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“Conservatives Are Right To Be Frightened”: Don’t Believe The Hype: Here’s What A Liberal Supreme Court Would Actually Do

If you look at how the Democratic and Republican candidates for president have reacted to the Supreme Court vacancy created by the death of Antonin Scalia, you might notice a greater sense of urgency from the Republicans. The Democrats are certainly talking about it, and they’ve certainly expressed their contempt at the absurd arguments Republicans are making in support of their position that the president of the United States shouldn’t be allowed to appoint Supreme Court justices if a new president will take office in a year. But they aren’t spinning out nightmare scenarios about what will happen if they lose this conflict. The Republicans, on the other hand, seem much more worried.

And they’re right to be, because at the moment, they have more to lose. But what would actually happen if the balance on the Court shifts from 5-4 in favor of conservatives (what it was before Scalia’s death) to 5-4 in favor of liberals?

To hear Republicans tell it, the results would be positively apocalyptic. Here’s how Ted Cruz described it in a CNN town hall last night:

“We are one liberal justice away from the Supreme Court striking down every restriction on abortion that’s been put in place the last 40 years. We are one liberal justice away from the Supreme Court writing the Second Amendment out of the Constitution. We are one liberal justice away from the Supreme Court ordering Ten Commandments monuments to be torn down, ordering veterans memorials to be torn down, and undermining our fundamental religious liberty.”

This is almost verbatim what Cruz has been saying since Scalia died; on Meet the Press last Sunday, he added colorfully that a liberal majority would mean “the crosses and Stars of David sandblasted off of the tombstones of our fallen veterans.”

There’s no doubt that if and when a new liberal justice takes his or her seat on the Court — either because Obama’s nominee somehow gets confirmed or because Hillary Clinton or Bernie Sanders wins the election and appoints one — it will be the most significant shift in the Court’s balance in decades. And that’s in large part because the right has gotten so much of what it wanted out of this Supreme Court. While conservatives shake their fists at the Court and call John Roberts a traitor, the truth is that with just a few exceptions, most notably the legalizing of same-sex marriage and the upholding of (most of) the Affordable Care Act, the Roberts Court has delivered the right a spectacular string of victories over the last few years. Among other things, they found an individual right to own guns for the first time in history, knocked down limits on spending by corporations (and unions) on political campaigns, whittled away at affirmative action, gutted the Voting Rights Act, made it harder for employees to sue for sex discrimination, and declared that corporations have religious rights.

Nevertheless, according to the Pew Research Center, in 2008, 80 percent of Republicans had a favorable view of the Supreme Court. By 2015 that figure had fallen to 33 percent. And 68 percent of conservative Republicans described the Court as “liberal,” which is laughable by any standard one could devise.

So what happens now? Margo Schlanger compiled this list of major rulings where Scalia was in a 5-4 majority, all of which could in theory be overturned, from Citizens United to D.C. v. Heller (which established the individual right to own guns) to Shelby County v. Holder (which invalidated key parts of the Voting Rights Act). But that doesn’t mean a liberal majority would go on a rampage, overturning all those settled cases.

“The Supreme Court is a conservative institution as a whole; justices aren’t looking to overturn the apple cart,” Jill Dash of the liberal American Constitution Society told me this morning. She argued that it’s unlikely that a liberal majority would set about to repeal those high-profile decisions, particularly within the first few years of that majority.

Samuel Bagenstos, a professor at the University of Michigan law school who served in the Justice Department under President Obama, also doubts that there would be too many major decisions overturned. “The four more liberal justices currently on the Court take precedent and stare decisis seriously, and I don’t think that will change,” he said.

But there would be change in complex areas of law where the courts are still working through how previous decisions apply to varied situations. Affirmative action is one “where the Court would be much more likely to uphold programs designed to promote diversity in schools and the workplace,” Bagenstos says. He also points to employment law as an area where a liberal majority could chart a new path, in cases concerning arbitration clauses in contracts and what constitutes systemic discrimination. Dash notes that a liberal majority would probably produce a spate of voting rights cases, as challenges to restrictions imposed by Republican state legislatures would find a friendlier hearing, even if Shelby County isn’t entirely overturned.

And then there’s abortion, always at the top of everyone’s mind when the Supreme Court comes up. In recent years, conservative states have pushed the envelope farther and farther in restricting the availability of abortion, with onerous rules on abortion clinics and invasive mandates on the women seeking the procedure. The question is which of these measures violate the Court’s 1992 ruling in Planned Parenthood v. Casey, which stated that the government can’t impose an “undue burden” on a woman’s right to choose.

The conservative position to this point has been that virtually no burden is “undue.” If the state makes you drive hundreds of miles, wait for days, make multiple visits to a clinic, hear an oration of lies penned by some GOP state legislator about how getting an abortion might give you cancer and drive you mad, so far the Supreme Court has said it’s just what women should have to tolerate.

But that might no longer be true. “A liberal who replaced Justice Scalia would likely read the Casey ‘undue burden’ standard as imposing a much more significant limitation on the regulation of abortion than the Court has in recent years,” says Bagenstos, “so you could see a major practical shift in reproductive rights jurisprudence. I don’t think the Court would overrule any precedent, though. It would just find a wider range of burdens to be ‘undue.’”

In short, a liberal replacing Scalia would be an important change with profound consequences for all Americans’ lives. But it wouldn’t happen all at once, and it wouldn’t be so earth-shattering as to cause riots in the streets. Nobody’s going to sandblast the crosses off the gravestones at Arlington. Nevertheless, conservatives are right to be frightened. They’ve had a long run with conservative dominance of the Supreme Court, and it may be coming to an end. Now they’ll understand how liberals have felt for the last few decades.

 

By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, February 18, 2016

February 19, 2016 Posted by | Conservatives, Liberals, U. S. Supreme Court | , , , , , , , , , , | 1 Comment

“Hillary’s Double-Standard Dance”: Same Dance Women, Especially Female Candidates, Have Been Expected To Do For Years

Things I heard Hillary Clinton talk about Saturday night in Denver at the Colorado Democrats’ Jefferson-Jackson dinner: Supreme Court appointments. Health care. Gun violence, with a catch in her voice when she mentioned Aurora, Columbine and Sandy Hook families turning their grief into action. Electing Morgan Carroll to Congress to represent Colorado’s sixth district, returning Michael Bennet to the Senate and regaining Democrats’ state senate majority. Anti-abortion personhood measures. The reopening of the Planned Parenthood clinic in Colorado Springs on Monday.

Things Bernie Sanders talked about: The Supreme Court and Citizens United. Income equality. Single-payer health care. Zero mention of helping other Democrats in swing-state Colorado, or much specific to Colorado at all.

As my hero Ann Richards famously said, “Ginger Rogers did everything that Fred Astaire did. She just did it backwards and in high heels.”

So how much does Hillary Clinton have to do backwards and in high heels before she gets the credit she deserves? I agree with Bernie Sanders’ positions on the issues (guns aside), as do most Democrats, even though he wasn’t one until a year ago. But Sanders’ positions wouldn’t exist without the groundwork Hillary Clinton has done on health care, women’s rights, LGBT rights, civil rights, as secretary of state and in 40 years as a child advocate, including creating the State Children’s Health Insurance Program and starting with her first job as a staff attorney for the Children’s Defense Fund.

So yes, there is some frustration among those of us in the Thelma and Louise generation, that while Bernie gets accolades for what he says, Hillary still has to earn them for what she’s done.

The same goes for the entirety of Bernie’s foreign policy, resting on his vote against the Iraq War. That’s nice. Meanwhile, as secretary of state Hillary successfully navigated the complexities of international diplomacy, restored our stature in the world, contributed to our taking out Osama bin Laden, normalized relations with Cuba, negotiated a cease-fire in Gaza, laid the foundation for the agreement to denuclearize Iran and traveled to more countries than any other secretary of state. As Sen. Harry Reid put it, “Nearly every foreign policy victory of President Obama’s second term has Secretary Clinton’s fingerprints on it.”

Bernie Sander wants credit for a day. Hillary Clinton doesn’t get credit for four years.

And a personal note to Bernie-backers: I was Sen. Barbara Boxer’s press secretary when she was one of 23 senators to vote ‘no’ on the Iraq Resolution in 2002. She was up for re-election at the time, and even though her seat, like Bernie’s, was considered safe, our campaign manager nearly had a stroke.

The political atmosphere courtesy of the Bush administration was toxic and just this side of McCarthyism – they were questioning the patriotism of Sen. Max Cleland, an Army captain who left both legs and an arm on a helicopter pad in Vietnam, for disagreeing with President Bush. Minnesota Sen. Paul Wellstone voted ‘no,’ and had he not been killed in a plane crash he likely would have lost his seat.

So the idea that the senator from New York could have voted ‘no’ a year after 9/11 is simply ridiculous. As Hillary has said, if she knew then what we all know now – that the Bush administration was lying about the connection between Saddam and 9/11 to foment a rush to war – she would have voted differently. Hindsight is 20/20 and apparently politically beneficial.

It’s also worth noting that Sens. Boxer and Franken, the latter the Democratic successor to Paul Wellstone’s seat, have both endorsed Hillary.

Hillary may be in a pantsuit. But she’s doing the same double-standard dance women, and especially female candidates, have been expected to do for years.

 

By: Laura K. Chapin, U. S. News and World Report, February 17, 2016

February 19, 2016 Posted by | Bernie Sanders, Hillary Clinton, Women, Women in Politics | , , , , , , , , , | 2 Comments

“Build Bridges, Not Walls”: It Has Come To This; Donald Trump Vs. The Pope

Donald Trump is aiming ever higher on his list of political enemies. The latest: Pope Francis, who has suggested that Trump is “not Christian” — to which The Donald has responded that Francis will only wish he had been president “if and when the Vatican is attacked by ISIS.”

During a phone appearance last week on the Fox Business Network, Trump first responded to the various calls by the leader of Catholic Church for compassion on behalf of Latin American immigrants.

“So I think the pope is a very political person and I think that he doesn’t understand the problems our country has,” Trump said, alleging that the successor to St. Peter was being manipulated. “And I think Mexico got him to do it because Mexico wants to keep the border just the way it is because they’re making a fortune and we’re losing.”

But this Thursday morning, ABC News, a reporter asked the Holy Father if “a good Catholic vote for this man?” as the Holy Father was on a plane back to Rome after his tour of the U.S.-Mexican border.

“Thank God he said I was a politician, because Aristotle defined the human person as ‘animal politicus.’ So at least I am a human person,” responded the esteemed Bishop of Rome. “As to whether I am a pawn — well, maybe, I don’t know. I’ll leave that up to your judgment and that of the people.”

He continued: “And then, a person who thinks only about building walls, wherever they may be, and not building bridges, is not Christian. This is not in the gospel. As far as what you said about whether I would advise to vote or not to vote, I am not going to get involved in that. I say only that this man is not Christian if he said things like that. We must see if he said things in that way and in this I give the benefit of the doubt.”

This got Trump pretty fired up, judging from his statement Thursday afternoon:

DONALD J. TRUMP RESPONSE TO THE POPE

If and when the Vatican is attacked by ISIS, which as everyone knows is ISIS’s ultimate trophy, I can promise you that the Pope would have only wished and prayed that Donald Trump would have been President because this would not have happened. ISIS would have been eradicated unlike what is happening now with our all talk, no action politicians.

The Mexican government and its leadership has made many disparaging remarks about me to the Pope, because they want to continue to rip off the United States, both on trade and at the border, and they understand I am totally wise to them. The Pope only heard one side of the story – he didn’t see the crime, the drug trafficking and the negative economic impact the current policies have on the United States. He doesn’t see how Mexican leadership is outsmarting President Obama and our leadership in every aspect of negotiation.

For a religious leader to question a person’s faith is disgraceful. I am proud to be a Christian and as President I will not allow Christianity to be consistently attacked and weakened, unlike what is happening now, with our current President. No leader, especially a religious leader, should have the right to question another man’s religion or faith. They are using the Pope as a pawn and they should be ashamed of themselves for doing so, especially when so many lives are involved and when illegal immigration is so rampant.

Donald J. Trump

Next up: Donald Trump will allege that Pope Francis has a birth certificate in Argentina — and it’s got a different name written on it!

Update:: Trump has now read the statement aloud, at a rally in South Carolina

 

By: Eric Kleefeld, The National Memo, February 18, 2016

February 19, 2016 Posted by | Christians, Donald Trump, Pope Francis | , , , , , , | Leave a comment

“Not At All What Republicans Wanted To Hear”: O’Connor Undermines GOP Talking Points On Court Vacancy

In the fight over filling the Supreme Court vacancy, Republicans clearly have the more difficult task, at least when it comes to rhetoric and public relations. The Constitution has already made clear how the process is supposed to unfold, it’s now up to GOP senators to make the case that they should ignore – indeed, they have an obligation to ignore – the constitutional model.

Republicans can’t come right out and say the truth, since “we hate the president” isn’t a compelling talking point, so they tend to frame their concerns as high-minded. As Sen. Orrin Hatch (R-Utah) put it yesterday, the partisan blockade against any court nominee is intended to protect the institution from “politicization” and “denigration.”

It’s difficult to take such an argument seriously, and it certainly doesn’t help when an actual retired Supreme Court justice seems to have no use for the right’s talking points. The Huffington Post reported yesterday:

Sandra Day O’Connor, the retired Supreme Court justice appointed by a Republican president, said on Wednesday that President Barack Obama should get to name the replacement for the late Justice Antonin Scalia.

O’Connor, in an interview with a Fox affiliate in Phoenix, disagreed with Republican arguments that the next president, and not Obama, should get to fill the high court vacancy.

O’Connor specifically said during the interview, “I think we need somebody there to do the job now and let’s get on with it.” She added, in reference to President Obama, “It’s an important position and one that we care about as a nation and as a people. And I wish the president well as he makes choices and goes down that line. It’s hard.”

That’s not at all what Republicans wanted to hear.

On the contrary, O’Connor, a Reagan appointee who retired in 2006, effectively said the opposite of what GOP senators have argued since Saturday night.

Republicans have said the seat should remain vacant for 11 months; O’Connor wants the confirmation process to begin and for a new justice to take the seat “now.” Republicans have argued that the president shouldn’t nominate anyone; O’Connor made clear the nominating choice is up to the president.

Obviously, O’Connor is now a private citizen and her opinions are her own, but she’s also a respected figure, especially on matters related to the high court. If she’d said the opposite in the interview, encouraging Obama and sitting senators to leave the seat vacant until 2017 for the good of the institution, it’s a safe bet Republicans would be citing her judgment every day for the next several months.

But she didn’t. O’Connor seems to have no use for the GOP arguments whatsoever.

 

By: Steve Benen, The Maddow Blog, February 18, 2016

February 19, 2016 Posted by | Republicans, Sandra Day O'Connor, U. S. Constitution, U. S. Supreme Court Nominees | , , , , , | 2 Comments

“Democrats, Don’t Blow It”: Ask Yourselves, Whom Would You Prefer To Name Future Supreme Court Judges?

The death of Antonin Scalia has set off yet another epic partisan struggle as Senate Republicans seek to deny President Obama his constitutional right to nominate the next Supreme Court justice. They want to wait out Obama’s last year in office, hoping his successor will be one of their own.

If the Democrats choose Bernie Sanders as their presidential candidate, Republicans will almost certainly get their wish. Furthermore, the Republican president would probably have a Republican-majority Senate happy to approve his selection.

The makeup of senatorial races this November gives Democrats a decent chance of capturing a majority. Having the radical Sanders on the ballot would hurt them in swing states.

Some Sanders devotees will argue with conviction that these purplish Democrats are not real progressives anyway, not like our Bernie. Herein lies the Democrats’ problem.

No sophisticated pollster puts stock in current numbers showing Sanders doing well against possible Republican foes. The right has not subjected Sanders to the brutality it routinely rains on Hillary Clinton — precisely because he is the candidate they want to run a Republican against. Should Sanders become the nominee, the skies will open.

One may applaud Sanders’ denunciation of big money in politics, but a moderate Democrat in the White House could do something about it. A democratic socialist not in the White House cannot. Campaign finance reform would be a hard slog under any circumstances, but a seasoned politician who plays well with others could bring a reluctant few to her side.

Some younger liberals may not know the history of the disastrous 2000 election, where Republicans played the left for fools. Polls were showing Al Gore and George W. Bush neck-and-neck, particularly in the pivotal state of Florida.

Despite the stakes, prominent left-wing voices continued to back the third-party candidacy of Ralph Nader. You had Michael Moore bouncing on stages where he urged cheering liberals to vote for the radical Nader because there was no difference between Gore and Bush. Republicans, meanwhile, were running ads for Nader. That was no secret. It was in the papers.

When the Florida tally came in, Bush held a mere 537-vote edge. The close results prompted Florida to start a recount of the votes. Then, in a purely partisan play, the conservative majority on the Supreme Court stopped the recount, handing the election to Bush.

The bigger point is that Gore would have been the undisputed winner in 2000 had Nader not vacuumed up almost 100,000 Florida votes, most of which would have surely gone to him.

Same deal in New Hampshire, where Nader siphoned off more than 22,000 votes. Bush won there by only 7,211 ballots.

Now, Sanders is an honorable man running a straightforward campaign for the Democratic nomination. One can’t imagine his playing the third-party spoiler.

But what makes today similar to 2000 is how many on the left are so demanding of ideological purity that they’d blow the opportunity to keep the White House in Democratic hands. Of course, they don’t see it that way. This may reflect their closed circle of like-minded friends — or an illusion that others need only see the light, and their hero will sweep into the Oval Office.

The other similarity to 2000 is the scorn the believers heap on the experienced liberal alternative. They can’t accept the compromises, contradictions and occasional bad calls that attach to any politician who’s fought in the trenches.

The next president will almost certainly be either Clinton or a Republican. Democrats must ask themselves: Whom would you prefer to name future Supreme Court judges?

 

By: Froma Harrop, The National Memo, February 16, 2016

February 19, 2016 Posted by | Bernie Sanders, Democrats, Hillary Clinton, U. S. Supreme Court Nominees | , , , , , , , , , | 10 Comments

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