Boots & Sabers

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Tag: Supreme Court of the United States

SCOTUS Justices Question Judicial Overreach into Redicsticting

by | 1529, 26 Mar 1919 | , | 1 Comment

You could easily go broke betting on SCOTUS rulings, but this was a positive line of questioning.

At issue is when politicians go too far in drawing lines for partisan gain, and it could be one of the most consequential cases of the court’s term. The justices could, for the first time, establish a standard to decide when politicians go too far in drawing lines for partisan gain, or the court could slam the doors shut on such claims of extreme gerrymandering.
Chief Justice John Roberts suggested at one point that it would be hard for the court to police the use of partisanship in map drawing, when the process is intrinsically political. Justice Samuel Alito emerged as the most vocal critic of the court’s involvement, often picking apart the manageability of tests that were presented to the court and worrying that every single dispute in the future would have to be resolved by the judiciary.
Justice Brett Kavanaugh — whose vote could be key — said he would not “dispute” that extreme partisan gerrymandering has become a problem that was especially evident in a map drawn in his home state of Maryland. But he also questioned if the courts should stay out of the issue because states are reacting with their own initiatives.
It was a sentiment shared by Justice Neil Gorsuch, who said states have “provided remedies in this area.”

Kavanaugh Hearing Begins

by | 0713, 4 Sep 1818 | , | 5 Comments

Heh.

As his confirmation hearings begin, an ABC News/Washington Post poll finds the public evenly divided on Brett Kavanaugh’s nomination to the U.S. Supreme Court – among the lowest support levels for a high court nominee in polling back to 1987.

Six in 10 Americans also say Kavanaugh should publicly state his position on abortion before being confirmed. And there’s a substantial shift from 2005 in views on how the court should deal with abortion access – fewer say it should make it harder to get an abortion, more say the court should make it easier.

Thirty-eight percent of Americans say Kavanaugh should be confirmed, 39 percent not, with the rest undecided in this poll, produced for ABC by Langer Research Associates. Only two nominees have had weaker public support: Harriet Miers, who withdrew her nomination, in 2005; and Robert Bork, rejected by the Senate in 1987.

The lefty media seems to be in high frenzy about this. I would point out that I highly doubt that 6 in 10 Americans could name 2 things on Kavanaugh’s resume that qualifies him, or disqualifies him, from sitting on the Supreme Court. The reason that this process is set up the way it is and the Justices have lifetime appointments is precisely to insulate them from the whims of public opinion. If we are going to start listening to polls when appointing SCOTUS justices, then we should just make them elected positions like in Wisconsin.

Hopefully the Senate will ignore the manufactured wails from the media and get this done in a professional and efficient manner.

Astroturfing the Supreme Court

by | 1820, 15 Jul 1818 | | 6 Comments

This time they got sloppy. Usually they at least change a few words to make it more believable. It’s hard to blame the papers. How are they supposed to check that until the letters run elsewhere?

Judge Brett Kavanaugh is going into the Supreme Court confirmation process with a hail of rhetorical arrows zinging by him, including a phony letter-writing campaign aimed at unsuspecting American newspaper editors

At least 21 papers were duped last week, including big-market brands like the Dallas Morning News and The Washington Times. They ran identical letters over a four-day period, each signed by a different person.

The effort is an example of public-relations ‘astroturfing,’ a technique meant to simulate genuine grassroots support for an idea or cause.

The form letter is one small piece of the message minefield erupting around Kavanaugh as he prepares for a brutal confirmation process that will end with scant support from Democrats.

Democrats Call for Kavanaugh to Recuse Himself

by | 0740, 13 Jul 1818 | | 3 Comments

The Democrats are just insane right now.

A former boss and political ally of Brett Kavanaugh, pushing back on a mounting rallying cry of Senate Democrats, said it is “preposterous” to suggest that the Supreme Court nominee should recuse himself from cases involving Robert Mueller’s investigation into President Trump’s ties to Russia, because there is no evidence Kavanaugh and the president made a “deal” about the issue.

“I don’t see the basis for a recusal,” Timothy Flanigan, who served as deputy White House counsel during the early years of the George W. Bush administration, said in an interview for the Yahoo News podcast “Skullduggery.”

When it was pointed out that Trump had nominated Kavanaugh while under investigation by Mueller — and facing a potential subpoena for his testimony — Flanigan replied, “I’m not sure I see the relevance of that.” He added that “unless there was a credible suggestion that … there’s some kind of deal that Brett would vote against [upholding a subpoena to the president], I frankly find that preposterous.”

Since President Trump announced Kavanaugh’s nomination Monday night, a number of Democrats have demanded that Kavanaugh commit to recusing himself from any issues involving the Mueller probe that could end up before the court. They have argued that it would be a conflict of interest for him to rule on issues such as a potential subpoena for Trump’s testimony or whether the president can be indicted — and that his vote on a divided court could be decisive, ultimately determining the fate of Trump’s presidency.

“I don’t think he should be on the court, and you can be sure that me and my colleagues on the Democratic side are going to be asking if he will recuse himself, should he be confirmed,” Sen. Cory Booker, D-N.J., told reporters.

So because Democrats fantasize that Trump made a deal with Kananaugh over an BS investigation, he should commit to recusing himself on some potential, unnamed case that might come before the Supreme Court? Nuts.

Trump Nominates Brett Kavanaugh for SCOTUS

by | 0823, 10 Jul 1818 | , | 3 Comments

By all reports, Judge Kavanaugh is a solid, traditional, judicial conservative. In another era, he would not be controversial at all. Trump is delivering on his promise of nominating great judges.

Mr Kavanaugh has served since 2006 on the influential US Court of Appeals for the District of Columbia Circuit and was formerly a White House aide under George W Bush.

He previously worked for Kenneth Starr, the independent counsel who investigated Democratic former president Bill Clinton in the 1990s.

[…]

He is the kind of judge a President Jeb Bush or Mitt Romney would have picked – a man with an established legal pedigree and a reputation as a reliably conservative jurist.

If the party sticks together, the president’s choice will be sitting on the Supreme Court when its new term starts in October.

President Trump campaigned with a promise to conservatives that he would fill the federal courts, from the top on down, with judges to their liking.

It’s a promise that has helped cement near-record levels of support for his presidency from Republican voters – and for good reason.

Mr Trump is securing a conservative judiciary for a generation.

Supreme Power

by | 0849, 4 Jul 1818 | , | 0 Comments

Here is my column that ran in the Washington County Daily News yesterday. And now that I’ve ruminated and griped about how much power we have ceded to an unelected branch of government, the realities of today dictate that we must get a good, constructionist jurist in place before the election.

The Supreme Court of the Unites States completed its session with a flurry of mostly good rulings and Justice Anthony Kennedy added an exclamation point by announcing his retirement. With the prospect of President Trump’s second appointment to the court looming, every politician and special interest in America has launched into battle as if the world depended on the outcome.

I can’t help but feel a deep sense of sadness for the state of our republic. It was never supposed to be like this.

Somehow we have drifted from Judge Marshall’s opinion in Marbury v. Madison, “that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument” to a point where the Supreme Court of the United States is routinely called the “final arbiter of the Constitution” without so much as a second thought. But interpretation and enforcement of the Constitution is not the sole responsibility of the Supreme Court. Even Marshall acknowledged this fact when he includes “other departments” in the quote above. Those “other departments” are the other two branches of government.

The Constitution is the supreme law of the land. It supersedes anything generated by any part of the government. This is what Marshall meant when he wrote: “The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.”

In other words, a written constitution is meaningless if it is able to be quashed by a simple act of the legislature or by an arbitrary regulation from the executive. It is the responsibility of every branch of the government to maintain the integrity of the Constitution.

It is worth noting that Marshall closed his opinion by pointing out that the oath taken by judges obligates the judges to place the Constitution above other considerations. The oath taken by a judge reads, in part: “I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic.”

This portion of a federal judge’s oath is also included in the oath taken by a soldier, a senator, a congressman and, most notably, a new United States citizen. Just as a new citizen must verbally vow to support and defend the Constitution, each natural- born American citizen implicitly adheres to the same oath as a duty of citizenship. It is every citizen’s duty to support and defend the Constitution.

It must be remembered that the Constitution is a document that restricts what the federal government can do. The federal government is specifically denied the power to do anything outside of the specific powers delegated to it in the Constitution.

Since the Constitution is a shackle for government, why would we make an institution of that government “the final arbiter” of its meaning and extent? That is like letting a child be the final arbiter on how much Halloween candy is permissible to eat in one sitting. Just as that child would end up bloated and sick, so too would a government left to decide its own boundaries.

The current apoplectic fury over the appointment of a single judge of a ninejudge panel of a single branch of our three-branch government is symptomatic of the degeneration of our adherence to our Constitution. As a people, we Americans have ceded the responsibility of binding our government to the tenets of our Constitution to an unelected branch of that same government. We have permitted the pendulum of power to be permanently stuck on the side of the government.

The result has been predictable. Our federal government routinely acts well outside its constitutional boundaries with not only the consent, but the adulation of much of the citizenry.

As the federal government’s overseers, it is the American people’s historic responsibility to fasten tight the constitutional fetters with which we bind our government and closely guard the key. Yet over the past two centuries, we have fallen asleep on our watch and left the keys dangling within easy reach of our charge.

I do not fault the political factions in our nation for waging a rhetorically bloody crusade for control of the Supreme Court. The Supreme Court has become the nuclear weapon of the modern American political landscape, control of which dictates supremacy. At the same time, every citizen should take to heart the words written in our Declaration of Independence: “Governments are instituted among men, deriving their just powers from the consent of the governed.” The Supreme Court only has as much power as Americans consent to give it.

 

Supreme Power

by | 0811, 3 Jul 1818 | , | 3 Comments

My column for the Washington County Daily News is online. You can find the whole thing by following the link. Here’s a snippet:

Since the Constitution is a shackle for government, why would we make an institution of that government “the final arbiter” of its meaning and extent? That is like letting a child be the final arbiter on how much Halloween candy is permissible to eat in one sitting. Just as that child would end up bloated and sick, so too would a government left to decide its own boundaries.

The current apoplectic fury over the appointment of a single judge of a nine judge panel of a single branch of our three-branch government is symptomatic of the degeneration of our adherence to our Constitution. As a people, we Americans have ceded the responsibility of binding our government to the tenets of our Constitution to an unelected branch of that same government. We have permitted the pendulum of power to be permanently stuck on the side of the government.

The result has been predictable. Our federal government routinely acts well outside its constitutional boundaries with not only the consent, but the adulation of much of the citizenry.

Anthony Kennedy Steps Down

by | 1615, 27 Jun 1818 | , | 6 Comments

Thank you for your service, Justice Kennedy.

Anthony Kennedy retiring from Supreme Court

  • Supreme Court Associate Justice Anthony Kennedy will step down at the end of July.
  • The departure gives President Trump a second opportunity to fundamentally alter the nation’s top court for decades.
  • Senate Republicans plans to move quickly on appointing a successor as the two major parties fight for control of the Senate in November.

Now the GOP needs to get their act together and put a replacement on the bench before the election. They need to give the voters a reason to return them to the majority in the Senate.

SCOTUS Rules Against Forced Union Dues

by | 0915, 27 Jun 1818 | , | 0 Comments

Excellent. Forced unionization has been a century-long stain on the freedom of association.

WASHINGTON—The Supreme Court has barred public-employee contracts requiring workers to pay union dues, dealing a severe blow to perhaps the strongest remaining redoubt of the American labor movement.

The 5-4 vote, along conservative-liberal lines, overruled a 1977 precedent that had fueled the growth of public-sector unionization even as representation has withered in private industry. More than one-third of public employees are unionized, compared with just 6.5% of those in the private sector, according to a January report from the Bureau of Labor Statistics.

The impact is likely to stretch far beyond the workplace, sapping resources from unions like the American Federation of State, County and Municipal Employees and the National Education Association that have provided funds, resources and activists largely in support of Democratic candidates.

[…]

Under that theory, it would violate the First Amendment for government to condition a job on subsidizing political speech a worker may oppose—and therefore public-employment contracts including union-security clauses would be unconstitutional. The court majority has now accepted that argument.

SCOTUS Upholds Travel Ban

by | 1037, 26 Jun 1818 | , | 12 Comments

Excellent. Even though it is moot now, it was important to adjudicate the issue.

 The US Supreme Court has ruled in favour of the Trump administration’s travel ban targeting people from several Muslim-majority countries.

Lower courts had deemed the ban unconstitutional, but the US top court has reversed this decision in a 5-4 ruling announced on Tuesday.

The ban prohibits most people from Iran, Libya, Somalia, Syria and Yemen from entering the US.

The court’s reversal is viewed as a victory for the Trump administration.

But the travel ban has been widely criticised by refugee and human rights groups.

Chief Justice John Roberts wrote the opinion, which said the travel ban was “squarely within the scope of Presidential authority”.

SCOTUS Rules Against Police Use of Cell Phone Locations Data Without Warrant

by | 2155, 22 Jun 1818 | | 9 Comments

This is a close call, but I agree with the ruling. In the digital age, we are trying to figure out how far we want our government to be able to know our private information. I fall on the side of strong 4th Amendment protections. If law enforcement thinks that someone is guilty of a crime, then they should be required to get a warrant to search and use their cell phone data just like if they were searching their home.

WASHINGTON (AP) — Police generally need a warrant to look at records that reveal where cellphone users have been, the Supreme Court ruled Friday in a big victory for privacy interests in the digital age.

The justices’ 5-4 decision marks a big change in how police may obtain information that phone companies collect from the ubiquitous cellphone towers that allow people to make and receive calls, and transmit data. The information has become an important tool in criminal investigations.

Chief Justice John Roberts, joined by the court’s four liberals, said cellphone location information “is detailed, encyclopedic and effortlessly compiled.” Roberts wrote that “an individual maintains a legitimate expectation of privacy in the record of his physical movements” as they are captured by cellphone towers.

Roberts said the court’s decision is limited to cellphone tracking information and does not affect other business records, including those held by banks. He also wrote that police still can respond to an emergency and obtain records without a warrant.

But the dissenting conservative justices, Anthony Kennedy, Samuel Alito, Clarence Thomas and Neil Gorsuch, cast doubt on Roberts’ claim that the decision was limited. Each wrote a dissenting opinion and Kennedy said in his that the court’s “new and uncharted course will inhibit law enforcement” and “keep defendants and judges guessing for years to come.”

SCOTUS Sends Wisconsin Redistricting Case Back to Lower Court

by | 2232, 18 Jun 1818 | , | 12 Comments

Great news. It seems that the court has set an almost insurmountable standard for plaintiffs to prove injury.

The U.S. Supreme Court has unanimously ruled the plaintiffs lack standing in Wisconsin’s nationally watched gerrymandering case — but in an unusual move, it agreed to send the case back to a lower court for further argument.

The unanimous decision in the case, known as Gill v. Whitford, does not resolve a challenge to the legislative maps the Republican-controlled Legislature drew under tightly controlled secrecy in 2011.

But it does end the plaintiffs’ hopes that a judge could order Wisconsin’s legislative boundaries to be redrawn in time for the 2018 elections. Federal judges ordered that last year after ruling the maps were unconstitutional.

In a separate unsigned opinion, the court also did not side with Maryland Republicans who challenged a single congressional district on partisan grounds. Another case involving challenges to North Carolina’s 13 congressional districts may address some of the standing issues in Wisconsin.

In the Wisconsin case, the court said the plaintiffs, a group of registered Democrats, failed to demonstrate they had a personal stake in the outcome.

“It is a case about group political interests, not individual legal rights,” Chief Justice John Roberts wrote for the majority. “But this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”

But rather than dismiss the case entirely, the court ruled 7-2 to send the decision back to the district court “so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence — unlike the bulk of the evidence presented thus far — that would tend to demonstrate a burden on their individual votes.”

SCOTUS Rules for Reasonable Management of Voter Rolls

by | 1249, 11 Jun 1818 | , | 3 Comments

There is no rational argument against this very reasonable method and timing for maintaining accurate voter rolls; unless, of course, you want a bevy of outdated information on the rolls to exploit.

Washington (CNN)The Supreme Court on Monday ruled that Ohio’s method of removing names from its voter rolls does not violate federal law.

The decision was 5-4.
Monday’s ruling concerning the battleground state comes as the country gears up for midterm elections this fall. At least six other states have similar laws, and the ruling could embolden others to follow suit and enact what critics say are aggressive purges of voter rolls.
Ohio law allows the state to send address confirmation notices to voters who have not engaged in voter activity for two years. If a voter returns the notice through prepaid mail, or responds online, the information is updated. If the notice is ignored and the voter fails to update a registration over the next four years, the registration is canceled.

SCOTUS Rules in Favor of Religious Freedom

by | 1025, 4 Jun 1818 | , | 19 Comments

It’s amazing to me that in this day and age we are still having to reaffirm religious freedoms that our Founders enshrined in our Constitution. Still, that’s where we are. This is a good ruling, if narrower than I would have hoped. That seems to be how the SCOTUS likes to roll.

The justices’ limited ruling turned on what the court described as anti-religious bias on the Colorado Civil Rights Commission when it ruled against baker Jack Phillips. The justices voted 7-2 that the commission violated Phillips’ rights under the First Amendment.

Justice Anthony Kennedy said in his majority opinion that the larger issue “must await further elaboration” in the courts. Appeals in similar cases are pending, including one at the Supreme Court from a florist who didn’t want to provide flowers for a same-sex wedding.

[…]

But when the justices heard arguments in December, Kennedy was plainly bothered by comments by a commission member. The commissioner seemed “neither tolerant nor respectful of Mr. Phillips’ religious beliefs,” Kennedy said in December.

That same sentiment suffused his opinion on Monday. “The commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” he wrote.

Liberal justices Stephen Breyer and Elena Kagan joined the conservative justices in the outcome. Kagan wrote separately to emphasize the limited ruling.

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

SCOTUS Ruling Strengthens 4th Amendment Protections

by | 2039, 29 May 1818 | | 0 Comments

Good.

WASHINGTON (AP) — The Supreme Court is putting limits on the ability of police to search vehicles when they do not have a search warrant.

The court sided 8-1 Tuesday with a Virginia man who complained that police walked onto his driveway and pulled back a tarp covering his motorcycle, which turned out to be stolen. They acted without a warrant, relying on a line of Supreme Court cases generally allowing police to search a vehicle without a warrant.

The justices said the automobile exception does not apply when searching vehicles parked adjacent to a home.

[…]

Virginia’s Supreme Court said the case involved what the Supreme Court has called the “automobile exception,” which generally allows police to search a vehicle without a warrant if they believe the vehicle contains contraband.

SCOTUS Allows Travel Ban

by | 1700, 4 Dec 1717 | , | 0 Comments

It’s moot now, but important to reestablish the point.

WASHINGTON (AP) — The Supreme Court on Monday allowed the Trump administration to fully enforce a ban on travel to the United States by residents of six mostly Muslim countries.

This is not a final ruling on the travel ban: Challenges to the policy are winding through the federal courts, and the justices themselves ultimately are expected to rule on its legality.

But the action indicates that the high court might eventually approve the latest version of the ban, announced by President Donald Trump in September. Lower courts have continued to find problems with the policy.

SCOTUS protects free speech

by | 0740, 27 Jun 1717 | , | 2 Comments

My column for the Washington County Daily News is online. Here you go:

With the rush of news lately about Obamacare, Brexit, Trump and everything else happening in our world, one can be forgiven for missing that the Supreme Court of the United States rendered what may prove to be one of its most important decisions protecting the free speech rights of Americans. The background of the case stretches back into decades of American progressive culture.

For decades, many American liberals who preach fidelity to the 1st Amendment and free speech have been carving out more and more speech as unworthy of such protection. In the past, the answer to offensive speech was more speech. Americans were certainly free to say nasty things and express abhorrent thoughts, and other Americans would respond with contrary speech. Such debate is an underpinning of a free society.

Liberals in America have been slowly eroding that robust intellectual ethos by decreeing that some speech is so offensive that the speaker must not be allowed to say it or face severe penalties if they do. This anti-free speech attitude has manifested in our American culture in the form of safe spaces, trigger words, speech codes and the like. On many college campuses and other liberal institutions, the price for saying something that does not please the ruling regime — from Marquette University to ESPN — is ostracism, reprimand, and expulsion.

It was in this intolerant culture that Barack Obama and many his fellow travelers were incubated and they brought it with them when Obama became our president. It was just that sort of intolerance that seeped into the United States Patent and Trademark Office (USPTO).

The USPTO has a very simple purpose. It to register the unique intellectual property of individual Americans. The USPTO is not responsible for enforcing trademarks or copyrights. It is merely an office that evaluates a trademark or invention to determine if it is unique, and if it is, to register it in an official government record. If a person has a trademark or copyright that they think is being violated, then that person must file a civil suit in federal or state court to have the court enforce it.

Under the Obama Administration, the USPTO tried to stretch its mission to not just register unique trademarks,but to enforce a liberal speech code on them and prohibit trademarks that they did not like. Under the auspices of a “disparagement clause,” the USPTO had taken to denying trademarks that would normally qualify, but were deemed “offensive” to some real or mythical constituency.

Such were the rubrics that a band called “The Slants” confronted when trying to register the name of their band. The USPTO denied their application for a trademark because the word “slant” is considered a derogatory term for Asians. The Slants are a group of Asian-Americans who are determined to reclaim anti-Asian stereotypes, so they filed suit against the USPTO to have their name protected. The end result was the Supreme Court ruling of last week in the case of Matal v. Tam.

In a unanimous 8-0 decision, the Supreme Court utterly repudiated the USPTOs position. In a clear, uncompromising ruling supported by the entire spectrum of judicial philosophies on the court, Justice Alito said that “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” Indeed. There was a time when all Americans believed that.

The Supreme Court’s ruling has drawn a line across which government entities may not cross. This has implications across our nation in government offices, public universities, and every other area where our government has been firmly pushing the 1st Amendment into a small, controlled, “safe space.” Moving forward, every effort by public institutions to restrict and control speech must be measured against this ruling. Many of them will find themselves failing to meet its standard and Americans must hold them to account.

SCOTUS Allows Part of Travel Ban to Go Into Effect

by | 1042, 26 Jun 1717 | , , | 1 Comment

Boy… there’s a lot of SCOTUS news happening at the moment. Now there’s this:

The justices granted parts of his administration’s emergency request to put the March 6 executive order into effect immediately while the legal battle continues.

The court said that the travel ban is in effect “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.”

The court also said it would allow a 120-day ban on all refugees entering the United States to go into effect on the same grounds.

Three of the court’s conservatives said they would have granted Trump’s request in full, including Trump appointee Neil Gorsuch.

While I think it is important that this issue be resolved by the courts to reaffirm the President’s authority in these matters, I am left wondering why the ban is still necessary. Remember that this was supposed to be a temporary ban while the administration firmed up its vetting procedures for foreigners traveling to the U.S. Those new vetting procedures should be in place now, thus rendering the temporary travel ban moot. If those procedures aren’t ready and in place, why not? That was, after all, the long-term goal.

Kennedy to Retire?

by | 0847, 26 Jun 1717 | , | 0 Comments

We seem to get this scuttlebutt every year. With Trump in the White House, the media establishment is in full panic over even the whiff of another SCOTUS retirement. Trump’s past pick was solid, so I’m hopeful that the rumors are true.

(CNN)The final week of the Supreme Court session opens Monday, and with it comes rampant speculation that Justice Anthony Kennedy may call it quits.

If Kennedy does announce his retirement, it would almost certainly ensure not only a clear rightward swing in the Court but would also cement a major part of Donald Trump’s legacy barely five months into his first term.

The power and politics of the court

by | 0700, 7 Feb 1717 | , | 1 Comment

My column for the West Bend Daily News is online. Here you go:

Almost exactly a year ago, the Conservative Lion of the Supreme Court of the United States, Antonin Scalia, passed away. His death triggered a titanic political battle that is only now beginning its final phase.

The fact that the battle over a single appointment to the Supreme Court is so important and so heated is distressing because it is the result of two concentrations of power that should be abhorrent to small “r” republicans. The first concentration is into the federal government in distant Washington. Over the past two centuries we have allowed our federal government to grow so large and powerful that it wields an extraordinary amount of authority over our lives.

The second concentration is into the Supreme Court itself. While intended to be a coequal branch of government on equal footing with the Legislative and Executive branches, the Supreme Court, headed by Chief Justice John Marshall, quickly assumed the power to be the final arbiter of the constitutionality of laws in its 1903 decision, Marbury v. Madison.

The combination of the Supreme Court being the final arbiter of the constitutionality of laws for government with massive power and control over Americans’ lives necessarily makes the decisions of the court, and the people who make those decisions, of vital importance to all Americans. And the fact that Justices for the Supreme Court serve for life renders the decision regarding each selection of generational impact.

When Justice Scalia passed away, he left a Supreme Court with a slight ideological tilt to the Left after years of it having a slight tilt to the Right. President Obama had hoped to appoint another leftist Justice to the bench, thus cementing a leftist majority on the court for years to come. The Republicans who controlled the Senate exercised their authority to thwart the President and leave the choice to the next president. When the Senate took that action, the outcome of the Presidential election was months in the future and polls predicted a strong victory for Hillary Clinton. As we know, Donald Trump won the election against all odds and has now chosen his nominee to succeed Justice Scalia.

Despite fears from Conservatives and constructionists, President Trump made a choice that is exemplary in every regard. Neil Gorsuch is widely acknowledged as brilliant, eloquent, and well-liked by colleagues from all sides. He was unanimously confirmed to serve on the 10th Circuit Court of Appeals just eleven years ago. He has an impeccable resume including degrees from Columbia, Oxford, and Harvard, where he was a classmate of President Obama. Gorsuch was a clerk for two Supreme Court Justices, and has served with distinction for a decade in the Court of Appeals. It is also worth noting that Gorsuch, at 49-years-old, is young He has the potential to serve for a generation.

Most importantly, Gorsuch’s rulings indicate that he is a highly-principled judicial conservative, but one who is more constructionist of even the indomitable Scalia. Gorsuch is steeped in Natural Law and vehement in his protection of the individual from the overreaches of government. This might put him at odds with some conservatives in issues regarding the 4th Amendment, and with liberals regarding the 1st Amendment. But he clearly states in view in his 2006 book, The Future of Assisted Suicide and Euthanasia, “…the whole purpose pose and ideal of government as envisioned by the founding document of our country, is to establish a government that is aimed at securing and protecting what our founders considered to be self-evident human rights and truths.”

The Democrats have already reflexively announced their opposition to Gorsuch, even though their criticisms have failed to rise to any cogent standard. Wisconsin’s own Senator Tammy Baldwin has even refused to meet with Gorsuch, thus abdicating her role in the process and retreating behind nasty press releases and daft commentary.

Far be it from me to advise the Democrats, but their overreach on Gorsuch may neuter them further on future picks. Remember that former Senate Majority Leader Harry Reid killed the filibuster rule for all but Supreme Court picks in his effort to ram through President Obama’s lower court appointments, but left it in place for Supreme Court appointments. In doing so, Reid laid the ideological groundwork and precedent for killing the filibuster rule for Supreme Court picks too.

If the Democrats in the U.S. Senate choose to filibuster and obstruct what is clearly a brilliantly qualified choice for the Supreme Court, the Republicans can rescind the filibuster rule for Supreme Court picks too and confirm the appointment without needing to make a single concession to the minority party. The Democrats’ intransigence and unwillingness to even participate in the process, and the precedent already established by Harry Reid, will provide ample political cover for the change in rules.

Then, if and when Trump gets another opportunity to appoint a Supreme Court justice, the rules will already be set to allow an easy confirmation. If the Democrats participate and allow a vote – even if all of them vote against the nominee – they will likely preserve the filibuster for future Supreme Court nominations while undercutting the political justification to rescind it next time.

If the political battles of the past few years in Wisconsin have taught me anything, it is that Democrats will overreach. Their base of radicals demands unbending fealty to ideology – even at the expense of victory.

Neil Gorsuch is eminently qualified to sit on the Supreme Court and should be confirmed with broad support in the Senate. Then we should begin the process of reducing the scope and power of the federal government and the court so that these nominations wane in importance.

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