Nel's New Day

January 31, 2017

Supreme Court Nominee, Lack of Independent Judiciary

Republicans said last year that no Democratic president would ever put a justice on the Supreme Court, starting with their refusal to vet President Obama’s nominee, Merrick Garland, nominated almost one year before the end of the president’s term. Today Donald Trump (DT) drew attention away from his Muslim ban on entering the U.S. by his appointment for this position.Supreme Court nominees can be filibustered unless Senate Majority Leader Mitch McConnell (R-KY) changes the rule to a simple majority.

DT’s nominee: Neil Gorsuch, 49, judge on the Denver-based 10th U.S. Circuit Court of Appeals covering six Western states; the son of perhaps the most corrupt head of the Environmental Protection Agency in its history; attends Episcopalian church; appointed by George W. Bush in 2006; would be the most conservative judge on the court except for Clarence Thomas; opposes assisted suicide, legal in six states, because “human life is intrinsically valuable”; sided with Hobby Lobby in viewing contraception as immoral and defunding Planned Parenthood; falsely described birth control drugs and devices as having the effect of “destroying a fertilized human egg”; believes that business owners have religious liberty claims over their employees’ statutory right to access preventive health care; favors Christian religious expression in public spaces; endorses lack of gun safety laws; opposes agency regulatory power to consolidate power within the judiciary; is originalist, interpreting the Constitution as it was understood at the time it was adopted; opposes using the court for social reform; endangers labor and environmental protections, immigrants, and criminal defendants; most likely supports “religious liberty” to escape anti-discrimination laws; co-founded the ultra-conservative publication The Federalist; wants police to be immune from lawsuit for official actions unless “clearly established” law is violated.

In short, Gorsuch as Supreme Court justice would reward corporations and the Koch brothers and penalize voters, workers, women, and the planet. The question is whether DT appointed Gorsuch because the Democrats will filibuster against him and then go with Thomas Hardiman. Another question is how this nomination connects with the Department of Justice.

In his campaigns, Donald Trump (DT) promised to protect the U.S. Constitution. On Day Seven of his presidency, he issued a Muslim ban that violates up to three constitutional amendments, and on Day Ten he fired Sally Yates a few hours after the Acting Attorney General upheld the Constitution. DT claimed that she “betrayed the Department of Justice” and made the country less safe.

The last president to fire an Attorney General was Richard Nixon when Richard Nixon, who fired his AG and Deputy AG in the “Saturday Night Massacre” because they denied his order to dismiss the Watergate Special Prosecutor. Yates replacement is Dana Boente, U.S. Attorney for the Eastern District of Virginia, until Senate confirms a person for AG. He said that he would order the DOJ to defend DT’s Muslim ban. At this time, Sen. Jeff Sessions (R-AL) is being reviewed by the complete U.S. Senate.

In a letter to Justice Department lawyers, Yates stated that the DOJ must take positions in court that “remain consistent with this institution’s solemn obligation to always seek justice and stand up for what is right.” She also pointed out that the DOJ’s mission is to defend and uphold the Constitution based on established legal precedents. Almost a year ago, she wrote a memo to employees that they must “ensure that politics does not compromise the integrity of our work.”

Concluding that DT’s Muslim ban failed to meet basic constitutional and moral tests, she said she would not assign federal attorneys to show up in court to defend the policy in court. The New York judge granting a temporary restraining order stopping the ban declared that it was likely unconstitutional.

During her 27 years with the DOJ, Yates prosecuted “numerous white-collar fraud and political corruption matters.” She was confirmed as Deputy Attorney General with 85 votes in 2015. Sen. Chuck Grassley (R-IA), chair of the Senate Judiciary Committee, said:

“I supported her nomination, both in Committee and today in the full Senate, and I hope that she will show independence as she provides leadership at the Department. As she told us during her hearing, she is aware that her client is, ‘The people of the United States… not the President… not the Congress, it’s the people of the United States.’”

Sessions, now an anti-Constitution nominee for AG, supported Yates positions:

“Well. you have to watch out, because people will be asking you to do things you just need to say ‘no’ about. Do you think the attorney general has a responsibility to say no to the president if he asks for something that’s improper? [„,] If the views the president wants to execute are unlawful, should the attorney general or the deputy attorney general say no?”

Yates answered that the AG or Deputy AG had the responsibility to follow the law and the Constitution with “independent legal advice to the president.” Sessions followed up:

 “Like any CEO, with a law firm — sometimes the lawyers have to tell the CEO: ‘Mr. CEO, you can’t do that. Don’t do that. We’ll get us sued. It’s going to be in violation of the law. You’ll regret it, please.’ No matter how headstrong they might be. Do you feel like that’s the duty of the attorney general’s office?”

Yates agreed with the 2015 Sessions by saying, “I do believe that that’s the duty of the attorney general’s office, to fairly and impartially evaluate the law and to provide the president and the administration with impartial legal advice.” The year 2017 has a very different president, and Sessions, if confirmed for AG, plans to support the president who lacks respect for the document that Republicans promise to revere.

White House press secretary, Sean Spicer, defended the Muslim ban by citing the tragic attack on a Quebec mosque that killed six people and wounded another eight but made no reference that this was an attack on Muslims. The alleged attacker on the Muslims was Alexandre Bissonnette, a pro-Trump white French Canadian who was known for making anti-immigrant and misogynist remarks. Justin Trudeau accurately called it a terrorist attack on Muslims. Yet the Fox network and the Gab messaging service misinformation insisted on identifying a man of Moroccan descent as a suspect and not a witness.

Another DT defense of the Muslim ban is the attack in San Bernadino by Tashfeen Malick on a K1 visa. Malik was from a wealthy Pakistan family and later moved to Saudi Arabia; neither country is on DT’s list of banned countries. Her husband, who participated in the attack, was a U.S. citizen.

Asked about the five-year-old Iranian boy detained over the weekend in response to DT’s new Muslim ban, Spicer replied, “To assume that just because of someone’s age or gender or whatever that they don’t pose a threat would be wrong.” An 11-month-old baby, a U.S. citizen, was separated from the mother, a legal permanent resident who the Muslim ban tried to deport. The mother was kept from breastfeeding her child.

The press secretary also lied in his references to President Obama’s 2011 policy temporarily delaying visas for Iraqis. And Homeland Security and border patrol officials ignored court orders to release the detainees or even let lawyers see them.

DT also moved James Ragsdale, the Acting Director of Immigration and Customs Enforcement (ICE), to his former position with no explanation. He was replaced with Thomas Homan,  “deporter in chief” who deported at least 920,000 people and “spearheaded the management and reform of the largest civil detention system in the nation” by adding detention beds. An executive order signed by Mr. Trump last week calls for tripling the number of deportation agents. DT has now indicated that he intends to emphasize Homan’s harsh enforcement measures.

The possible confirmation of Jeff Sessions as AG is a continuing constitutional crisis exemplified by the firing of Sally Yates. White supremacist Steve Bannon said that he and Sessions are at the center of Trump’s “pro-America movement” and the global nationalist phenomenon. Bannon claims that the nation is “witnessing now is the birth of a new political order, and the more frantic a handful of media elites become, the more powerful that new political order becomes itself.” Sessions has refused to recuse himself from any investigations into DT, his family, his aides, his conflicts of interest—anything that would challenge DT. And he’ll have the support of the white supremacists.

DT’s firing Yates goes far beyond unconstitutionality of the Muslim ban to raise questions about his commitment to the Constitution and the law of the land. He has said that federal district judge, Gonzalo Curiel, could not properly adjudicate a fraud lawsuit against Trump University because his parents were born in Mexico. DT would “instruct the attorney general to get a special prosecutor to look” into Hillary Clinton if he got elected and suggested he would break the law by waterboarding terrorism suspects.

Firing Yates also raises questions about DT’s relationship with the judiciary, which is intended to be an independent government branch. Did DT require commitments from his new nominees, Sessions and Gorsuch? Would he directly contact them about personal complaints? Or push them toward decisions that he wants?

The United States may be in the midst of a coup, “a change in power from the top that merely results in the abrupt replacement of leading government personnel”–a massive power grab by people who hate the rule of law.

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