Press "Enter" to skip to content

Posts tagged as “Supreme Court”

Does Kavanaugh have the right stuff?

Does Kavanaugh have the right stuff?

September 18, 2018

jones

Because of the carnival atmosphere of Supreme Court confirmation proceedings in recent years, it has been increasingly difficult to evaluate a nominee’s qualifications for a lifetime job on the Court. The Senators on either side like to grandstand with questions they know the nominee either will not or should not answer. The highly-coached nominee gives scripted non-answers to the occasional pertinent question that is highly relevant and should in good conscience be answered.

However, a person can get a sense of the candidate and there are a number of troubling things about Judge Brett Kavanaugh. There are allegations that he was not candid in answering questions under oath during his previous confirmation proceeding for the judgeship he now holds. Rather than rushing this proceeding, there is good reason for the Senate to explore his truthfulness in greater detail.

The Judge is short on moral courage or perhaps has just set it aside in order to get the job. When asked if he agreed with Justice Neil Gorsuch that the President’s criticism of judges and courts was “disheartening” and “demoralizing” to the judiciary, he dodged. Perhaps, he had read the reports that Gorsuch’s comments had almost caused the President to withdraw the Gorsuch nomination.

It is a clear that the continual Write House attacks on judges and the justice system are eroding the rule of law that is the very foundation of this country. Any judge worth his salt should stand up for the system. Gorsuch did and declined to retract his comments.

More concerning, though, is Kavanaugh’s refusal to say he would recuse himself from ruling in a case arising from the on-going investigation of the President. If the person who appointed you is currently under investigation in a case that may well end up before you for decision, there is a serious conflict of interest and recusal should be a no-brainer.

A judge should not sit on a case where his or her impartiality might reasonably be questioned. During my tenure on the Idaho Supreme Court, I did not recuse myself on a case unless there was a real or perceived conflict. Kavanaugh has a real conflict in this situation and should unequivocally commit to recusal.

The Judge has expressed expansive views on the powers of the president and narrow views regarding investigation of a president. His name was only added to the list of potential candidates after the Mueller investigation was launched. And, he has likely witnessed the grief that Attorney General Sessions has suffered for correctly having recused himself in that investigation and heard the President’s comments that he would not have appointed Sessions if he’d known the AG was going to recuse. Kavanaugh’s stance does not pass the smell test for moral courage.

Speaking of moral courage, what happened to what we used to think of as the “greatest deliberative body in the world?” That is what they called the U.S. Senate when I worked there for former Senator Len Jordan in the early 1970s. Senators actually considered the pros and cons of Supreme Court nominees in those days, rather than just voting the old party line.

Senator Jordan, a man of unquestionable integrity, voted against two of his party’s nominees--Clement Haynsworth and Harrold Carswell--because, after carefully studying their records, he determined they were not of Supreme Court caliber. Jordan was joined by 16 Republicans in defeating Haynsworth and by 12 Republicans in turning down Carswell. It did not make President Nixon happy, but Jordan had a good conscience. Wish there were some like him in the Senate today.
 

A disheartening frenzy

A disheartening frenzy

July 10, 2018

jones

It is sad that every vacancy on the U.S. Supreme Court sets off a political feeding frenzy in Washington and throughout the country. It is as if a new appointee is intended to be a super legislator, rather than an impartial arbiter of disputes between and among citizens and the government. The whole process is infused with political overtones. Nowadays, it happens regardless of which party is in power. It does not have to be that way.

In 1967, the State of Idaho enacted legislation to insulate judicial appointments from politics and cronyism. It has worked well and resulted in a corps of professional judges, who decide all sorts of legal disputes, both civil and criminal, in an even-handed manner. When there is a district or appellate court opening, a seven-member Judicial Council gathers information on judicial candidates, publicly interviews the candidates, considers input from the legal community and public, and then sends a slate of 2-4 candidates to the Governor for appointment. Magistrate judges are impartially selected by local magistrate commissions.

I believe a similar process could be implemented on the federal level without transgressing provisions of the U.S. Constitution. Article 2, section 2 of the Constitution gives the President the power “by and with the Advice and Consent of the Senate” to appoint Judges of the Supreme Court. It seems like the Senate could exercise its advice and consent by setting up a non-partisan process to vet and recommend a slate of highly qualified candidates to the President for appointment.

Almost any system for appointment of Justices to the Supreme Court would be preferable to the usual slugfest that the current process has become. Presidents are tempted to appoint people whose political views align with theirs on specific hot-button issues, disregarding the fact that the Court is expected to deal with a much wider range of issues. The tendency is to appoint younger people, without an identifiable track record, who can serve into their dotage, disregarding the fact that this excludes a large number of older experienced lawyers with exemplary legal careers.

And speaking of dotage, there ought to be some limit on the length of service of Supreme Court and other federal judges. Article 3, section 2 of the Constitution says that federal judges “shall hold their Offices during good Behavior,” which is assumed to be for life. However, I think the constitutional framers would be surprised to see so many old folks hanging on to judicial offices.

I have never been a big fan of age limitations on public office but I am starting to think they may have some merit. I served 12 years on the Idaho Supreme Court and figured it was time to hang it up and let someone else have a crack at it. About 9 years ago, a group of distinguished legal scholars proposed that a President should be able to make one Supreme Court pick after each federal election. The longest-serving Justice on the Court would automatically go on senior status and only sit on cases where there were less than 9 Justices participating. The idea has some merit. The longer a Justice sits in the ivory tower of the Court, the greater the likelihood of losing touch with the real world.

There are a number of things that could be done to insulate the court system from our present corrosive political climate. The public increasingly views the Supreme Court as a mere extension of our dysfunctional political system and that is dangerous to our democracy. It is time for Congress to take a comprehensive look at ways to reestablish the impartiality and standing of our high court.
 

First take/Scalia

First take/Scalia

February 15, 2016

Supreme Court Justice Antonin Scalia came to Idaho in August 2014, and nether made major headlines nor left any controversy in his wake. He was in Boise to deliver a keynote address at a ceremony honoring the successful conclusion (or near-conclusion, at least) of the Snake River Basin Adjudication. He considered it a tremendous success, as did just about everyone in the audience, and most people in the Snake River Basin.

That was an easy one. Many of the other statements Scalia, who died in his sleep last weekend, made over the years were far more heatedly challenged. Depending on where you sit on the ideological scale, Scalia probably was either the justice you most liked or most loathed. Some of his decisions, probably most often in the area of freedom of speech, crossed lines, but many fit neatly into our red and blue framework.

Which will make the next little while an interesting period in American judicial history.

Scalia's involvement in any decisions which were not released publicly before his death will be considered void, so a string of 5-4 decisions on the court could now become 4-4 - with no final Supreme Court ruling at all issuing. Decisions made until a new justice is confirmed will have to cross ideological lines. Some will (by no means are all decisions 5-4; many get a stronger majority and some are unanimous) but many of the most controversial will hang fire. That technically means a decision made by a circuit court of appeals will stand - but only within that circuit, so the country could a legal patchwork of "final" court decisions on hot topics.

That's part of the practical effect of a failure to fill Scalia's court seat, as seems probable. The idea of holding off a Supreme Court appointment simply because a president is in the later part of his term seems like an odd approach. You wonder what that originalist Scalia would have thought of it. - rs

The week that was

June 29, 2015

raineylogo1

In one week. The Affordable Care Act is upheld by the nation’s highest court - in the process assuring more frantic right wing attacks to end its life-saving existence. The same court then cast aside unconstitutional - and poorly argued - barriers to universal marriage. And the Confederate flag - long regarded as a defining symbol for 13 states in our nation - is suddenly being swept into the dust bin of history as an icon of slavery.

In a week!

It would be hard to find a single period in the last 100 or so years in which so much of the basic societal tapestry of this country was so drastically altered. In one week!

Then the inspirational coda: America’s first Black president, in the pulpit of a Black church that had been tragically assaulted, summing up those days - and that deadly assault - in 35-minutes of classic oratory, climaxed by his breaking into song and leading the congregation - and much of the nation - in the classic hymn “Amazing Grace.”

Others, with a better grasp of the English language than mine, are struggling to recap the historic political, legal, social and racial meaning(s) of all this. I wish them well. The after-effects will linger for a long, long time as they reflect and attempt to define.

One of the facets of all this capturing my attention has been watching reactions to both those whose causes have been vindicated or upheld and those who’ve seen their opposition to all this overridden legally and morally.

In a general sense, the vindicated have been happy, ecstatic, joyful, prayerful and - above all - gracious. Those in the first person, who’ve had their lives and social conditions changed for the better, have generally not been angry or expressed vindictiveness or scorn for either the process or for those who forced them into our courts for relief.

The same cannot be said for many of those who found little support for their views in our highest court. Among our Republican presidential aspirants, for example, Bush and Rubio came closest to a civilized response, expressing anger and disappointment while admitting laws of the land had been changed in proper and accepted ways; the nation needs to adjust and move on.

But Mike Huckabee - the only ordained minister and “man of God” among the GOP presidential contenders - spoke for many of his supporters and those of other candidates in a totally unfounded way regarding the gay marriage ruling. Said the “pastor:” “This flawed, failed decision is an out-of-control act of unconstitutional judicial tyranny.” Vindictive. Angry. Scorn-filled. Wrong.

Time was, you took your issue to the courts, argued your best case, presented your best evidence and placed that issue in the hands of a judge or judges. The outcome, whatever it was, was the outcome. You either accepted it and went on your way or you regrouped and began your judicial journey again, hoping for a different verdict. You did not reject the decision and you did not insult those who decided it. Now, we have elected officials urging people to “ignore” or “pick-and-chose” which laws/decisions to obey and which to disregard. Wrong headed. Dangerous. No nation - no society - can exist when laws become “suggestions” or are ignored because someone doesn’t agree.

In a most basic way, the U.S. Supreme Court exists for a single purpose: to measure issues before it to the justices’ interpretation of the U.S. Constitution. Justices aren’t tyrants. They aren’t “out-of-control.” Their decisions - whether you agree or not - are not failures despite whether your argument prevailed or lost. Those decisions are deemed to be the legal application of the Constitution by the court and are not “unconstitutional” unless subsequently proven so in another case.

Huckabee is not the problem. But he certainly is symptomatic of the way things political have been conducted in this country for too long. One group - usually Democrat - trying to do something which the other group - usually Republican - has attempted to stop the issue under discussion. In the case of the Affordable Care Act - most of which has been upheld twice now by SCOTUS and victorious over more than 50 failed legislative challenges - Republicans have not offered a version of their own. Not one. But Speaker Boehner says the efforts to eradicate ACA laws will continue. So much for acceptance.

As for the gay marriage decision, many GOP governors are telling state officials to either ignore the SCOTUS finding or not honor it by not issuing licenses until new state laws (doomed to ultimately fail) can be written and enacted. One governor even says he’ll introduce legislation to stop ALL marriages in his state. Acceptance? Gracious? Scorn!

Republicans nationally are slipping into a posture of irrelevance in politics. The courts - the demographics - the country - are changing. Foot dragging, obstinance, unrestrained opposition, angry epithets, unsubstantiated challenges to our legal system, futile efforts to swim against the tide of public opinion of reasonable gun laws, immigration and other issues will assure reduced GOP influence on this country’s direction. All of that is confirmed by overwhelming evidence.

Quietly looking back, that presidential coda to the week’s nation-changing events seemed to have even more relevance far beyond the walls of a South Carolina church than a local eulogy for a local pastor. In an often plain-spoken way - in an often soaring use of the English language - the President tied all these events of joy, anger, sorrow and tragedy into a tapestry of acceptance and hope this country has rarely seen.

Whatever your politics - whatever your personal beliefs - whatever your religion - whatever your ethnicity or race - if you haven’t heard the President’s words - all the President’s words - please search the I-net for the Pinckney eulogy. Set aside your worldly joys and concerns for 35 minutes. Watch. Listen.

The massive change our society has undergone in recent days is reason enough to take the time. Trying to understand what all this change means for the future makes it absolutely essential.

Disagree, don’t ignore

June 28, 2015

From a Facebook post by Duff McKee, a former 4th district judge in Idaho.

A court decision of significance will invariably disappoint some and delight others. Usually, the more delighted the winner is, the more upset the loser becomes. It is not uncommon for losers to blame the judge.

The marriage equality decision by our highest court demonstrates the phenomena. The teapots and extreme evangelicals are noisily rising up to complain, as expected. One theme of their rumble is that it’s all the courts’ fault; the courts have gone off on excursions of their own, changing laws at will, ignoring the will of people, tearing up valid legislation, etc. The noise is, by and large, hyperbolic, extreme, and historically wrong, but we have come to expect this from the more radical divisions within our society. It’s within the penumbra of tolerable free speech.

But there is also a line of critical remarks about the courts swirling around the marriage equality decision that is different from the normal rumble of losers’ gripes.

These are the comments to the effect that one should just ignore judicial decisions that one disagrees with, or that those in power are not obligated to follow a decision that they choose not to, or that states remain able to enact their own laws contrary to rulings of the high court. These remarks are not just disturbing, they are appalling – because these remarks are coming from men who are currently seeking to become President of the United States. It makes one shudder.

The inspired magnificence of our Constitution is in the balance it imposes upon the government. Integral to this balance is the existence of an independent judiciary with the right and the duty to examine the acts of government to ensure the actions are within the boundaries of the Constitution, properly express the will of the majority, and do not trample upon the rights of the minority. While we believe the will of the majority should, and does, overwhelmingly guide our affairs in almost every facet of our lives, we believe with equal fervor that the government should not trample upon the rights of the minority.

The guardian of all these concerns throughout history has been, and is, judicial review by an independent judiciary. This is the essence that has been part of our heritage since the very earliest days of our government. Marbury v Madison, decided in 1803, was not a startling new proposition, but was merely the first case of judicial review to reach the high court.

To complain that the high court in the marriage equality decision has just recently usurped unto itself the power to interfere, and that this somehow takes away from the inherent authority of the Congress or of the several states, is to display a fundamental lack of understanding of how our government works, but it is a just complaint. To even suggest that it would be appropriate for those in power to simply ignore such a decision of the high court is not only dangerously stupid, it is plain treachery.

First Take

First Take

June 25, 2015

When you're asking a court to interpret what the text of a law means, there are some simple, basic rules. One of them is to interpret the law in a way that make it work within the constitution, if you can. Another is that you interpret it so that it works a clearly intended, if you can discern a clear intent. So the Supreme Court's 6-3 (not 5-4, which was interesting) decision today in King v. Burwell was simply reporting on the clear intent of the Affordable Care Act; the case was brought in the hope that four words which could (didn't have to be) be interpreted as running counter to everything else in the large bill, could be used to disable the whole thing. When Chief Justice John Roberts wrote in the majority opinion that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter" - that is the way courts ordinarily act. The decision shouldn't have been even in question. The four-word challenge was ridiculous on its face.

Will Republicans continue to do battle with the ACA, or call it quits? A lot of Republicans thinking strategically were quietly terrified the Court might throw out the health insurance subsidies in the current case; had it done so, Republicans would have been running in 2016 in the face of ripping health insurance away from millions of Americans. That would have been . . . problematic.