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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.

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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] 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 

 

 


Charles Krauthammer’s Religious Epiphany

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He guaranteed Neil Gorsuch elevation to the Supreme Court.

…Donald Trump for winning the election. Hillary Clinton for losing it. Mitch McConnell for holding open the high court seat through 2016, resolute and immovable against furious (and hypocritical) opposition from Democrats and media. And, of course, Harry Reid.

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God bless Harry Reid. It’s because of him that Gorsuch is guaranteed elevation to the court. In 2013, as Senate majority leader, Reid blew up the joint. He abolished the filibuster for federal appointments both executive (such as Cabinet) and judicial, for all district and circuit court judgeships (excluding only the Supreme Court). Thus unencumbered, the Democratic-controlled Senate packed the lower courts with Obama nominees.

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Reid was warned that the day would come when Republicans would be in the majority and would exploit the new rules to equal and opposite effect. That day is here.

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The result is striking. Trump’s Cabinet appointments are essentially unstoppable because Republicans need HarryReidClockonly 51 votes and they have 52. They have no need to reach 60, the number required to overcome a filibuster. Democrats are powerless to stop anyone on their own.

[Read the full story here, at The Washington Post]

And equally powerless to stop Gorsuch. But isn’t the filibuster for Supreme Court nominees still standing? Yes, but if the Democrats dare try it, everyone knows that Majority Leader McConnell will do exactly what Reid did and invoke the nuclear option — filibuster abolition — for the Supreme Court, too.

Reid never fully appreciated the magnitude of his crime against the Senate. As I wrote at the time, the offense was not abolishing the filibuster — you can argue that issue either way — but that he did it by simple majority. 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.

 


[VIDEO] REWIND: Scalia on Flag Burning 

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A Constitutional Amendment Overturning Citizens United: Really? How?

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Peter J. Wallison writes: One jarring note in Hillary Clinton’s acceptance speech at the Democratic National Convention was her statement that she would press for a constitutional amendment to overturn Citizens United v. Federal Elections Commission.

“The New York Times is a corporation, so this language would prohibit the Times from editorializing in favor of or against either Ms. Clinton or Donald Trump. Moreover, it might shut down blogs, or firms like Facebook or Twitter, that are corporate vehicles for the expression of opinions about candidates by others.”

This 2009 Supreme Court case held that corporations had the same rights as individuals to make statements for or against the election of a candidate for public office. Particularly difficult to understand was her linking Citizens United to the fact that our economy is not functioning well for many Americans.

A sign during a protest against the Citizens United decision in Portland, Oregon. Credit: Flickr/lance_mountain

A sign during a protest against the Citizens United decision in Portland, Oregon. Credit: Flickr/lance_mountain

“Clearly, closing down newspapers that publish editorials wouldn’t be satisfactory to many Americans, and if extended to other corporate opinion forums would be highly unpopular among the American people. How, then, could the language be modified to allow the New York Times and other corporations to express their views and still overturn Citizens United?”

Taking the last point first, what could be the link between Citizens United and a poorly functioning economy? It’s likely that Ms. Clinton wanted her listeners to infer that corporate power, expressed through independent expenditures—presumably Hidden in plain sightcontributions to superpacs or other hidden sources—had distorted the public’s will for the benefit of powerful private parties.

[Order Peter J. Wallison’s book “Hidden in Plain Sight: What Really Caused the World’s Worst Financial Crisis and Why It Could Happen Again from Amazon.com]

This is a peculiar claim to make after almost eight years of the Obama presidency, in which the most significant government actions—the Dodd-Frank Act, ObamaCare, and various tax increases on corporations and wealthy individuals—could hardly be said to favor corporations or business interests generally. It is also peculiar in light of a recent Wall Street Journal report that hedge fund contributions to Clinton superpacs have outraised those to Trump superpacs by a ratio of more than 2000-to-1 ($46.5 million to $19,000).

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But leaving aside these anomalies, what is it about Citizens United that has stirred Ms. Clinton to propose something as drastic as a constitutional amendment, especially one affecting the First Amendment’s right to free speech?

[Read the full story here, at AEI]

Many of Ms. Clinton’s listeners who cheered her idea probably believe that their right to free speech would not be affected by overturning Citizens United. Of course, the language of the amendment would be determinative, but let’s assume it is as simple as adding new language at the end of the First Amendment as it now reads. Read the rest of this entry »


Obama: Rule of Law, Due Process, Constitutional Fidelity, and Separation of Powers ‘Sets Our Country Back’

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President Obama said Thursday that the Supreme Court’s 4-4 decision that will block his 2014 executive actions on immigration “sets our country back,” and is “heartbreaking” for the millions of illegal immigrants still in the country.

“Today’s decision is frustrating to those who seek to grow our economy and bring a rationality to our immigration system, and to allow people to come out of the shadows,” he said at the White House.

[Read the full story here, at Washington Examiner]

The 4-4 tie left in place a lower court ruling that found against Obama’s actions. But Obama cast the ruling as one that showed the Supreme Court was “unable to reach a decision,” and argued that it’s more evidence that the Senate needs to consider his nominee for the high court, Merrick Garland, so that the court cannot deadlock again.

“This is part of the consequence of the Republican failure so far to give a hearing to Mr. Merrick Garland,” Obama said.

Stay abreast of the latest developments from nation’s capital and beyond with curated News Alerts from the Washington Examiner news desk and delivered to your inbox.

Read the rest of this entry »


IT’S UNANIMOUS: Supreme Court Ruling Throttles Obama Environmental Agenda

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 reports: The Supreme Court ruled Tuesday that landowners can appeal to a federal court when the government subjects their property to wetlandsclimate-freakout
regulations requiring additional permits.

“For more than 40 years, millions of landowners nationwide have had no meaningful way to challenge wrongful application of the federal Clean Water Act to their land.”

The unanimous ruling determined that the Clean Water Act “imposes substantial criminal and civil penalties for discharging any pollutant into waters” covered by federal regulations without a permit from the U.S. Army Corps of Engineers.

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They have been put at the mercy of the government because land covered by the Act is subject to complete federal control. This victory guarantees the rights of millions of property owners.”obama-incandescent

— Principal Attorney M. Reed Hopper

The decision could weaken the Obama administration’s environmental agenda.

The Corps is in charge of assessing whether a landowner’s property contains “waters of the United States” or “navigable waters,” which are protected under the Clean Water Act. Read the rest of this entry »


[VIDEO] Our National Obamacare Nightmare 


Taking a Look Back: The Highlight Reel from Obergefell v. Hodges


Cara L. Gallagher, Weekend Contributor, and Elliot Louthen write: This is a beautiful but restless time of year for SCOTUS junkies. The gorgeous, late summer sun sinks faster out of the sky signaling not only the end of the (best) season but also the nearness of the next Supreme Court term. While this reality thrills….(read more)

Source: jonathanturley.org


Seen on Facebook: Justice Thomas & George Taki

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Instapundit » Blog Archive


Williamson in Wonderland: ‘The Supreme Court Has Firmly Established That It Does Not Matter What The Law Says Or Does Not Say’

Illustration: Mad Hatter’s Tea Party, Alice in Wonderland original vintage engraving. Tea party with the Mad Hatter, Dormouse and the White Rabbit. Alice's Adventures in Wonderland. Illustration from John Tenniel, published in 1865. TEXT: Kevin D. Williamson, National Review http://www.nationalreview.com/article/420406/john-roberts-decision-kevin-d-williamson

Opening paragraph of “Ayatollah Roberts and His Sharia Council” by Kevin D. Williamson
Read Kevin D. Williamson‘s article about the SCOTUS rulings here, at National Review 

 


Elena Kagan: ‘That Was Then, This Is Now’

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Via  at Legal Insurrection Read more here…


Now That Our False ‘Love, Mutual Respect, Equality’ Argument Has Achieved its Purpose, Let’s Dump it and Unveil Our True Agenda

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[TIME]


The SCOTUS Marriage Decision, in Haiku

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Adam White ‏@adamjwhitedc, via Twitter
Sheer genius, from @McSweeneys (via @DouthatNYT)

Dissent Is Now The Highest Form Of Bigotry

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 Read on… from Brandon McGinley at The Federalist

Also, from Daily Caller‘s Betsy Rothstein writes:

The editorial board of PennLive/The Patriot-News in Harrisburg, Pa. is taking a hardcore stance against those who disagree with the Supreme Court ruling to legalize gay marriage.

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“As a result of Friday’s ruling, PennLive/The Patriot-News will no longer accept, nor will it print, op-Eds and letters to the editor in opposition to same-sex marriage,” they declared. 

After receiving strong pushback, the newspaper’s editorial board, which is overseen by Editorial Page Editor John Micek, quickly revised its policy. Freedom of speech will be allowed — but only for a “limited” period of time. Read the rest of this entry »


[VIDEO] REWIND: Barack Obama Describes His Christian Definition of Marriage

 


‘The Mystical Aphorisms of the Fortune Cookie’

Justice Scalia testifies on Capitol Hill in WashingtonFortune-Cookiescookie

‏@Taniel, via Twitter


Friday Document Dump: Read the Ruling!

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[Read Gay Marriage Ruling – 103 pages]

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Supreme Court Resigns Duties, Tortures English Language to Save Obamacare

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“If only there was some branch of government designed to review legislative actions, thwarting the intentions of Congress if they conflict with the law… oh, wait, that branch does exist…”

 writes: In his 1946 essay, Politics and the English Language, George Orwell observed that “the slovenliness of our language makes it easier for us to have foolish thoughts.” Today is Orwell’s birthday; it’s also the day the Supreme Court released its 6-3 decision in King v. Burwell, which preserves the Affordable Care Act at the expense of plain English.

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“The majority opinion explains away this blatant contradiction by expressing confidence that architects of the law intended something other than what they wrote—the opposite of it, in fact.”

The majority, led by Chief Justice John Roberts, ruled that the provision of the law mandating an “Exchange established by the State” should be interpreted to include an Exchange not established by any state, but instead by an agency of the federal government, the U.S. Health and Human Services Department.

[More – In Upholding Obamacare’s Subsidies, Justice Roberts Rewrites the Law—Again]

In his spot-on dissent, Associate Justice Antonin Scalia explains why this is an “impossible possibility”:

Justice Scalia testifies on Capitol Hill in Washington

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal
Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.…

[Read the full text here, at Reason.com]

Faced with overwhelming confirmation that “Exchange established by the State” means what it looks like it means, the Court comes up with argument after feeble argument to support its contrary interpretation. None of its tries comes close to establishing the implausible conclusion that Congress used “by the State” to mean “by the State or not by the State.”

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The majority opinion explains away this blatant contradiction by expressing confidence that architects of the law intended something other than what they wrote—the opposite of it, in fact. Intent should trump plain English—even when the two directly oppose each other—writes Roberts, because the Court’s job is to defer to the will of lawmakers, and even contort logic to assist them, “if at all possible”: Read the rest of this entry »


Supreme Court Guide: Six Big Decisions Remain

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The Supreme Court is scheduled to issue decisions Thursday, with six major cases remaining on the docket, and is expected to release opinions again on Friday and perhaps next week. Still to be decided are the health-law subsidies and gay-marriage cases, along with closely watched rulings involving congressional redistricting and power plant emissions. Here’s a list of the remaining cases….(read more)

WSJ


[VIDEO] ‘Confiscation without Compensation’: Laura & Marvin Horne’s Supreme Court Victory in the Federal Government Raisin Fight

 


Recommended Weekend Listening: MZ Hemingway on The Federalist Radio Hour

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…Later the Texas policy expert explained the competing liberal and conservative visions implicit in the King v. Burwell Supreme Court Case.audio-button

Senior Federalist Writer, Rich Cromwell also joined the program to highlight his and Mollie’s new sex column.

You can listen here

The Federalist Radio Hour


[VIDEO] Amanda Knox Murder Conviction Overturned by Italy’s Highest Court

Los Angeles (AFP) – American Amanda Knox expressed “tremendous” relief Friday after Italy’s top court cleared her of the 2007 murder of British student Meredith Kercher, drawing a line under the eight-year legal saga.

“I am tremendously relieved and grateful for the decision of the Supreme Court of Italy,” Knox said in a statement shortly after Italy’s Court of Cassation cleared her and Italian ex-boyfriend Raffaele Sollecito.

Amanda Knox waves to supporters as she makes her first appearance at SeaTac Airport after arriving in Seattle following her release from prison in Italy on October 4, 2011 (AFP Photo/Kevin Casey)

Amanda Knox waves to supporters as she makes her first appearance at SeaTac Airport after arriving in Seattle following her release from prison in Italy on October 4, 2011 (AFP Photo/Kevin Casey)

“I am tremendously relieved and grateful for the decision of the Supreme Court of Italy.”

Knox, convicted with Sollecito for a second time last year for taking part in the brutal knife slaying of Kercher, has always vehemently maintained her innocence.

“The knowledge of my innocence has given me strength in the darkest times of this ordeal.”

“The knowledge of my innocence has given me strength in the darkest times of this ordeal,” Knox said.

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“And throughout this ordeal, I have received invaluable support from family, friends and strangers. To them, I say: Thank you from the bottom of my heart.”

“And throughout this ordeal, I have received invaluable support from family, friends and strangers. To them, I say: Thank you from the bottom of my heart.

“Your kindness has sustained me. I only wish that I could thank each and every one of you in person.”

“Your kindness has sustained me. I only wish that I could thank each and every one of you in person.”

A separate statement from Knox’s family expressed “profound gratitude” to those who had championed the former student’s innocence. Read the rest of this entry »


BREAKING: ITALIAN COURT RULES NOT GUILTY, AMANDA KNOX ACQUITTED

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Amanda Knox’s conviction overturned by Italian court. She will not be sent back to prison

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Italy’s top court orders acquittal of Amanda Knox in Meredith Kercher murder case

ROME — Italy’s highest court overturned the murder conviction against Amanda Knox and her ex-boyfriend Friday, bringing to a definitive end the high-profile case that captivated people on both sides of the Atlantic.

‘‘Finished!’’ Knox’s lawyer Carlo Dalla Vedova exulted after the decision was read out. ‘‘It couldn’t be better than this.’’

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The decision by the supreme Court of Cassation is the final ruling in the case, ending the long legal battle waged by Knox and Italian co-defendant Raffaele Sollecito. Both Knox, who was awaiting the verdict in her hometown of Seattle, and Sollecito have long maintained their innocence in the death of British student Meredith Kercher.

The supreme Court of Cassation overturned last year’s convictions by a Florence appeals court, and declined to order another trial. The decision means the judges, after thoroughly examining the case, concluded that a conviction could not be supported by the evidence.

Their reasoning will be released within 90 days.

The case has aroused strong interest in three countries for its explosive mix of young love, murder and flip-flop decisions by Italian courts…(read more)

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TIME reports: The Italian Supreme Court overturned Amanda Knox’s conviction Friday for the 2007 murder of her roommate Meredith Kercher.

Knox and her then-boyfriend Raffaele Sollecito were convicted as co-conspirators in Kercher’s murder in the apartment they shared as exchange students in Perugia in 2009. But that conviction was overturned in 2011 and in 2014, after prosecutors argued that evidence had been omitted in the appeal, the original guilty verdict was reinstated.

But Italy’s Supreme Court ruled Friday afternoon to finally acquit the American of the long-hanging charges over her. She had faced extradition to Italy if the conviction had been upheld. Read the rest of this entry »