Friday, February 10, 2017

Court 3, Trump 0

The short version of the ruling from the U.S. Court of Appeals is that the Government can’t ban people from coming into the country based on the principle of “because we say so.”

A US appeals court has rejected President Donald Trump’s attempt to reinstate his ban on visitors from seven mainly Muslim countries.

The 9th US Circuit Court of Appeals said it would not block a lower-court ruling that halted the order.

Mr Trump responded with an angry tweet saying national security was at risk and there would be a legal challenge.

But the unanimous 3-0 ruling said the government had not proved the terror threat justified the ban.

“The government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States,” the ruling said.

It also rejected the argument that the president had sole discretion to set immigration policy.

“Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all,” said the ruling. “We disagree, as explained above.”

Donald Trump’s lawyers did not make their case. In fact, according to three Ninth Circuit judges, they didn’t even really try to make their case. Rather than explaining why the temporary travel ban was needed, the administration argued that the president’s authority on immigration was so sweeping that they didn’t have to explain why the order was necessary.

According to the court, the government was unable to say why Mr Trump’s ban addressed a pressing national security threat that a temporary stay of the order would worsen. The lawyers for the challenging states, on the other hand, convinced the judges that re-imposing the order at this point would create further chaos by infringing on the due process rights of those on US soil, regardless of their immigration status.

By issuing a unanimous, unsigned opinion, the judges avoid accusations of partisan bias, as one of the three was a Republican appointee.

Mr Trump tweeted a sharp “SEE YOU IN COURT” following the decision.

The case will most likely go to the Supreme Court, and it will take a vote of five of the justices to overturn the lower court ruling.  Since there are only eight justices on the court — four liberal and four conservatives — chances aren’t too good that Trump will prevail.  In fact, that’s one of the reasons the court ruled to uphold the lower court: the Government did not prove that it would likely prevail.

In the spirit of our fearless leader, “NEENER NEENER.”

Wednesday, February 1, 2017

Save Us A Seat

Mother Jones has the background on Neil Gorsuch, Trump’s pick for the Supreme Court.

An Oxford and Harvard grad, Gorsuch, 49, is also one of the youngest sitting federal judges on Trump’s list—a selling point for a president looking to leave a lasting legacy on the court. He is a conservative in the mold of the late Justice Antonin Scalia and is considered an “originalist” who tries to interpret the law as the Founders would have. Also in his column: As one of the 10th Circuit judges who ruled in favor of Hobby Lobby against the Obama administration—exempting the company from federal requirements to provide employees with insurance plans that included free contraceptive coverage—his religious-right bona fides are solid.

But hard-core anti-abortion activists have been lobbying against Gorsuch and recently asked Trump to consider judges with a more proven record of anti-abortion advocacy from the bench. Andrew Schlafly, son of the late conservative icon Phyllis Schlafly, recently sent out an alert to supporters arguing that Gorsuch is “NOT pro-life” because he wrote an opinion noting his obligation to follow court precedent. Schlafly sees adherence to precedent as a deal-breaker and a sign that a judge won’t overturn Roe.

All that is very nice and I’m sure he’s probably very qualified, at least as far as his legal training and background, but I suggest that Senate Democrats give him the same due consideration that the last Senate gave President Obama’s nominee to fill the vacancy.

We have about 1,300 days until the next presidential election, so I don’t see any reason why we shouldn’t wait until America chooses a president to fill the seat, and any Democrat who votes to confirm Mr. Gorsuch should be have his ass primaried by a real Democrat next time he or she comes up for election.

And every time Mitch McConnell or John McCain or some other whiny or harrumphing obstructionist takes to the airwaves to complain about the Democrats playing politics with the Court or disrupting America’s business, we laugh in his face and reply “Merrick Garland.”

Short Takes

Trump picks Neil Gorsuch for Supreme Court.

Senate Democrats boycott two cabinet hearings, delaying vote.

California legislature considers statewide “sanctuary” law.

Homeland Security chief says he knew Trump immigrant ban was coming.

Trump state visit to Britain “difficult” for the Queen.

Israel not happy over Iran missile test.

Rabbit, rabbit, rabbit.

Friday, November 4, 2016

That Was Then, This Is Now

As I noted the other day, the Republicans are hell-bent on preventing a Democratic president from filling a vacancy on the Supreme Court.  And as I noted, that’s a bad idea.

It’s nice to find someone in the Senate who agrees with me on that.

Obstructing votes on Presidential nominees threatens the future of our judicial system and the nature of the Supreme Court. You see, I am not sure that many Americans have stopped to think: Well, what happens if this is exercised for Supreme Court Justices? Because I believe in the next several years we will have one or two or possibly more Supreme Court nominees to consider.

That’s Sen. Richard Burr (R-NC).  Wow, a staunch Republican up for re-election in 2016 who is bucking his party’s stand.  I’m impressed.

Oh, wait.  That was in 2005 when he was worried that the Democrats would be the ones holding the Court’s vacancies hostage.  Today he’s saying that it would be fine with him if the Senate didn’t replace Scalia ever.

If Hillary becomes president, I’m going to do everything I can do to make sure that four years from now, we’re still going to have an opening on the Supreme Court.

As President Obama asked, “What, only Republican Presidents get to nominate judges? Is that in the Constitution? I used to teach constitutional law. I’ve never seen that provision.”

HT to Steve Benen.

Thursday, October 27, 2016

Three Little Words Again

Back in June of 2004 I wrote:

So while presidents may come and go, their legacy lives on after them and the consequences of a Supreme Court vacancy can change the course of the nation. Anyone who may have doubts about John Kerry or quibble with his stand on the war in Iraq should keep three little words in mind when they go into the voting booth in November: The Supreme Court.

We’ve had more than 200 days to consider the fact that Antonin Scalia’s corpse was still warm when the Republicans announced that they would basically say fuck their constitutionally mandated responsibility; we’re not voting on another one of President Obama’s picks for the Supreme Court until after the election in November, if then.  Now there are those who are saying that they won’t vote on any of Hillary Clinton’s appointees ever.

As Ilya Shapiro at The Federalist smugly notes, the Republicans are fully within their rights to do so because neener neener nyah nyah:

Clinton’s admission that her nominees would “be in the grand tradition of standing up to the powerful”—like some black-robed community organizers—is far more damning than her nonsensical positions on Heller (Second Amendment) or Citizens United (declining to punish producers of a movie criticizing Hillary Clinton).

Should senators rubber-stamp judicial nominees of that ilk, who care not about the law but rather hew to particular policies, out of a sense of tradition or deference to the executive? I simply can’t blame politicians who follow their convictions. If you truly believe that a particular nominee would wreak havoc on America, why not do everything you can to stop him?

[…]

So when you get past the gotcha headlines, breathless reportage, and Inauguration Day, if Hillary Clinton is president it would be completely decent, honorable, and in keeping with the Senate’s constitutional duty to vote against essentially every judicial nominee she names.

There is a simple way to solve this problem and get the Court back to its full complement of justices: elect more Democrats to the Senate than Republicans and get a vote on the nominees.  It would be nice to get more than 60 Democrats elected so that there wouldn’t have to be a fight over the filibuster rule, but we’ll take as many as we can get.  That’s why it’s important to beat Marco Rubio here in Florida, Richard Burr in North Carolina, Roy Blount in Missouri, Kelly Ayotte in New Hampshire, and Pat Toomey in Pennsylvania; those at the very least.

Because if we don’t and the Republicans have their way, we could be looking at ten years — assuming Hillary Clinton wins a second term — between the time Justice Scalia checked out and his replacement is seated, and that’s assuming that no one else leaves the Court, either of their own volition or via the hand of the supporting role in Bergman’s “The Seventh Seal.”

Your move, voters.

Wednesday, September 14, 2016

Short Takes

Wages shot up in 2015 with the biggest hike since 2007.

U.S. bombers send message to China, Russia, and North Korea.

Florida Zika outbreak hits 70 cases.

Supreme Court rejects early voting in Ohio.

NCAA pulls tournament games from North Carolina over bathroom bill.

Tropical Update: TS Julia heads north over northern Florida into Georgia.

Thursday, August 4, 2016

Short Takes

Supreme Court blocks transgender bathroom rule for now.

President Obama commutes sentences for over 200 federal inmates.

Jetliner explodes, burns on Dubai runaway; no casualties.

GOP allies plan “intervention” for Trump.

Tropical Update: TS Earl heads for Belize.

The Tigers beat the White Sox 2-1; streak hits 8.

Friday, July 1, 2016

Do The Math

3 + 1 = 4.  5 > 4.

On Monday, the Supreme Court handed down arguably the most important abortion-rights ruling in a generation, prompting the Republican presidential hopeful to say … literally nothing. To the consternation of some of his social-conservative allies, Trump acted as if the court’s decision didn’t exist, offering no response in speeches, interviews, or social media.

It took a few days, but this morning the presumptive GOP nominee broke his unexpected silence in an interview with conservative radio host Mike Gallagher.

“Now if we had Scalia was living, or if Scalia was replaced by me, you wouldn’t have had that, OK? It would’ve been the opposite.”

Actually, no, it wouldn’t have. This week’s ruling was actually a 5-3 decision. Yes, Antonin Scalia’s passing meant the Supreme Court was down one justice, but it doesn’t take a mathematician to know 3 + 1 does not equal 5.  Remember, the decision was on Monday, and today’s Thursday. Trump and his team had three days to come up with the candidate’s response to a major court ruling, and this is what they came up with.

Actually, it’s not even math.  It’s arithmetic.

What this suggests is that Mr. Trump really doesn’t give a shit about appointing a conservative to the Supreme Court because of how he would rule on abortion.  (And trust me, Mr. Trump would nominate a man.  Preferably a white one.)  He would appoint someone to the Supreme Court who would do his bidding.  Don’t like a ruling on something?  Put in a guy who will rule the way you want him to or will at least listen when he picks up the phone and tells him to vote a certain way.  That’s how he operates.  The concept of separation of powers is, in his words, wrong, very wrong.  What is the point of being president if you can’t have your people doing what you want them to do?

Wednesday, June 29, 2016

It’s A Drugstore, Not A Church

A divided Supreme Court turns down a case of religious discrimination.

Ralph’s Thriftway is a grocery store and pharmacy in Washington run by a religious family. It is not a church, or a church-affiliated nonprofit; it is a for-profit business, created and designed to make money for the Stormans. But the Stormans family are devout Christians who believe that Plan B is “tantamount to abortion” and thus refuse to stock it. For years, when customers came to the pharmacy seeking emergency contraception, the Stormans turned them away.

But in 2007, the Washington State Board of Pharmacy issued new regulations declaring that a pharmacy may not “refuse to deliver a drug or device to a patient because its owner objects to delivery on religious, moral, or other personal grounds.” Quite reasonably, the board felt Washington pharmacies should not be permitted to deny patients safe, legal drugs—which was a growing problem within the state: In addition to Plan B, religious pharmacists had refused to give patients diabetic syringes, insulin, HIV-related medications, and Valium. That, the board decided, was unacceptable. Pharmacists have every right to believe whatever they wish, but when those beliefs are manifested in the form of brazen discrimination against customers, they cannot be sanctioned by the law. In 2015, the 9th U.S. Circuit Court of Appeals affirmed the constitutionality of Washington’s regulation.

Alito, along with Thomas and Roberts, sees Stormans differently. “There are strong reasons to doubt,” Alito writes, “whether the regulations … actually serve … any legitimate purpose.” What? Clear as day, the Washington regulations ensure that patients can receive timely access to necessary medications without facing discrimination. In what world are safeguards against discrimination in goods and services not even a legitimate interest? Alito’s world, it turns out. Neither he, 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!)

The simple lesson is that if you want to run a business that is free to discriminate against other people based on your religious beliefs, open a megachurch.  It’s a real money-maker and you won’t even have to pay taxes.

Religious Freedom Ends 05-10-16

Tuesday, June 28, 2016

Short Takes

Supreme Court strikes down restrictive abortion rights.

Supreme Court upholds ban on gun sales to those convicted of domestic violence.

U.K. politics in meltdown after Brexit.

Volkswagen agrees to settle U.S. emissions scandal for $14.7 billion.

Clinton and Warren hit the campaign trail in Ohio.

Friday, June 24, 2016

Monday, June 20, 2016

That Would Be Fun

Via the Washington Examiner:

Justice Clarence Thomas, a reliable conservative vote on the Supreme Court, is mulling retirement after the presidential election, according to court watchers.

Thomas, appointed by former President George H.W. Bush and approved by the Senate after a bitter confirmation, has been considering retirement for a while and never planned to stay until he died, they said. He likes to spend summers in his RV with his wife.

His retirement would have a substantial impact on control of the court. The next president is expected to immediately replace the seat opened by the death of conservative Justice Antonin Scalia, providing a one-vote edge in the court that is currently divided 4-4.

Should Thomas leave, that slight majority would continue if Donald Trump becomes president. If it’s Hillary Clinton, then she would get the chance to flip two Republican seats, giving the liberals a 6-3 majority.

And then we’ll hear the Republicans say that we have to wait until the next election…

Tuesday, June 14, 2016

Tuesday, June 7, 2016

Short Takes

Supreme Court to hear two death penalty cases.

President Obama is itching to campaign for Hillary Clinton.

Fed Chair Yellen speech suggests that they’re rethinking interest rate hike.

R.I.P. Peter Shaffer, playwright.

Tropical Update: TS Colin triggers a state of emergency in central and panhandle counties in Florida.

The Tigers beat the Blue Jays 11-0.

Tuesday, May 24, 2016

Short Takes

Austria: The racist xenophobic right-wing candidate narrowly lost the presidential election.

Baltimore: One of six officers charged in the death of Freddie Gray was acquitted in a bench trial.

The U.S. Supreme Court tossed the conviction of a black man found guilty by an all-white juror based on overwhelming evidence of racism.

That’s Hot: Temperatures in India hit 123.8 F.

Tropical Update: It’s a little early, but there’s something brewing in the ocean.

The Tigers beat the Phillies 5-4.

Tuesday, May 17, 2016

Short Takes

The Supreme Court punted on the Obamacare contraception case.

Venezuela is in a state of emergency as the oil-based economy craters.

Oregon and Kentucky have Democratic primaries today.

Number of police killings fell in 2015, reversing 2014 spike.

Cancer patient receives penis transplant.

Tuesday, March 29, 2016

Cracking Up

The wall that Mitch McConnell put up to block any Supreme Court appointment, built before the late Antonin Scalia was even buried, is showing some cracks.

When President Obama first nominated Merrick Garland to the Supreme Court, Senate Republicans were united in their wall of opposition — no meetings, no hearing, no vote.

And while Garland’s path remains a very uphill battle, some Republicans are starting to shift their tone.

Two weeks into the nomination fight, 16 Republican senators now say they will meet with Garland — over 25 percent of the GOP caucus — according to a running count by NBC News.

That includes senators up for re-election in Blue States, such as New Hampshire’s Kelly Ayotte and Illinois’ Mark Kirk, who will be the first Republican to actually meet with Garland when they talk Tuesday.

[…]

According to Garland’s boosters and some GOP strategists, Republicans are abandoning opposition to meetings because it could make them appear obstructionist — or even rude.

“Mitch McConell’s knee-jerk response after Justice Scalia’s death is a public relations debacle for the Republican Party,” said former McCain strategist Steve Schmidt.

To defeat a presidential nomination, Schmidt suggested, it is usually better to “derail it slowly over time” — not announce blanket opposition up front.

Well, that last thing the Republicans want to be seen as is rude.  Oh, my.

This doesn’t mean that Judge Garland’s nomination will go anywhere; they could politely meet with him and then go about their business as if President Blackguy’s term was already over and whatever he did doesn’t count.  But at least they’re going to meet with him, which, in this environment, is better than getting the door slammed in his face.

I would never wish for any kind of natural disaster like a flood or a tornado to hit the state of Kentucky — it is springtime when things like that happen — and Sen. McConnell is in need of a federal disaster declaration from the president:

“Oh, gee, Mitch, I’d love to help, but according to you, I can’t do my job during an election year.  Let’s wait until the next president is in office, okay?” [Click.]

Thursday, March 17, 2016

Well Played, Mr. President

Charlie Pierce on the nomination of Merrick Garland to the Supreme Court and the Republicans reaction to it:

They’re in a tough spot. Merrick Garland is an almost universally respected jurist who no less than Orrin Hatch has praised fulsomely on a number of different occasions. In fact, it can be argued that the president flipped the script on Hatch. Oh, Merrick Garland is somebody for whom you could vote? Cool beans, O.H. I happen to have Merrick Garland right here.

Mr. Obama demanded a fair hearing for Judge Garland and said that refusing to even consider his nomination would provoke “an endless cycle of more tit for tat” that would undermine the democratic process for years to come. “I simply ask Republicans in the Senate to give him a fair hearing, and then an up or down vote,” Mr. Obama said. “If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair.”

So it’s a masterpiece of trolling from a guy who’s become very, very good at that. I understand the frustration of the president’s progressive supporters at the idea of a 60-ish white guy replacing a 70-ish dead white guy on the Supreme Court. (I would’ve preferred Jane Kelly from the Eighth Circuit, who already had heads exploding.) I’m sure there were several dozen more diverse, and clearly no-more-fcks-to-give, choices he could’ve made. But Garland’s work as a supervising DOJ attorney in the Oklahoma City bombing case intrigues me, and it is likely to light up the far distant precincts of wingnuttia as well. At the very least, he’s aware of the wildness loose in the country. He seems moderate and judicious and very unlikely to stray too far out of bounds from what this president and his supporters think a Supreme Court justice should be. His opinions on the appellate rights of criminal defendants could use some work, but he’s not likely to join with the likes of Samuel Alito to take an ax to things like the Miranda decision. He’s not a law’n’order guy. Tom Goldstein of the invaluable SCOTUSBlog put together a solid compendium of Garland’s record the last time his name arose to fill a vacancy on the Court, when Garland was passed over in favor of Justice Elena Kagan.

All of which is, for the moment, anyway, moot. This is a purely tactical move, and it’s an awfully good one. Right now, Republican senators are saying that they won’t even take one-on-one meetings with the guy, let alone give him a committee vote, let alone give him a confirmation vote in the Senate. This was precisely the reaction the president was hoping for, although he didn’t exactly have to be Nostradamus to make this play. But I want to know more about this comic book collection.

“[SCOTUS nominee Merrick Garland] put himself through Harvard Law School by working as a tutor, by stocking shoes in a shoe store, and in what is always a painful moment for any young man, by selling his comic book collection,” Obama said. “It’s tough. [I’ve] been there.”

Hey, at least Garland cashed in. My mother threw all of mine out when I went away to college. I coulda been somebody. I coulda had class. I coulda had a cool robe and a lifetime job.

I am sure that Judge Garland knew from the moment he picked up the phone from the White House that he was being nominated as part of a Jedi mind trick on behalf of the president.  Now that Mitch McConnell has backed himself into the corner and tucked his head under his carapace, getting confirmed by this Senate is problematic at best.

The GOP is already dragging Robert Bork out of this crypt to say “Hey, you Democrats did the same thing to him!”  No, actually Judge Bork got a hearing in front of the Senate Judiciary Committee where he was able to elaborate on his 18th century views of women and minority rights.  The committee voted 9-5 against him, but they let the nomination go to the full Senate where he was rejected.  But he got a vote.  If the Republicans want to bork Judge Garland, they have to let him at least get to a hearing.

Judge Garland doesn’t appear to be the icon of a campaign on the part of the DNC, the DNSCC, or any of the other lobbying groups that are already inundating my in-box with appeals to sign the petitions to get the Senate Republicans to confirm him (oh, and toss some coin in the hat while you’re at it), but if they and the Senate Democrats follow the lead of the president and act as if there’s a snowball’s chance that they can slip in through the cracks that are already appearing in the Republicans’ wall of No.  There are at least five senators who are up for re-election in the fall who are already on shaky ground at home and who could be vulnerable to an ad campaign featuring an ominous chorus of “O Fortuna” and the image of a slamming door.  Let’s see how long this laugh-line about “let the voters decide” lasts when it looks like the voters could vote those senators into their next gig as a lobbyist or talking head on Fox.

Short Takes

Merrick Garland is President Obama’s pick for the Supreme Court.

American ISIS fighter is a “gold mine” for U.S. intelligence.

U.S. hits North Korea with new sanctions for nuclear tests.

Denmark regains its standing as the “happiest nation.”

What if Fox had a debate and nobody came?

R.I.P. Frank Sinatra, Jr., 72.

Tuesday, March 15, 2016

Supreme Sacrifice

President Obama may name his choice for the vacancy on the Supreme Court as early as today.

WASHINGTON — President Obama is close to a decision on a Supreme Court nominee based purely on qualifications and experience, White House officials insisted on Monday, but the president’s allies said that political considerations — including whether a nominee had an easily defensible record or appeal to Republicans — were clearly part of Mr. Obama’s calculus.

Speculation now centers on three potential nominees, all federal circuit court judges: Sri Srinivasan, 49, who was confirmed in 2013 with a 97-to-0 vote; Merrick B. Garland, 63, a moderate who has been a finalist in Mr. Obama’s previous Supreme Court searches; and Paul J. Watford, 48, a judge on the Ninth Circuit Court of Appeals in California.

[…]

Jonathan Turley, a law professor at George Washington University, said Mr. Obama must decide whether to pick a “grand-slam” candidate — one like Judge Srinivasan, who is young, moderate and could have a profound effect on the court — or a “sacrifice fly,” like Judge Watford, an impressive judge whose positions on the death penalty and immigration would draw criticism from conservatives but whose nomination could exact a political price from Republicans who oppose him.

“The Obama White House are the ultimate practitioners of realpolitik — they have to be making a careful calculus, but the real question is not how do they win, it’s what game are they playing?” Mr. Turley said.

I don’t think anyone is in favor of picking someone solely on the basis of daring the Senate not to confirm them — as if Clarence Thomas wasn’t picked to replace Thurgood Marshall based on that consideration — but that’s what’s happening here.  And as I noted before, the one distinction that the nominee will have is that ten years from now they will be the answer to a presidential trivia question.

However… if the Republicans are so insistent that the “American voters have a say,” which they already did in 2012 when President Obama was re-elected, the Democrats could parlay the GOP obstructionism to their advantage.  Let the vulnerable Senate Republican incumbents run against an energized Democratic base, especially if the candidate is Donald Trump, and see how willing they are to sacrifice their career for a party that is basically saying “the N- don’t get to choose.”