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“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

April 10, 2016 Posted by | Merrick Garland, Senate Republicans, U. S. Supreme Court Nominees | , , , , , , | 4 Comments

“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

“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

“A Conservative Judiciary Run Amok”: Using Judicial Sophistry As An Instrument Of Anti-Democratic Sabotage

Retired Supreme Court Justice John Paul Stevens captured our ideal when he wrote of the judge as “an impartial guardian of the rule of law.”

By effectively gutting the Affordable Care Act on Tuesday, two members of a three-judge panel on the D.C. Circuit Court of Appeals showed how far right-leaning jurists have strayed from such impartiality. We are confronted with a conservative judiciary that will use any argument it can muster to win ideological victories that elude their side in the elected branches of our government.

Fortunately, the D.C. Circuit ruling is unlikely to stand. On the same day the D.C. panel issued its opinion, a three-judge panel from the 4th Circuit ruled unanimously the other way, upholding the law.

There is a good chance that the 11-judge D.C. Circuit will take the decision away from its panel — something it is usually reluctant to do — and rule as a full court to affirm the ACA as commonly understood. It is virtually certain that a majority of the court’s members disagrees with the panel’s convoluted reading of the law and wants to avoid creating a needless conflict in jurisprudence with the 4th Circuit.

When Congress wrote the health law, it envisioned that the states would set up the insurance exchanges where individuals could purchase coverage. But knowing that some states might not want to set up these marketplaces themselves, it also created a federal exchange for those that bowed out. There are 36 states under the federal exchange.

The law includes a mandate requiring Americans to buy health insurance and subsidizes those who need help to pay their premiums. The law falls apart without the subsidies, which go to its central purpose: providing insurance for those who cannot afford it.

But the law was not particularly well-drafted. It’s not uniquely flawed in this respect. As Judge Andre M. Davis wrote in a concurrence to the 4th Circuit ruling: “Neither the canons of construction nor any empirical analysis suggests that congressional drafting is a perfectly harmonious, symmetrical and elegant endeavor. . . . Sausage-makers are indeed offended when their craft is linked to legislating.”

Here’s what the two Republican-appointed judges on the D.C. panel did to make the sausage disappear entirely: Because the subsidies are established in a part of the law referring to state exchanges, the D.C. Circuit ruled that no one on the federal exchange is eligible for them.

Poof! There goes the health law in most of the country.

Never mind that many other parts of the law clearly assume that the subsidies apply to people on both the state and federal exchanges. And never mind that during the very long debate over the ACA, no one ever said otherwise.

In ruling to kill the subsidies for an estimated 5 million people on the federal exchange, Judge Thomas B. Griffith invents the idea that Congress may have intended to deny subsidies to people in states that didn’t set up their own exchanges as an incentive for those states to do so. But as Judge Harry T. Edwards writes in his dissent, the “incentive story is a fiction, a post hoc narrative” to justify the idea that “Congress would have wanted insurance markets to collapse in states that elected not to create their own exchanges.”

The extreme judicial activism here is obvious when you consider, as the 4th Circuit did, that even if you accept that there is ambiguity in the law, the Supreme Court’s 30-year-old precedent in Chevron v. Natural Resources Defense Council held that in instances of uncertainty, the court defers to federal agencies rather than concocting textual clarity when it doesn’t exist.

Griffith has to pretend that his cramped reading of the written text — again, a reading utterly disconnected from the reality of the law’s history — is the only one possible. From there, he goes on to force the government and those losing their subsidies to live with a patently absurd result.

Edwards’s logic is compelling: The Griffith decision “defies the will of Congress” and goes along with a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act.”

As the 4th Circuit’s Davis put it, the law’s opponents are trying “to deny to millions of Americans desperately needed health insurance through a tortured, nonsensical construction” of the law.

We cannot use judicial sophistry as an instrument of anti-democratic sabotage.

 

By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, July 23, 2014

July 24, 2014 Posted by | 4th Circuit Court of Appeals, Affordable Care Act, D. C. Court of Appeals | , , , , , , , | Leave a comment

“Turn The NRA’s Weapon Against It”: Gun Lobbyist, “I Have Never Believed In The General Practice Of Carrying Weapons”

In 1934, the National Rifle Association’s lobbyist testified in front of the House Ways and Means Committee about President Franklin Roosevelt’s National Firearms Act. “I have never believed in the general practice of carrying weapons,” the lobbyist said. “I think it should be sharply restricted and only under licenses.”

The NRA testified, under oath, in favor of the nation’s first federal gun control bill.

Eighty years later, the organization believes not only in “the general practice of carrying weapons” but also, as Ronald Reagan once wrote, that the Second Amendment “appears to leave little if any leeway for the gun control advocate.”

The NRA’s dramatic turnabout, and its decades-long campaign to change American hearts, minds and gun laws, is the subject of Michael Waldman’s compelling new book, “The Second Amendment: A Biography”. Waldman, the president of the Brennan Center for Law and Justice at the New York University School of Law, explains that the authors of the Second Amendment never intended to create an “unregulated individual right to a gun” and explores why, today, we think they did. Published three days before the rampage in Isla Vista, Calif., that killed six and wounded 13, the book shows how we got to this moment of routine gun violence — and offers a way out.

The Founders, it turns out, didn’t spend a lot of time discussing the Second Amendment. Skeptical of standing armies, their interest was in protecting “well-regulated” state militias; the phrase “keep and bear arms” was, at the time, a military reference. Scour James Madison’s notes from the Constitutional Convention, the states’ ratification debates and the markup of the Bill of Rights in the House of Representatives, as Waldman did, and, “with a few scattered exceptions,” you won’t find “a single word about an individual’s right to a gun for self-defense or recreation.”

Thus, for two centuries, the mainstream understanding of the Second Amendment was that it had to do not with an individual’s unregulated right to a gun but rather with the citizen-soldiers who would comprise a militia. There were plenty of guns in the United States, but those were subjected to restrictions that were widely accepted as both reasonable and essential.

Then, at the NRA’s 1977 national convention, gun advocates staged what came to be known as the “Revolt at Cincinnati,” replacing the group’s leadership with ideological extremists intent on building a political movement to fight even modest gun regulations and promote their revisionist view of the Second Amendment.

NRA-backed lawyers quietly and consistently churned out law review articles and pseudo-scholarship questioning 200 years of legal understanding. They shamelessly built up a self-referential body of work riddled with historical errors. Over time, these “scholars” toiling at the fringe were joined by a few leading academics, who lent some measure of respectability to this interpretation.

The gun lobby also engaged in a concerted public campaign, not to mention political manipulation. It was so successful that by the time the issue reached the Supreme Court in 2008, “the desired new doctrine fell like a ripe apple from the tree.” In its rotten 5 to 4 ruling in District of Columbia v. Heller, the majority ruled for the first time ever that the Second Amendment protects an individual right to keep a gun.

The crucial lesson is that the gun lobby’s triumph was not judge-driven; it was judge-ratified. For all of the legitimate frustration with the court’s interpretation of the Second Amendment, the real obstacle to sensible gun control is not judicial inflexibility but a lack of political courage. What we need is a sustained, multi-pronged effort to reframe the public debate and pressure our elected leaders into action.

The right’s long, assiduous and destructive march through the courts and the court of public opinion has, perversely, illuminated a path forward for their opponents. Constitutional change happens not by judicial fiat but through a broader dialogue with the other branches of government and, most important, with the people they represent.

That’s why we don’t necessarily need to revise the syntactic mess that is the Second Amendment, as former Supreme Court justice John Paul Stevens proposed. Cass Sunstein and others have pointed out that “the Court’s rulings continue to leave flexibility to state and federal governments.” Indeed, since the Heller decision, the courts have upheld many gun regulations.

Americans clearly support common-sense regulations; 90 percent support background checks for gun ownership. But because that support hasn’t translated into political action, 90 percent of Senate Republicans opposed a bill to expand background checks. The pleas of former congresswoman Gabrielle Giffords, shot by a madman at a congressional event in 2011, and the grieving parents of 20 schoolchildren slaughtered in Newtown, Conn., could not pry their votes, or their consciences, from the NRA’s cold hands. What we need is a movement of everyday Americans who believe in sane gun laws to stand up with the most vocal advocates at the forefront and replicate the passion and intensity of NRA activists.

The NRA demonstrated the power of a long, full jurisprudential campaign. It’s time to use their own weapon against them.

 

By: Katrina vanden Heuvel, Opinion Writer, The Washington Post, June 3, 2014

June 4, 2014 Posted by | Gun Control, Gun Lobby, National Rifle Association | , , , , , , | Leave a comment

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