Nel's New Day

February 29, 2016

Supreme Court in Flux

Justice Clarence Thomas celebrated his tenth anniversary of not asking questions during oral arguments in a case about gun rights. He fired off not one but ten questions to Justice Department lawyer Ilana H. Eisenstein, who was defending a federal law that bans anyone with a misdemeanor domestic violence conviction from owning a gun. Two Maine men claimed that pleading guilty to hitting their partners shouldn’t stop them from owning guns. Thomas’ focus asked about any other area in which “a misdemeanor violation suspends a constitutional right.” The sound of Thomas’ voice produced “audible gasps” from the audience.

The case, Voisine v. United States, isn’t about the Second Amendment although Thomas tried to make it the issue. The high court agreed to review only the question of whether law can be violated by reckless conduct rather than intentional actions and refused the petition’s second question, whether the ban on possession of firearms by individuals convicted of domestic violence violated their rights under the Second Amendment. A 4-4 split would hold up the ruling from the 1st Circuit Court that rejected the men’s arguments.

Despite constitutional law, Republicans on the Senate Judiciary Committee announced that the committee will not hold hearings on any of President Obama’s nominees for the Supreme Court. In addition, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) stated that will not support a vote and may not accept a White House invitation to talk about a nominee. Grassley said:

“I don’t care if I ever go down in history. I’m here to do my job.”

Grassley’s job is to fulfill his duties, honor the U.S. Constitution, and prepare for confirmation hearings. Instead, he puts his ideological interests ahead of his job—one that pays $174,000 a year. Grassley is also blocking the nomination of a top health official in revenge for the Obama administration’s not investigating Planned Parenthood for the 12th time.

Scalia’s death came almost exactly in the middle of the current court term, and several cases with serious consequences will be determined by a court split between four progressives and four conservatives—with one of those sometimes voting with the progressives. For these cases, a split will retain the lower court’s decision, and a 5-3 will probably turn progressive.

Former Virginia Gov. Robert McDonnell: Scalia’s death may put him in prison. Convicted of all 11 corruption-related charges against him, he was sentenced to two years in prison. The 4th Circuit Court affirmed his conviction, but the Supreme Court decided to hear the case. Justice Ruth Bader Ginsburg may let McDonnell out of jail because she narrowed what counted as honest services fraud in Skilling (2010). That was for a CEO, however, and not an elected official.

Friedrichs v. California Teachers Association: A wealthy organization tried to stop public sector unions from collecting mandatory dues to fund collective bargaining. The lower court ruled against them, meaning that the unions in California and 22 other states keep their right to collect dues with a 4-4 split or majority in their favor.

Evenwel v. Abbott: Texas attempted to distort the “one-person, one-vote” democracy, established in Reynolds v. Sims (1964), by claiming that districts are determined not by residents but eligible voters. The lower court upheld counting all residents. With Scalia’s vote, many states might be forced to redraw their congressional maps to give more power to white voters and less to communities with large numbers of immigrants.

Zubik v. Burwell: The relationship between “religious liberty” and the Affordable Care Act, first covered in Hobby Lobby, reappears in this case of whether signing forms opting out of providing contraceptives for employees violates a corporation’s religious beliefs. Every circuit court except the 8th upheld the president’s administration rules allowing women to obtain health plans that cover birth control through corporations’ statements that they will not provide this insurance. Justice Anthony Kennedy may vote with progressives to uphold the rules, but a split could discriminate against women in the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota).

Whole Woman’s Health v. Hellerstedt: In this threat to Roe v. Wade, the case covers an appeal from a lower court allowing burdensome restrictions on clinics that perform abortions. A 4-4 tie would allow Texas to create these restrictions, but it would not require the rest of the country to accept them. If Justice Anthony Kennedy sides with the four progressives because the Texas law exerts an “undue burden,” the Texas decision would be overturned.

Fisher v. University of Texas: This zombie case that just won’t die also comes from Texas. The affirmative action case concerns the school’s including race in its admissions plan. This decision gets only seven votes because Justice Elena Kagan recused herself after working on the case when she was solicitor general. If Kennedy moves to the right, the court will strike down the university’s affirmative action program will be struck down. Scalia’s death eliminates the possibility of a tie vote.

There’s no doubt of how Scalia would vote. Among other egregious statements during oral arguments, he said that he was not “impressed by the fact that the University of Texas may have fewer” Black students. He added, “Maybe it ought to have fewer. I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many Blacks as possible.” Kennedy seems to lean toward affirmative action, which would allow the University of Texas to retain its current policy.

United States v. Texas: The three-judge panel of the 5th Circuit upheld a federal district ruling against President Obama’s plan to defer deportation for almost five million undocumented immigrants and refused to stay that decision. A 4-4 split would be a win for Texas, defeating the president’s program in three states—Texas, Louisiana, and Mississippi—but authorizations could proceed in the other 12 circuit courts.

Carbon emissions reductions: President Obama charged the EPA with a 32-percent reduction by 2030, but the Supreme Court temporarily blocked the plan with a 5-4 emergency order, put on hold pending a decision from the DC Circuit Court. The generally liberal court refused to grant the stay before the high court made this move and will hear the case this summer. Two of the three judges on the panel of the lower court assigned to hear the case are Democratic appointees, and the third, a George W. Bush appointee, leans toward supporting the EPA plan.

The high court could decide to rehear cases with a 4-4 split when a ninth justice is confirmed.

The impact of Scalia’s death has already been felt: Dow Chemical has decided not to appeal a $1.06 billion judgment against them and settle for $835 million. A 2013 Kansas court ruling was found liable for price-fixing through collusion with four other chemical companies in overcharging customers for products used to make urethane foam. Scalia’s death meant that a 4-4 split decision would require Dow to pay the $1.06 billion or they would be facing a more liberal court if President Obama succeeds in putting a justice on the Supreme Court. Dow pulled the case because it needed Scalia’s vote

Dow isn’t alone in wanting a conservative court. Oral arguments indicated that Tyson Foods might lose almost $5.8 million in a class action judgment, and Wal-Mart is also awaiting the results of a $187 million class action suit. Microsoft is trying to throw out a class action lawsuit from Xbox 360 owners claiming the videogame console has a design defect.

Scalia has led conservative judges in curbing class-action litigation against businesses, giving 5-4 victories to Wal-Mart (2011) and Comcast (2013). He has given billions of dollars to corporations by protecting them from liability, limiting access to justice for workers and consumers, and allowing the companies to evade regulations in climate, discrimination, and monopolies. He also gave corporations the right to spend unlimited funds in elections through Citizens United so that they can hire their own legislative members, both state and national. Now, the Supreme Court is evenly split, and progressives have appointed the majority of judges in nine of the 13 federal courts of appeal.

Scalia was a radical right-wing ideologue who used his purported “original” philosophy to support his personal beliefs. He favored unlimited corporate election spending and uncontrolled gun ownership. He opposed reproductive rights, universal health care, same-gender marriage, affirmative action, environmental protection, and rights for voting, immigrants, labor, and LGBT people. Questioned about his vote to appoint George W. Bush as president in 2000, he snapped, “Get over it.” His majority opinion allowing law enforcement to chase people without probably cause or reasonable suspicion, Scalia quoted Proverbs: “The wicked flee when no man pursueth.”

As for the GOP position that President Obama shouldn’t nominate a justice, 14 presidents, one-third of the total, appointed 21 justices during presidential election years starting with George Washington. Over half were Republicans includingAbraham Lincoln, Herbert Hoover, William Howard Taft, Dwight Eisenhower, Richard Nixon, and Ulysses S. Grant. Ronald Reagan’s nomination for justice was approved during his last year. Six presidents filled Supreme Court seats after their successors had been elected—Benjamin Harrison, Andrew Jackson, Martin Van Buren, John Tyler, and John Adams.

My comment to the whiny, lying GOP senators? “Get over it.”

December 13, 2011

Republicans Deny Obama’s Nominees, Nullify Law

The Congressional recess is frequently a time when presidents appoint nominees to official positions after the Senate refuses to act on these nominations. President Obama missed his chance last summer because the Senate didn’t officially call a recess: a senator showed up each day to hold a fake meeting, that they call brief “pro forma” sessions, to avoid recessing. Those sessions, typically lasting just minutes with a handful of members present, exist because of Article 1, Section 5 of the U.S. Constitution, which states that neither chamber will adjourn for more than three days without the consent of the other. If House Republicans do not agree to the Senate’s recess or vice versa, those brief sessions are required. GOP members have forced several of these sessions over the last few months, precisely to block recess appointments.

The Congress is nearing its usual winter recess after the conservatives’ customary refusal to approve nominees. So what’s Obama to do if they continue to hold pro forma sessions?

Article 2, Section 3 of the Constitution states that if there is a disagreement about when the chambers should adjourn, the president has the power to “adjourn them to such time as he shall think proper.” The power has never been used before perhaps because no other Senate has refused to approve such a large number of nominees.

Also the 20th Amendment of the Constitution states that the Congress shall assemble at least once a year, with each session beginning at noon on Jan. 3. That means that the Congress has to break in order to assemble. Theodore Roosevelt once made a recess appointment during a recess that was less than a day long, creating an historical precedent. Doing this, Obama would bring criticism from Republicans in the Congress, but that is nothing new for him.

A major position left empty for over a year is the head of the Consumer Financial Protection Bureau. Because Senate said they would reject Elizabeth Warren before she was appointed, Obama named Richard Cordray to be the financial watchdog. He has impeccable credentials, having been Attorney General of Ohio, and 30 other state attorney generals wrote to the Senate requesting his approval.

Although the Senate could have passed Cordray with a 53-45 vote, the Republicans filibustered—again—which required 60 votes to bring the matter up for a vote. The only Republican who voted for cloture was Scott Brown (R-MA), a practical approach because he is running against the extremely popular Elizabeth Warren for his Senate seat.

As of last September the Republican stall campaign in the Senate had sidetracked so many of the Obama’s judicial nominees that he has put fewer people on the federal bench than any president since Richard Nixon at a similar point in his first term 40 years ago. Despite the Democrats’ substantial Senate majority, Republican filibusters have caused fewer than half of Obama’s nominees to be confirmed and 102 out of 854 judgeships to be vacant.

Six years ago 14 Senate Republicans and Democrats made an informal agreement that a filibuster would be used for presidential nominees only in “extraordinary circumstances” in order to break a logjam on judicial nominees. Four of these Republicans who participated in this agreement are still in the Senate, and some of them are continuing the filibusters. An example of this is the 54-45 vote that failed to bring cloture to debate regarding the judicial nomination of Caitlin Halligan to join the District of Columbia Circuit Court of Appeals.

Sen. Lisa Murkowksi (R-AK) was the only Republican to vote against the filibuster.  Murkowski said Halligan deserved an up-or-down vote. “I stated during the Bush Administration that judicial nominations deserved an up-or-down vote, except in ‘extraordinary circumstances’ and my position has not changed simply because there is a different President making the nominations,” she said.

Senate Judiciary ranking member Sen. Orrin Hatch (R-UT) voted present. Chuck Grassley (R-IA) said he opposed the nomination not because of Halligan’s views but also because he doesn’t believe the position is needed. The slot that Halligan was nominated for, to replace U.S. Chief Justice John Roberts, has been vacant for years.

Doug Kendall, president of the Constitutional Accountability Center, said in a release, “Let me be clear: Senate Republicans blocked a supremely qualified nominee today. Halligan is a lawyer’s lawyer. She clerked for the D.C. Circuit and the U.S. Supreme Court, she has a long and distinguished record of service in New York, and she has support across party lines–including from former George W. Bush nominee Miguel Estrada.  She is an exemplary nominee, supported by a majority of Senators. She was first nominated in 2010, and she should have been sitting on the D.C. Circuit by now.”

Cordray’s tenure would be five years if he were approved; federal judges are permanent. The more Obama nominees that can be avoided, the happier the conservatives will be. Their hope is that they will take over the Senate and presidency next year so that the entire judicial system will be as far right as possible.

Opposing Cordray has been profitable for several senators. Wall Street banks are fighting the new agency tooth and nail, and the 45 Republicans who vowed to block the agency’s director have received nice donations from the financial services industry, over $6.5 million from the financial industry in 2011 and nearly $125.6 million during their careers. Sen. Richard Shelby (R-AL), the ranking member of the Senate Banking committee (and lead signer of the letter), received at least $81,850 in 2011 and $6.2 million from the Finance, Insurance and Real Estate (FIRE) sector throughout his career.

What the senators are practicing in these two cases can be called “nullification.” Senators voted against Halligan because they didn’t see the need for the position (as declared by law), and they voted against Cordray because they don’t want the bureau to exist despite the fact that is passed Congress. They have been very open about their votes opposing the law that passed the bureau, not the person himself—in short, openly trying to keep an already-approved piece of legislation from taking effect. Sen. Orrin Hatch (R-UT) told the New York Times: “This is not about the nominee, who appears to be a decent person and may very well be qualified.” The Republicans are simply saying that they don’t like a law that was legally passed so they are going to behave as if it didn’t.

It’s not the first time that the Republicans have used nullification during Obama’s term. They refused to allow a vote on Don Berwick, Obama’s first choice to run Medicare and Medicaid–not because they seriously doubted his qualifications but because they don’t like the Affordable Care Act.

Nullification may have led to the Civil War. In 1830 Vice-President John C. Calhoun theorized that states had the power to “nullify” federal laws, using arguments from Thomas Jefferson and James Madison opposing the Alien and Sedition Acts. When he finally understood the danger of this position, he worked to develop a more bipartisan attitude, but the southern states continued to simmer until South Carolinacame to boil thirty years later followed by ten other states.

According to Article IV of the U.S. Constitution, Acts of Congress “shall be the supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding.” Every member of Congress takes an oath to “support and defend” the Constitution and swears that they take that oath “without mental reservation or purpose of evasion.” Senate Republicans are pretending that they don’t have to follow the Constitution. The question is whether what they are doing is unconstitutional


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