Archive for the ‘Supreme Court’ category

Religious Freedom

April 22, 2017

In a recent issue of the New Yorker, there is an article on Leonard Leo. Mr Leo is not a household name although maybe he should be. Mr Leo’s most recent claim to fame is his successful “shepherding” of Judge Neil Gorsuch through the Senate approval process. Mr. Leo, however, is not one to thirst for the spot light, preferring instead to operate at the periphery of public discussion.

And operate Mr. Leo does.

As the Executive Director of the Federalist Society, Mr Leo has spearheaded conservative interests in most matters of government but with a clear focus upon the courts, especially the Supreme Court. As an “originalist”, Mr Leo supports Constitutional interpretations which purport to represent the “founding fathers” views. Hmmm.

The Federalists speak, not for wild and crazy people, but for reasoned, conservative, traditionalists. Within these ranks, however, hide moneyed interests who see “originalist” views as conducive to their personal business and financial well being. Nothing like the braggadocio associated with a high minded principle which conveniently puts money in your pocket too.

From the New Yorker article, Mr Leo’s hands appear clean although someone must be paying his lawyering bills. Rather Mr. Leo is presented as a congenial, non-confrontational person who seeks and befriends up and coming conservative legal minds. The article claim Mr. Leo was a close friend of the late Justice Antonin Scalia.

So where is this post going?

Mr. Leo is also a conservative Catholic who is strongly pro-life. Mr. Leo was an early supporter of Chief Justice Roberts and Justice Alito, both pro-life advocates. The prospect of over turning Roe v Wade (long established law) suddenly does not seem that impossible.

Mr. Leo says that the Constitution was silent over specific rights to abortion and therefore to his reasoning, the US Supreme Court has no rightful place making a woman’s right to an abortion the law of the land.

At this point, one could argue contrarily that in fact the freedoms expressed in the Constitution as well as the Amendments recognize the rights of a woman to make her own reproductive decisions.

Within the thought, why not point out what seems even more obvious. The first Amendment speaks to “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”, and that should be enough.

Mr. Leo, Chief Justice Roberts, and Justice Alito are more than free to hold sincere “pro-life” religious beliefs. They are all free to practice such views in their own lives but the Constitution does not provide them the right to foist their personal religious views on anyone else. (Admittedly, someone who is against all forms of life ending acts, including the death penalty, wars, and suicides has a moral argument which rises above religion dogma but in the end, addresses only their own behavior.

Justice Kennedy is thought to be the deciding Justice should the current John Roberts Court consider another Roe v Wade challenge. If Justice Kennedy should decide to retire while a Republican President is in office, another Gorsuch/Alito/Roberts Justice is almost assured. In such a situation, the true color of these jurists will be seen.

Will these Jurists over turn Roe v Wade in favor of States self determination, or will they become religious zealots and side with some future Congressional law which outlaws all abortions and denies States the right to decide?

The irony of this Roe v Wade debate is that the real “federalists” were extremely concerned about the excesses of organized religion. The closest most of the founding fathers came to religion was some recognition of a higher spirit. Consequently, if the Supreme Court should overturn Roe v Wade, we should recognize the “originalist” principle is purely a crutch designed to deny some Americans individual freedom.

GOP Goes Nuclear

April 4, 2017

The GOP Senate leadership appears poised to take a dangerous and unwise step this week. Senate Leader Mitch McConnell has promised to change the 100 year old Senate procedural rule governing filibusters and Supreme Court nominees. If Democrats insist upon 60 votes to confirm, McConnell promises to change the rules to a simple majority.

Since Republicans have already a Senate majority, why shouldn’t they change the rules?

The Supreme Court is a life time appointment and is already divided along ideological lines. Democrats argue that Judge Gorsuch, while well qualified in every way, has a judicial perspective which is out of the mainstream. Democrats feel a Justice Gorsuch would approach each case with a preconceived ultra conservative perspective.

Republicans respond that Gorsuch is in the mainstream and more importantly views the Constitution (as originally conceived).  It is not clear how or with whom Judge Gorsuch verifies or confirms his interpretation of original intent.

So again, why shouldn’t Republicans change the rules?

Democrats argue a Supreme Court nominee ought to get more than a simple majority given the importance of the position. Competency, good character, and an impartial mind would seem to be the desired requisites. With Judge Gorsuch, the disagreement seems to be hanging upon whether Goruch can be impartial. Hmmm.

The Gorsuch vote will underline the extreme positions of the two major parties. Conservatives who now dominate the Republican Party seek to reduce the size of government, eliminate (or at least vastly reduce) entitlements, and reverse all sorts of social changes made over the past 50 years.

Democrats largely under progressive influence seek to interpret the Constitution in modern terms reflecting over two hundred years of advancements in science, medicine, and experience. There was no internet, no antibiotics, or no airplanes/automobiles/trains in the lives of our founding fathers. The hand delivered letter, death from common illnesses, and foot or horse transportation were the norms of our founding fathers’ time. As a consequence, Democrats prefer a Justice who sees the world as they do.

The Gorsuch vote is the next step in a series of regrettable failure in Senate leadership. Conservative groups had sought during former President Obama’s term to limit how many Judges Obama could appoint. The GOP reasoning was that with fewer appointments, there would be fewer progressive leaning members of the judiciary when it came time to nominate higher court judges and ultimately Justices. To this end, Republicans filibustered Obama nominees and blocked consideration. In frustration, then Senate Leader Harry Reid changed the Senate filibuster rules on most Presidential appointees to a simple majority to end the filibuster… except for the Supreme Court where Reid left in place the 60 vote threshold.

Republicans were furious and took the next step of not even considering Judge Merritt Garland following Justice Scalia’s death. As previously done filibustering former President Obama’s nominee, Republicans upped the anti and did not even hold hearings for Judge Garland.

It is possible that Republicans think they are taking prudent action. Republicans may be so focused on what they feel is the proper ideological direction that “the ends justify the means”. Republicans, if so, could not be more wrong. History has shown that the party in power changes like the leaves on a tree. Regardless of which party is in power, voters tend to tire of that party and vote them out. Does it take much effort to think what the next Democrat controlled Senate might be like?

There is an even more serious consequence on the table if Senator McConnell changes the rules. There is no reason for either party to feel it necessary to nominate a “competent, good character, and impartial” person in the future. With the confirmation assured, why not nominate Sheldon Adelson or any other wildly rich donor, or why not Jeff Sessions if all that’s needed is a straight party vote?

Democracy has been tried by many countries around the world. In far too many, democracy has a given way to authoritarian regimes of some form or another. America’s secret has been a robust balance of powers held together by functioning checks and balances.

Merritt Garland should never have been passed over and Neil Gorsuch deserves an up or down vote (with no filibuster).  Unfortunately Garland was denied a fair vote and now it is Gorsuch’s role to take the blow back.

A wise GOP leadership would accept the blow back from their overt blocking of President Obama’s nominations and move on to their next nominee.

Instead it appears US politics are headed tribal.

Supreme Decision

February 1, 2017

With the nomination of Federal Appeals Court Judge, Neil Gorsuch, a difficult decision lies in front of Democrat Senators. Do they oppose his confirmation at all costs or do they object but in the end allow him to be confirmed? And more to the point, why in either case?

Judge Gorsuch claims to be someone who interprets the Constitution as the framers intended and reads laws in the context of how they were created, not how they would impact the future. Judge Gorsuch as been described as “Scalia-esq” without the bombastic-ness Antonin Scalia employed. So does Judge Gorsuch deserve a hearing?

It should be very understandable if Democrats chose a “tit for tat” response reflecting Mitch McConnell’s decision to not even give hearings to Merritt Garland. On this basis alone, a logical refusal to confirm could be based.

Over time, however, political sentiment shifts back and forth from conservative to progressive and back. It should therefore not be overlooked that in the future as the recent past, progressives have been nominated. (Judge Garland’s treatment, unfortunately, hurts this argument).  Never the less, a complete stonewall of Gorsuch would only serve to dignify McConnell’s dysfunctional behavior.

Assuming there is a hearing, what questions should be asked? And what type of answers will indicate Judge Gorsuch is not “out of the mainstream”?

Judge Gorsuch calls himself an “originalist” in the Antonin Scalia mold.  Questions around social issues and religious rights represent places where (IMO) “originalists” are the furtherest out on the limb and may be seen as out of the mainstream.

For example, supporting the Little Sisters of the Poor’s or Hobby’s decision not to provide all of Obamacare’s benefits to women for religious reasons runs dead smack into the 14th Amendment (equal protection). The Affordable Care Act required no one to use any birth control method, ACA simply made it available to any woman who so chose. Does Judge Gorsuch believe exercising religious liberty can over ride the 14th Amendment?

Another social issue involves individual gay rights such as employment discrimination and same sex marriage. Does freedom of religion allow someone with “deeply held religious beliefs” to fire or refuse to hire someone, or to withhold services to a customer on the basis of sexual orientation?

And of course, does any government have the right to interfere with a women’s choices on her reproductive health, and by extension, does a person with deeply held religious views or any religious institution have standing in denying any women such rights?

Judge Gorsuch’s beliefs in other areas such as tort, tax, and corporate law, while important, are less relevant since the Judge’s opinions are well known to be the conservative side.

It is instead the social issues which are dividing the country and are not to be found in thoughts of our founding fathers.

A simple principle might be, “believe what you want, live personally your beliefs, do not require others to follow your beliefs”.

Tyrannos To Tyrant?

January 13, 2017

Greece is usually given the credit for introducing the world to “democracy” as a method of governing. Of course, early Greek democracy does not resemble what we know to be Democracy in the 21st century, but in comparison to kings and pharaohs lead organizations, Greek Democracy was a radical departure. Hmmm.

President-elect Trump is poised to become President Trump and a fair question to ask is will the Trump Presidency begin with Tyrannos Trump and proceed to Tyrant Trump, or is the US democracy strong enough to overcome partisan attacks?

Democracies are difficult forms of government to maintain. Citizens are required to participate in law making as well as seeing that laws are followed. Citizens normally perform these tasks by thoughtfully choosing representatives who in turn propose, debate and create the laws upon which the greater population will be governed.  Citizens also select a chief executive who commands military resources  which will protect the country as a whole.  The Chief Executive, through various agencies ensures the laws are observed.

What happens when citizens do not take the task of picking representatives and the chief executive seriously enough.  What happens when citizens think disproportionately about themselves and their own perceived needs and place little or no importance on the country as a whole?

Long ago the Greeks encountered just such a situation. Their answer was to willingly ceed ever greater amounts of power to their selected ruler.  In time that ruler held ultimate power. The Greeks called these persons Tyrannos, or in modern English, Tyrants. Is the US on a similar path with the election of Donald Trump?

Tyrannos is a priori neither good nor evil, wise or misguided, nor effective or tragically ineffective. A “Tyrannos” is someone a democratic society has given more and more authority, without appropriate limits, normally to solve some great problem facing the country.

History has shown, however, that Tyrannos are never satisfied until they have achieved absolute power, and usually attempt to discard inconveniences of democratic governance in favor of authoritarian measures.  Today we liken dictators to Tyrants.

I wonder whether we are seeing the early signs of this phenomena with President-elect Trump?

One can argue that Republicans won by combining two large groups. Conservative Republicans looked the other way with respect to decency, experience, and integrity, voting for someone who they thought could solve societal problems.  Another group was composed of middle of the road citizens who had been hurt by globalization and lower wage immigrant labor. This group were willing to cast aside “the traditional American way” if there was a chance to regain their vision of the “American Dream”.

Candidate Donald Trump promised these voters (both groups) what they wanted.

In return, Trump asserted new powers by ignoring past practices, speaking mistruths and spreading misinformation, and marginalizing the press. Trump’s refusal to release his tax returns, his refusal to insulate himself ethically from his business holdings, and his vindictive, crude, personal attacks on individuals are clearly designed to intimidate.  These are also all signs of a Tyrant’s MO.

America’s democracy is still robust given world standards. Trump’s victory in November appears by all current information to have been fare and square. Donald J Trump will become the 45th US President. But it doesn’t stop there.

All Americans, supporters of Trump or not, still need to stay involved with our democracy. Congress, even one under Republican control, and the Supreme Court, even one soon to be Conservative in majority have important roles to play in ensuring the Trump Administration respects the Constitutions and the Rule of Law.

Should Congress members trade balance of power responsibilities for Trump’s support of their favorite legislation, in essence allowing Congress to look the other way, voters must take note.

As citizens, if we care about democracy, we must not look the other way and remember in two years which legislators did not show up for duty. The 2016 election was very close. The 115th Congress has been selected and will do what it deems best. The 116th, however, is just months away.

If President Trump fails to deliver on his promises, attempts to continue flaunting laws and precedents, or openly tries to claim more power, the ballot box can assist voters in taking back their democracy.

Hunkering Down For Four Long Years

December 11, 2016

Donald Trump’s election coupled with the GOP control of Congress augers for a long and difficult four years. The tough times will come in the form of social conservatism running rough shod over the last eight years of social progressivism. People of small minds will foist their views on others and attempt to roll back 40 years of progressive gains.

The Trump years will be a field day for “anything goes” labor laws, loose and lax environmental rules, and open season for States rights. All this in the name of making America Great Again. Hmmm.

Great leaders are given credit for enabling great outcomes. Less than great leaders often unleash events and outcomes of staggering proportions but too often these come with unintended or unexpected consequences. With a President and Congressional of the same party, President-elect Trump faces the fork in the road, will he strive to be great or will events and the enemy within his party overwhelm his Presidency?

Ohio is a good example of what will face President Trump during the next four years.
The Ohio legislature has rushed a bill through the Republican controlled legislature. The bill would outlaw abortions once a fetal heart beat is detectable. In Ohio legislators’ minds, life begins with detection of a heart beat, not viability which the Supreme Court has rules as the standard. For pro-lifers, this is welcome legislation. For pro-choice, this is the dark side rising again.

The Supreme Court has ruled that before “viability”, about the 24th week, a woman should have the unobstructed right to end a pregnancy for what ever reason she chooses. After 24 weeks, States could impose reasonable restriction. So what is Ohio thinking?

Pundits report that Ohio is anticipating President-elect Trump’s promise to appoint conservative Supreme Court Justices in the mold of the deceased Antonin Scalia. Accordingly the conservative goal is to outlaw abortion and if that is not possible, return abortion law to States and keep the Federal Government out of this process.

What could be more democratic than to allow States to rule on this contentious issue for themselves?

The abortion issue is quite complicated. In an ideal world, a woman would become pregnant only if she truly wanted a child. In this ideal world, pregnancies would proceed medically trouble free and the child would be born into a loving, wholesome family setting. Regrettably, life does not follow that path.

Rape, incest, and risk to the woman’s life are real parts of American lives. Domestic violence and sudden economic trouble also unfortunately move many pregnant women to determine the timing is inappropriate for a full term pregnancy. And to be sure, there are some who attach no importance to pregnancy and for even the most minor inconvenience would end the pregnancy, or worse bring a newborn into a world absent of love and care.

For these reason, pro-choice advocates seek to make abortion legal and safe but exceedingly rare.

It is difficult to know what President-elect Trump actually thinks about abortion access. Over the years, he has held both pro and con views.  And, as if he was the Pied Piper, Trump has said many things only to later walk them back.

What is not hard anticipate is that all the conservative special interests will once again try to impose their personal views on others.

Keep your eyes open for the flat earth-ers (the earth is 5,000 years old), global warming deniers (science is bunk), sexual orientation bigots (the bible say so), and not to be overlooked, the neocons who will gleefully send other Americans’ children off to war (remember Iraq).

Beware Of Hubris

November 30, 2016

Donald Trump won the 2016 Presidential election “fair and square” as much as we know today. While he did not win the popular vote, Trump won a significant majority in the electoral college. Do these outcomes represent a mandate?

If you couple the Trump victory with Republican control of both Houses of Congress, whether Trump’s victory counts as a mandate or not may seem to Republicans as immaterial. The next two years belong to the GOP and barring upsets in 2018, the Trump team should have its way for 4 years. This reflects American democracy in action.

When George W Bush won the 2000 Presidential election, only with activist help from the Supreme Court, one would have thought a President who lost the popular vote and squeaked by with the electoral college vote would have approached his office with a moderate perspective. Instead, the Bush team felt empowered and tried to impose the views of each of the GOP’s separate factions.

The neocons got an unjust war and one of the greatest foreign policy failures in history, the small government faction got the shameful “hurricane Katrina” response, the deficit hawks blinked over tax cuts and were rewarded with 6 years of unbalanced budgets, and the anti-regulatory advocates got a run away Wall Street which lead to a near global depression.

None of this needs to happen to President Trump. But all these events and more could happen.

The new Trump government’s enemy is as much “hubris” as it might be any particular policy. Team Trump may just think that since they won, anything and everything goes. President Trump needs to keep a short lease on Congress and direct his Cabinet to operate right of center but closer to the center than the Congress.

While Trump has walked back most of his campaign promises, danger lies ahead since nothing has changed about the Republican Party’s composition, ambitions, and dangerous policies.

The Republican Party still favors suppressing voter participation, discrimination under the guise of religious freedom, less regulations which act against the interest of gays, Hispanics, and women’s rights, and don’t forget the flat earth faction which continues to deny global warming.

Oh, and income inequality is not a concern of the Republican Party unless one is talking about how the rich can become richer.

So, President-elect Trump, beware of hubris.

Remember, your margin of victory was actually quite narrow and 2020 is not that far away. Steady economic progress will serve you well while steroid-like induced stimulus could easily put all the increased wealth generation into the already wealthy’s pockets and reward the average American with another deep recession.

The white working class voter liked you this time but they can turn on you just as easily. Run the economy so all boats rise and a second term is there if you want it.

Trump’s Thanks To The Rust Belt States

November 19, 2016

Donald Trump lost the popular vote by about 2 million, but was able to win the electoral college tally by flipping normally blue “rust belt” States to red.  His victory, in no small measure is thanks to a disheartened core of blue collar workers.  These voters were seeking someone who could offer them hope.

Now there is much speculation about how President-elect Donald Trump’s Administration will begin its first term. What will President Trump attempt to accomplish in the first 100 days? What legislation will signal America is going the “right” way again?  Will the “rust belt” supporters receive their just reward?

There is plenty of chatter about repealing Obamacare (and little talk about what will replace it). There is stealthy talk about who Trump will nominate for the Supreme Court. And lots of talk about Trump’s bold front attack on taxes and regulations. For the voters who pushed the electoral college total over the top for Trump (dislocated workers in rust belt States), they may not realize it but there is little to be optimistic about.

Obamacare addressed a shameful and hurtful aspect of the American healthcare delivery system, namely the notion that an insurer could reject (outright or through prohibitively high premiums) a customer based upon some pre-existing condition. Obamacare also made it much easier (read affordable) for many low earning Americans to gain coverage. Short of a universal healthcare (single payer) system, Obamacare marked a clear step towards human dignity and, for a country which considers itself “exceptional”, closer to where the rest of America’s peer countries already are with healthcare.

Obamacare insures more Americans in every State. Repealing Obamacare will hurt many of these rust belt State voters, not help them. Hmmm.

Trump’a Supreme Court nominee will represent the worst of American exceptionalism. The process of denying President Obama the time honored (and Constitutionally founded) practice of appointing someone to fill a vacancy has blackened the reputation of the Republican Party and will lessen the honor of Trump’s nomination. The actual nominee, himself (little chance of herself) will only tangentially be the issue.

Someone in the Scalia mold should be expected to rule conservatively and in a way unhelpful to rust belt State voters.

For the bread and butter task of “making America Great Again”, the Trump team is proposing “tax reform”and regulations roll back. Tax reform is said to feature lower tax rates coupled with elimination of tax loopholes and deductions. Most pundits say that, at a minimum, this will include sharp reductions in corporate tax rates and for individuals, lowering the top income tax rate reduction (39% to 33%). So, what’s in it for those rust belt State supporters?

The Trump team says those receiving tax cuts (corporations and high earners) will turn around and re-invest this new found money creating a sea of jobs. Regrettably there is no recent experience (like with the George W Bush tax cuts) to support this belief. Wealthy people spend or save any new found wealth and corporations tend to give the money back to share holder rather than actually invest. Sadly, the tax reform is unlikely to stimulate the economy and almost certainly is not going to benefit the rust belt State crowd.

The plan to roll back regulations must have more specifics. Which regulations and what does the roll back look like. This same type of Republican thinking, however, produced the “Katrina effect” and in 2008, a sleeping Republican Government woke up to find the precipice overlooking a world depression. Capitalism and free market policies may help but they can bring harm just as well.

To be sure, rolling back environmental standards and green house gas regulations could enable, for example, the coal industry to hire back some former workers. While this might seem to help in the short term the rest of the world including developing countries will be watching. For rust belt State supporters, global warming long term impact could work against their children.

One must grant that large tax cuts could have a stimulating effect on the economy as predicted by Republicans. While this might be a cause for cheer, these rust belt State voters would do well to recognize three things before they celebrate too loudly. (1) Any overall tax cut driven economic boom would not necessarily flow to them or their States. (2) Over stimulation is almost always followed by a period of contraction and recession (which will adversely impact the rust belt). And, (3) for auto and industrial workers longing for a return to the great paying and benefit rich jobs of the past, while prohibitively improbable, such an occurrence would jack up the cost of what ever was produced and decrease their companies’ competitiveness. These higher cost items in turn would make the companies less competitive and initiate another round of outsourcing or severe downward pressure on wages and benefits.

Tax cuts and slashing regulations is a no win situation.

All is not doom and gloom. Obamacare could benefit from a number of modifications, most healthcare experts agree. A moderate, right of center jurist does not necessarily need to be the end of the world. And, a combination of government stimulus (tax cuts and spending) coupled with a careful review of unnecessary regulation could provide a better situation for American businesses to flourish and grow, helping everyone.

Since the GOP’s heart does not lie in these rust belt States, IMO, disappointment and maybe even resentment lies ahead for these voters who made Trump’s victory possible.