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“Jim DeMint Looking Over His Shoulder”: Trump Made A Big Promise Aimed At Winning Over Nervous Conservatives

It sort of got lost in competing news about his efforts to seem a mite more normal now that he’s almost certain to head to Cleveland in July as the leader in delegates, if not the putative nominee, but Donald Trump made a very unusual and highly significant promise aimed right at the beating heart of movement conservatism:

Speaking at the construction site for his new hotel in Washington, D.C., Monday, Trump said he will make a list public in the next week of 10 conservative judges that he would consider nominating to the Supreme Court. If elected, Trump said, he would only pick from that list, which is being made in consultation with the conservative Heritage Foundation.

He first made that promise over the weekend in Florida, and he seems to want to make sure it’s widely heard. This means somebody is giving him good advice about how to address the concerns of conservatives about his ideological reliability.

Of all the things they fear about a President Trump, the most urgent is that he will throw away a once-in-a-generation opportunity to reshape SCOTUS and constitutional law. And of all the temptations they have to hold their noses and support the man despite all of his heresies and erratic behavior, the most powerful would be the confident belief that at least he would position the Court to overrule Roe v. Wade, protect Citizens United, overturn Obama’s executive orders, eviscerate regulation of businesses, inoculate religion-based discrimination, and maybe even introduce a new Lochner era of constitutionally enshrined property rights. This would be a legacy that might well outweigh the risks associated with a Trump presidency.

Promising to make his SCOTUS list public right now is smart, because otherwise it’s an empty promise, and involving the Heritage Foundation in developing it is key to its credibility. Not only has Heritage had a long history of vetting Republican appointees; its current president, Jim DeMint, is arguably the most reliable of “constitutional conservatives,” a man who believes conservative policy prescriptions ought to be permanently protected from the occasional liberal majority via a divinely inspired and unchanging Supreme Law.

Bonding with conservatives over SCOTUS makes some psychological sense for Trump as well. Nothing symbolizes the betrayal of the conservative rank and file — whose abiding exemplar is arguably the humble anti-choice activist staffing phone banks and licking envelopes to protect the unborn from “baby-killers” — by those GOP elites in Washington better than the long string of Republican SCOTUS appointees who have turned out to be traitors to the Cause, from Roe v. Wade author Harry Blackmun to the generally liberal John Paul Stevens and David Souter to the current Obamacare-protecting chief justice. If Trump can break that pattern with Jim DeMint looking over his shoulder, maybe he won’t be that bad for conservatism after all.

 

By: Ed Kilgore, Daily Intelligencer, New York Magazine, March 22, 2016

March 23, 2016 Posted by | Conservatism, Donald Trump, Jim DeMint, U. S. Supreme Court Nominees | , , , , , , , | Leave a comment

“That 1992 Clip Of Biden Is Very Misleading”: No, Joe Biden Is Not A Supreme Court Hypocrite

It’s a mighty thin reed that Republican leaders hang onto when they selectively cite then-Sen. Joe Biden’s remarks from 24 years ago as evidence to deny any Obama appointee to the Supreme Court a fair hearing and a vote. President Obama is right in saying, “We all know senators say stuff all the time,” and the excerpt Mitch McConnell and the other Republican leaders cite to support their obstructionism is not what Biden was saying when he spoke at length on the Senate floor in late June 1992.

It was the end of the court’s term, a time when aging justices often hand down their resignations. There were retirement rumors about 83-year-old Justice Harry Blackmun. Biden, in his role as chairman of the Judiciary Committee, wanted to discourage Blackmun from stepping down and the Bush White House from thinking it could confirm a replacement before the election now five months away.

There was no vacancy on the court, and Biden wanted to keep it that way. In just two weeks, the Republicans would hold their party convention with President George H.W. Bush running for re-election in a highly charged three-person race against Democrat Bill Clinton and Independent Ross Perot. In the Senate, hard feelings lingered from the previous October’s Anita Hill hearings, and Biden warned that if the administration tried to get one or the other justices to resign in order to create a vacancy, he wasn’t inclined to go along with that.

And if they did—and here’s the olive branch, which funny enough isn’t getting much air time as the old clip is replayed—he would consider confirmation of a nominee in the Kennedy mode, as in Justice Anthony Kennedy, a solid but conservative-leaning jurist who was confirmed unanimously in February 1988, Ronald Reagan’s last year in office. Biden didn’t in any way say or imply he wouldn’t be holding hearings, or that he would do what McConnell and the other Republicans on the Judiciary Committee are doing, which is sight unseen refusing to hold hearings or to even meet with the nominee.

It is a show of disrespect not only for Obama but also for the Constitution and the executive’s role to propose and the Senate’s to advise and consent. McConnell gleefully cited the cherry-picked Biden excerpt as proof of what would happen “if the shoe were on the other foot.” But if that were true, the GOP would at least go through the motions before regretfully finding the nominee is an extremist they can’t support. That would be rough politics as usual.

The bigger question: Will anyone nominated be out of the running for Hillary Clinton, if she’s the next president? Or will that person move to the front of the queue? Will Republicans feel compelled to go after that person with extra zeal? And given these unknowns, who would say yes to Obama?

Biden chaired the Senate Judiciary Committee from 1987 to 1995, presiding over two of the most contentious nominations in history, Robert Bork and Clarence Thomas. Bork’s “originalism,” in the mold of the late Justice Antonin Scalia, sparked strong opposition and his extensive writings gave critics plenty to work with. The assault was brutal, giving rise to the verb, to be “borked.” Biden won praise for challenging Bork on certain rights to privacy that he rejected because they weren’t enumerated in the Constitution. The full Senate rejected Bork 58-42, with six Republicans joining 52 Democrats to vote against him.

The Anita Hill hearings in October 1991 were not Biden’s finest hour, and his role chairing those hearings will be reprised in the HBO movie Confirmation, airing on April 11 and starring Kerry Washington as Hill, Wendell Pierce as Clarence Thomas, and Greg Kinnear as Biden.

Emotions are still raw even after 25 years, and the scuttlebutt in Washington is that Biden will not be pleased with his depiction in the film as far too deferential to Thomas.

That may surprise viewers today, but criticism then of Biden, as one disaffected liberal put it, was not that he was a partisan in-fighter, but that “he bent over backwards to grease the skids for the most unqualified successful Supreme Court nominee we have ever seen.”

People involved in the fight then and interviewed for this article did not want to be quoted by name. The hearings were brutal, with Thomas calling them “a high-tech lynching.” Women’s groups siding with Hill were convinced Thomas was lying and demanded Biden order lie-detector tests and subpoena records of X-rated films Bork had allegedly rented. They blamed Biden for not putting more pressure on Hill to come forward earlier.

The coziness of an all-male and all-white Judiciary panel grilling Hill, a prim college professor who had reluctantly come forward alleging sexual harassment by Thomas, set the stage for a political revolution. The following year, 1992, a record number of women sought political office and a record number won, dubbing it the “Year of the Woman.”

The HBO film will portray at least one witness against Thomas that Biden never called and that critics believe could have ended Thomas’s confirmation. Biden in his role as chairman told the woman the Republicans had dug up more stuff on her, and he described what she would face on national television if she came forward. She chose not to testify, and her statement is in the hearing record.

Confirmation will air at a potentially critical time in the current court fight, but whatever conclusions viewers draw, it should be underscored that Biden let the nominations of Bork and Thomas go forward even if he and his political party disagreed. They each got a vote, and Thomas is now in his 24th year on the court after being confirmed with a mere 52 votes in the Senate.

 

By: Eleanor Clift, The Daily Beast, March 3, 2016

March 4, 2016 Posted by | Joe Biden, Mitch Mc Connell, Senate Republicans, U. S. Supreme Court Nominees | , , , , , , , | Leave a comment

“It Will Be Easy To Replace Antonin Scalia”: In Terms Of Quality In A Supreme Court Justice, He Will Be Easy To Replace

Antonin Scalia’s unexpected death came as a shock to me—and not just because I had plans until recently to go hiking this weekend in Big Bend, Texas, where the justice died. Scalia has been a fixture on the Supreme Court for my entire legal career, and he didn’t seem to be going anywhere. During Barack Obama’s presidency, he hunkered down: no way would a Democrat appoint his successor. The right adored him as much as the left reviled him. He was the Court’s most colorful personality since William “Wild Bill” Douglas retired in 1975. Scalia’s family will miss him, and they are surely hurting right now. They have my sympathies. But as the tributes roll in and Scalia’s impact on the Court comes into focus, I predict a consensus will emerge that he has damaged the institution he served for so many years.

It is ironic that Scalia died during this particular presidential campaign, because he strongly resembled two leading Republican hopefuls: Donald Trump and Ted Cruz. Like Trump, Scalia was larger than life. He took his elbows with him wherever he went. The more outrageous his rhetoric, the more his fans lapped it up. Scalia trashed his colleagues’ writing, calling it “preposterous” and compared it to “the mystical aphorisms of the fortune cookie”; their reasoning was “patently incorrect” and “transparently false.” With his low punches and salty talk, Scalia coarsened the Court—just as Trump has coarsened the presidency. As the much more restrained John Paul Stevens said to one of Scalia’s biographers, “I think everybody respects Nino’s ability and his style and all the rest. But everybody on the Court from time to time has thought he was unwise to take such an extreme position, both in tone and in the position.”

Like Ted Cruz, Scalia possessed a rare intellect. (Cruz, a former Supreme Court law clerk and appellate lawyer, was a big fan.) Scalia was for a time the Court’s most persuasive voice on technical matters like jurisdiction and procedure. He was an unquestionably talented writer. No justice had a quicker wit. Yet, also like Cruz, Scalia proved ineffective within the constraints of an organization, where cooperation and pragmatism tend to produce results. His strident behavior alienated the people around him. “Screams!” wrote Justice Harry Blackmun on a draft Scalia dissent in 1988. “Without the screaming, it could have been said in about 10 pages.” When a very junior Scalia commandeered an oral argument in 1987, Justice Lewis Powell whispered to a colleague on the bench, “Do you think he knows that the rest of us are here?” Scalia seemed to make a special point of picking on Anthony Kennedy, the Court’s swing voter for the past ten years, and an essential member of any 5-4 coalition. His inability to hold his fire or to build consensus meant that he was assigned few important majority decisions in the later years of his career.

I will remember Scalia mainly for the ugliness that permeated his opinions. He once wrote with astonishing callousness that it is not unconstitutional to execute an innocent person if that person has received a fair trial. He described affirmative action as “racial discrimination,” and mocked the notion that it could help students achieve “cross-racial understanding.” (No one squeezed more sarcasm out of a quotation mark.) A devout Roman Catholic, Scalia harbored a particular scorn for “the homosexual agenda,” writing in a paper-thin third-person: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Scalia had been slipping lately. He made a spectacle of himself before journalists, flipping his chin at them and giving needlessly provocative speeches. He openly flouted the Court’s recusal traditions, going on a hunting trip with Dick Cheney and then refusing to recuse himself from a suit against the vice president. He engaged in an unseemly public spat with Judge Richard Posner, going so far as to call Posner a liar after Posner panned Scalia’s latest book. The invective in his opinions and his behavior at oral argument had become truly outrageous, and caused many a citizen to associate the Supreme Court with cheap partisan point-scoring. It has been a long fall for what had been one of the most trusted institutions in government.

Scalia was a character, and he will be hard to forget. But in terms of quality in a Supreme Court justice, he will be easy to replace.

 

By: Michael McDonnell, Contributor, Ten Miles Square, The Washington Monthly, February 14, 2016

February 15, 2016 Posted by | Antonin Scalia, Donald Trump, Ted Cruz, U. S. Supreme Court | , , , , , , , , | 2 Comments

   

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