mykeystrokes.com

"Do or Do not. There is no try."

“A Counterrevolutionary Supreme Court Litmus Test In The Making”: Prospective Justices Must Have Willingness To Ignore Both Other Branches Of Government

I really do appreciate the efforts of Constitutional Conservative legal beagles Randy Barnett of Georgetown and Josh Blackman of South Texas College of Law in laying out in some detail–and not in a legal journal but in the Weekly Standard–rules for examining future Republican Supreme Court appointments. It’s not just a litmus test in the making–which presidential candidates in both parties typically say they do not want to administer–but a rationale for a litmus test. And their piece has the advantage of being very clear on the key points.

To Barnett and Blackman, who first discuss the notorious history of Republican SCOTUS appointments they view as betrayals, the big thing is that prospective Justices have a clearly documented willingness to ignore both other branches of government–the principle behind the receding Republican doctrine of “judicial restraint”–and stare decisis–the principle against overturning well-settled Court precedent–in pursuit of the “original” meaning of the Constitution. That means treating SCOTUS as an all-powerful institution communing with eighteenth century Founders–or worse yet, Con Con mythologies about those Founders–and empowered to kill many decades of decisions by all three branches of government, precedent and democracy be damned. No wonder they talk repeatedly about needing Justices–and presidents–with courage! And the dividing line between good and bad “conservative” Justices could not be made much clearer: Alito goooood! Roberts baaaaaad! Barnett and Blackman even suggest their rules should be made clear to and then demanded by presidential primary voters!

If that actually starts happening, it will be as or even more important to watch as any other discussions of any other issues. As Brian Beutler recently noted in an important piece at TNR, Barnett and Blackman are among other things leading advocates for a return to the Lochner era of jurisprudence, whereby most regulations of private economic activity by the executive or legislative branches would be declared unconstitutional as an abridgement of “natural law” concepts in the original Constitution and an exotic understanding of the due process clauses in the 5th and 14th amendments. These are dangerous people to let anywhere near a Supreme Court nomination. But they and many others like them, who now play a dominant role in the very powerful conservative legal fraternity the Federalist Society, are likely to be right there with their litmus test in hand.

Anyone who thinks it doesn’t matter who wins the 2016 presidential election because the two parties are both loaded with corporate stooges needs to pay attention to this issue. Barnett and Blackman are very clearly pointing the way to abolition of the entire New Deal/Great Society legacy via rulings by judges serving lifetime terms. If that doesn’t matter to you, I’m not sure what does.

 

By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, September 4, 2015

September 6, 2015 Posted by | Conservatives, U. S. Constitution, U. S. Supreme Court | , , , , , , , | Leave a comment

“Speaking Of Asses”: Senator Complains About ‘Dumbass Liberals’

I actually remember the way Sen. Orrin Hatch (R-Utah) used to be, back when he boasted about being a “square peg” – a label he used as a shorthand to say he doesn’t always fit in.

The Utah Republican used to actually see value in cooperating with people with whom he disagreed, working with Democrats, for example, on stem-cell research, the DREAM Act, and S-CHIP.

But then he threw it all away. As Amanda Terkel reported, Hatch’s remarks at the Federalist Society’s annual conference are a reminder of the kind of politician he’s become.

Sen. Orrin Hatch (R-Utah) came out swinging against Democrats Friday, telling a room of conservative lawyers that Republicans were ready to give the other party “a taste of their own medicine.”

“Frankly, I intend to win with our candidate for the presidency in 2016, and we will give them a taste of their own medicine,” said Hatch. “And we’re going to win. We’re going to win. These next two years are extremely important. Maybe the most important two years in our history.”

“I get a big kick out of them using the word ‘progressive,’” the senator said of Democrats. “My gosh, they’re just straight old dumbass liberals anyway.”

Classy.

It wasn’t too long ago that Hatch was positioned to become a rare statesman in Republican politics. But that was before his partisan Memorial Day tantrums, his occasional references to hitting people he doesn’t like, and his juvenile whining about “dumbass liberals.”

Those looking for GOP statesmanship will apparently have to look elsewhere.

On a related note, did you happen to catch Hatch’s remarks about immigration reform?

“Part of it is our fault. We haven’t really seized this problem. Of course, we haven’t been in a position to do it either, with Democrats controlling the Senate. I’m not blaming Republicans. But we really haven’t seized that problem and found solutions for it.” […]

“Frankly, I’d like to see immigration done the right way,” Hatch added. “This president is prone to doing through executive order that which he cannot do by working with the Congress, because he won’t work with us. If he worked with us, I think we could get an immigration bill through.”

For goodness sakes, does Orrin Hatch not remember the events of the last two years? With “Democrats controlling the Senate,” a comprehensive, bipartisan immigration reform bill passed easily, and garnered the support of the business community, labor, law enforcement, immigration advocates, and the religious community. Republicans then killed it.

“I’m not blaming Republicans”? Why not? They’re the ones who chose to reject the legislation. They’re also the ones who promised a more partisan alternative, only to break their word.

“If he worked with us, I think we could get an immigration bill through.” President Obama did work with Congress, and helped rally support for a bipartisan bill. GOP lawmakers killed it anyway.

How is it possible Orrin Hatch doesn’t know this? For that matter, given the circumstances, shouldn’t he be slightly more circumspect about throwing around words such as “dumbass”?

 

By: Steve Benen, The Maddow Blog, November 17, 2014

November 19, 2014 Posted by | Election 2016, Orrin Hatch, Republicans | , , , , , , , | 2 Comments

“Achieving Conservative Objectives:” Behold The Paradigm, Roberts Court Cloaks Its Activism In Complexity

To understand the U.S. Supreme Court’s order on greenhouse-gas regulations, I had to read it three times — and I’m a law professor. The complication isn’t a coincidence. It’s the very essence of the imprint that Chief Justice John Roberts is putting on the court.

As its ninth term clicks into gear, the Roberts court has finally developed something like an identity of its own. It avoids highly activist conservative headlines that would drive Democrats to the polls. At the same time, behind a screen of legal complexity, it achieves significant conservative objectives.

The court’s health care decision is an obvious recent example: Roberts cast the deciding vote to uphold mandatory coverage, enraging conservatives and encouraging liberals. But by striking down the provision that pressured states to extend Medicaid, the court gutted the universal coverage that was the Affordable Care Act’s ethical ideal.

The regulation of greenhouse-gas emissions bids fair to produce a similarly confusing result. The court had been asked to review a decision of the U.S. Court of Appeals for the D.C. Circuit that upheld Environmental Protection Agency regulations on greenhouse gases that are the Barack Obama administration’s most significant accomplishments for environmental protection. The court declined to review — and thus left in place — the regulations on motor-vehicle emissions. It also chose not to review the basic question of the EPA’s authority to regulate greenhouse gases. Environmentalists cheered this result.

At the same time, however, the court agreed to review a single, wildly technical-sounding question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” What this question asks in English, roughly speaking, is whether the EPA was allowed to issue emissions regulations governing factories and power plants under the authority of the law that lets it regulate cars and trucks. And what that means in practical terms is that the court could strike down the Obama EPA’s existing greenhouse-gas regulations for the nonmoving (“stationary”) polluters who create much of the pollution that drives global warming.

Behold the Roberts paradigm! Or don’t behold it: The hand is quicker than the eye. The headline allows environmental regulation to stand. The fine print suggests that the most important part of the existing regulations enacted by the Obama administration could be ditched.

And, remarkably enough, environmentalists are buying into the shell game as well. Some experts hastened to explain that, even if the Roberts court were to strike down the stationary-source regulations on the grounds that they were not authorized by laws permitting regulation of motor vehicles, there would still be other ways under the Clean Air Act to enact such rules. The court’s decision to hear the case, they implied, shouldn’t worry environmentalists too much.

The experts’ observation is technically correct but could prove too optimistic. The administration plans to enact different regulations covering coal-fired power plants, under different authority. But if the court were to strike down the existing stationary-source regulations in June 2014, significant uncertainty will result. The court’s reasoning, which cannot be foreseen, could potentially call into question other types of regulation. The litigation surrounding the planned regulations — and believe me, there’ll be litigation — will have to take into account the court’s reasoning, whatever it may be. The apparently narrow question to be addressed doesn’t guarantee a holding acoustically sealed off from regulations under different authority.

Coincidentally, the energy producers and manufacturers who make up the stationary-source polluters form a concentrated interest group. They will lobby to fight the new regulations, no doubt using the argument that greenhouse gases have already been significantly cut by regulating drivers. And, of course, drivers’ interests are more diffuse, so (surprise!) their lobbying power is weaker. They are, in short, perfect patsies to take the regulatory hit.

All this adds up to an extremely sophisticated strategy for the justices who agreed to take the case. Even if they strike down the regulations, they will be doing so on the highly technical basis that the EPA relied on the wrong source of authority. Environmentalists will focus the public’s attention on enacting new regulation, thereby distracting the public from blaming the court. The whole decision will look Solomonic — upholding a part of the regulations while striking down another part — rather than like pro-business activism. The court’s legitimacy will be preserved, even strengthened.

What makes this strategy hallmark John Roberts is how markedly it differs from the approaches of the court’s other conservatives. Justice Antonin Scalia, still the intellectual leader of the conservative wing into his increasingly cantankerous mid-70s, declares his broad principles of originalism and textualism and puts them into practice, most of the time consistently. His swashbuckling decisions and clever, incisive rhetoric leave you in no doubt where he stands. You can love him or hate him (I myself feel both emotions, usually simultaneously), but you always, always know where he stands. Justice Clarence Thomas is similarly out there, lauding the virtues of the 18th century. No one could call either of these justices crafty.

In their decades on the court — each having served with Chief Justice William Rehnquist — Scalia and Thomas never managed to achieve the conservative revolution that the Ronald Reagan era promised and the Federalist Society championed. Radical — and radically consistent — they couldn’t hold the center, frequently losing the votes of Justices Sandra Day O’Connor and Anthony Kennedy when the chips were down. Rehnquist, equally conservative but less openly ideological, couldn’t help. As men of principle, which judges are supposed to be, Scalia and Thomas might feel a perverse pride in never winning the big ones. As men of action, they have mostly failed.

Roberts is a horse of a different color. As a former law clerk to then-Justice Rehnquist, he decided to win, even at the cost of temporarily alienating his conservative elders. His legal craft is unmatched — because if you’re the Supreme Court, it’s much better to win while appearing to lose than to lose by insisting on looking as if you’ve won.

 

By: Noah Feldman, Bloomberg View, Published in The National Memo, October 17, 2013

October 18, 2013 Posted by | Environment, John Roberts, Supreme Court | , , , , , , | Leave a comment

“The Monster They Created”: Can Corporate America Break The Republican Radical Right?

Back in the early 1970s, corporate America got together and developed a plan of action to combat the takeover of America by what they saw as an unremittingly radical left. If we don’t act and get politically engaged, these corporate titans said, this country is going down the chute.

Forty years later, corporate America beholds the monster it created. And now, these same institutions need to step up and rein in an unremittingly radical right. Only they can stop this nonsense, and it will take an effort as concerted and well-organized as the one they undertook in the 70s.

Here’s what happened then. In the 1960s and early 70s, a good chunk of America’s corporate elite really did feel that the free-enterprise system was under threat. In 1971, the U.S. Chamber of Commerce asked Lewis Powell, then a corporate lawyer in Richmond who would soon be nominated to the Supreme Court by Richard Nixon, to tell them how to save America. The result was the famous Powell memo, which urged the Chamber to start fighting back to protect the system before it was too late in the following arenas: on college campuses; in the media; in the courts; at stockholder and shareholder meetings; and in the political realm.

There’s been a lot of interesting debate over the years about how important the Powell memo really was. But whatever centrality one accords it, the fact is that it was right around then that conservatism really started to organize itself politically. The major think tanks got off the ground (Heritage in 1973), or, in other cases like the American Enterprise Institute, were transformed into something much more overtly political. Several media-monitoring outfits were started (Google the name Reed Irvine, if you weren’t around in those days). Groups were created to train young conservatives and fund right-wing campus newspapers. By 1980, they helped elect a president, feed him appointees and judicial nominees (the Federalist Society started in 1982), and create much of his policy agenda. Today, this organized right-wing infrastructure spends more than $300 million a year on politics.

But now, as we’re seeing, the corporatists’ biggest problem isn’t the left. It’s the right—the nativist and ideological right that no longer wants to listen to them. It was encouraging last week to see officials from the Chamber, the National Retail Federation, and other organizations vent their frustrations to the New York Times and vow that they are going to get involved in Republican primaries to try to defeat some crazies.

And it’s great to hear Tom Donohue, the head of the chamber, say things like these remarks, which he recently made on C-SPAN: “You’ve got to go into the primaries not just to affect this race or that but to send a message on who we are and what we believe. We want to get a better result for the American people and get people there who give the arguments a fair shake.” His ultimate goal, said Donohue, is a “more governable Republican Party.”

Hallelujah to that. But the Chamber and the others are going to have to put lots of money behind this. And they’re going to have to dig in for lengthy trench warfare. Can they reach, and energize, the half of the GOP electorate that isn’t driven by resentment? The half that’s conservative, which is fine, but not boiling over with rage? The half that would accept and embrace an immigration-reform bill and investments in infrastructure, as the Chamber does, even though Barack Obama wants them, too?

This is the biggest political issue of our time. Others are close—the corrupt hold of money on our system is admittedly a pretty close second. But this is the biggest one, because a reasonable GOP would make the country governable again. A critical mass of conservative compromisers, with maybe a few genuinely moderate Republicans thrown in, would end this dysfunction more quickly than anything else.

And the only way for that to happen is for Republican officeholders to fear that segment of the GOP electorate more than they fear the radical segment. That’s going to take a long time and lot of money and organization. But we do know from polls that those Republican voters exist. They’re just intimidated right now.

But to lead this fight, the Chamber needs to see it in just the historical terms I’ve laid out. It’s 1971 all over again. Who is the Lewis Powell who will save corporate America from the rage machine it helped create?

 

By: Michael Tomasky, The Daily Beast, October 14, 2013

October 15, 2013 Posted by | Big Business, Corporations, U.S. Chamber of Commerce | , , , , , , | Leave a comment

“Unfair And Partial”: Federal Judge Edith H. Jones Says Minorities Are Predisposed To Crime

Judge Edith H. Jones of the 5th Circuit Court of Appeals is facing serious allegations this week after controversial remarks the jurist made at Federalist Society in February. According to the conservative group, there is no transcript of recording of Jones’ speech, but affidavits from attendees point to deeply problematic language from anyone, least of all a sitting federal judge.

According to the [ethics] complaint, Judge Jones, 64, who was nominated to the bench by President Ronald Reagan, and who until recently was the chief judge of the Fifth Circuit and mentioned during Republican administrations as a possible Supreme Court nominee, said that “racial groups like African-Americans and Hispanics are predisposed to crime.”

One of the affidavits accompanying the complaint is from Marc Bookman, a veteran death penalty lawyer in Pennsylvania, who attended the lecture. He quoted Judge Jones as saying, “Sadly, some groups seem to commit more heinous crimes than others.” When asked to elaborate, Judge Jones “noted there was no arguing that ‘blacks’ and ‘Hispanics’ far outnumber ‘Anglos’ on death row and repeated that ‘sadly’ people from these racial groups do get involved in more violent crime,” the affidavit said.

A variety of civil rights organizations and legal ethicists this week filed a complaint of misconduct. An affidavit from James McCormack, the former chief disciplinary counsel for the Texas bar, added that he believes Jones “violated the ethical standards applicable to federal judges under the Code of Conduct for United States judges.”

Making matters slightly worse, this wasn’t the only offensive comment Jones made at the event.

Judge Jones is alleged to have said that the defenses often offered in capital cases, including mental retardation and systemic racism, were “red herrings.” She also said, according to the witnesses, that Mexicans would prefer to be on death row in the United States rather than in prison in Mexico.

It would appear that defendants have reason to question whether Jones is a fair and impartial arbiter of justice. Indeed, if I were a criminal defense attorney, and my client’s conviction rested in part on a ruling from Jones, I’d probably have new grounds for an appeal.

The matter will reportedly be reviewed by the 5th circuit’s chief judge. It’s a controversy worth watching.

Postscript: When Jones was on a very short list of jurists then-President George W. Bush was considering for the U.S. Supreme Court in 2005, the Washington Post published this brief profile, noting, “Known as a strong and outspoken conservative, she has written opinions that called into question the reasoning behind the Roe v. Wade abortion ruling, has been an advocate for speeding up death penalty executions, and is a vocal proponent of ‘moral values.’ She also wrote a 1997 opinion throwing out a federal ban on the possession of machine guns and has been an advocate for toughening bankruptcy laws.”

 

By: Steve Benen, The Maddow Blog, June 5, 2013

June 7, 2013 Posted by | Conservatives, Federal Courts | , , , , , , , | Leave a comment

%d bloggers like this: