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The Ginsburg Gamble and the Future of the Supreme Court

JONATHAN TURLEY

225px-ruth_bader_ginsburg_scotus_photo_portrait500px-The_CardsharpsBelow is my column on the unfolding future of the Supreme Court after the confirmation of Justice Neil Gorsuch and the elimination of filibusters in the selection of Supreme Court nominees.  For years, commentators have been discussing the timing of the retirement of our older justices, including Justice Ginsburg.  There was rising concern when Ginsburg decided to stay on the Court past the midterm mark of the second Obama term.  Those concerns have now been magnified and realized with the Trump election and filibuster elimination.  Of course, the same concerns are raised by the possible retirement of Justice Anthony Kennedy, the swing vote on the current Court.  New rumors have arisen  this week about Kennedy. However, of all of the older justices, it is replacement of Ginsburg that could produce the most profound changes for the country.

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[VIDEO] Senate Confirms Neil Gorsuch to Be Next Supreme Court Justice

Replacing Scalia, a conservative icon, the ideological tilt of the bench is not likely to shift. He will restore a 5-4 majority that Republican appointees have held on the court for years.

Lisa Mascaro and David G. Savage report: President Trump’s nominee, Judge Neil M. Gorsuch, was confirmed Friday for a lifetime appointment to the Supreme Court, filling a 14-month vacancy after a dramatic Senate showdown that risked long-lasting repercussions to both institutions.

The confirmation will deliver a much needed political victory to Trump, whose administration is struggling in its first 100 days to make progress on many campaign promises amid infighting in the White House and on Capitol Hill.

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The Senate confirmed Gorsuch, 54-45, for the seat that had been vacant since the 2016 death of Justice Antonin Scalia. The Republican-led Senate had refused last year to consider President Obama’s nominee, Judge Merrick Garland, fueling partisan rancor and Democratic opposition to Gorsuch.

Only three Democrats joined Republicans in voting to confirm Gorsuch. Sen. Joe Donnelly (D-Ind.), Sen. Heidi Heitkamp (D-N.D.) and Sen. Joe Manchin (D-W.Va.) all represent conservative-leaning red states that Trump won in the election. Sen. Johnny Isakson (R-Ga.), who is recovering from surgery, was absent.

It was the narrowest approval of a Supreme Court nominee since the 52-48 confirmation of Clarence Thomas in 1991.

Vice President Mike Pence presided over the vote as Republicans sat in their seats and onlookers, including conservative legal activists, filled the visitor galleries. But Friday’s vote, arguably Trump’s most enduring achievement to date, was largely upstaged by the U.S. airstrikes in Syria, which dominated news coverage.

The 49-year-old Gorsuch, who is expected to be sworn in on Monday, is a respected conservative who has worked for years on the U.S. 10th Circuit Court of Appeals in Denver. He is expected to bring a “textualist” approach to the court, relying on an exact reading of legal language.

Supreme Court Affirmitive Action

Since he is replacing Scalia, a conservative icon, the ideological tilt of the bench is not likely to shift. He will restore a 5-4 majority that Republican appointees have held on the court for years.

“He’s going to make an incredible addition to the court,” said Senate Majority Leader Mitch McConnell (R-Ky.). “He’s going to make the American people proud.”

Democrats had staged a highly unusual filibuster to block the nominee. Republicans responded by changing long-standing Senate rules to allow filibusters of Supreme Court nominees to be broken with 51 votes rather than the previous 60.

Now Trump and future presidents will find it easier to choose Supreme Court nominees without needing much consent from the minority, opening the door to more ideological and partisan appointments. Read the rest of this entry »


‘It’s the Reid Option. Get it Right’

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Analysis: Filibuster Over Gorsuch is Bad for Democrats

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WASHINGTON — Debra J. Saunders writes: A favorite truism in Washington these days is: “Be careful what you wish for, you may get it.” It tells the cautionary tale of how Republicans who wanted to run Washington got what they wanted and now must govern.

Here’s another quote for the swamp to consider: “Be careful what you scorn, you may someday become it.”

It has been a favorite pastime of elected Democrats to poke fun at the House Freedom Caucus because the rump is ideologically extreme and frequently self-destructive. Senate Democrats now seem poised to overtake the Freedom Caucus in the race away from moderation and the ability to shoot one’s party in the foot. To wit, Senate Minority Leader Chuck Schumer is primed to block the U.S. Supreme Court confirmation of Judge Neil Gorsuch.

Gorsuch is the one decision President Donald Trump made and executed flawlessly. In September 2016, Trump released a list of 21 judges from which he pledged to pick a Supreme Court nominee. Gorsuch, 49, was on the list.

Gorsuch has such solid credentials that the American Bar Association unanimously rated him “well qualified” to serve on the U.S. Supreme Court — its highest rating. In other words, Trump did not pick a flame thrower.

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George Washington University law school professor Jonathan Turley, who is no Trump fan, argues that Gorsuch is a smart choice because of the Coloradan’s intellect. In USA Today, Turley wrote that he does not expect Gorsuch to change his “deep and well-established jurisprudential views,” which are conservative. “However, I expect he will go wherever his conscience takes him regardless of whether it proves a track to the left or the right.”

As Gorsuch told the Senate Judiciary Committee during his confirmation hearings, “It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge.”

Confirmed previously

In 2006 the Senate confirmed Gorsuch’s appointment to the Denver-based 10th Circuit Court of Appeals by unanimous consent. Schumer was in the Senate at the time. So how could Schumer tell the Washington Post on Thursday that it is “virtually impossible” to expect him and a majority of the Senate’s 47 other Democrats not to filibuster Gorsuch and deny him a simple up-or-down vote? Read the rest of this entry »


[VIDEO] Democrats and The Sweet Smell of Hypocrisy: Filibustering Neil Gorsuch 

 


[VIDEO] Gorsuch Finds Himself in the Middle of a Senate Showdown 

A growing number of Democrats say they will not support the Supreme Court nominee, while GOP leaders are coy on plans to use the nuclear option; Shannon Bream provides insight on ‘Special Report’


[VIDEO] Schumer Proposes a Deal on Gorsuch Nomination, GOP Responds


[VIDEO] Media, Democrats Praise Gorsuch Confirmation Performance 


[VIDEO] SUPERCUTS: Democrats Whine About Originalism at Gorsuch Hearing

 


[VIDEO] Franken Visibly Frustrated When Gorsuch Doesn’t Take Bait on Merrick Garland Question 


[VIDEO] Sen Cruz Calls Out Democrats On Double Standard They’ve Created For Gorsuch 

 

 


[VIDEO] Charles Krauthammer on Trump Budget Proposal: Cuts Dead on Arrival, Entitlements Are What Matter 

Charles Krauthammer dismissed Trump’s budget as “dead on arrival” and pointed out that entitlements are what matter, even if proposed cuts focus on domestic discretionary spending such as public broadcasting:

“This is a budget, like every other one I’ve seen in decades that I’ve been here, it is dead on arrival at Capitol Hill. Capitol Hill is a huge morgue of presidential budgets. There is not one that actually croaked into life. They all come in dead. They are wish lists. They are expressions of one’s interests, and a way to respond to promises. The beginning of this, the premise of this is defense. In the eight years under Obama, we had a real destruction of the defense budget. Obama came in, it was about 4.6 percent of GDP. When he left, it was 3.2 percent. To put it in context, under the sainted John Kennedy it was around 10 percent. We are at the lowest ebb since about Pearl Harbor, and you can see it in the readiness, so that had to be done.”

“All the real stuff, where the money is — the Willie Sutton bank money — is in entitlements, which isn’t even in here. The problem is it’s not in here because we’ve got a president who promised in the campaign, unlike just about every other Republican opponent, he wasn’t going to touch a hair on the head of entitlements. So if you don’t, it all has to come out of the domestic discretionary spending, and when you do that, you end up with these cuts which are never going to happen, and you get the old perennials. Big Bird is going to get roasted again, or at least proposed to be. I guarantee you, he will or she will — I’m not sure which it is these days — it is going to escape unscathed.”

Source: National Review


Preet Bharara proved Trump Right

Former U.S. Attorney Preet Bharara in New York on March 11, 2017. (Photo: Kathy Willens, AP)

Former U.S. Attorney Preet Bharara in New York on March 11, 2017. (Photo: Kathy Willens, AP)

The former U.S. attorney’s petty defiance shows why he needed to be shown the door.

Glenn Reynolds writes: In the excellent Paul Newman legal thriller, Absence of Malice, Wilford Brimley faced a misbehaving Justice Department prosecutor who refused to resign. He fired him. It was Brimley’s breakthrough role, as a no-nonsense older guy there to fix a mess. In a way it prefigured what’s going on with President Trump and former U.S attorney for the Southern District of New York, Preet Bharara. Bharara refused to resign, and Trump fired him.

There’s been a lot of faux outrage about this decision of Trump’s, but it’s all bogus. And Bharara’s refusal to resign was childish, an effort to score anti-Trump points with Democrats that, all by itself, demonstrated why Bharara was unfit for office and why Trump was right to let him go.

Here’s the thing to understand: United States attorneys serve at the pleasure of the president. The prosecution of crimes, including the decision of which crimes to prosecute and which crimes not to prosecute, is at the discretion of the executive branch, which ultimately means the discretion of the president. U.S. attorneys work for the president in that capacity. And if the president thinks someone else would be better, he’s free to fire them and replace them.

And there’s nothing whatsoever unusual or improper about doing so, something the press has no trouble remembering when the incoming administration is run by Democrats. When Barack Obama took office, he dismissed a bunch of U.S. attorneys. Attorney General Eric Holder explained that “Elections matter — it is our intention to have the U.S. attorneys that are selected by President Obama in place as quickly as they can.”

Likewise, when Hillary Clinton was running for the White House in 2007, she said that replacing U.S. attorneys is “a traditional prerogative of an incoming president.” And, of course, she was right, and there was no outrage from the press. (As journalist and former Democratic staffer David Sirota tweeted, presidents have been replacing U.S. attorneys for decades. Why is this now a scandal? Well, because it’s Trump, and for the press, everything Trump does is a scandal.)

It’s traditional for new administrations to request the resignation of holdovers from the previous administration. It’s considered more polite than outright firing people. But that’s all it is: politeness. Read the rest of this entry »


[VIDEO] Krauthammer: Slow-Walk the Executive Order Appeal, Fast-Walk Gorsuch Nomination

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Gorsuch Nomination More Important Than Travel Ban & Judges’ Opposition

“The point I wanted to make in the column was, there is the moratorium, and there is the vetting. The vetting will get 90 percent support in the country, but they actually should do it. It doesn’t depend on a moratorium. The fact is, they have lost the case in the most liberal circuit in the country, they’ve lost it at the district level, and for now, the Supreme Court is deadlocked, so it’s likely to return. In other words the case is stacked against them. I happen to think it’s legal, but these courts have decided not, so why play a losing hand? What he needs to do — I think it’s exactly right — either rewrite the order or have a new one, so you are dealing on a different playing field. You’ve gotten essentially the feedback of the ninth circuit, so you know what will pass muster and what won’t. For example, from the beginning, you exclude the holders of green cards, and then what you do is, you slow-walk the appeals case and you fast-walk the nomination of Gorsuch. There is no hurry on appealing this ruling. They are not going to win it in the end. … “

Read more

Source: National Review


REWIND 2010: President Obama Insults Supreme Court Justices to Their Face at State of the Union Address 

 

WASHINGTON, JAN. 28, 2010—  It is not unusual for presidents to disagree publicly with Supreme Court decisions. But they tend to do so at news conferences and in written statements, not to the justices’ faces.

President George W. Bush, for instance, did not hesitate to criticize a 2008 rulingrecognizing the rights of prisoners held at Guantánamo Bay, Cuba — but he did it at a news conference in Rome. President Richard M. Nixon said he was disappointed with a 1974 decision ordering him to turn over the tapes that would help end his presidency — in a statement read by his lawyer.

President Obama’s approach at the State of the Union address Wednesday night was more personal, and he seemed a little self-conscious about it.

Before he began his attack on a Supreme Court decision not yet a week old, Mr. Obama added a few words that had not been in the prepared text. The new preface — “with all due deference to separation of powers” — seemed to acknowledge that he was aiming unusual rhetorical fire at several Supreme Court justices sitting right in front of him.

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Several justices, in the first two rows, were sitting right in front of the president when he attacked the campaign finance ruling. Stephen Crowley/The New York Times

Justice Samuel A. Alito Jr., one of the justices in the majority in the decision under attack, shook his head as he heard the president’s summary of Citizens United v. Federal Election Commission, and he appeared to mouth the words “not true.”

It was not quite the shouted “You lie!” from Representative Joe Wilson, Republican of South Carolina, at September’s presidential address to a joint session of Congress. But in its way, the breach of decorum on both sides was much starker.

Peter G. Verniero, a former justice on the New Jersey Supreme Court, said neither end of the exchange helped the prestige of the United States Supreme Court.

“The court’s legitimacy is derived from the persuasiveness of its opinions and the expectation that those opinions are rendered free of partisan, political influences,” Mr. Verniero said. “The more that individual justices are drawn into public debates, the more the court as an institution will be seen in political terms, which was not the intent of the founders.”

Modern presidents and Supreme Court justices do not interact very much, and this particular president might be expected to have strained relationships with at least Justice Alito and Chief Justice John G. Roberts Jr., both of whose nominations he voted against as a senator. The president and chief justice would both also probably like to forget the flubbed administration of the presidential oath at Mr. Obama’s inauguration last year. Read the rest of this entry »


[VIDEO] Neil Gorsuch: Everything You Need to Know. Q&A with Randy Barnett 

Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit.

 


Judge Gorsuch, Writer

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Judge Gorsuch is one of the finest writers on the federal bench.

John O. McGinnis writesPresident Trump’s pick for the Supreme Court, Judge Neil Gorsuch, meets the most important criterion for the successor to Justice Antonin Scalia—that he be an articulate exponent of originalism. Scalia was the most consequential justice in the last half-century because he had the intellect to forge a consistent jurisprudence and the pen to make it widely known. When he arrived on the Court in 1986, originalism had no influence in the legal academy. Today, even among liberals, it is the jurisprudential theory to beat. He not only changed the law but the legal culture as well. Changing the legal culture is as important as making the right decisions in individual cases, because only a good culture will preserve those decisions for tomorrow. Read the rest of this entry »