the Secret Service presidential detail keeps its eyes riveted on the commander in chief and his immediate surroundings at all times. On Inauguration Day, their attention shifts dramatically at the instant the chief justice of the Supreme Court says, “Congratulations, Mr. President” to the new head of state.

It’s a ritual repeated with utmost precision and without the slightest impact on the event that’s taking place. It happened this past Friday as Barack Obama passed the baton to Donald Trump.

We’ve been focused, quite naturally, on the new president’s activities — and the protests that have greeted his arrival on center stage.

For reasons, though, that have little to do with my affection for the most recent former president, I will hope he adjusts as smoothly to a “normal life” as he did when he became the focus of billions of us living on Planet Earth.

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Hoping the presidency shapes the man

I am going to offer a word of hope in something that none of us can guarantee will occur.

It’s been said that the presidency either shapes the individual or the individual shapes the presidency.

My sincere hope as we head toward the inauguration of Donald J. Trump as the 45th president of the United States that the former takes place.

How will that present itself? Let’s start with the president-elect’s use of Twitter to make policy statements, to answer critics or to rattle the cages of foreign leaders.

We cannot know how the new president will conduct himself once he takes the oath. Trump has demonstrated time and again a reluctance to adhere to established norms as it relates to transitioning from private citizens to the most public of officials.

He says he’ll dial back the use of Twitter as a communications tool. I hope he does. For that matter, I hope he eliminates it and speaks with more reflection, nuance and decorum than he has shown through these Twitter tirades that come usually early in the morning.

It has been said that here in Texas, Rick Perry remade the governor’s office. He turned a traditionally weak office into a more powerful venue. Perry served as governor longer than anyone in Texas history and left a virtually indelible mark on the office through the myriad appointments he made to the state’s highest courts and its many boards and commissions.

Donald Trump will get to make a similar mark on the presidency through his own appointments. He’ll get to select a U.S. Supreme Court nominee, probably soon. I hope that he tilts more toward a centrist appointment, which might be yet another indicator of the office shaping the individual who occupies it.

Will the next president bow to the office or will he seek to remake it in his own image?

I’ll keep hoping for the first thing to occur … and soon!