Showing posts with label Antonin Scalia. Show all posts
Showing posts with label Antonin Scalia. Show all posts

Tuesday, October 17, 2017

‘Modest Proposal’ Eviscerates Founding Intent on Second Amendment

Surrender of fundamental rights articulated in the Constitution to those who demand a monopoly of violence is a reasonable compromise, say the Opposite Day “progressives.”



“There is a reasonable and constitutional compromise that can be made regarding the Second Amendment,” the CNN summary for its “A Modest Proposal on Guns” guest editorial by Jeffrey Sachs claims. That alone should be enough to put gun owners on their guard—first because, as the tagline says, “This is CNN,” and we know what that means. For them to present themselves as arbiters of “reasonable and constitutional” opinions on gun owner rights smells like a set-up to a swindle. When they add the word “compromise,” you know what they’re pushing (commentary opinion disclaimers notwithstanding) is more infringements, not fewer.


The title of the piece ought to give it away. “A Modest Proposal” was an Eighteenth Century satire written by Jonathan Swift in which he proposed the impoverished Irish could improve their economic lot by selling their children to be slaughtered and eaten by the rich. At least in Swift’s case, he was mocking the heartlessness of the oppressive establishment elites of his time.


In Sachs’ case, he is the establishment. He’s a professor and director of the Center for Sustainable Development at Columbia University who calls the U.S. “a rogue nation.” He’s a leading “warmist” who advocated that Texas Gov. Gregg Abbott should resign after Hurricane Harvey because he supports his state’s oil interests against (unconstitutional federal) regulation and opposed the Paris Climate Agreement for globalist wealth redistribution. And speaking of Swift and children perceived as liabilities, it’s telling that Sachs, along with UN Secretary General Ban Ki-Moon, were hosted at the Vatican to push the benefits of a worldwide tax-subsidized “right” to abortion along with “population control.”


“Reasonable compromise” on the right of the people to keep and bear arms can be most helpful with that, as multiple Twentieth Century genocides have proven.


And the good professor’s bright idea this time around?



“Focus the protection of the Second Amendment on keeping nonmilitary arms at home for self-defense, while putting an escalating standard of protection on other kinds of arms and uses …  If individuals want to own semi-automatic assault weapons, either as collectors or for practice shooting, then enforce a provision that such weapons can only be kept at legally registered shooting ranges or other registered depositories, and cannot be removed from the designated premises. Similarly, if individuals want to use unusual high-powered weapons for hunting, and if such weapons are deemed to be acceptable for hunting purposes, then require that the hunters collect their weapons from a registered hunting depot and redeposit them after hunting, with the guns and ammunition properly accounted for.”



There’s more, but you get the picture. He has completely eviscerated Founding intent and “shall not be infringed,” and reduced gun ownership to highly-regulated personal protection and “sporting purposes,” all of which are one majority rule vote away from the ultimate goal at the bottom of Nancy Pelosi’s “slippery slope.”


Cherry-picking quotes from Antonin Scalia in his Heller opinion only serves to highlight the dishonesty in Sachs’ argument. And he conveniently avoids “common use” language employed in the Heller and earlier Miller decision, misdirecting instead by focusing on “prohibiting the carrying of dangerous and unusual weapons.”


In Miller, the court had no evidence possession of a short-barrel shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia [or] that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”


That’s the key point being ducked. The function of the militia, defined as “all males physically capable of acting in concert for the common defense [and] bearing arms supplied by themselves and of the kind in common use at the time,” was—and is—to field citizen soldiers. And these citizens bore arms that were suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles. The militia assembled with the intent to match and best a professional military threat.


And here’s the kicker. Say for argument’s sake we give Sachs what he wants. Will it all be better now?


“Would this compromise end gun deaths?” he asks. “Of course not, since so many gun deaths occur at home among family and friends. And criminals would still evade the law, no doubt…”


No doubt. As would enemies foreign and domestic. So much for Sachs’ “modest proposal.”


The appropriate answer is “No, your move.” Especially in light of comments reflecting an attitude that is hardly isolated and is being expressed with increasing frequency by violence-minded domestic Marxists…


“It does not matter, we will take all your guns away in 2018,” one CNN fanboy threatens. “It will be fun prying it out of your cold dead fingers.”


My shorter answer to CNN and to Sachs is two words, but this is not the appropriate venue to repeat it.


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If you believe in the mission of Oath Keepers, to defend the Constitution against all enemies, foreign and domestic, please make a donation to support our work.  You can donate HERE.


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David Codrea’s opinions are his own. See “Who speaks for Oath Keepers?”


Friday, July 21, 2017

The Worst Ideological Enemy Of The US Is Now Europe

Authored by Drieu Godefridi via The Gatestone Institute,


  • The vast majority of these European courts -- whether the European Court of Human Rights (ECHR) or the Court of Justice of the European Union (CJEU) -- in their attempt to be moral and just, have dismissed the sovereign laws of Italy as irrelevant, and trampled the rights of the Italian state and ordinary Italians to approve who enters their country.

  • In Europe, Amnesty International and the like are, it seems, a new source of law.

  • Those who gave the Statue of Liberty to America in 1886 "to commemorate the perseverance of freedom and democracy in the United States" are willingly trampling their own people"s liberties today through courts of appointed, unelected, unaccountable ideologues. The danger is that, with the help of many doubtless well-intentioned, international NGOs, the EU will not stop at its shores.

Europe is the worst enemy of the US? You cannot be serious. Islamism, Russia, illegal immigrants... whatever, but surely not Europe! Are we not still together in NATO? Do we not conduct huge amounts of trade every day? Do we not share the same cultural roots, the same civilization, the same vision of the future? Did France not give the US her famous Statue of Liberty – "Liberty Enlightening the World?"


Not anymore. In a sense, Europe looks like a continent where American Democrats have been in power for 30 years, not only in the European states, but also at the level of the European Union.


In the US, the political spectrum still spans a vast range of views between Democrats and Republicans, globalists and nationalists, pro-lifers and pro-choicers, pro-government control and pro-individuals" control, and pro-whatever. Even today with a president and a Supreme Court clearly on the political "Right" these divisions, and the all-important separation of powers, allow for and encourage vigorous debate. By contrast, in Europe, at the "official" level, such a spectrum of views no longer exists.


In Western Europe, politically speaking, in the press and in universities, either you are on the "Left," or you are a pariah. If you are a pariah, you are most likely to be prosecuted for "Islamophobia", "racism", discrimination or some other "trumped up" charge.


There are several reasons for this imbalance. One is the difference in political maturity between Europeans and Americans. Whereas "ordinary" American voters (not just the "elites") understand that their Supreme Court is key to ensuring that fundamental constitutional freedoms are maintained for all, the Europeans have done the opposite. In the US, the constitutional right to "Life, Liberty and the pursuit of Happiness" is derived from the people -- "from the consent of the governed."


Consequently, when Justice Antonin Scalia of the US Supreme Court died, the US press wrote about him for weeks. "Ordinary citizens" in the US are deeply aware of judicial roles and their effect on judgements and legal precedents.


By contrast, in Europe, we now have two Supreme Courts: the European Court of Human Rights (ECHR) in Strasbourg, and the Court of Justice of the European Union (CJEU) in Luxembourg, in addition to national courts. There is, however, not one citizen in a million who can name a single judge of either the ECHR or the CJEU. The reason is that the nomination of those judges is mostly opaque, purely governmental and, in the instance of the ECHR, with no public debate. With the CJEU, appointments are also essentially governmental, with the sanction of the European Parliament, which is ideologically dominated by the Left.



In Europe, there are now two Supreme Courts: the European Court of Human Rights (ECHR) in Strasbourg, and the Court of Justice of the European Union (CJEU) in Luxembourg (pictured above), in addition to national courts. (Image source: Transparency International/Flickr)


The US has always welcomed immigrants, most of whom came to her shores via Ellis Island and went through a legal process for entry, led by the light of the torch of Lady Liberty. In recent years, especially since the advent of increased terrorism, the subject of illegal immigrants, migrant workers and the vetting of immigrants has become hotly debated.


By contrast, in Europe, the topic of "illegal" migrants is effectively forbidden. The continent has recently been invaded by millions of migrants -- many apparently arriving under the false pretense of being refugees, even according to the United Nations.


One of the reasons is the open-door policy of German Chancellor Angela Merkel, who allowed over a million mostly Muslim migrants to enter Germany, not only without extreme vetting, but with no vetting at all.


There is, however, another, more structural cause for the current situation. In 2012, the ECHR enacted the so-called "HIRSI" ruling, named after the court case of Hirsi Jamaa and Others v. Italy, which states that the European states have the legal obligation to rescue migrants wherever they find them in the Mediterranean Sea -- even just 200 meters away from the Libyan coast -- and ferry them to the European shores, so that these people can claim the status of refugee.


When the Italian Navy intercepted illegal migrants in the Mediterranean Sea and sent them back to their point of origin, Libya, not only did the ECHR condemn Italy for this "obvious" breach of human rights; the Italians had to pay 15,000 euros ($17,000 USD) to each of these illegal migrants in the name of "moral damage". This kind of money is equivalent to more than 10 years of income in Somalia and Eritrea (the countries of origin of Mr. Hirsi Jamaa and his companions). In 2016, Somalia"s GDP per capita was an estimated $400 USD; Eritrea"s $1,300.


Everyone, of course, heard about the HIRSI ruling. In Africa, especially, many understood that if they could reach the Mediterranean, Europe"s navies would now be obliged to ferry them directly to Europe. Before the HIRSI ruling, when people tried to reach the shores of Europe, hundreds every year tragically died at sea. After HIRSI, the objective is now simply to be intercepted. Consequently, hundreds of thousands attempt this journey -- often with the help of non-governmental organizations (NGOs) such as Médecins Sans Frontières, whose activists wait for boats to appear at sea, just off the Libyan coast. We therefore presently have 5,000 unintercepted people dying at sea every year.


While Italy is "drowning" in refugees, Austria has deployed armored vehicles close to its border with Italy, to stop more migrants from coming north.


The vast majority of these European courts -- whether the ECHR or the CJEU -- in their attempt to be moral and just, have dismissed the sovereign laws of Italy as irrelevant, and trampled the rights of the Italian state and ordinary Italians to approve who enters their country.


Americans would do well to read the HIRSI decision; it is rather short and a perfect summary of current European jurisprudence. They will find that the ECHR does not hesitate to accept NGOs as an authoritative part of the process; the ECHR even quotes their statements as if fact or law. In Europe, Amnesty International and the like are, it appears, a new source of law.


The European people, of course, still share the common values of Western civilization. The "Visegrad Group" of countries in Central Europe, for instance -- the Czech Republic, Hungary, Poland and Slovakia -- do not accept the German diktat to relocate Muslim refugees. Parts of Western Europe, such as the northern Flemish-speaking part of Belgium, are also pretty tired of the whole European mess, and Merkel will not embody the leadership of Germany forever.


Americans, therefore, would do well to understand that for the time being the "Cultural Left" is so deeply entrenched in Western Europe and the EU, that their worst ideological enemy is not the Middle East or Russia: it is Europe.


Those who gave the Statue of Liberty to America in 1886 "to commemorate the perseverance of freedom and democracy in the United States" are willingly trampling their own people"s liberties today through courts of appointed, unelected, unaccountable ideologues. The danger is, with the help of many, doubtless well-intentioned, international NGOs, the EU will not stop at its shores.

Tuesday, May 9, 2017

Trump Set To Nominate A Slate Of 10 New Federal Court Judges

Having been dealt a number of legal defeats at the hands of Obama-appointed judges in the early days of his administration, Trump is preparing to fill roughly 120 vacancies on lower federal courts around the country.  The first of those new appointments will come later today in the first slate of 10 nominees, which will be followed by "monthly waves of nominations" according to a White House official quoted by the New York Times.





One is Justice Joan L. Larsen, a former law clerk to Justice Antonin Scalia and law professor at the University of Michigan, who now serves on the Michigan Supreme Court. She will be nominated to the United States Court of Appeals for the Sixth Circuit, in Cincinnati.



The other is Justice David R. Stras, a former law clerk to Justice Clarence Thomas and law professor at the University of Minnesota, who now serves on the Minnesota Supreme Court. He will be nominated to the Eighth Circuit, in St. Louis.



The announcement on Monday will include three other nominees for federal appeals courts: Amy Coney Barrett, a law professor at Notre Dame and former law clerk to Justice Scalia, to the Seventh Circuit in Chicago; John K. Bush, a lawyer in Louisville, Ky., to the Sixth Circuit; and Kevin C. Newsom, a lawyer in Birmingham, Ala., who served as the state’s solicitor general and as a law clerk to Justice David H. Souter, to the 11th Circuit in Atlanta.



Judges



Many of the new appointments are expected to be pulled from the list of 21 "potential Supreme Court Justice picks" that Trump released back in September....so far, 3 of the 21 picks have been nominated for new positions.





1. Keith Blackwell


2. Charles Canady


3. Steven Colloton


4. Allison Eid


5. Neil Gorsuch


6. Raymond Gruender


7. Thomas Hardiman


8. Raymond Kethledge


9. Joan Larsen


10. Mike Lee


11. Thomas Lee


12. Edward Mansfield


13. Federico Moreno


14. William Pryor


15. Margaret A. Ryan


16. Amul Thapar


17. Timothy Tymkovich


18. David Stras


19. Diane Sykes


20. Don Willett


21. Robert Young



Of course, Democrats have called on the Senate to obstruct all new appointments from the Trump administration to the greatest extent possible.





But liberal groups expressed alarm at the prospect of a federal bench filled with Mr. Trump’s appointees. “The Trump administration has made clear its intention to benefit from Republican obstructionism and to pack the federal courts with ultraconservatives given a stamp of approval by the Federalist Society,” said Nan Aron, the president of the Alliance for Justice, referring to the conservative legal group. “We’ll be scrutinizing the records of these nominees very carefully.”



Ms. Aron said Democrats should be wary of Mr. Trump’s nominees. “Given the critical importance of the circuit courts,” she said, “it is incumbent upon the Senate to treat its duty to provide advice and consent very seriously.”



That said, with Republicans controlling a majority in the Senate and the "nuclear option" barrier already breached, we suspect there is very little they can do other than appear on CNN every 15 minutes to complain about Republicans doing all the same things that Obama did for 8 years.

Thursday, April 13, 2017

Appeals Court Rules Against San Diego Unions: First of Many Taxpayer Victories To Come

Authored by Mike Shedlock via MishTalk.com,


In 2012, San Diego voters gave Landslide Approval to Proposition B, which eliminated defined-benefit pensions for newly hired city workers except for police.


In December of 2015, the state Public Employment Relations Board, a bastion of Union sympathizers, ordered the city to make millions of dollars of retroactive payments to workers hired since the law took effect.


The city appealed. Today we have a very welcome ruling for taxpayers: An Appeals Court overturned the PERB Ruling.





“This is a victory for the citizens of San Diego and the state of California,” said taxpayer advocate April Boling, one of three who filed court appeals. “The court agreed citizens can take matters into their own hands through the initiative process and support of elected officials does not somehow trigger the requirement for union negotiations.”



Since the provisions of the ballot measure were implemented, most new employees have been offered 401k-style plans.



The proposition was opposed by organized labor groups, which took their case to the PERB.



The city contended that private citizens don’t have to negotiate with organized labor before proceeding with a ballot measure, and that even though municipal officials like then-Mayor Jerry Sanders backed Proposition B, they did so on their own time.



A three-justice panel of the Fourth District Court of Appeal returned the case to PERB with directions to dismiss the union complaints.



The justices also called on PERB to order other “appropriate relief” consistent with the views they expressed in their opinion, and determined that each side to the litigation will bear its own costs.



First of Many Court Victories to Come


This is the first of many court rulings that will have unions reeling.


I discussed why previously on December 28, 2016, in Good News in Battle Against Public Union Greed and Corruption.





The election of Donald Trump is likely to do at least one good thing for the country (and that’s at least one more good thing than we would have seen had Hillary won).



Trump gets to make the next Supreme Court appointments and he has a great chance to clobber the public unions.



Already the SEIU is putting out warnings. An internal memo outlines plans to slash budgets by 30 percent at SEIU, the group behind the Fight for $15.



Victory Postponed


When Supreme Court Justice Antonin Scali unexpectedly died on February 13, 2016, after hunting quail, I was dismayed by the impact that might have on union rulings.


Sure enough, on March 29, the Supreme Court Handed a Major Victory to the Unions in a 4-4 tie, upholding an Appeals court ruling on union fee collection.





The Supreme Court handed organized labor a major victory on Tuesday, deadlocking 4 to 4 in a case that had threatened to cripple the ability of public-sector unions to collect fees from workers who chose not to join and did not want to pay for the unions’ collective bargaining activities.



It was the starkest illustration yet of how the sudden death of Justice Antonin Scalia last month has blocked the power of the court’s four remaining conservatives to move the law to the right.



A ruling allowing workers to refuse to pay the fees would have been the culmination of a decades-long campaign by a group of prominent conservative foundations aimed at weakening unions that represent teachers and other public employees. Tuesday’s deadlock denied them that victory, but it set no precedent and left the door open for further challenges once the Supreme Court is back at full strength.



Gorsuch Replaces Scalia


Scalia is gone but via a nuclear option, Gorsuch Heads for Supreme Court.


One is never 100% sure how justices will rule, but there is an overwhelming likelihood that Clinton would have appointed a union sympathizer who would have further wrecked taxpayer and city budgets.


Instead, there is a very strong likelihood, Gorsuch will stick it to public unions every chance he gets.


At long last, the court has a chance to make some very important rulings that put money into taxpayers’ pockets while lowering the costs of cities doing business.


However, the Supreme Court cannot fix everything that needs to be fixed by itself. Congressional help is needed.


I call on Republicans in Congress to do four things.


Four Things


  1. Kill collective bargaining for public unions

  2. Pass national right-to-work legislation

  3. Scrap Davis-Bacon and all prevailing wage legislation

  4. Pass national bankruptcy laws allowing cities and municipalities to declare bankruptcy

Victory at Hand


Point number four above will allow insolvent cities in Illinois, California, and other places escape preposterous pension obligations via bankruptcy.


Victory over public unions is possible. All Republicans have to do is the right thing.


Note to Senator Rand Paul: Please lead the victory charge.

Friday, April 7, 2017

Neil Gorsuch Officially Confirmed To The Supreme Court

Update: After weeks of endless rhetoric and party bickering over the controversial usage of the "nuclear option", Neil Gorsuch has officially been confirmed to the Supreme Court of the United States with a largely partisan vote of 54-45.


Neil



* * *


Following a series of procedural votes yesterday to invoke the so-called "nuclear option", the Senate is expected to vote shortly to confirm Neil Gorsuch as the 113th justice to serve on the Supreme Court.  


Given the rule changes implemented yesterday, Republicans require only a simple majority vote to confirm Gorsuch, and with Republicans holding a 52-48 majority in the Senate, today"s vote is all but a foregone conclusion.  And while it will mostly be a partisan vote, 3 Democrats are also expected to support Gorsuch for a final vote tally of 55-45.


The official roll call can be watched here:



* * *


Here is our summary from yesterday on the Senate"s move to invoke the "nuclear option":


In a historic vote, Senate Republicans on Thursday crushed "a Democratic blockade" - in Reuters" words - of Trump"s Supreme Court nominee Neil Gorsuch, in a fierce partisan brawl, approving a rule change dubbed the "nuclear option" to allow for conservative judge Neil Gorsuch"s confirmation by Friday.


The Senate voted 52-48 along party lines to repeal a rule allowing filibusters against Supreme Court nominees,invoking the so-called nuclear option, and clearing the way for Gorsuch confirmation who now needs a simple majority for nomination. Shortly thereafter, the Senate voted 55-45 to end debate on Gorsuch’s nomination, setting up a final vote expected Friday. Thanks to the new rule enacted earlier Thursday, a simple majority was needed.


"This will be the first and last partisan filibuster of the Supreme Court," Republican Senate Majority Leader Mitch McConnell said on the Senate floor, accusing Democrats of trying to inflict political damage on Trump and to keep more conservatives from joining the high court.


"In 20 or 30 or 40 years, we will sadly point to today as a turning point in the history of the Senate and the Supreme Court, a day when we irrevocably moved further away from the principles our founders intended for these institutions: principles of bipartisanship, moderation and consensus," Senate Democratic leader Chuck Schumer said on the Senate floor.


McConnell initiated the rules change by raising a point of order asserting that simple-majority votes should advance Supreme Court nominees to final confirmation votes. Democrats tried to delay it by offering motions to postpone a vote and to adjourn the chamber, but both fell short as Republicans stayed unified.


Earlier Thursday, McConnell said the rules change would restore the Senate’s tradition of considering a Supreme Court nominee based on credentials instead of ideology. He called the Democratic filibuster of Goruch “a radical move” and something “completely unprecedented in the history of our Senate.”  “This threatened filibuster cannot be allowed to succeed or to continue for the sake of the Senate, for the sake of the court and for the sake our country,” he said.


Gorsuch


Earlier in the day, Democrats successfully blocked Gorsuch’s nomination from getting 60 votes earlier Thursday morning, prompting Republicans to go “nuclear” and change the rules to allow Gorsuch and future Supreme Court nominees to clear the Senate with only a simple majority.  Democrats tried to delay the rules change vote by offering motions to postpone a vote and to adjourn the chamber, but both fell short as Republicans stayed unified.


Democrat senators Joe Manchin (W.Va.), Heidi Heitkamp (N.D.) and Joe Donnelly (Ind.) voted with Republicans to allow President Trumps’s pick to move forward. 


Republicans defended the party-line vote on the nuclear option, saying Democrats were to blame for blocking Gorsuch, who they believe is eminently qualified to sit on the Supreme Court.  Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) argued that Democrats should “come to their senses.” 


“The truth of the matter is that throughout this process, the minority led by their leader has been desperately searching for a justification for their preplanned filibuster,” he said ahead of Thursday’s votes.


McConnell added that the current stalemate was part of a decades-long Democratic effort to “politicize the courts and the confirmation process.”  “The opposition to this particular nominee is more about the man that nominated him and the party he represents than the nominee himself,” he said.


Republicans hinted for weeks that President Trump’s nominee would be confirmed one way or another. McConnell confirmed during a leadership press conference that he had the votes to go “nuclear” if needed.


According to The Hill, Republicans appeared resigned to the tactics, arguing if Democrats won’t support Gorsuch — who received the American Bar Association’s highest rating — they won’t allow any GOP nominee to join the Supreme Court.


* * *


The Republican-backed rule change on Thursday maintains the ability to filibuster legislation. In the past, the nuclear option has been averted when moderates in the two parties compromised to avoid a showdown, but the ferocious partisanship in Washington now made that impossible.


Experts said eliminating the filibuster for Supreme Court appointments could make it more likely that presidents, with little incentive to choose centrist justices who could attract support from the other party, will pick ideologically extreme nominees in the future.


Ending the filibuster also would make it easier for future Supreme Court nominees to be confirmed when the president and Senate leadership belong to the same party.


With the failure of Republican healthcare legislation in Congress and with federal courts blocking the president"s ban on people from several Muslim-majority nations from entering the United States, securing Gorsuch"s confirmation took on even greater importance for Trump, who took office in January.


* * *


Senate confirmation of Gorsuch, 49, would restore the nine-seat court"s 5-4 conservative majority, enabling Trump to leave an indelible mark on America"s highest judicial body and fulfill a top campaign promise by the Republican president. Gorsuch could be expected to serve for decades.


The court"s ideological leaning could help determine the outcome of cases involving the death penalty, abortion, gun control, environmental regulations, transgender rights, voting rights, immigration, religious liberty, presidential powers and more.


The nine-seat Supreme Court has had a vacancy since conservative Justice Antonin Scalia died in February 2016.

Thursday, April 6, 2017

Senate Republicans Trigger Nuclear Option, "Crushing Democratic Blockade" Of Gorsuch

In a historic vote, Senate Republicans on Thursday crushed "a Democratic blockade" - in Reuters" words - of Trump"s Supreme Court nominee Neil Gorsuch, in a fierce partisan brawl, approving a rule change dubbed the "nuclear option" to allow for conservative judge Neil Gorsuch"s confirmation by Friday.



The Senate voted 52-48 along party lines to repeal a rule allowing filibusters against Supreme Court nominees,invoking the so-called nuclear option, and clearing the way for Gorsuch confirmation who now needs a simple majority for nomination. Shortly thereafter, the Sante voted 55-45 to end debate on Gorsuch’s nomination, setting up a final vote expected Friday. Thanks to the new rule enacted earlier Thursday, a simple majority was needed.


"This will be the first and last partisan filibuster of the Supreme Court," Republican Senate Majority Leader Mitch McConnell said on the Senate floor, accusing Democrats of trying to inflict political damage on Trump and to keep more conservatives from joining the high court.


"In 20 or 30 or 40 years, we will sadly point to today as a turning point in the history of the Senate and the Supreme Court, a day when we irrevocably moved further away from the principles our founders intended for these institutions: principles of bipartisanship, moderation and consensus," Senate Democratic leader Chuck Schumer said on the Senate floor.


McConnell initiated the rules change by raising a point of order asserting that simple-majority votes should advance Supreme Court nominees to final confirmation votes. Democrats tried to delay it by offering motions to postpone a vote and to adjourn the chamber, but both fell short as Republicans stayed unified.


Earlier Thursday, McConnell said the rules change would restore the Senate’s tradition of considering a Supreme Court nominee based on credentials instead of ideology. He called the Democratic filibuster of Goruch “a radical move” and something “completely unprecedented in the history of our Senate.”  “This threatened filibuster cannot be allowed to succeed or to continue for the sake of the Senate, for the sake of the court and for the sake our country,” he said.


Earlier in the day, Democrats successfully blocked Gorsuch’s nomination from getting 60 votes earlier Thursday morning, prompting Republicans to go “nuclear” and change the rules to allow Gorsuch and future Supreme Court nominees to clear the Senate with only a simple majority.  Democrats tried to delay the rules change vote by offering motions to postpone a vote and to adjourn the chamber, but both fell short as Republicans stayed unified.


Democrat senators Joe Manchin (W.Va.), Heidi Heitkamp (N.D.) and Joe Donnelly (Ind.) voted with Republicans to allow President Trumps’s pick to move forward. 


Republicans defended the party-line vote on the nuclear option, saying Democrats were to blame for blocking Gorsuch, who they believe is eminently qualified to sit on the Supreme Court.  Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) argued that Democrats should “come to their senses.” 


“The truth of the matter is that throughout this process, the minority led by their leader has been desperately searching for a justification for their preplanned filibuster,” he said ahead of Thursday’s votes.


McConnell added that the current stalemate was part of a decades-long Democratic effort to “politicize the courts and the confirmation process.”  “The opposition to this particular nominee is more about the man that nominated him and the party he represents than the nominee himself,” he said.


Republicans hinted for weeks that President Trump’s nominee would be confirmed one way or another. McConnell confirmed during a leadership press conference that he had the votes to go “nuclear” if needed.


According to The Hill, Republicans appeared resigned to the tactics, arguing if Democrats won’t support Gorsuch — who received the American Bar Association’s highest rating — they won’t allow any GOP nominee to join the Supreme Court.


* * *


The Republican-backed rule change on Thursday maintains the ability to filibuster legislation. In the past, the nuclear option has been averted when moderates in the two parties compromised to avoid a showdown, but the ferocious partisanship in Washington now made that impossible.


Experts said eliminating the filibuster for Supreme Court appointments could make it more likely that presidents, with little incentive to choose centrist justices who could attract support from the other party, will pick ideologically extreme nominees in the future.


Ending the filibuster also would make it easier for future Supreme Court nominees to be confirmed when the president and Senate leadership belong to the same party.


With the failure of Republican healthcare legislation in Congress and with federal courts blocking the president"s ban on people from several Muslim-majority nations from entering the United States, securing Gorsuch"s confirmation took on even greater importance for Trump, who took office in January.


* * *


Senate confirmation of Gorsuch, 49, would restore the nine-seat court"s 5-4 conservative majority, enable Trump to leave an indelible mark on America"s highest judicial body and fulfill a top campaign promise by the Republican president. Gorsuch could be expected to serve for decades.


The court"s ideological leaning could help determine the outcome of cases involving the death penalty, abortion, gun control, environmental regulations, transgender rights, voting rights, immigration, religious liberty, presidential powers and more.


The nine-seat Supreme Court has had a vacancy since conservative Justice Antonin Scalia died in February 2016.


* * *


Update 2:  Republican"s start roll call to implement "nuclear option":




Update 1:  As expected, Democrats have just voted to temporarily block Judge Neil Gorsuch’s Supreme Court nomination, setting up a “nuclear option” vote for later in the day.  Around 11:30AM EST, Senators voted 55-45 on ending debate over President Trump’s pick leaving Republicans 5 votes shy of the 60 vote threshold required.


As we noted earlier, Republicans are planning a vote later today to remove the 60-vote threshold for cloture on Supreme Court nominees, lowering it to a simple majority.


And with that vote, the official Democrat policy objectives for the next two years have been publicly recorded:


Dems


* * *


Back in 2013, before Republicans seized control of the Senate during the 2014 mid-term elections, Democrats became the first party to pursue the "nuclear option" in order to appoint Obama judges over the objection of Republicans.  Both Obama and then Senate Majority Leader Harry Reid praised the use of the "nuclear option" at the time:





Obama:  "The gears of government have to work. And the step that a majority of senators took today, I think, will help make those gears work just a little bit better."



Harry Reid:  "It"s time to change. It"s time to change the Senate before this institution becomes obsolete."



And while Democrats celebrated, Mitch McConnell took to the Senate floor to warn his colleagues on the other side of the aisle that they just might come to regret their decision "sooner than you think."





"If you want to play games, set another precedent that you"ll no doubt come to regret.  To my friends on the other side of the aisle, you"ll regret this and you may regret it a lot sooner than you think."





Today, it"s looking increasingly likely that "sooner" has come.  As NBC reports, barring some unexpected, last-minute deal, Senate Majority Leader Mitch McConnell will almost certainly trigger the so-called "nuclear option" later today to confirm Neil Gorsuch to the Supreme Court. 


Senators spent all day yesterday debating the matter, but the outcome — a permanent change in rules that will affect both the Senate and the nation"s highest court — has been as good as settled since at least week when Democrats confirmed they had the votes required to block Gorsuch"s nomination.


Here"s how it will work:





The Senate is slated to hold a procedural vote, called a cloture around mid-day Thursday. Sixty votes are needed to end debate and move forward to a final vote that requires a simple majority of 51 to confirm Gorsuch.



But Democrats have enough votes to prevent, or filibuster that first step. When the cloture vote fails, McConnell is likely to begin the process of changing the rules to eliminate filibusters on Supreme Court nominations, with a vote on that expected later Thursday afternoon. Then the final up-or-down vote to confirm Gorsuch is expected to take place on Friday.



Meanwhile, the rule change will come after Senate Democrat Jeff Merkley wasted 15.5 hours "filibustering" on the Senate floor overnight.  Ironically, as even Chuck Todd notes in the video below, Merkley fully supported the Democrats" use of the "nuclear option" in 2013. 




As The Hill notes, a group of Republicans and Democrats led by Senators Susan Collins (R-Maine) and Christopher Coons (D-Del.) negotiated intensely over the weekend in hopes of avoiding a blowup over the rules, but they fell short.





“The negotiations with which I was heavily involved have failed to come up with a compromise, which saddens me. There’s so little trust between the two parties that it was very difficult to put together an agreement that would avert changing the rules,” Collins told reporters.



“I worked very hard over the weekend, as did several Democrats and several Republicans, but we were not able to reach an agreement,” Collins added, estimating that about 10 lawmakers were involved.



The group held calls as early as 6:30 a.m. and as late as midnight in hopes of avoiding a rule change adopted along party lines.



Coons said the talks fell apart because of pressure from Senate leaders, who weren’t interested in a deal, and from the conservative and liberal bases of the party, who view the Supreme Court’s composition as a top priority.



“The fact that both leaders were opposing negotiations also, frankly, made it difficult,” Coons said. “Both caucus leadership and outside groups were a source of steady and aggressive pressure against some consensus negotiation, in both parties.”



Of course, while Republicans will undoubtedly declare victory tomorrow upon Gorsuch"s nomination, it"s only a matter of time before the tables are turned once again and their decision comes back to haunt them. 

Monday, March 20, 2017

Watch Live: Neil Gorsuch Takes The Stand For Senate Confirmation Hearing

Watch live as Neil Gorsuch takes the stand ahead of what will undoubtedly be a fun day full of protests and political grandstanding.  Updates posted below:




Update 1:  Key notes from Judiciary Committee Chair Chuck Grassley"s Opening Statement:


On the role of Judges:





But to endure, our system of self-government requires judges to apply the text of our laws as the people’s representatives enacted them. So our judges, by design, play a critical–but limited—role.  They decide cases or controversies.  But in resolving those cases, they may look only to the laws the People wrote. 



Judges aren’t free to re-write statutes to get results they believe are more just.  Judges aren’t free to reorder regulations to make them more fair.  And no, Judges aren’t free to “update” the Constitution.  That’s not their job. 



That power is retained by the People, acting through their elected representatives.  When our Judges don’t respect this limited role, when they substitute their own policy preferences for those in the legislative branch, they rob from the American people the right to govern themselves.



As that happens, inch by inch and step by step, democracy is undermined, the carefully constructed balance of power is upset, and individual liberty is lost.



On the independence of Gorsuch:





And if you are concerned about these things, as you should be: meet Judge Neil Gorsuch.



Fortunately for every American, we have before us today a nominee whose body of professional work is defined by an unfailing commitment to these principles. His grasp on the separation of powers—including judicial independence—enlivens his body of work.



As he explains: “To the founders, the legislative and judicial powers were distinct by nature and their separation was among the most important liberty-protecting devices of the constitutional design.”



* * *


For those who missed it, here is our preview from earlier this morning.


Later this morning at 11AM EST, Neil Gorsuch will take the stand before the Senate Judiciary Committee for three full, fun-packed days of grueling testimony that will no doubt come complete with several outbursts from disaffected liberal protesters and faux outrage from Democratic committee members.  According to Judiciary Chair Chuck Grassley (R-Iowa), the panel will hear opening statements from committee members and Gorsuch on Monday, then begin questioning him on Tuesday.


Senate majority leader Mitch McConnell of Kentucky has vowed that the Senate will vote on the Gorsuch nomination before leaving April 8 for its Easter recess. If confirmed, Gorsuch would take the bench in time to hear the last two weeks of courtroom argument left in the current Supreme Court term. 


And while Democrats have vowed to fight his nomination "tooth and nail", Tom Goldstein, a Washington DC lawyer and publisher of the ScotusBlog, said it would be "shocking" if Gorsuch wasn"t confirmed in the coming weeks.  Per NBC:





"It would be shocking if Neil Gorsuch wasn"t confirmed to the Supreme Court in the coming weeks."



"The Democrats are committed to opposing him. Their base is insisting on it, because of what happened to President Obama"s nominee. But the reality is, they just don"t have the votes and don"t have the goods."



Of course, many of the Democrats on the panel will undoubtedly take a hostile tone during the hearings as they, like their leader Chuck Schumer, feel that Scalia"s seat was "stolen" from the Obama administration after Republicans refused to hold a hearing on Obama"s nominee, Merrick Garland.  If this interview is any indication of how the hearings will be conducted then we could be in for some fireworks:




For now, Gorsuch needs the support of at least eight Democrats to avoid a filibuster and win confirmation in the 52-48 GOP majority Senate. If Republicans can’t get Gorsuch past the 60-vote filibuster threshold, they could go “nuclear” by removing the filibuster and eliminating not only Democrats’ ability to filibuster Gorsuch but other Supreme Court nominations to come.


With that, per The Hill, here are the 5 things to watch for during Gorsuch"s testimony:





1.  How will Gorsuch handle pressure from Democrats to speak out against Trump?



Right out of the gate, Democrats are likely to ask Gorsuch what he thinks about Trump’s recent attacks on the judges who have ruled against his travel ban.



Gorsuch called Trump’s remarks “disheartening and demoralizing” in a closed door meeting with Sen. Richard Blumenthal (D-Conn.) last month, but refused the senator’s request to make the statements publicly.



When a federal judge halted Trump’s original order banning Muslims from seven countries from entering the United States, the president referred to him as a “so-called judge” and called his order “ridiculous.”



“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!’ Trump tweeted.



As a member of the judiciary committee, the questions are likely to come from Blumenthal, who said last month that Gorsuch must prove he has the courage and independence to stand up to the president in public.



Now that two federal judges have blocked Trump"s revised travel order, Gorsuch is sure to be asked whether he thinks the ban is constitutional.



2.  Where do red-state Democrats fall on Gorsuch?



Since Republicans need 60 votes, the GOP will be looking to Democrats from swing or deep-red states for the eight votes they need across the aisle.



Support could come from Sen. Heidi Heitkamp, who is running for re-election in North Dakota, a reliably red state. She was reportedly one of the few Democrats to publicly say she would oppose a filibuster.



There’s also Sen. Jon Tester of Montana, who has said he doesn’t believe Democrats should play games with the confirmation.



Senators facing tough re-election fights, like Debbie Stabenow (Mich.), might also be swayed. Her state voted for the GOP presidential nominee in 2016 for the first time in decades, and conservative groups are pressuring her not to block this nomination.



The National Republican Senatorial Committee ran an ad in Michigan during the University of Michigan versus Michigan State men’s basketball game on ESPN last month. The ad told viewers to call Stabenow and tell her to “put your country ahead of your party” and allow a vote on Gorsuch, The Detroit News reported.



3.  How much does Gorsuch reveal about his views?



Gorsuch’s record shows very little, if anything, about where he stands on conservative issues like abortion and money in politics, while lawmakers could also press him on his position on gun rights.



Democrats will likely ask Gorsuch about whether he’d vote to overturn the landmark abortion case Roe v. Wade, which legalized abortion nationally.



Some have said the book he wrote in 2006, “The Future of Assisted Suicide and Euthanasia,” signals that Gorsuch is anti-abortion.



In the book, Gorsuch premised the argument for retaining current laws that ban the practice “on the idea that all human beings are intrinsically valuable and the intentional taking of human life by private persons in always wrong.”



Gorsuch is also likely to be asked about his views on Citizens United v. the Federal Election Commission.



Senate Minority Leader Charles Schumer (D-N.Y.) compares Gorsuch to Chief Justice John Roberts, who was calm and careful when he answered questions during his confirmation process.  But, Schumer said, Roberts went on to become one of the most activist justices the country has seen, voting with the conservative majority in cases like Citizen United.



Sen. Dianne Feinstein"s (D-Calif.) office has in recent days also gone after Gorsuch on the issue of guns, with a release Friday highlighting what it called a "troubling record on gun safety."



The top Senate Judiciary Committee Democrat"s office highlighted portions of past cases involving the possession of firearms for convicted felons or domestic violence abusers to label the judge a "pro-gun extremist."



4.  Will Gorsuch give liberals any ammunition?



Senate Majority Leader Mitch McConnell (R-Ky.) is confidant Gorsuch will get confirmed.  “He’s very, very hard to oppose,” McConnell told Bret Baier during an appearance on Fox News’s Special Report last month.



But Democrats will be looking for anything they can use against him. Question are likely to come about recent reports in The New York Times on Gorsuch’s ties to conservative billionaire Philip Anschutz and work defending George W. Bush’ anti-terror policies.



5.  Will Gorsuch keep his composure?



Both sides know that composure, style and tone all play into a nominee’s chances of winning confirmation.



Democrats aiming to draw some emotion from him are likely to play up the human impact of his rulings.



Schumer and Blumenthal held a press conference last week with people Gorsuch ruled against in three different cases while on the Tenth Circuit Court of Appeals.



In one case, he sided with a trucking company that fired a driver for abandoning his cargo after his truck broke down in freezing temperatures.  In another case, Gorsuch ruled against a professor at the University of Kansas who was battling cancer. He said the school did not have to give her more than six months of sick leave under the Rehabilitation Act.



He also wrote the majority opinion in a case that prevented a nurse from seeking compensation from Medtronics for injuries she claimed were caused by the company’s improper, off-label promotion of its Infuse bone-graft device.


Sunday, February 5, 2017

Gorsuch May Not Shift The Balance Of Power On The Supreme Court As Much As You Think

Submitted by Michael Snyder via The Economic Collapse blog,


On Tuesday, President Trump announced that he would nominate Neil Gorsuch to fill the open seat on the U.S. Supreme Court.  Gorsuch currently serves on the 10th U.S. Circuit Court of Appeals in Denver, and he was confirmed unanimously by the Senate when he was appointed to that position by President George W. Bush in 2006.  Gorsuch appears to have some strong similarities to Antonin Scalia, and many conservatives are hoping that when Gorsuch fills Scalia’s seat that it will represent a shift in the balance of power on the Supreme Court.  Because for almost a year, the court has been operating with only eight justices.  Four of them were nominated by Republican presidents and four of them were nominated by Democrats, and so many Republicans are anticipating that there will now be a Supreme Court majority for conservatives.


Unfortunately, things are not that simple, because a couple of the “conservative” justices are not actually very conservative at all.


For example, it is important to remember that Scalia was still on the court when the Supreme Court decision that forced all 50 states to legalize gay marriage was decided.  Justice Anthony Kennedy joined the four liberal justices in a majority opinion that Scalia harshly criticized.  So with Gorsuch on the court, that case would still have been decided the exact same way.


Sadly, even though Kennedy was nominated by Ronald Reagan, he has turned out to be quite liberal.  In the past, not nearly enough scrutiny was given to justices that were nominated by Republican presidents, and a few of them have turned out to be total disasters.


And let us also remember that Scalia was still on the court when the big Obamacare case was decided.  Chief Justice John Roberts joined the four liberal justices in a decision that was perhaps one of the most bizarre in the modern history of the U.S. Supreme Court.


For some reason, Justice Roberts was determined to preserve Obamacare, and if you read what he wrote it is some of the most twisted legal reasoning that I have ever come across.


As someone that was once part of the legal world, let me let you in on a little secret.  Most judges simply do whatever they feel like doing, and then they will try to find a way to justify their decisions.  So if you ever find yourself in court, you should pray that you will get a judge that is sympathetic to your cause.


Fortunately, Gorsuch appears to be one of the rare breed of judges that actually cares what the U.S. Constitution and our laws have to say.  In that respect, he is very much like Scalia…





Gorsuch is seen by analysts as a jurist similar to Scalia, who died on Feb. 13, 2016. Scalia, praised by Gorsuch as “a lion of the law,” was known not only for his hard-line conservatism but for interpreting the U.S. Constitution based on what he considered its original meaning, and laws as written by legislators. Like Scalia, Gorsuch is known for sharp writing skills.



“It is the role of judges to apply, not alter, the work of the people’s representatives,” Gorsuch said on Tuesday at the White House event announcing the nomination in remarks that echoed Scalia’s views.



One of the most high profile cases that Gorsuch was involved with came in 2013.  That was the famous “Hobby Lobby case”, and it represented a key turning point in the fight for religious freedom.  The following comes from CNN…





In 2013, he joined in an opinion by the full Court of Appeals holding that federal law prohibited the Department of Health and Human Services from requiring closely-held, for-profit secular corporations to provide contraceptive coverage as part of their employer-sponsored health insurance plans.



And although a narrowly divided 5-4 Supreme Court would endorse that view (and affirm the 10th Circuit) the following year, Gorsuch wrote that he would have gone even further, and allowed not just the corporations, but the individual owners, to challenge the mandate.



Donald Trump said that he wanted a conservative judge in the mold of Scalia, but I think that he was also looking for someone that he could get through the Senate.


And considering the fact that Gorsuch was confirmed unanimously by the Senate in 2006 will make it quite difficult for Democrats to block him now.  Gorsuch has tremendous academic and professional credentials, and he will probably have a smoother road to confirmation than someone like appeals court judge William Pryor would…





Trump may have favored Gorsuch for the job in hopes of a smoother confirmation process than for other potential candidates such as appeals court judge William Pryor, who has called the 1973 Supreme Court ruling legalizing abortion “the worst abomination of constitutional law in our history.”



But Pryor is still reportedly on the short list for the next spot on the Supreme Court that opens up, and by then the rancor in the Senate may have died down.


If Gorsuch is confirmed, what will this mean for some of the most important moral issues of our time?


As for abortion, even if Gorsuch is confirmed I do not believe that the votes are there to overturn Roe v. Wade.  But if Trump is able to nominate a couple more Supreme Court justices that could change.


But even if Roe v. Wade is overturned, it would not suddenly make abortion illegal.  Instead, all 50 states would then be free to make their own laws regarding abortion, and a solid majority of the states would continue to keep it legal.


The analysis is similar when we look at gay marriage.  If the Supreme Court decision legalizing gay marriage in all 50 states was overturned, each state would get to decide whether gay marriage should be legal or not for their own citizens.  And just like with abortion, it is likely that only a limited number of states would end up banning gay marriage.


So the nomination of Neil Gorsuch to the Supreme Court appears to be a positive step, but it does not mean that we are going to see dramatic change when it comes to issues such as abortion or gay marriage any time soon.


But at least Gorsuch can help stop the relentless march of the progressive agenda through our court system.  So in the end we may not make that much progress for right now, but at least the liberals won’t either.

Wednesday, February 1, 2017

Trump’s Supreme Court Pick: "The Best The Left Could Have Hoped For"

Submitted by Mike Shedlock via MishTalk.com,


Donald Trump named Neil Gorsuch to succeed Antonin Scalia on the Supreme Court.





The leading candidates for the job all had strong conservative credentials.



Gorsuch, 49, joined an opinion in 2013 saying that owners of private companies could object on religious grounds to a provision of the Obamacare health insurance law requiring employers to provide coverage for birth control for women.



Hardiman, 51, has embraced a broad interpretation of the constitutional guarantee of the right to bear arms and has backed the right of schools to restrict student speech.



Pryor, 54, has been an outspoken critic of the court"s 1973 landmark Roe v. Wade ruling legalizing abortion, calling it "the worst abomination of constitutional law in our history."



Is “Dilbert Persuasion Theory” in play?


I use that name in reference to Scott Adams the creator of the “Dilbert” comic strip. Adams proposed that Trump says and does things so extreme, and so many extreme things at once, that all Trump has to do is move a bit the other way to have his critics on the run.


Let’s put that theory to the test today starting with The Hill article Trump Taps Neil Gorsuch for Supreme Court.





Trump named Gorsuch, a well-respected conservative who sits on the Colorado-based 10th Circuit U.S. Court of Appeals, after a drama-packed day that resembled the president’s former reality show “The Apprentice.”



After narrowing his list of 21 picks to Gorsuch and Judge Thomas Hardiman of the Third Circuit U.S. Court of Appeals, both men came to Washington, D.C., giving the appearance that either could be picked.



Gorsuch is likely to face a tough confirmation battle, though he was seen as a less provocative choice for the court than Bill Pryor, the circuit judge for the U.S. Court of Appeals for the Eleventh Circuit.



Pryor was a favorite of outside conservative groups, but his controversial views might have made it difficult for Democrats to avoid filibustering him. He has argued that gay people should be prosecuted for having sex, and that abortion should be outlawed including in cases of rape.



Although Pryor did not make it to the final two, he is in the on deck circle. Pryor’s views on abortion are extreme. Here is an article that came up just today William Pryor & Abortion: 5 Fast Facts You Need to Know.


Positions of Hardiman and Gorsuch


Please consider Politico excerpts on Thomas Hardiman.


While Hardiman has backed First Amendment rights in the context of political donations, he took a narrower view in a 2010 suit over an arrest for videotaping a police officer during a traffic stop, holding that there was no clearly established First Amendment right to record such an event.


Hardiman won favor with gun rights advocates for a 2013 dissent that said New Jersey was violating the Second Amendment to the Constitution by requiring those seeking to carry a handgun to demonstrate a “justifiable need” for such a permit.


Wikipedia notes that Neil Gorsuch “has never had the opportunity to write an opinion on Roe v. Wade. However, based on the opinions expressed in his book opposing euthanasia and assisted suicide, some speculate that he may tend to rule in favor of pro-life stances in abortion-related cases.”


Hill Continues





Sen. Jeff Merkley (D-Ore.) has promised to raise procedural objections to any Supreme Court nominee from Trump, meaning Gorsuch will likely need 60 votes.



But it is unclear whether Democrats at large will back a filibuster. Republicans have 52 seats in the Senate, meaning they need eight Democratic votes to break a filibuster. Ten Democrats are up for reelection in 2018 in states won by Trump in the presidential race. It may be difficult for them to filibuster a nominee such as Gorsuch — though they will be under tremendous pressure from liberal groups to do so.



Neither Gorsuch nor Hardiman will be the lightning rod that Pryor would have been.


Although Pryor did not make it to the final two, he was in the final 21.


Silver Lining?


The Wall Street Journal points out Judge Neil Gorsuch Is Critic of Legal Doctrine That Bolsters Executive Authority.





Judge Neil Gorsuch, President Donald Trump’s nominee to the U.S. Supreme Court, is seen by the right as a credible heir to the late Justice Antonin Scalia. But in one respect, his judicial record could offer Democrats something of a silver lining.



As a member of the 10th U.S. Circuit Court of Appeals in Denver, Judge Gorsuch has emerged as a leading critic of a Reagan-era judicial doctrine that has helped to bolster the power of the executive branch.



Persuasion Theory


For more on persuasion theory and why it may apply here, please see Trump Ban: Inept Policy or Purposeful Action? WW III?


Persuasion play or not, we can all (except the homophobic radical right nut cases) be thankful that someone who believes that gay people should be prosecuted for having sex, did not make it to the Supreme Court.


We can also be grateful Gorsuch is not in favor of expanding the executive branch.


From the point of view of the Left, Gorsuch may very well be the best they could have hoped for. The Left would be foolish to block this pick.


I suspect relatively smooth sailing if Gorsuch handles himself well in senate hearings.


*  *  *


But then again, there"s Elizabeth Warren... The Massachusetts Democrat writes on Facebook that she"ll vote against Gorsuch. Her full post is below:






President Trump had the chance to select a consensus nominee to the Supreme Court. To the surprise of absolutely nobody, he failed that test.



Instead, he carried out his public promise to select a nominee from a list drawn up by far right activist groups that were financed by big business interests.



Judge Neil Gorsuch has been on this list for four months. His public record, which I have reviewed in detail, paints a clear picture. Before even joining the bench, he advocated to make it easier for public companies to defraud investors. As a judge, he has twisted himself into a pretzel to make sure the rules favor giant companies over workers and individual Americans. He has sided with employers who deny wages, improperly fire workers, or retaliate against whistleblowers for misconduct. He has ruled against workers in all manner of discrimination cases. And he has demonstrated hostility toward women"s access to basic health care.



For years, powerful interests have executed a full-scale assault on the integrity of our federal judiciary, trying to turn the Supreme Court into one more rigged game that works only for the rich and the powerful. They spent millions to keep this seat open, and Judge Gorsuch is their reward.



Every day, our new President finds more ways to demonstrate his hostility for our independent judiciary, our civil society, and the rule of law.



Now more than ever, America needs Supreme Court justices with a proven record of standing up for the rights of all Americans – civil rights, women"s rights, LGBT rights, and all other protections guaranteed by our laws. We don"t need another justice who spends his time looking out for those with money and influence.



Based on the long and well-established record of Judge Gorsuch, I will oppose his nomination.




And Democratic Senator Jeff Merkley has vowed to pursue a procedural hurdle called a filibuster for Trump"s nominee, meaning 60 votes would be needed in the 100-seat Senate unless its long-standing rules are changed. Trump"s fellow Republicans hold a 52-48 majority, meaning some Democratic votes would be needed to confirm his pick.





"We need to fight this Constitution-shredding gambit with everything we"ve got," Merkley said in a statement.


Wednesday, January 25, 2017

Obama Sets Record For Lowest Supreme Court Win Rate Since Zachary Taylor In 1850

A new study conducted by Lee Epstein of Washington University and Eric Posner of Kirkland & Ellis analyzed nearly 100 years worth of Supreme Court decisions and found that President Obama had, by far, the worst "win rate" of any President in their data set, going back to FDR, and perhaps the worst since Zachary Taylor held the White House in 1850.  With a win rate of just 50.5%, Obama fell well short of previous presidents in modern history that won nearly two-thirds of their cases.





To  assess presidential performance  in  the U.S. Supreme  Court,  we created a  dataset of  cases  of concern  to the  President.  The  dataset  covers Presidents Franklin D. Roosevelt  through  Barack Obama (1932-2015 terms), which amounts to 84 Court terms and 13 Presidents.



Three findings emerge from the raw data.



a. Presidents prevailed in nearly two-thirds of their cases; and captured over 60% of all votes cast.



b. Obama’s win rate of just 50.5% is significantly lower than the average win rate and, in fact, the lowest in our dataset.



c. A  few  commentators  have  noticed  Obama’s  problems  in  the  Court,  attributing  them to Obama himself. But because our data show a downward secular trend in presidential success ever since the Reagan years, it may be that the Obama administration is just the latest victim of a Court that has gradually been losing confidence in the executive branch.



"Obama’s performance was especially poor. He prevailed in just 50.5% of his cases—a percentage slightly lower than the states’ win rate while Obama was in office (55.4%). This is the worst record of any President in our dataset; and it may be the worst since the Zachary Taylor administration."



SCOTUS Win Rate



And while the authors would like for you to believe that Obama"s shortcomings were just the result of a new "secular trend" of a Court "that has gradually been losing confidence in the executive branch," we"re going to go out on a limb and suggest that perhaps Obama"s strategy of applying very loose interpretations of the Constitution to hammer his liberal agenda down the throats of the American public probably had something to do with his abysmal win rate.


SCOTUS Win Rate



Of course, all of this begs the question of who Trump will nominate to fill Justice Scalia"s vacant seat in the coming days/weeks.  Back in November we posted a list of 21 potential candidates that Trump identified as likely choices (see "Trump Could Radically Transform The Supreme Court For Decades And Dems Are Terrified"), which, at least according to Axios, has since been narrowed down to the following three names:


William Pryor, 54, is an Alabama-based judge on the 11th U.S. Circuit Court of Appeals. He faced intense opposition to his nomination under Bush, but was confirmed 53-45.


Neil Gorsuch, 49, sits on the 10th U.S. Circuit Court of Appeals in Denver. Schumer voted for his confirmation back in 2007, and he has ties to Trump"s sister, Judge Maryanne Trump Barry.


Thomas Hardiman, 51, is a Pittsburgh-based judge on the 3rd U.S. Circuit Court of Appeals.


That said, per the Los Angeles Times, Neil M. Gorsuch, at this point, seems to a frontrunner in the Trump inner circle.





Judge Neil M. Gorsuch, a highly regarded conservative jurist best known for upholding religious liberty rights in the legal battles over Obamacare, has emerged as a leading contender for President Trump’s first Supreme Court nomination.



Gorsuch, 49, was among 21 potential high court candidates circulated by Trump’s team during the campaign, but his stock has been rising lately as several admirers and supporters have been named to positions in the Trump administration.



He currently serves on the U.S. 10th Circuit Court of Appeals in Denver. A former clerk for Justice Byron White, also a Colorado native, and Justice Anthony M. Kennedy, he served in the George W. Bush administration’s Justice Department.



In Gorsuch, supporters see a jurist who has strong academic credentials, a gift for clear writing and a devotion to deciding cases based on the original meaning of the Constitution and the text of statutes, as did the late Justice Antonin Scalia.



Just as importantly, Gorsuch is seen as someone who might be more easily confirmed in the Senate. Unlike other appointees of President George W. Bush, Gorsuch won an easy Senate confirmation on a voice vote in 2006.



But while Gorsuch may be one of the more "confirmable" names on Trump"s short list, with Democrats in the Senate looking to obstruct Republicans in every way possible, we suspect there is a long fight ahead for whomever the Trump administration ultimately chooses.


The full study can be viewed here: