Four Words For Why Clinton Must Defeat Trump: The Fucking Supreme Court

"SCOTUS too important to lose for generations."  -- a tweet from Republican National Chairman and obvious anagram Reince Priebus

It is pretty simple.  Do you want the Supreme Court to overturn Citizens United or Roe v. Wade?  Do you want the Supreme Court to add progressive-minded justices with a range of experience, ethnicity and gender or do you want vacancies filled by only conservative white males personally vetted by Donald J. Trump?  (If you have any doubt that diversity on the Court is critical, read Justice Sotomayor's extraordinary dissent in Utah v. Strieff, skewering the Court's majority opinion that found an arrest after an unlawful police stop to be valid and the evidence seized to be admissible.)

There has been a conservative majority on the Supreme Court since President Nixon's appointments put an end to the liberal Warren Court.  Since then, the Court has become increasingly more favorable to corporations, law enforcement, landowners and gun owners, and more skeptical of voting rights, civil rights, privacy and reproductive rights, and LGBT rights.  And while there have been some noteworthy Supreme Court victories for liberals over the last few decades, the conservatives have long been in firm control.

But now that Justice Scalia has left the building, we can begin to imagine what the Court would look like if his seat is taken by a liberal-leaning justice.  Suddenly, Justice Kennedy, the conservative Reagan appointee who occasionally votes with the liberal bloc, would no longer be the coveted swing vote.  That role would go to Justice Breyer, a left-of-center Clinton appointee (notwithstanding that Breyer incomprehensibly joined Clarence Thomas' opinion to provide a 5-3 majority in Utah v. Strieff).  And just like that, right wing fevered dreams of overturning Roe v. Wade, eliminating the concept of one person one vote, sabotaging Obamacare, destroying the financial capability of labor unions, and restoring the ban on same sex marriages would be gone.

Even better, progressives could begin to play offense instead of defense for the first time since about 1970 -- taking up cases to expand rights and remedies, rather than fighting the limitations of rights and restrictions on remedies.  This could result in greater access for women seeking abortions, the abolition of capital punishment, more robust interpretation of environmental and financial regulations, and greater ability of employees, consumers and whistleblowers to go after corporate wrongdoing.

And keep in mind that not only is there one current vacancy to fill, but there soon may be more. Ruth Bader Ginsburg is 83, Anthony Kennedy is 79 and Stephen Breyer is 77.  And 67-year-old Clarence Thomas is rumored to be mulling retirement so he can spend more time driving around in his RV with his right-wing activist wife.

Sure, I wish Hillary Clinton had not followed Colin Powell's lead and used her private email server as Secretary of State.  I wish she had not given paid speeches to Goldman Sachs.  And I wish she were not married to Bill.  But, say what you will about Bill Clinton's presidency -- and there are a lot of negative things to say --  he did put Justice Ginsburg on the high court.  Justice Breyer too.  There is no reason to think that Hillary Clinton's choices for the Court won't be equally, if not more, progressive.

The bottom line is that presidents come and go, but they can have an outsized impact on the Supreme Court -- an impact, as Reince Priebus notes, that can last for generations.  Republicans get this.  It is why they have used unprecedented obstruction to prevent President Obama from filling the current vacancy.  And it is why many Republicans will end up supporting their Party's nominee despite how repulsive they may find him.  This is a reality that Democrats, Independents, Sanders supporters and anti-Clinton progressives must come to terms with -- it is a reality that trumps everything. 

Obama's Troubling SCOTUS Pick

President Obama's choice for the Supreme Court of the indisputably brilliant and eminently qualified jurist, Merrick Garland, seems like the tactical move of a political genius.  Garland is truly a "centrist" judge, with a reputation for fairness, civility and following the rule of law.  He has taken the traditional route to the federal judiciary:  (1) Harvard Law School, (2) prestigious clerking positions (Judge Friendly on the Second Circuit and Justice Brennan on the high court), (3) prosecutor (including supervision of the Oklahoma City bombing prosecution), (4) corporate lawyer.  He is a 63-year old white male who has served on the D.C. Circuit since 1995.  Republicans have no legitimate argument for blocking confirmation hearings or, much less confirmation itself of such a reputable, non-partisan nominee. 

Thus, Obama has laid the groundwork for a sustained attack on the unprecedented obstruction of the GOP.  Republicans in the Senate will be able to do little more than offer increasingly lame arguments that have no basis in tradition or logic that will resonate only within their rabid, fact-free echo chamber. The Democratic nominee for president will have strong grounds for challenging the extremism of a Republican Party that won't even given such a moderate choice a hearing. 

But while this might appear to be at least a shrewd short-term strategy, I fear that it is an enormous mistake for several reasons.

First, key to using Republican obstruction against them and highlighting the importance of the Supreme Court as an election issue is a unified push by liberals that urges the Senate to, as Elizabeth Warren so forcefully put it, "do your job."  But, I for one, don't want the Senate to confirm this particular nominee, particularly given his pro-prosecution record on criminal justice issues.  I may be wrong, but I doubt if there are many progressive advocacy groups excited to mobilize for his nomination either.

Second, assuming Hillary Clinton wins the Presidency, the Senate Republicans will likely have an epiphany about doing their job, realizing that Garland is going to be a far more conservative pick than anyone that Hillary will nominate.  Thus, while there is no chance Garland will be confirmed before the election, he will likely be confirmed during the lame duck period before Hillary takes office.  This will deprive the next Democratic president of filling Scalia's seat with a progressive or at least a left-of-center nominee.  And it will put on the bench a justice who is unlikely to shift the court on many critical issues, particularly when it comes to criminal justice and the death penalty.

Third, Obama could have chosen from a deep bench of progressive legal minds with diverse ethnic backgrounds that would fire up a liberal base that might not otherwise be very enthused about a Clinton candidacy.  I couldn't agree more with Kerry Eleveld who put it like this:

Progressives could have had three people on the ballot come November—the nominee, VP, and the SCOTUS pick who never got a vote. If that person had looked in any way like the group of voters who form what's become known as "the Obama coalition," she or he could have symbolized the very future of our nation that Republicans are actively working so hard to deny.

On the other hand, this could turn out to be genius.  Perhaps the Garland nomination will hurt vulnerable Republican Senators who must uncomfortably defend their obstruction.  Then, when Hillary wins and the Democrats take back the Senate, Obama can graciously withdraw the nomination, claiming that, as the GOP had been saying all along, it is up to the next president to choose the next Supreme Court justice. Hillary then picks a true progressive that shifts the balance of the Court and we all live happily ever after.

Supreme Court Justice For All? The Shameful Attack On Zealous Advocates For The Despised

The popular version of the heroic criminal defense lawyer is one who tirelessly defends the wrongly accused, saving a client who is more victim himself (or herself) than perpetrator.  In real life, defense lawyers are usually called upon to represent the guilty, to provide a vigorous defense for those who have committed despicable acts.  This is a far more heroic calling. Indeed, it is critically necessary to our system of justice to have dedicated, skillful advocates representing people who are hated and feared, and ensuring that the government is following the law.

I recently argued that President Obama should nominate a criminal defense attorney to the Supreme Court.  (A Public Defender For Justice)   In my view, lawyers who have represented criminal defendants, who have challenged the power of the government, who have fought violations of human rights and civil rights, bring a critical perspective about challenges facing the most vulnerable in our society, and about the inherent biases in the legal system against the poor and people of color and those accused of crime, who are often both.  This is a perspective sorely missing on the high court, as well as throughout the federal judiciary, in which prosecutors out number public defenders by more than 3 to 1.

Unfortunately, it is becoming  all too common that zealous lawyers who take on the cases of notorious clients are themselves targeted and deemed essentially ineligible for higher office.  One ideal candidate for the Supreme Court is Jane Kelly, a former public defender who now sits on the U.S. Court of Appeals for the Eighth Circuit, having been confirmed by the Senate in a 96-0 vote.  Shamefully, a conservative group called the Judicial Crisis Network has launched a preemptive attack against Judge Kelly for having represented a man named Casey Frederiksen for child pornography when she was a public defender.  It turns out Frederiksen was later convicted for killing a five-year old girl and the fact that Kelly provided constitutionally-mandated representation for this very bad man makes her unworthy of a Supreme Court nomination. 

This is part of an all-too-familiar strategy.  In 2010, Liz Cheney and her group, Keep America Safe, launched a smear campaign against lawyers in Obama's Justice Department, referring to them as the "Al Qaeda 7," for previously having represented Guantanamo detainees.  A group of former Bush Administration officials and other prominent lawyers thankfully shot back, publishing a letter condemning Liz Cheney's ad.  They rightfully stressed that "the American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre."

Two years ago, the United States Senate voted to reject Depo Adegbile, an otherwise sterling choice to run the Civil Rights Division of the Justice Department, because he headed the NAACP Legal Defense and Education Fund when it represented Mumia Abu-Jamal, sentenced to death for killing a police officer, in his successful fight for life.  (Abu-Jamal is now serving a life without possibility of parole sentence.)   Bob Casey, a Democratic Senator from Pennsylvania, paid lip service to “respect[ing] that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime" but added the disturbing non sequitur that "it is important that we ensure that Pennsylvanians and citizens across the country have full confidence in their public representatives — both elected and appointed.”  Republican Senator Lindsay Graham, defending Adegbile's rejection by the Senate, was more direct:  “When someone has a history of helping cop-killers, this is what happens.”

Then there was the offensive campaign ad sponsored by the Republican Governors Association (RGA), entitled "Vincent Sheehan Protects Criminals, Not South Carolina." Sheehan was running for Governor against Republican incumbent, Nikki Haley.  He was described in the ad  as "trial lawyer" who "made money off criminals" and "got a sex offender out of jail time."  Indeed, he was actually paid for defending “violent criminals who abused women.”  Can you imagine?

What I can't imagine is that any reasonable person would disagree that it is critical to our legal system to ensure that all criminal defendants have effective advocates.  But as President Obama is looking for an unassailable candidate for the Supreme Court to highlight the Republican Party's anticipated obstruction, it is deeply troubling that someone like Judge Kelly  -- who after Harvard Law School and two prestigious federal clerkships, chose not to take her formidable legal skills to a high-powered law firm but instead committed herself to the less far lucrative, time-honored tradition of representing the despised -- is being assailed. 

Three Easy Steps For Democrats

The Republican Party is trying to cope with the overtly racist, xenophobic, misogynist, homophobic, climate-change-denying chickens that have come home not only to roost, but to crap all over the GOP Establishment.  Many high powered Republicans are threatening to bolt the Party or at least disavow Donald Trump, their Party's current frontrunner.  The most realistic alternative is the universally loathed Ted Cruz.  There is talk of a brokered convention that could result in a Party-shattering bloodbath and a possible third party challenge.  Meanwhile, particularly if Trump becomes the nominee, Republican candidates for Congress will have to decide whether to support him or run away from him, and thereby alienating either independents who will instead vote for Democrats or Trump supporters who will instead burn crosses. 

This fracturing of the Grand Old Party provides the Democrats with an incredible opportunity to restore some measure of sanity -- and humanity -- to the country's political institutions.  They have a chance to win the Presidency, reclaim a majority in the Senate, and reshape a Supreme Court that has been a conservative sinkhole for decades.  But being Democrats, they are equally likely to screw things up with their preternatural inclination to avoid partisan confrontation, move to the center, and misread the zeitgeist. 

I am not a political consultant, but I play one in the blogosphere.  And in that role, I want to suggest three inter-related steps that the Democrats must take to ensure a progressive victory in November and beyond.

1.  Supreme Court Matters.  President Obama must nominate an indisputably qualified, left-of-center candidate for the Supreme Court -- and soon.  One potential candidate, who is reportedly being vetted by the White House, is Judge Jane Kelly.  She is a former public defender from Iowa with a compelling life story.  Kelly currently sits on the U.S. Court of Appeals for the Eighth Circuit, having been confirmed by the Senate in a 96-0 vote.  What makes her particularly attractive is the way her nomination will discomfort Senator Charles Grassley, the current Republican Chair of the Judiciary Committee and the ugly face of the obstructionist right, who strongly backed her confirmation to the federal bench in 2013.  

The inevitable Republican refusal to hold confirmation hearings for such an otherwise  unassailable Supreme Court nominee must then become a major political issue.  Obama should hammer the Republicans daily for their unprecedented refusal to abide by the Constitution and exercise their duty to give "advice and consent. Senate Democrats should hold their own mock confirmation hearings if the Republicans won't do their job.  This should be treated like Ted Koppel-style hostage crisis reporting (e.g., "This is Day 57 of the Republicans failure to hold confirmation hearings"). Democratic presidential and senate candidates must make this a central aspect of their campaigns, asking whether We the People really want Donald Trump (or Ted Cruz, for that matter) to choose the next several Supreme Court Justices.

Not only will this provide a perfect vehicle to illustrate Republican obstruction and hypocrisy, but it would shed a critical light on what should be a key election issue.  Democrats need to stress that a liberal majority on the Court can make an enormous difference in people's lives and what horrifying consequences are in store if a conservative majority is restored and then solidified.  It needs to be stressed over and over how the Court can be transformed from the most corporate-friendly court since the 1930s to one that is far less deferential to polluters and Wall Street fraudsters, and far more protective of women's health and reproductive rights, privacy, voting rights, labor and civil rights.  Citizens United and other unprincipled decisions of recent terms can be overturned.

2.  Stay to the Left.  Bernie Sanders' campaign has obviously resonated with a wide range of committed, enthusiastic voters and tapped into legitimate anger and frustration about the current state of our politics.  There is no question that he has moved the Party -- and Hillary Clinton -- to the left.  It wasn't that long ago that Democrats were afraid of being dubbed "Liberal," and now, thanks to Bernie, the two candidates are fighting over who is the true Progressive.  His calls for changing a rigged, corrupt political system and fighting the inequality it has engendered need to continue to be a critical aspect of a Democratic campaign no matter who is nominated. At the same time, the Democrats must confront and address issues uniquely faced by people of color whose support is absolutely necessary for a victory in November.  And they must focus on convincing women voters, including those unaffiliated with either political party, that their health, privacy, reproductive rights, and economic well-being will be at risk if a Republican wins the presidency.

(On a related note, Hillary and Bernie need to insist that Debbie Wasserman Schultz be removed as the head of the Democratic National Committee immediately. She has been an absolute disaster for the Party, and, as a shill for Wall Street, she is the exact wrong person to be hosting the Convention.  Her latest inexcusable stunt is the co-sponsoring a bill to delay and gut implementation of regulations developed by the Elizabeth Warren-created Consumer Financial Protection Bureau that would crack down on usurious payday lenders who prey on the poor.)

3.  Fear Itself.  It seems likely that Donald Trump will be the Republican Party's nominee, but we could end up with one of the other candidates who, with the exception of Ted Cruz, only seem less frightening by comparison.  But all of them are extreme right wing zealots -- and the Democrats need to scare the shit out of the public by explaining what this country would look like if they took power.  Racism, religious intolerance and misogyny have long been pillars of Republican orthodoxy but they are no longer shrouded in coded language and dog whistles. This makes it far easier expose the Republicans for what they really stand for.

Voters need to realize that the leading Republican candidates have little respect for or understanding of the Constitution -- they intend to round up immigrants and Muslims, build a wall on our southern border, engage in torture and other war crimes, and essentially create a White Christian Nation.  Seriously.  In addition, they all maintain extreme positions on abortion rights -- some more extreme than others -- and their Party's relentless war on women's health would only be ratcheted up by a far right Supreme Court majority that would certainly overturn Roe v. Wade.  Then there's their contempt for science and stubborn refusal to accept the reality of climate change, their promise to repeal Obamacare without an alternate plan to provide health care beyond the availability of emergency rooms, and their cynical economic plans that mainstream economists conclude will create enormous tax breaks for the wealthy while exploding the deficit.

The truly frightening world view and policy positions of Trump, Cruz and their cohorts are so far being drowned out by the posturing, rhetoric and sophomoric insults that seem to comprise the sum total of Republican debate.  As we laugh at how crazy it is that these fuckers have actually resorted to dick jokes, we are in danger of losing sight of how dangerous they really are.
 
The roadmap for Democrats is pretty simple:  1) The Supreme Court; 2) A Progressive Platform; and 3) Fear.  Don't blow it.

[Related posts:  Justice Scalia Has Left The Building; Public Defender for Justice; Republicans Will Not Release Their Stranglehold On The Supreme Court; Schadenfreude Tinged With Fear As The GOP Devolves Into The Party Of Trump]

A Public Defender For Justice

The typical path to becoming a federal judge is to have been a prosecutor and/or a big firm lawyer representing corporate interests.  This is true whether the president is Democrat or Republican.  Indeed, while President Obama can rightfully boast about the diversity of his federal court appointments in terms of race, gender and sexual orientation, it is troubling that roughly 85% of his federal court nominees have been corporate attorneys, prosecutors or both

In addition, according to an Alliance for Justice report published last year:

Fewer than four percent of President Obama’s judicial nominees have worked as lawyers at public interest organizations;

Fewer than four percent have significant experience representing workers in labor and employment disputes;

Prosecutors outnumber public defenders (state or federal) by more than three to one;

Only four out of 56 circuit nominees have worked as a public defender (state or federal), compared to 21 who have worked as prosecutors.

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Lawyers who have represented criminal defendants, who have challenged the power of the government, who have fought violations of human rights and civil rights, and who have taken on Big Business, bring a critical perspective about challenges facing the most vulnerable in our society, and about the inherent biases in the legal system against the poor and people of color and those accused of crime, who are often both. 

Countless legal determinations require applying a "reasonableness" standard -- what a reasonable person would do or understand -- or deciding whether a particular claim is "plausible."  Such judgments are necessarily filtered through one's personal and professional experiences.  Thus, as Sen. Elizabeth Warren has explained:  “It matters that someone has represented people other than corporate clients, that they’ve had real experience with people who can’t afford lawyers, that they’ve had real experience trying to fight for the public interest …. It matters where you come from.”

This is a perspective that is sorely missing on the Supreme Court.  Even so, Supreme Court watchers who bandy about qualified nominees to replace Justice Scalia rarely mention the host of brilliant candidates with experience as public defenders or public interest lawyers.

A article appearing in the National Association for Public Defense provides an impeccable list that begins with a perfect choice:  Bryan Stevenson:

Stevenson, 56, is our country’s greatest human rights lawyer. Stevenson is the founder and head of the Equal Justice Initiative, fighting poverty and challenging racial discrimination in the criminal justice system for 30 years. He has successfully argued in the Supreme Court, including this January’s decision striking down mandatory life-without-parole sentences for children. Stevenson speaks eloquently about America’s troubled history of racial strife and injustice, and about how to heal the wounds of that history. President Obama selected Stevenson to serve on last year’s Task Force on 21st Century Policing.

The NAPD piece provides several other stellar candidates, including practicing lawyers (Lisa Feeland, David Singleton, Christine Swarns) law professors (Ronald Sullivan, James Forman, Michelle Alexander) and federal appellate judges (Robert Wilkins, Jane Kelly). 

It goes without saying that no matter who President Obama chooses to replace Justice Scalia, he or she will be met with unprecedented obstruction from the Republican-led Senate given that anyone to the left of Justice Kennedy will dramatically shift the Court's ideological balance and provide a liberal majority for the first time since the early 1970s.  But that shouldn't stop Obama from choosing a candidate who has devoted a legal career to fighting for justice rather than for power. 

Republicans Will Not Release Their Stranglehold On The Supreme Court (Ever) Without A Fight

Relying on hypocritical, ahistorical, patently bogus rationalizations, the Republicans will not allow President Obama to appoint a Supreme Court justice to replace the recently-departed Antonin Scalia, and flip the Court from a conservative one to a liberal one.  What should also be clear is that as long as they control the Senate, Republicans won't let the next Democratic president do so either. 

Unlike Democrats, who by and large believe in democratic rule -- i.e., legislative solutions to governing -- Republicans rely on a gerrymandered House of Representatives and a conservative Supreme Court to obstruct liberal initiatives and ensure that their own unpopular policy positions are enacted or upheld -- from allowing unfettered campaign contributions and unrestricted gun rights to gutting environmental regulations and impeding reproductive rights.  And so, they have aggressively and successfully agitated for a conservative federal judiciary for decades -- and they will not release their stranglehold on the high court without a bitter and prolonged fight.

President Richard Nixon's appointments to the Supreme Court, notably Warren Burger, William Rehnquist and Lewis Powell (he also appointed Harry Blackmun) put an end to the liberal Warren Court, and ushered in a conservative majority that ever since has been increasingly more favorable to corporations, law enforcement, landowners and gun owners, and more skeptical to voting rights, civil rights, reproductive rights and LGBT rights.  And while there have been a few critical victories for liberals over the last few decades, the conservatives have long been in firm control of the Supreme Court.

And there you have the basis for the right wing apoplexy on contemplating Scalia's replacement.  Imagine what the Court would look like if Scalia's seat is taken by a liberal-leaning justice.  Suddenly, Justice Kennedy, the conservative Reagan appointee who occasionally votes with the liberal bloc, will no longer be the coveted swing vote.  That role will go to Justice Breyer, a left-of-center Clinton appointee.  And just like that, right wing fevered dreams of overturning Roe v. Wade,  eliminating the concept of one person one vote, sabotaging Obamacare, destroying the financial capability of labor unions, and restoring the ban on same sex marriages would be gone. 

So Republicans have come up with ludicrous justifications for thwarting the next nominee, whoever it may be.  First, there is the argument that a justice should not be confirmed during an election year.  Except 14 justices were confirmed in election years, including Justice Kennedy, who was unanimously confirmed in the last year of President Reagan's second term by a Democratic majority.

Then there is the idea floated by some that any nominee to replace Scalia should be a like-minded conservative.  Tell this to the first President Bush, who replaced Thurgood Marshall with Clarence Thomas.

Most recently, the constitutionally-challenged Rand Paul has argued that Obama should not be permitted to appoint a Supreme Court justice because he has a conflict of interest. 

Finally, of course, there is the Bork excuse.  Republicans like to argue that it was the Democratic Party that started politicizing Supreme Court nominations when they defeated Reagan's nomination of Robert Bork to replace Lewis Powell in 1987.  But Bork was no mere conservative.  He was a radical jurist whose views on the federal role in protecting civil rights, voting rights and reproductive rights were quite far outside the mainstream.  Importantly, while his nomination was scuttled after an incredibly contentious confirmation hearing (with 6 Republicans voting against him, by the way), Reagan's subsequent appointees -- Kennedy (who was nominated after Bork's defeat) and Scalia -- were confirmed, as were the extremely conservative nominations of the two presidents Bush. 

Even if Senate Republicans deign to fulfill the letter of their constitutional responsibilities by holding hearings on Obama's nomination(s) or those of his successor, it is hard to imagine the current Republican Senate approving any nomination that is left of the current swing justice, Justice Kennedy, under any circumstances -- an obstructionist position that has no historical precedent.

And keep in mind that not only is there one current vacancy to fill, but there soon may be more. Justice Ginsburg is 82, Kennedy is 79 and Breyer is 78. 

If Hillary Clinton or Bernie Sanders wins the presidency, the Democrats would theoretically have a chance to maintain a liberal majority on the Court for a generation or more.  (Conversely, a Republican president would take us back to the Dark Ages -- or at least the pre-New Deal 1930s -- for the foreseeable future.)  But Republicans have shown throughout the Obama Presidency that they will go to whatever lengths are necessary to thwart any hint of a perceived liberal agenda -- and they have rarely paid the price.  Their base loves it, the mainstream press ignores it, and the Democrats seem unable to do more than whine.

The only way to stop the Republicans from preventing a long overdue shift in the Court's balance of power is to elect a Democratic president AND ensure a majority of Democrats in the Senate.  This makes the battle for the presidency more important than ever.  But don't forget the Senate where the Democrats need to pick up at least four seats.  There appear to be six seats currently held by Republicans that are within reach --Wisconsin, New Hampshire, Illinois, Ohio, Florida and Pennsylvania.  (Colorado and Nevada, currently held by Democrats, are also in play.)  Let's get to work. 

Justice Scalia Has Left The Building

"I have never killed a man, but I have read many obituaries with pleasure."  -- Clarence Darrow

In what may be the most positive political development in a very long time, there is a vacancy on the Supreme Court that can now be replaced by a Democratic president.  Antonin Scalia has left the building. 

The political implications are huuuuge!  What should be one of the most important considerations in electing the next president has now shot to the forefront.  The Republican Senate may very well take the unprecedented step of blocking a Supreme Court nominee for the remainder of Obama's term.  That would give the next president the opportunity to shape the Court for the next generation.  Electability is a more critical factor than ever.
 
And cases now on the Supreme Court docket, involving abortion, voting rights, affirmative action, immigration, among others are all of a sudden no longer looking like 5-4 losses. 

Replacing Scalia on the Court with a liberal justice will dramatically shift the balance of power and put the Court more in align with the views of a majority of the American people rather than the far right wing of the Republican Party.  Issues from overturning Citizens United  to finding the death penalty unconstitutional will be in play

It has long been a consensus in mainstream circles, if not necessarily in the legal community, that whether you agreed with him or not, Justice Scalia possessed a great legal mind.  But, in my view, he was a arrogant, partisan hack whose decisions were completely result-oriented, masked in a  flawed legal theory.  (With all due respect)

I had the distinct displeasure of seeing him up close and personal in two death penalty cases where his lack of humanity and need to bloviate were distasteful and infuriating.

One of Scalia's greatest hits, of course, is Bush v. Gore, one of the most shameful episodes in the history of the United States Supreme Court.  Here's what I wrote in 2012 about Scalia's then-recent remarks about the decision:

Bush v. Gore, which stopped the Florida recount and handed the presidency to George Bush was a severe blow to democratic rule.  It was a legally unsound, politically motivated decision.

Conservative justices, who invariably relied on principles of federalism to avoid redressing unjust actions by state governments, intervened in a state's voting process, relying on an indefensible interpretation of the Equal Protection Clause.  The opinion itself implicitly conceded its flawed legal reasoning by explicitly stating that it was “limited to the present circumstances” and could not be cited as precedent.  Justice Souter, appointed by the first President Bush, was so disturbed by the ruling that he considered resigning at that time. 

Bush v. Gore was plain and simple "crudely partisan," as Souter later described it.  Justice Breyer, in dissent, described the majority decision as a "self-inflicted wound -- a wound that may harm not just the Court, but the Nation.”  Prescient words.  The harm to the Court, as Justice Stevens dissented (in an opinion joined by Breyer and Ginsburg), was that it gave credence "to the most cynical appraisal of the work of judges" and undermined the country's "confidence in the judge as impartial guardian of the rule of law."  (This view has only been exacerbated by such cases as Citizens United, which also blatantly ignored established precedent to reach a nakedly partisan result). 

The reality is that by a narrow 5-4 margin, the Supreme Court interfered with a presidential election and gave us George W. Bush, the majority's preferred candidate.  That would be "the wound" that "harmed the Nation."

According to Justice Antonin Scalia, however, reality is altogether different.  Last week, Scalia delivered the Hugo L. Black Lecture on Freedom of Expression at Wesleyan University.  After the speech, Scalia was asked about Bush v. Gore.  His response:  “Get over it.”  He then told the audience that “it was a long time ago, people forget . . . It was a 7-2 decision. It wasn’t even close.”

Scalia believes what he believes, whether it is divining the intent of the Founding Fathers or rewriting the history of a controversial decision.  The fact is Bush v. Gore was not a decided by a vote of 7-to-2.  While seven of the nine justices agreed that Florida Supreme Court's decision, calling for a statewide recount, violated the Equal Protection Clause, four of the nine justices strenuously disagreed with the majority's remedy, to stop the recount.  As Ian Millhiser summarized it:

Although it is true that the four dissenters divided on how the Florida recount should proceed — two believed there should be a statewide recount of all Florida voters while two others believed a narrower recount would be acceptable — not one of the Court’s four moderates agreed with Scalia that the winner of the 2000 presidential election should effectively be chosen by five most conservative members of the Supreme Court of the United States.

It is understandable why Justice Scalia would want to downplay the radical decisions he and his conservative colleagues have authored which put a lie to the conventional wisdom that the liberal justices on the Court are the ones who substitute their personal and political views for those of the democratically elected branches of government.  

It is also understandable why Scalia is still getting questions about Bush v. Gore twelve years after the opinion's issuance.  It is without exaggeration one of the Supreme Court's worst decisions.  (Scalia, with Justices Kennedy and Thomas, have the distinction of also being in the majority of another of high court's low points, Citizens United.)

Sorry, Nino, we are not going to "get over it."

If You Have Nothing Nice To Say . . .

I wrote this piece five years ago, after the New York Times reported that it had been five years since Justice Clarence Thomas uttered a word from bench during oral argument.  Today, the Times reminds us that the silent treatment has now reached ten years.

In a front page story in the New York Times, it was reported that Clarence Thomas has not spoken during a court argument in five years, an unprecedented silence from a Supreme Court justice.  The problem, however, isn't that Justice Thomas doesn't speak; it is to whom he speaks when he does.  As previously reported, Thomas (as well as Justices Alito and Scalia) have attended, headlined and spoken at political fund-raising events for right wing organizations, raising serious concerns about, at minimum, the appearance of impropriety.

Justice Thomas's ethics have come under further scrutiny lately.  Both he and Justice Scalia were featured guests at a retreat of wealthy Republicans and conservative leaders organized by Charles and David Koch, the brothers who finance right wing causes from the money they have made from their energy conglomerate.  One of the Koch brothers pet causes had long been ending financial regulations on elections.  Indeed, according to Common Cause, they funded many of the groups who filed amicus briefs in the Citizens United case.  What is so unseemly about the appearances of Thomas and Scalia at the Koch Industries-sponsored event is that it occurred while Citizens United was pending before the Court.  Furthermore, while a spokesperson for Thomas asserted that the Justice merely made a “brief drop-by” at the event, his financial disclosure forms revealed that he was reimbursed for an undisclosed amount for four days of “transportation, meals and accommodations” over the weekend of the retreat.  Hardly, a drop-by.

Then there are the myriad issues involving Thomas' wife.  An outspoken conservative in her own right, Ginni Thomas set up a political consulting business, Liberty Central, which, as the Times describes, touted her on the organization's website as an an advocate for “liberty-loving citizens” and promised to use her “experience and connections” to help clients raise money and increase their political impact.  What connections would that be?  In any event, Liberty Central benefited greatly from the Citizens United decision, with Ms. Thomas accepting "large, unidentified contributions" for the company.  Perhaps not coincidentally, Justice Thomas omitted his wife's employment on financial disclosure forms for the past six years.  He ultimately was forced to acknowledge this error, claiming it was due to "a misunderstanding of the filing instructions.”

Thomas's conduct would clearly seem to violate the Code of Conduct for U.S. Judges, but for the fact that the Justices have exempted themselves from the ethical rules governing other federal judges.  Nevertheless, his conduct should come under scrutiny.  Common Cause, accordingly, has written a well-documented letter to the Attorney General requesting an investigation to determine whether Justices Thomas and Scalia should have recused themselves from the Citizens United case.  It requests, in the event the Justice Department determines either Justice should have disqualified themselves, that the Solicitor General seek to have Citizens United decision vacated. 

As for cases yet to be decided by the Court, Ginni Thomas stepped down from her role at Liberty Central after a memo surfaced which called for the repeal of health care reform because of its unconstitutionality.  Given the increasing likelihood that the Court will take up a case involving the Affordable Care Act, 74 Democrats in the House of Representatives sent Thomas a letter requesting his recusal.  As the letter states:  "From what we have already seen, the line between your impartiality and you and your wife's financial stake in the overturn of healthcare reform is blurred."

I am glad that Justice Thomas doesn't ask questions during oral argument, and I wish Justice Scalia would ask far fewer.  It is better to have more time to address questions from the Justices who actually might be persuadable.  The problem is not what these extremely partisan Justices do when they are on the bench but what they do when they are off of it. 

My Grudge Against Joe Biden

I admit that I tend to carry grudges against political figures.  I will never forgive Bill Clinton for Welfare Reform, Habeas Reform, and the War on Drugs.  I will never forgive Ralph Nader for running a third-party campaign in 2000. 

And now, with rumors that Joe Biden is considering a run for president, I thought I would air my grudge against him.  Three words:  Justice Clarence Thomas. 

Biden was the chair of the Senate's Judiciary Committee during Thomas' confirmation hearings in 1991.  And he blew it big time.  He failed to take Anita Hill's testimony about being sexually harassed by Thomas seriously, and lost control to far more aggressive and more overtly sexist Republicans.  In his efforts to be unstintingly fair to Thomas, he repeatedly assured him that "you have the benefit of the doubt," despite the lack of any legal justification for such an assurance.  He refused to permit expert testimony on sexual harassment.   And, worst of all, he reached a private compromise with Republican senators not to call witnesses who would have corroborated Hill, most importantly, Angela Wright, another former employee of Thomas' at the EEOC who also claimed to have been sexually harassed by him. 

Thomas was confirmed by a slim margin, 52–48, with the help of 11 Democrats.  Although Biden voted against Thomas, his shameful performance as Judiciary Chair is directly responsible for one of the most reactionary Supreme Court justices in U.S. history.

This is unforgivable.

Supreme Concern: The Fight for Equality and Dignity and Why Elections Matter

The Supreme Court's historic ruling that the Constitution guarantees the right to marry for same-sex couples is cause for celebration and relief.  It shows what unrelenting activism and struggle can accomplish.  And it shows what the high court can and should do when pressed to protect groups of people from discrimination and extend to them equality, dignity and fundamental rights.

Justice Kennedy (joined by the so-called liberal wing of the Court -- Justices Ginsburg, Sotomayor, Kagan and Breyer) rejected the dissenters' view that states may be allowed to prevent gays and lesbians from getting married if a majority of its voters deem it so.  And it resoundingly rejected an originalist view of the Constitution which holds that fundamental rights are only those explicit in that document's text:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning…
…in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.

This decision really should not have been much of a leap.  Loving v. Virginia, which held that state laws banning interracial marriage were unconstitutional, provides a fairly unassailable precedent.  And opponents of same-sex marriage have never been able to mount a legitimate argument that there is a compelling government interest in preventing gays and lesbians from marrying -- the showing required under the Court's own jurisprudence.

The fact that the decision was a narrow 5-4 victory-- with disingenuous and particularly vitriolic opinions from each of the four dissenters -- should give us all serious pause.  According to Chief Justice Roberts, Justice Kennedy's carefully reasoned opinion was result-oriented and "had nothing to do with the Constitution."  Justice Scalia's insult-laden diatribe described it as pretentious and incoherent, and alarmingly claimed that it represented a “threat to American democracy.” Justice Alito was mostly concerned with those Americans who want to be able to continue to discriminate against same-sex couples with impunity, fearing that this opinion "will be used to vilify Americans who are unwilling to assent to the new orthodoxy,”  And Justice Thomas, in rejecting that the right to marry is a fundamental right, went so far as to argue that the government is essentially incapable of taking away human dignity -- not by depriving people of government benefits, or holding them in internment camps or even enslaving them. 

If John McCain had won the presidency in 2008, he certainly would have replaced the two retiring justices during his first term with two in the mold of those currently comprising the right wing of the Court, instead of President Obama's two appointees -- Justice Sotomayor and Justice Kagan.  Among many other frightening results, this would likely have turned this landmark 5-4 victory into a 6-3 loss.

Every Republican running for president expressed their opposition to same-sex marriage and denounced the Supreme Court's decision.  And under the guise of "religious liberty," every Republican candidate believes that business owners and others should be allowed to discriminate against same-sex couples.

Justice Ginsburg is 82; Justice Scalia is 79; Justice Kennedy is 78; Justice Breyer is 76.

There are many more battles ahead -- battles that will likely require litigation in federal court -- including those surrounding the push for federal anti-discrimination laws and anti-discrimination laws in the majority of states that don't bar discrimination against gays, lesbians and transgender people.

Elections matter.

The Supreme Court Demands Its Pound Of Flesh

"The pound of flesh which I demand of him Is deerely bought, 'tis mine, and I will have it."  -- Shylock, The Merchant of Venice

In the 1970s, without any scientific testing, a state medical examiner from Oklahoma concocted a three-drug cocktail for use in executions.  The first drug, a sedative, causes unconsciousness so the inmate would feel no pain.  The second drug induces muscle paralysis and respiratory arrest, while the third drug stops the heart.  Among the many problems with this protocol is that by using a paralytic agent, there is no way to tell if the barbiturate is working effectively.  In other words, if the inmate is paralyzed it can't be discerned whether he (or she) is truly unconscious or is simply unable to scream out in pain.  This became an even more troubling problem when the drug initially used for sedation became unavailable, leaving states to scramble to find other even more unreliable alternatives. 

Today the Supreme Court heard argument in the case of Glossip v. Gross, to determine whether  the sedative, midazolam -- which was used in the so-called “botched” executions that occurred last year (which I wrote about here), could reliably induce a deep enough state of unconsciousness before the other drugs – which cause intense, severe pain – were injected.  Or as Justice Kagan put it, would the drug's ineffectiveness cause the inmate to feel like “burning alive, from the inside.”

 

What was most ghoulish about today's argument, however, was not the descriptions of executions or the hypothetical questions about burnings at the stake with inadequate anesthesia, but the blood lust of a majority of the Supreme Court.

The conservatives on the Court appeared far less concerned about the excruciating pain caused by the latest untested three-drug cocktail than for those poor state officials who have been forced to devise new methods of execution because death penalty abolitionists have been effective in persuading drug companies that their products shouldn’t be used to kill people.

Justice Alito:  “Is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”

Justice Scalia:  Other drugs have been made unavailable “by the abolitionists putting pressure on the companies that manufacture them so that the states cannot obtain those other drugs. . . The abolitionists have rendered it impossible to get the 100 percent sure drugs, and you think we should not view that as relevant to the decision that you’re putting before us?”

Justice Roberts: “The case comes to us in a posture where it’s recognized that your client is guilty of a capital offense, it’s recognized that your client is eligible for the death penalty, that that has been duly imposed.  And yet you put us in a position with your argument that he can’t be executed, even though he satisfies all of those requirements.  And you have no suggested alternative that is more humane.”

Justice Kennedy asked counsel for the inmates to answer the question whether the resistance to the death penalty was a factor that the Court should consider in weighing the validity of a given protocol.

 Justice Thomas:  [  ]

 First, Alito and Scalia are wrong that there were ever “100 percent sure drugs” used in the lethal injection process that guaranteed executions were not causing excruciating pain.  Indeed, the problems with the original drug protocol has been the subject of litigation for years and was the basis for the halting of executions in California. 

Second, the notion that the drug shortage is due solely to the pressure put on drug companies by the anti-death penalty movement is not accurate.  It is also in large measure due to the fact that more evolved foreign countries where these drugs are being sought do not sanction the death penalty and have imposed restrictions on exporting drugs for such use. 
 

But this should all be irrelevant to the question before the Court -- whether the use of a particular method of execution creates a risk of pain sufficient to violate the cruel and unusual punishment clause of the Eighth Amendment. 

The answer should be obvious.  And it is becoming obvious to more and more Americans who, as an editorial in the New York Times put it, "are finding that there is no form of state-sponsored killing that can be civilized or humane."  According to the Times, "the search for more ways to kill may be losing steam as public views change. A recent poll by the Pew Research Center found that only 56 percent of Americans approve of capital punishment — the lowest level in four decades. Among Democrats the number is 40 percent."

Particularly in this light, the frustration – indeed, anger – from the Court's majority that states are being forced to use more painful methods because other alternatives are no longer available -- not stemming from any concern about the torturous effects on human beings -- but because what they perceive as a "guerrilla war" is thwarting states in their efforts to execute people, is deeply troubling, even somewhat creepy. 

Do Not Vote Republican

It is not true that all politics is local.  Voting for a Republican congressperson or senator means you are aiding and abetting a national party that is little more than a collection of far right wing lunatics who don't believe in man-made climate change (much less in mitigating it), the minimum wage (much less in increasing it), recklessness of Wall Street (much less in regulating it), immigration by people of color (much less in reforming it), gun control (much less in legislating it), or a woman's right to her own choice (not only to terminate a pregnancy but to use birth control).

The first one -- disbelief or even being agnostic on climate change -- should be enough to disqualify anyone from office.  It is the single most critical issue of our time and you can't find one Republican candidate who is willing to admit the problem even exists much less willing to proffer a solution.  A recent study found that 3% of current Republican members of  Congress accept that climate change is real and caused by human beings.  Think about that. Virtually every Republican in Congress and Republican hopeful refuse to accept the overwhelming consensus of the scientific community on climate change, often with the ridiculous refrain that they are not scientists themselves so how could they know.  It really shouldn't be controversial to insist that our leaders rely on expertise in determining government policy.  But I would venture that far more Republican members of Congress believe in the Biblical prophesy of End Times than they do in man-made climate change, and that's a big problem.

So what do they believe in?  They believe the unemployed are lazy. They believe that terrorists are around every corner.  They believe in deregulating Wall Street, and that all regulation is an anathema except when it comes to women's health.  They believe that corporations are people too.  They believe that advancing LGBT rights poses a threat to their way of life.

A sampling from a New York Times article on the rightward shift of GOP candidates is telling:

One nominee proposed reclassifying single parenthood as child abuse. Another suggested that four “blood moons” would herald “world-changing, shaking-type events” and said Islam was not a religion but a “complete geopolitical structure” unworthy of tax exemption. Still another labeled Hillary Rodham Clinton “the Antichrist.”

Worried yet?  Given demographics and gerrymandering, the House is sure to remain in Republican control for the foreseeable future.  And without a late get-out-the-vote surge, it looks like the Senate may be in Republican hands for at least the next two years.

What would a Republican majority actually mean?  Certainly we would have more gridlock, which if Republicans are passing bills would not be a bad thing.  Whatever disastrous legislation reached the President's desk would thankfully get vetoed.  On the other hand, Republicans would likely attach unacceptable riders to critical spending bills, creating even more chaos.  Ezra Klein speculates that one thing that might pass is the Keystone XL pipeline, given its support among some Democrats.  Not a problem, I suppose, if you don't believe in climate change.

With nothing better to do, we are sure to see more symbolic efforts to repeal Obamacare and, of course, the inevitable hearings on faux scandals.  Can you say "Benghazi"?

An area in which a Republican Senate would make a significant difference is with Presidential nominations.  While Obama in the past year has been successful in pushing through judicial nominations to fill vacancies and redress the imbalance in the judiciary caused by years of Republican intransigence, that would abruptly end.  Most importantly, if a Supreme Court vacancy opens, Republicans would have the power to block any nominee who didn't meet their litmus test, which would be anyone to the left of Antonin Scalia.

So, even if you are a registered Republican, don't do it.  Even if you aren't fond of your Democratic candidate, don't do it.  Even if you believe in limited government, don't do it.  Even if you oppose much of Obama's vision, don't do it.  Voting Republican means voting for a dystopian world of ever-worsening environmental degradation, widening inequality with no safety net, more scandalous behavior from Wall Street and the prioritizing of fundamentalist Christian values for everyone.  Don't do it.

What you must do, however is vote, and regardless of what the pundits say, this is a critical election.   David Dayen has much more on why.  And as he concludes:

The biggest stakes in this election concern what lessons will be drawn from it. It’s actually easy to call this a Seinfeldian election about nothing, because Democratic candidates have been so reluctant to stand for anything. They have offered little hope to a public made insecure by stagnant wages, soaring inequality and an economy insufficient to their needs. Implicit in this insecurity is the helplessness so many Americans feel about a political system that doesn’t seem within their grasp to affect, unless they have a spare billion dollars lying around.

When government fails for whatever reason, the perceived defenders of government suffer. And if those perceived defenders react by running away from any effort to use government levers to improve people’s lives, we will descend further into a Reagan-era miasma of market fundamentalism and corporate power.

Botched Executions and Devolving Standards of Decency

Another botched execution.  This one in Oklahoma where witnesses described an "agonizing scene" in which over the course of 43 minutes, Clayton Lockett writhed, convulsed and struggled to speak before his heart "essentially exploded."  Earlier this year, on January 16, 2014, Dennis McGuire was executed in Ohio, a fifteen minute exercise in torture during which McGuire gasped and choked  before dying.

The phrase "botched execution" should be removed from the lexicon.  Webster's defines "botch" in relatively innocuous terms such as "bungle," "foul up" and "repair ineptly."  There is nothing innocuous about what the director of the ACLU in Oklahoma described as "human science experiments" -- experiments that can only be described as torture.

These latest horrors stem from the use of untested and unregulated lethal injection drugs, and the secrecy surrounding how and from whom these drugs are obtained.  As detailed in an important New York Times op-ed, presciently titled Secret Drugs, Agonizing Deaths, after an American pharmaceutical firm stopped making thiopental, the anesthetic used for executions, and federal courts barred the importation of the drug from overseas, states began substituting pentobarbital.  But with the Danish manufacturer of pentobarbital refusing to allow the drug to be used for executions, states started obtaining it from compounding pharmacies, "which mix small batches of drugs to order, and whose products are not approved by the F.D.A."  Other states, like Ohio and Oklahoma, are going with other untried drugs, such as midazolam.  

The grisly results, not at all surprising given the lack of oversight and appalling lack of scientific or medical review, are morally repulsive.
 
The "feckless" justices on the Supreme Court, as The Atlantic's Andrew Cohen, describes them, long ago should have "stop[ped] the madness caused by the current generation of lethal-injection secrecy" and "establish[ed] standards that would require states like Oklahoma to share basic information about the drugs used to kill prisoners."  And lower court state and federal judges should have demanded more through review of the issues raised by the use of new, untested lethal drug combinations.

But, the execution protocol is just the last of the many levels in the capital punishment process -- the machinery of death, as Justice Harry Blackmun put it -- in which the inevitability of human error and human frailties cause unfairness, unreliability and cruelty.  Police, trial lawyers, prosecutors, judges, jurors, appellate lawyers, appellate judges and executioners are all capable of bias and discrimination, errors in judgment and honest mistakes.  So many variables lead to so many instances of wrongful conviction, arbitrary and unjust sentence and ultimately, agonizing scenes of torture.

 "Evolving standards of decency" is a phrase used in Eighth Amendment jurisprudence to analyze whether a given practice is cruel and unusual.  The Supreme Court has so far refused to find that capital punishment offends "the evolving standards of decency that mark the progress of a maturing society."  Meanwhile, the high court continues to allow execution after execution to go forward, more concerned with finality and swift punishment than justice and decency.  Indeed, Andrew Cohen notes, just  few months ago, Justice Scalia, during oral argument in Hall v. Florida, lamented the slow pace of executions in this country.

The notion of "evolving standards of decency" has always struck me as optimistic; as an acknowledgment that, while we may not be there yet, some day our society will evolve to the point where the death penalty will be unacceptable.  Unfortunately, with state officials still clamoring for vengeance and the Supreme Court as the arbiter of our evolution, we still have a long way to go.

Going Nuclear: GOP Uses Filibuster As A Weapon Of Mass Destruction Because They Hate Our Freedoms

Just when you think the Republican's ideological assault on democracy can't get worse, it does.  But this time it isn't the Tea Party nihilists in the House but Establishment Republicans in the Senate who are obstructing the legitimate operation of government, making a mockery of majority rule by requiring that virtually everything must pass a 60-vote threshold.

After the Supreme Court, the D.C. Circuit Court of Appeals is the nation's most important appellate court.  It has jurisdiction over challenges to executive orders, federal regulations and decisions of many federal agencies on topics, as Nan Aron, President of Alliance for Justice, notes, like the environment, consumer protections, workers' rights, banking regulations, executive power, and other vital issues."  Four of the current Supreme Court justices sat on the D.C. Circuit (Roberts, Ginsburg, Thomas and Scalia).

The court is currently evenly split (4-4) between Democrat and Republican-nominated judges, with three vacancies.  President Obama has nominated three extremely qualified judges to fill the three empty seats (after already withdrawing the nomination of another unassailable choice who was blocked by Republicans earlier this year).  Two of the three have already been filibustered by Senate Republicans, who intend to block the third, advancing the specious argument that Obama is engaged in court-packing when he is merely filling existing vacancies. 

Republicans claim the D.C. Circuit, with its relatively smaller (although exceedingly complex) caseload doesn't need all 11 judges.  Of course, as Harry Reid  pointed out, the contention that 11 judges are not needed it "not what they said when President Bush filled several vacant seats on the court. When George W. Bush was President, Senate Republicans happily filled the 9th, 10th and 11th seats on the D.C. Circuit -- the same three seats President Obama seeks to fill today -- even though the court had a smaller caseload at the time."

Republican hypocrisy doesn't end there.  Recall those bygone days when Democrats used the filibuster effectively to thwart some of George W. Bush's more extreme judicial appointments (although not by any means all of them).  Republicans argued back then that use of the filibuster was not just wrong, it was unconstitutional.  They threatened to employ the so-called "nuclear option," to change the Senate rules to preclude filibusters for judicial nominees.  Of course, the Democrats blinked.  Seven Democrats joined seven Republicans to form the "Gang of Fourteen," and signed an agreement in which the Republicans in the gang would not vote for the nuclear option and the Democrats would not filibuster except in "extraordinary circumstances."  In practical terms, this meant that Bush was able appoint the conservatives he wanted to the bench and the Democratic minority, without the seven members of the gang, could not stop him.  Thus, five nominees who had originally been filibustered, and several other conservatives, became federal judges, and, perhaps most significantly, Samuel Alito's nomination to the Supreme Court was permitted an up-or-down vote.  He was confirmed by a vote of 58-42, with enough Senators voting against him to have successfully filibustered and prevented a vote on his confirmation. 

Republicans, now in the minority, are blatantly violating the agreement not to filibuster judges except in extraordinary circumstances but Democrats are balking at going nuclear.  Recalcitrant Democrats fear that when they are in the minority, a Republican president could nominate a right wing radical to the Supreme Court and Democrats would no longer have the filibuster as a tool to stop it.  Indeed, Charles Grassley, the senior Republican on the Senate Judiciary Committee, explicitly threatened that if Democrats eliminate the filibuster it would be easier for a future Republican president to appoint more justices like Antonin Scalia and Clarence Thomas: "All I can say is this -- be careful what you wish for. . . So if the Democrats are bent on changing the rules, then I say go ahead. There are a lot more Scalias and Thomases that we'd love to put on the bench. The nominees we'd nominate and put on the bench with 51 votes would interpret the constitution as it was written."

Of course, if there were a Republican president and Republican majority and Democrats tried to employ the filibuster, Republicans would either go nuclear anyway, or the Democrats would cave as they did in the last go round.  Moreover, what makes anyone think that the Democrats would filibuster a  Supreme Court nominee?  There are already four right wing radicals on the high court and Democrats failed to use the filibuster to stop any of them.  To review, Scalia was nominated by Ronald Reagan in 1986.  The Democratic minority, perhaps distracted by the (ultimately unsuccessful) fight over Justice Rehnquist's nomination for Chief Justice, joined Republicans to approve Scalia unanimously.  In 1991, with Democrats in the majority, the Senate voted in George H.W. Bush's nominee, Clarence Thomas, by a vote of 52-48.  George W. Bush's nomination of John Roberts for Chief Justice was approved by a vote of 78-22, and as discussed above, Alito was confirmed after an agreement not to filibuster.

Republican abuse of the filibuster to prevent a president from filling vacancies no matter who is nominated so as not to tip the majority on the court is unprecedented.  If successful, what is to stop them from blocking nominees in every other court where the ideological split would potentially change in the Democrats' favor -- even the Supreme Court?

The "nuclear" option is really a misnomer.  It is the Republican Party that is using the filibuster as weapon of mass destruction -- a weapon to upend the democratic process.  As George W. would say, it is because "they hate what they see right here in this chamber:  a democratically elected government  . . .  They hate our freedom . .  ."  The smoking gun might not be a mushroom cloud, but if the Democrats refuse to change the filibuster rules and allow Republicans to block Obama's nominees for the D.C. Circuit, they may as well cede the federal judiciary branch -- indeed, our federal government -- to a Republican cabal for the foreseeable future. 

Scalia Watch

DonkeyHotey

There has long been a consensus in mainstream circles, if not necessarily in the legal community, that whether you agreed with him or not, Justice Scalia possesses a great legal mind.  Indeed, the conventional wisdom for decades, as Jeremy Leaming writes, "has held that Justice Antonin Scalia is the high court’s most brilliant, disciplined, albeit ideological, member."

It may be that exposure through the internet "has altered the narrative by giving forums to an array of writers who have been quick to poke holes in an increasingly tiresome and shoddy line of reporting" or simply that Scalia's over-the-top rants and overt partisanship have finally reached a critical mass.

But as the country becomes more politically polarized, Scalia, as Dana Milbank wrote a while back, has had more difficulty containing his rabid partisanship.  He noted that “Scalia’s tart tongue has been a fixture on the bench for years, but as the justices venture this year into highly political areas such as health-care reform and immigration, the divisive and pugilistic style of the senior associate justice is very much defining the public image of the Roberts Court.”

Leaming is absolutely correct that "with each passing high court term, Scalia seems to be coming wackier, more out-of-touch, increasingly shrill. And he’s being called out for his nuttiness with growing frequency." 

"The Madness of Justice Scalia," Leaming's piece, cites various legal scholars and reporters, including law professor Paul Campos, who observed that Scalia “has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy.”

Perhaps Scalia has finally gone too far.  In a column last Wednesday (before the ACA decision), E.J. Dionne called for Scalia to resign:

So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase. But what he did this week, when the court announced its decision on the Arizona immigration law, should be the end of the line.

Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning President Obama’s decision to allow some immigrants who were brought to the United States illegally as children to stay. Obama’s move had nothing to do with the case in question. Scalia just wanted you to know where he stood.

After this case was argued and while it was under consideration, the secretary of homeland security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants,” Scalia said. “The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.

What boggles the mind is that Scalia thought it proper to jump into this political argument. And when he went on to a broader denunciation of federal policies, he sounded just like an Arizona Senate candidate.

Dionne takes Scalia to task for being a "blatantly political actor" and justice at the same time:  "Unaccountable power can lead to arrogance. That’s why justices typically feel bound by rules and conventions that Scalia seems to take joy in ignoring."

Recall, as Dionne reminds us, 2004, when "three weeks after the Supreme Court announced it would hear a case over whether the White House needed to turn over documents from an energy task force that Dick Cheney had headed, Scalia went off on Air Force Two for a duck-hunting trip with the vice president."

Then there was the speech Scalia gave at Switzerland’s University of Fribourg a few weeks before the court was to hear a case involving the rights of Guantanamo detainees:  "I am astounded at the world reaction to Guantanamo,” he declared in response to a question. “We are in a war. We are capturing these people on the battlefield. We never gave a trial in civil courts to people captured in a war. War is war and it has never been the case that when you capture a combatant, you have to give them a jury trial in your civil courts. It’s a crazy idea to me.”

Dionne does not even mention how Scalia (as well as his fellow conservative justices Thomas and Alito) regularly attend right-wing events and political fundraisers.  (Indeed, Clarence Thomas, in particular, is far quieter, but similarly nakedly partisan and ethically challenged.  See, e.g., here and here.)

Scalia is 76 years old but despite the urging of E.J. Dionne does not appear to be leaving the bench any time soon.  What is of far greater concern is that Justice Ginsburg turns 80 next year and Justice Breyer turns 75.  When you throw in Justice Kennedy (75), you have what the New York Times points out is "among the oldest courts since the New Deal era."  As a result, "the winner of the race for president will inherit a group of justices who frequently split 5 to 4 along ideological lines," suggesting "the next president could have a powerful impact if he gets to replace a justice of the opposing side."

And while it is true that Chief Justice Roberts showed some modicum of sanity in voting to uphold the Affordable Care Act, he has not been magically transformed into the new swing justice.  It should be noted that while the outcome was welcome, his legal reasoning was, as Justice Ginsburg put it, "stunningly retrogressive."  (See 10 Ways John Roberts Is Still A Conservative's Best Friend.)

What shouldn't be lost in all the hoopla over the validation of Obamacare is that the Scalia and the other three dissenters (Thomas, Alito and Kennedy), as Paul Krugman points out, "did so in extreme terms, proclaiming not just the much-disputed individual mandate but the whole act unconstitutional. Given prevailing legal opinion, it’s hard to see that position as anything but naked partisanship."

As I have previously written, Romney's choice of Robert Bork as co-chair of his Justice Advisory Committee is a disturbing sign of the kind of radical jurists Romney would nominate.  (See Romney Gets Borked.)  In the wake of Roberts' "defection," there will be even more pressure on Romney to choose right wing extremists in the Scalia-Thomas mold, a fact he is essentially admitting on the campaign trail.  Dionne is right that Scalia should resign but that isn't going to happen.  But there remains an even more disturbing prospect than Scalia staying put.  It is that a President Romney will  add more right-wing ideologues to the Supreme Court (and throughout the federal judiciary), forming a solid block of partisan operatives.