“Force The Senate To Do Its Job”: Obama Can Appoint Merrick Garland To The Supreme Court If The Senate Does Nothing
On Nov. 12, 1975, while I was serving as a clerk to Supreme Court Justice Thurgood Marshall, Justice William O. Douglas resigned. On Nov. 28, President Gerald R. Ford nominated John Paul Stevens for the vacant seat. Nineteen days after receiving the nomination, the Senate voted 98 to 0 to confirm the president’s choice. Two days later, I had the pleasure of seeing Ford present Stevens to the court for his swearing-in. The business of the court continued unabated. There were no 4-to-4 decisions that term.
Today, the system seems to be broken. Both parties are at fault, seemingly locked in a death spiral to outdo the other in outrageous behavior. Now, the Senate has simply refused to consider President Obama’s nomination of Judge Merrick Garland to the Supreme Court. Meanwhile, dozens of nominations to federal judgeships and executive offices are pending before the Senate, many for more than a year. Our system prides itself on its checks and balances, but there seems to be no balance to the Senate’s refusal to perform its constitutional duty.
The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president’s nominations. Start with the appointments clause of the Constitution. It provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.” Note that the president has two powers: the power to “nominate” and the separate power to “appoint.” In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?
In most respects, the meaning of the “Advice and Consent” clause is obvious. The Senate can always grant or withhold consent by voting on the nominee. The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty.
It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”
It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.
Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.
Presumably the Senate would then bring suit challenging the appointment. This should not be viewed as a constitutional crisis but rather as a healthy dispute between the president and the Senate about the meaning of the Constitution. This kind of thing has happened before. In 1932, the Supreme Court ruled that the Senate did not have the power to rescind a confirmation vote after the nominee had already taken office. More recently, the court determined that recess appointments by the president were no longer proper because the Senate no longer took recesses.
It would break the logjam in our system to have this dispute decided by the Supreme Court (presumably with Garland recusing himself). We could restore a sensible system of government if it were accepted that the Senate has an obligation to act on nominations in a reasonable period of time. The threat that the president could proceed with an appointment if the Senate failed to do so would force the Senate to do its job — providing its advice and consent on a timely basis so that our government can function.
By: Gregory L. Diskant, Senior Partner at the law firm of Patterson Belknap Webb & Tyler, Member of the National Governing Board of Common Cause; Opinion Pages, The Washington Post, April8, 2016
“Why America Will Never Be Great In Trump’s Eyes”: He Has Never Been Very Impressed With America
To all but Donald Trump’s most loyal followers, it’s now a truism that he can change his positions at any moment, as he did multiple times last week on abortion. Trump’s “guiding conviction is winning, and he’ll say pretty much whatever he thinks will get him there,” Elizabeth Williamson observed this week in The New York Times. In a recent piece for Slate, Franklin Foer argued that Trump’s misogyny is his single core belief, the one idea that has remained consistent as all of his other views have shifted with the political winds over the decades.
Trump, to be sure, is astonishingly inconsistent on many issues, and terrifyingly consistent in his misogyny. But Trump’s critics aren’t being quite fair when they accuse him of wavering on every other topic. He has also been entirely consistent on another key point: He has never been very impressed with America.
Trump first flirted with running for president in the late 1980s, as Ronald Reagan’s presidency was drawing to a close. It’s an era many Republicans consider the height of American power and greatness, but Trump, at the time, didn’t like what he saw. In a September 1987 open letter that he spent nearly $100,000 to publish in a number of major newspapers, Trump fixated on a single issue: the exploitation of America by countries that fail to pay for our military protection. “The world is laughing at America’s politicians as we protect ships we don’t own, carrying oil we don’t need, destined for allies who won’t help,” Trump wrote. The letter wasn’t an aberration. The next month, Trump traveled to New Hampshire, where he stuck to the same theme, telling 500 Republicans at the Portsmouth Rotary Club that America is “being kicked around” by Japan and the Arab oil states.
The most remarkable thing about Trump’s 1980s view of America as a weak, loser nation is that it’s nearly identical to the views he has expressed in recent weeks during a series of rambling discussions of foreign policy: In a conversation with The New York Times, Trump argued that America takes “tremendous monetary hits on protecting countries” and that “we lose, everywhere.” In Trump’s mind, the root of America’s woes has always been the same: Other nations, particularly Japan and Saudi Arabia, don’t pay us enough for all we do for them. Indeed, while it’s sometimes argued that Trump has shrewdly crafted his appeal to a newly fragile American psyche, it might be more accurate to say that Trump has been waiting 30 years for Americans to catch up to his unwaveringly primitive, pessimistic view of America’s standing in the world.
As Trump has explained it—both in the 1980s and today—his focus on foreign spending is a byproduct of his concern about America’s deficit spending. “It’s time for us to end our vast deficits by making Japan, and others who can afford it, pay,” Trump stated in his 1987 letter. But even Trump must understand today that eliminating all of the money America spends to station troops around the world would fail to make a dent in our deficit spending—only 16 percent of the federal budget is spent on defense, and only a fraction of that 16 percent is spent on peacekeeping troops. So, the mystery is why this relatively minor expense has remained so central to his thinking, even as so many of his other positions have changed time and again.
As Adam Davidson points out in The New York Times Magazine, it makes perfect sense that someone with Trump’s real estate experience would understand political agreements as zero-sum deals with winners and losers, rather than as mutually beneficial pacts. But Trump’s business background doesn’t quite explain his obsession with foreign spending. After all, there are plenty of American real-estate tycoons who aren’t losing sleep over the prospect of spending money to defend Japan.
The most likely explanation for Trump’s obsession with foreign spending may simply be that he has a deep visceral reaction to the very thought of a stronger party having to spend money on behalf of a weaker party. And if the issue drives him a little crazy, it’s perhaps because peacekeeping troops presents a fundamental paradox for Trump: He wants nothing more than for America to dominate the world, but dominating the world as a superpower is an expensive proposition. The more powerful America grows, the more it has to spend across the globe to maintain its influence, and thus, the weaker it becomes in Trump’s eyes.
This paradox explains why Trump will never find greatness in a truly powerful America, and why, when pressed by the Times to name a laudable era in U.S. history, he went back more than a century: “[I]f you really look at it, the turn of the century, that’s when we were a great, when we were really starting to go robust.” Trump added that the 1940s and ’50s were okay because “we were not pushed around” and “we were pretty much doing what we had to do.” Never mind that, as Max Boot writes in Commentary, the U.S. “went from defeat to defeat” against Communism in the late 1940s, or that America wasn’t nearly as powerful as it would become by the end of the twentieth century.
Trump’s only way out of this paradox is to insist that other countries pay America to dominate them. This is why it’s so important that Mexico pay for building the wall he wants along our entire southern border. Indeed, forcing Mexico to pay for the wall might be the real rationale for the wall itself. Trump’s foreign policy amounts to a vision of international extortion, America as a mafia thug squeezing protection payments out of our weaker allies. The problem, as the Times’ David E. Sanger recently pointed out to Trump, is that rather than pay America, a country might instead wish America the best and spend its money on weapons, including nuclear arsenals—hardly a recipe for sustained global influence.
Why Trump can’t grasp that America’s willingness to spend on global peacekeeping forces is not a reflection of its weakness, but a source of its power, is hard to say. But this much is clear: In Trump’s world, nothing is more upsetting than a powerful nation failing to fully dominate a weaker nation. And because American power, unlike the power of Trump the businessman, is mutually exclusive with squeezing every last dollar out of weaker parties, Trump might as well give up on his campaign promise. America will never be great again in his eyes.
By: Sam Apple, The New Republic, April 8, 2016
“Decisions, Decisions”: Why Cruz Is Worse Than Trump
On economics, that is. On other issues — well, who was worse, Mussolini or Torquemada? Decisions, decisions.
But on economics, Trump is a big protectionist, while Cruz is a devotee of the gold standard. And we know quite a lot about what these policies would do.
Protectionism makes economies less efficient, but it does not, in general, destroy jobs. Put a tariff on imports and people will spend less on imports — but they will normally spend more on other things instead. So a worldwide turn toward protectionism would both reduce everyone’s exports and reduce their imports, with the overall effect on spending and hence on employment more or less a wash.
Yes, I know there’s a Moody’s study claiming that Trumponomics would be a yuuge job destroyer, but I really don’t know where they got that result; the best guess seems to be that they’re assuming that former spending on imports just goes away, which is not a good assumption.
And no, protectionism didn’t cause the Great Depression. It was a consequence, not a cause — and much less severe in countries that had the good sense to leave the gold standard.
Which brings us to Cruz, who is enthusiastic about the gold standard — which did play a major role in spreading the Depression.
The problem with gold is, first of all, that it removes flexibility. Given an adverse shock to demand, it rules out any offsetting loosening of monetary policy.
Worse, relying on gold can easily have the effect of forcing a tightening of monetary policy at precisely the wrong moment. In a crisis, people get worried about banks and seek cash, increasing the demand for monetary base — but you can’t expand the monetary base to meet this demand, because it’s tied to gold. On top of that, a slump drives interest rates down, increasing the demand for real assets perceived as safe — like gold — which is why gold prices rose after the 2008 crisis. But if you’re on a gold standard, nominal gold prices can’t rise; the only way real prices can rise is a fall in the prices of everything else. Hello, deflation!
So on economics, again, Trump is ignorant and unpredictable — but Cruz knows what isn’t so, and would lead us to predictably dire results.
By: Paul Krugman, The Conscience of a Liberal, Opinion Pages; The New York Times, April 8, 2016
“New Religious Freedom Bills Legitimize Discrimination”: Using The Bible As A Prop For Prejudice
You’d think history might serve as a guide for the politicians and preachers — good Christians all, of course — who have chosen to use the Bible to bolster their bigotry against people they’ve placed outside the magic circle. We’ve seen this before, and it didn’t turn out well for those who claimed a mantle of righteousness. Yet onward they march.
Mississippi recently passed a “religious freedom” law designed to provide legal cover for those who wish to discriminate against gays and lesbians. The law is quite specific, allowing government clerks to refuse to issue marriage licenses to same-sex couples and protecting businesses that refuse to serve them.
Does this ring any bells? Do any of these people remember Jim Crow, a system of legalized oppression that stunted Mississippi for generations and whose legacy the state is still struggling to overcome?
They can’t have forgotten — not all of them.
Gov. Phil Bryant, who signed the odious bill, is certainly old enough to remember. He’d remember, too, that, during his childhood, many of the leading church folk declared that God was on the side of discrimination.
And history should have taught the governor about Richard and Mildred Loving, an interracial couple who dared to marry in 1958. The Virginia judge who sentenced them to prison for their crime wrote: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. … The fact that he separated the races shows that he did not intend for the races to mix.”
Indeed, this practice of using the Bible as a prop for prejudice has a long and ignominious tradition, spanning centuries and continents. In the United States, slave owners conveniently saw in the Bible a heaven-sent sanction for their brutal greed. Throughout the 19th century, preachers delivered sermons claiming that “the Old Testament did sanction slavery,” as the Rev. Richard Fuller put it in 1847. Others saw a validation of white supremacy in a Bible verse about the descendants of Ham.
Proponents of “religious freedom” statutes point to the First Amendment, which enshrines as a central value the protection of religious views, even those that are outside the mainstream. Congress reiterated its fidelity to that founding principle as recently as 1993, when a bipartisan majority passed the Religious Freedom Restoration Act. It was designed for such cases as the Sikh firefighter who wants to keep his beard, or the Orthodox Jew who needs an exemption from a Sabbath work requirement.
But the U.S. Supreme Court’s 2015 decision legalizing same-sex marriage set off a spate of proposals that serve no purpose except bigotry — laws that prop up prejudice with Scripture. The giveaway in several of those bills is this: They allow for-profit businesses to claim to have religious beliefs and to refuse service on that basis.
(The Supreme Court opened the door for that with its unfortunate 2014 ruling in Burwell v. Hobby Lobby Stores, which assigned religious beliefs to corporations. That involved a company’s “religious freedom” to refuse to provide insurance coverage for contraceptives.)
Churches, by the way, don’t need any extra legal protections. The First Amendment has always given religious institutions wide latitude to practice their beliefs as they see fit, even if that means making invidious distinctions. Catholic priests have long reserved the right to refuse to marry those who are divorced; many conservative churches refuse to ordain women. So clerics may decline to perform the marriage rite for same-sex couples without fear of legal sanctions.
Given that, there is no need for laws that legitimize discrimination, and some states, either through revision or veto, have stepped back from such mean-spirited laws. North Carolina, however, has forged ahead with its “bathroom bill,” passed to nullify a Charlotte law that would have allowed transgendered individuals to use public restrooms of their choosing. And other state legislators are still debating proposals meant to show their disapproval of same-sex marriage.
Onward they march — toward their heterosexual heaven.
By: Cynthia Tucker Haynes, Pulitzer Prize Winner For commentary in 2007; The National Memo, April 9, 2016
“Up-And-Running Now”: Hillary’s “Establishment Politics” Has Already Delivered Some Of The Paid Leave Sanders Promises
The negative reviews of and cascading events from Bernie Sanders’ less-than-deft Q&A with the New York Daily News earlier this week continue. But there is one additional passage from that interview that deserves, but has largely escaped, notice (emphasis mine):
Alright, I believe that in the midst of the kinds of crises that we face with a disappearing middle class and massive levels of income and wealth inequality, the only major country on earth not guarantee to healthcare to all people, only major country not to provide paid family and medical leave, it is time to get beyond establishment politics. So to put your question in maybe a simpler way, is she a candidate of the establishment? The answer is, of course she is.
This is an astonishing thing for Sanders to say for a couple of reasons. First because, as he surely knows, it was the “establishment” Bill Clinton who, as one of his first acts as president in 1993, signed the Family and Medical Leave Act (FMLA) after it had twice been vetoed by his predecessor. Second (and maybe Sanders doesn’t know this; few do), having signed the FMLA providing up to 12 weeks of unpaid leave to workers to care for a newborn or a sick family member, Clinton, with the active help of his wife, became the first president to use federal power to provide paid leave to American workers.
I know this because I wrote the speech in which he unveiled the policies. It was a commencement address delivered on May 23, 1999 at Grambling State University, an historically black college in norther Louisiana that boasts, among other things, one of the best marching bands in the country. In the speech, Clinton announce two executive actions. First, federal workers would be allowed to use the sick leave they’d earned to take time off to care for other sick family members. Second, and potentially more important, states would be allowed to let public and private sector workers who have paid into the state’s federally regulated unemployment insurance systems to collect payments from those systems while they’re on leave caring for a newborn or a newly adopted child. Having attended the meetings where these policies were hashed out, I can assure you that they were a joint East Wing/West Wing initiative. The main person behind them was Nicole Rabner, who was the First Lady’s senior domestic policy adviser as well as a special assistant to the president.
The first policy (paid leave for federal workers) is still in place today. The second (allowing states to tap their unemployment insurance systems for paid leave) was overturned by George W. Bush, who deemed it a harmful imposition on businesses. But four states (California, New Jersey, Rhode Island, and Washington) that have separate Temporary Disability Systems, which are not federally regulated, used those systems to create basically the same voluntary family leave programs the Clintons were trying to incentivize. A major study of California’s, the largest and longest running paid leave program, found that it improved children’s health outcomes without measurably harming business productivity.
So the “establishment” politician Hillary Clinton can rightly claim a share of the credit for the paid leave programs that exist in the United States. They’re far from universal, but they’re real, up-and-running programs that seem to be working as advertised. And the reason they’re not more wide spread is not “establishment politics”–they are in fact the result of establishment politics–but Republican resistance.
Both Clinton and Sanders sponsored bills in the Senate to expand family leave that didn’t pass, and each has put forward plans to do so if they’re elected president (though the plans differ in how they’re financed). So both are, for progressives, on the “right side” of the issue. But only one of them has actually accomplished anything on this, and it isn’t Bernie Sanders.
By: Paul Glastris, Political Animal Blog, The Washington Monthly, April 8, 2016
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