“Ask Me No Questions If You Can’t Take The Answer”: Ruth Bader Ginsburg Abandons All Subtlety Towards Trump
Supreme Court Justice Ruth Bader Ginsburg dipped her toe into the political waters last week, conceding to the Associated Press that she’d rather not “think about” the possibility of a Donald Trump presidency. “If it should be,” she added, “then everything is up for grabs.”
A couple of days later, Ginsburg went just a little further while speaking to the New York Times. Reflecting again on a possible Trump administration, the justice said, “For the country, it could be four years. For the court, it could be – I don’t even want to contemplate that.” Echoing a sentiment from her late husband, Ginsburg said a Trump victory in November would mean “it’s time for us to move to New Zealand.”
Apparently, the more she answers these questions, the stronger Ginsburg’s feelings on the subject.
Supreme Court Justice Ruth Bader Ginsburg called Donald Trump “a faker” Monday night, doubling down on her critical comments about a potential Trump presidency.
“He has no consistency about him,” Ginsburg told CNN. “He says whatever comes into his head at the moment. He really has an ego…. How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
It’s at this point that objective observers have to start wondering whether Ginsburg is going further than she should.
I realize, of course, that justices’ ideologies are not exactly a secret. The fact that Ruth Bader Ginsburg wants to see Donald J. Trump lose should surprise literally no one. It’s a safe bet that Clarence Thomas is equally eager to see Hillary Clinton lose. There’s no great mystery here.
But as much as I admire and respect Ginsburg, critics are raising a legitimate question. If I’m being honest, I probably wouldn’t be at all pleased if, say, Samuel Alito started giving a series of media interviews, playing the role of election pundit and intervening in the electoral process. If the question today is whether Ginsburg is breaking with judicial protocol, fairness dictates that the answer is yes.
Paul Butler, a former federal prosecutor and a Georgetown University Law professor, wrote a piece for the New York Times defending the progressive justice for speaking her mind.
Normally Supreme Court justices should refrain from commenting on partisan politics. But these are not normal times. The question is whether a Supreme Court justice – in this case, the second woman on the court, a civil rights icon and pioneering feminist – has an obligation to remain silent when the country is at risk of being ruled by a man who has repeatedly demonstrated that he is a sexist and racist demagogue. The answer must be no. […]
When despots have ascended to power in other regimes, one wonders how judges should have responded. Should they have adhered to a code of silence while their country went to hell? Not on the watch of the Notorious R.B.G. She understands that if Trump wins, the rule of law is at risk.
I can appreciate the argument. I even want to agree with it. If Trump is a unique threat to the American political system and a genuine menace, it’s unreasonable to think people of good conscience should stay silent in the name of propriety.
But Ginsburg isn’t just another voter; she’s a sitting justice on the Supreme Court. If there were a crisis along the lines of the 2000 election, and the high court was asked to adjudicate a case related to this election’s outcome, would Americans have confidence of Ginsburg’s impartiality? Would she have to recuse herself, thus affecting the outcome?
I appreciate the broader context and the fact that Ginsburg may be understandably worried about her own role in sending the nation in a radical and regressive direction. But the fact remains, those who’ve said she’s going too far are raising a legitimate concern that is not easily dismissed.
By: Steve Benen, The Maddow Blog, July 12, 2016
“An Unholy Trinity For Discrimination”: Far-Right Justices Warn Of ‘An Ominous Sign’
The state of Washington has a law that requires pharmacies to dispense medications, even if individual pharmacists have religious objections. One family-owned pharmacy challenged the law in court, saying it shouldn’t be required to sell emergency contraception, which the pharmacy’s owners consider immoral.
An appeals court sided with the state, and the case was appealed to the U.S. Supreme Court. Yesterday, the justices announced they would not hear the case, which has the effect of leaving the lower court’s ruling intact.
And while that would ordinarily be the end of the dispute, yesterday offered a bit of a twist. The Supreme Court said it wouldn’t hear the appeal out of Washington, but at the same time, Justices Samuel Alito, John Roberts, and Clarence Thomas released an angry rebuttal, saying they not only wanted to hear this case, they also consider the majority’s disinterest in the matter to be “an ominous sign.”
MSNBC’s Irin Carmon highlighted yesterday’s “unusual” statement.
“This case is an ominous sign,” Alito wrote in an unusual, 15-page response to the court refusing to hear Stormans v. Wiesman…. “If this is a sign of how religious liberty claims will be treated in the years ahead,” Alito continued, sounding a lot like a man who foresees a bleak future for his side, “those who value religious freedom have cause for great concern.”
No, actually, they almost certainly don’t.
As is always the case, especially in Supreme Court disputes, the details matter. In Washington, state law still allows individual pharmacists to raise religious objections to helping a customer, so long as some other employee can step in and provide the prescribed medication. The plaintiffs in Stormans v. Wiesman, however, wanted to go much further – refusing to stock Plan B altogether, regardless of public needs.
The state’s policy is based on the entirely reasonable idea that consumers should have access to medications that are safe and legal, and pharmacies shouldn’t have the authority to simply turn people away. The far-right trio on the high court obviously disagree, and Slate’s Mark Joseph Stern explained the broader implications of their dissent.
…Alito, Thomas, and Roberts seem to believe that, under the Free Exercise Clause of the First Amendment, states are proscribed from requiring for-profit religious businesses to treat all customers equally. If this unholy trinity ever managed to rewrite the First Amendment this way, they could effectively bar states from protecting women, gays, and other minorities from religious-based discrimination. […]
Neither [Alito], Roberts, nor Thomas thinks refusal of service is a big deal when patients can hop back in their cars (presuming they have them) and drive to the nearest pharmacy that will deign to provide them with the proper medication. (Live in rural Washington? Hope you can find another pharmacy before the Plan B window closes!)
This cavalier dismissal of women’s interest in nondiscrimination flies in the face of precedent. The court used to say that when a religious accommodation burdens other people’s rights, the accommodation itself violates the separation of church and state. Now Alito wants to push that rule through the looking glass, arguing that there’s a possibility states must give religious employers the right to burden others – a burden that will fall disproportionately on women and gays.
Keep in mind, if four justices agree to hear a case, the Supreme Court takes the case. Were it not for Antonin Scalia’s passing, it’s very likely Stormans v. Wiesman would be on its way towards oral arguments.
By: Steve Benen, The Maddow Blog, June 29, 2016
“Ethnic Heritage On The Courts”: What Happens In A White Patriarchal Culture Where “Norms” Are The Default Mode
Even as legal experts express their alarm over Donald Trump’s remarks about U.S. District Judge Gonzalo Curiel (who is presiding over the fraud cases against Trump University), the presumptive Republican presidential nominee decided to double down.
In an interview, Mr. Trump said U.S. District Judge Gonzalo Curiel had “an absolute conflict” in presiding over the litigation given that he was “of Mexican heritage” and a member of a Latino lawyers’ association. Mr. Trump said the background of the judge, who was born in Indiana to Mexican immigrants, was relevant because of his campaign stance against illegal immigration and his pledge to seal the southern U.S. border. “I’m building a wall. It’s an inherent conflict of interest,” Mr. Trump said.
So here’s how that breaks down: Trump makes racists proposals against Mexican immigrants and then assumes that presents a conflict of interest for a judge with Mexican heritage. Based on all of his racist and sexist comments, that might wipe out a pretty good portion of the judiciary from ever presiding over a case in which he is involved.
But there is something deeper at work here. I have no illusions that a man like Trump will ever understand it. But it’s important for us to be clear about what it means to single a judge out for their ethnic heritage.
As I’ve been watching this unfold, I am reminded of the Republican attacks on Supreme Court nominee Sonia Sotomayor. Because of her compelling story and exemplary career, they settled on going after her for her remarks about a “wise Latina.” They were part of a lecture she gave in 2009 titled: A Latina Judge’s Voice” in which she addressed the question of what it means to have more women and people of color on the bench.
I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life…
Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
Now…compare that to what Sam Alito said during his confirmation hearing when Sen. Tom Coburn asked him to let us see a little bit of his heart.
…when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.
And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, “You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.”
The only real difference between what Sotomayor and Alito said is that her family is from Puerto Rico and his are from Italy. And yet one nominee’s words were cause for a firestorm and the other’s were heralded as heartfelt – when noticed at all. That is what happens in a white patriarchal culture where “norms” are established as the default mode for expectations.
Let’s take a look at how Justice Sotomayor ended her lecture.
Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.
There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering.
One has to wonder whether Justice Alito questions his own assumptions, presumptions and perspectives that stem from being a white male on the court. The systemic bias we witness in the courts is largely a result of the failure to do so.
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, June 3, 2016
“A Meaningful Deterrent”: Senate Republicans Rediscover The Value Of ‘Pinata Politics’
Almost exactly 10 years ago, Sen. John Cornyn (R-Texas) was concerned about Supreme Court nominee Samuel Alito facing “attacks” from Senate Democrats. Eventually, the Texas Republican said at the time, senators “will need to come to terms with our confirmation process.” Cornyn added that treating nominees “more like pinatas than human beings” is “something none of us should be willing to tolerate.”
That was when there was a Republican president in the White House. Now that President Obama is the one doing the nominating, Cornyn is apparently less concerned about Pinata Politics.
Even though Senate Republicans have no intention of holding hearings on President Barack Obama’s Supreme Court nominee, that doesn’t mean he or she won’t be dragged through the mud.
And the chamber’s No. 2 Republican made that clear to a small cluster of reporters Monday, saying he believed the nominee, “will bear some resemblance to a pinata.”
A decade ago, Cornyn characterized this as “something none of us should be willing to tolerate,” but this year, one gets the impression that the Senate Majority Whip not only tolerates the same practices he denounced, he also intends to be one of the lawmakers holding the stick, swinging for candy.
White House Press Secretary Josh Earnest was unimpressed with the rhetoric. “Senator Cornyn has now taken the next step and suggested – without knowing who this nominee is, without considering what their record is, what their experience is, how qualified they are for the job – he is suggesting that they’ll be subjected to bashing by Republicans,” Earnest told reporters yesterday. “It’s unclear for what reason, other than the president of the United States has chosen to fulfill his constitutional responsibility to nominate someone to fill a vacancy.”
That said, if Cornyn and the GOP’s tolerance for Pinata Politics is intended to intimidate potential nominees – “It’s a nice career you have there, it’d be a shame if we had to beat you with a stick” – it might be working.
Nevada Gov. Brian Sandoval’s (R) was floated as a possible choice for the Supreme Court, though he soon after withdrew his name from consideration. Yesterday, as MSNBC reported, a high-profile member of the president’s cabinet did the same thing.
U.S. Attorney General Loretta Lynch has “asked not to be considered” for nomination to the Supreme Court to take the spot formerly occupied by the late Justice Antonin Scalia, the Justice Department said Tuesday.
Today, The Hill reported that another possible contender also bowed out.
Federal Appellate Judge Adalberto Jordan has taken himself out of consideration to become President Obama’s Supreme Court nominee, CNN reported Wednesday.
The Miami-based judge was reportedly a contender to fill the vacancy left by the death of Justice Antonin Scalia and would have been the first Cuban-American to sit on the high court.
Of course, people may have all kinds of reasons to withdraw from consideration, but it’s easy to imagine Republican rhetoric about pinatas serving as a meaningful deterrent.
By: Steve Benen, The Maddow Blog, March 9, 2016
“The Enemy Of Strategic Success”: Obama’s 2005 Blog Post On SCOTUS Good Advice For Today’s Republicans
Regular readers of that fine online watering hole for all things Supreme, the SCOTUSblog, were probably startled Wednesday morning by a guest post from a former constitutional scholar named Barack Obama. On reflection, it makes sense he chose this wonky but accessible venue to lay out his talking points on the criteria he will use in selecting a Supreme Court nominee whom Senate Republicans have already announced they will block.
This is not, however, Obama’s first blog post, or even his first blog post about Supreme Court nominations. Back in 2005, during his first year in the Senate, he took to the virtual pages of Daily Kos to address progressive activists who were angry at Democratic senators who did not go to the mattresses to stop the confirmation of John Roberts as chief justice. Obama himself voted against Roberts, but did not choose to support a filibuster. So he was partially defending himself against the then-common netroots charge (still popular among many Bernie Sanders supporters) that Democrats in Washington were surrendering to the evil right-wing foe without a real fight.
What makes Obama’s 2005 essay interesting now, however, is a certain through-the-looking-glass quality. Substitute Republican for Democrat and conservative for progressive in his post, and he’s offering the very Republicans pre-rejecting his own SCOTUS nominee some pretty good advice:
There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency and the Senate. And I don’t believe we get there by vilifying good allies, with a lifetime record of battling for progressive causes, over one vote or position. I am convinced that, our mutual frustrations and strongly-held beliefs notwithstanding, the strategy driving much of Democratic advocacy, and the tone of much of our rhetoric, is an impediment to creating a workable progressive majority in this country….
According to the storyline that drives many advocacy groups and Democratic activists – a storyline often reflected in comments on this blog – we are up against a sharply partisan, radically conservative, take-no-prisoners Republican party. They have beaten us twice by energizing their base with red meat rhetoric and single-minded devotion and discipline to their agenda. In order to beat them, it is necessary for Democrats to get some backbone, give as good as they get, brook no compromise, drive out Democrats who are interested in “appeasing” the right wing, and enforce a more clearly progressive agenda. The country, finally knowing what we stand for and seeing a sharp contrast, will rally to our side and thereby usher in a new progressive era.
In case you don’t recognize it, Obama is accurately portraying — again, in a mirror — the “theory of change” that Ted Cruz articulates every day.
A plausible argument can be made that too much is at stake here and now, in terms of privacy issues, civil rights, and civil liberties, to give John Roberts the benefit of the doubt. That certainly was the operating assumption of the advocacy groups involved in the nomination battle.
I shared enough of these concerns that I voted against Roberts on the floor this morning. But short of mounting an all-out filibuster — a quixotic fight I would not have supported; a fight I believe Democrats would have lost both in the Senate and in the court of public opinion; a fight that would have been difficult for Democratic senators defending seats in states like North Dakota and Nebraska that are essential for Democrats to hold if we hope to recapture the majority; and a fight that would have effectively signaled an unwillingness on the part of Democrats to confirm any Bush nominee, an unwillingness which I believe would have set a dangerous precedent for future administrations — blocking Roberts was not a realistic option.
As you may know, Obama went on to support a filibuster against the confirmation of Bush’s second justice, Samuel Alito — a step he now says he regrets. But that doesn’t necessarily undercut his 2005 argument that tactical rigidity is the enemy of strategic success.
[T]o the degree that we brook no dissent within the Democratic Party, and demand fealty to the one, “true” progressive vision for the country, we risk the very thoughtfulness and openness to new ideas that are required to move this country forward. When we lash out at those who share our fundamental values because they have not met the criteria of every single item on our progressive “checklist,” then we are essentially preventing them from thinking in new ways about problems. We are tying them up in a straightjacket and forcing them into a conversation only with the converted.
And that’s the sort of reasoning that movement conservatives denounce as RINOism when it is articulated — a rare thing these days — among Republicans.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, February 24, 2016
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