Wednesday, July 11, 2018

On Turgid Constitutional Ignorance

In the alluvia of analysis and opinions which followed President Trump's nomination of Brett Kavanaugh for the Supreme Court, NBC New's Katy Tur attempted to ask an insightful question.

Katy Tur on the Constitution Aside from the liberal assumption embedded in the inquiry, Tur operated with an egregious error.  The Constitutional Convention was held in Philadelphia in 1787 not 1776. It seems that Little Katy did not grow up watching Schoolhouse Rock.



Maybe she should review the lesson as she might learn something.  

That simple mistake really costs her credibility.  So often we are inclined to impart wisdom on the pundits who pontificate on television.  If they get a basic civics fact wrong, why should we listen to them?






Although Katy Tur was awarded the 2017 Walter Cronkite Award for Excellence in Journalism, I think it's  Unbelievable (sic).  That may be the title of her book with her year covering Donald Trump, but now I know better how to analyze her reportage: Progressive, propagandistic, polemic and nescient. 


Rejecting Tomi Lahren's Pink Slime Pro-Choice Perspectives

Fox News Commentator Tomi Lahren likens reversing Roe v. Wade to conservatives spitting on the Constitution

In offering analysis after President Donald Trump nominated Brett Kavanaugh to be on the Supreme Court, Fox News commentator Tomi Lahren opined that conservatives seeking to overturn Roe v. Wade are effectively spitting on the Constitution.

Lahren has been outspoken in her adherence to abortion rights.  She was separated from Glenn Beck's "The Blaze TV" last year because of her inconsistent opinions about abortion.  This was sparked by an appearance on ABC's The View in which she argued that it was hypocritical to be anti-choice and be a small government conservative.    Beck insisted that he wanted to terminate Lahren for lacking intellectual integrity.


“I can’t speak for the company and why they did it, but it had nothing to do with being pro-choice...
What I have a problem with is somebody who will change their point of view or that will say absolutely crazy, red meat things, and not have any intellectual firepower to back it up. Have the intellectual integrity to be able to back things up.”




Now Lahren laments that some conservatives want a Supreme Court to carry out religious judicial activism to get rid of Roe v. Wade (1973).  Tantalizing pro-choice red meat but it like the pink slime substitute which some fast food outlets use to sell dollar menu items to a hungry public even though it causes indigestion.

Lahren assumes that any rollback of Roe would be premised on religious issues.  Even the Roe decision recognizes that government has interests in unborn life in the last trimester that is viable.  Prenatal medicine has made great leaps of advancement so viability is pushed closer to the 20th week of pregnancy.  No signs of religion in this hermaneutic. And that does not even consider the scientific fact that human life begins at the moment of conception

Pro-Choice jurisprudence currently rests on the shaky foundation of abortion as being included in a right to privacy that is within  penumbras and emanations of the Bill of Rights, as applied to states by the Fourteenth Amendment.  Justice Blackmun's holding in Roe is a quintessential example of judicial activism, legislating from the bench for the entire nation.

Conceptually, a texualist originalist led Supreme Court could rule that "the right to privacy" is not enumerated within the Federal Constitution and that the Tenth Amendment is applicable.  This would throw the abortion issue back to the states, where it resided prior to the 1973 judicial fiat.  Some states, like California and New York, would have liberal abortion laws, while other states may be more restrictive.   That sort of subsidiary jurisprudence sounds like small government conservatism.

Maybe Lahren's political science studies at UNLV did not adequately cover jurisprudence.  She seems to think that it is unconstitutional for the Supreme Court to overrule bad precedent or is judicial activism.   In his confirmation hearing to become Chief Justice in 2005, John Roberts noted that stare decisis does not hold as a legal precedent when a matter was wrongly decided.  But in Tomi Lahren's legal logic, Brown v. Board of Education (1954) that overturned the Separate but Equal standard of  Plessy v. Ferguson (1896) was just spitting on the Constitution too. 

It is lamentable that Fox News turns to Tomi Lahren for legal analysis.  In little more than a year, she has shifted her abortion rights advocacy from being premised on what she believes is small government conservatism to combating religious judicial activism.  No wonder she burned her bridge at The Blaze TV for lacking intellectual integrity. 

Some may want to consume pink slime perspectives because they are spicy tasty morsel temptations, but assuredly many leave the establishment when such dreck is  seen on the television menu.

Terry McAulliffe on the Brett Kavanaugh Nomination

Prospective Democrat Presidential candidate Terry McAulliffe on the Brett Kavanaugh Supreme Court nomination

President Donald Trump on Vetting SCOTUS Nominees

President Donald Trump on vetting Supreme Court nominees

Saturday, July 7, 2018

Considering SCOTUS Selection Strategies



Associate Justice Anthony Kennedy's retirement at the end of the 2017/18 Supreme Court term affords President Trump another opportunity to fill a seat on the Nation's High Court.   After the Borking of President Reagan's first choice in 1987, the confirmation process is no longer a gentile process of Senate vetting whether the President's choice is qualified.  While the vacancy is still up in the air, it is a fun political junkie parlor game to consider the strategies the President Trump may employee to make the nomination. Major factors include: timing; traits; temperament

I.  Timing

Firstly, there is a question of timing.  Democrats have been braying that there should be no confirmations until after the midterm elections.  They point to how President Obama was denied an opportunity to replace the Scalia vacancy with Merritt Garland as Republicans refused to confirm just before an election.  Of course, their objections are ahistorical, as Kagan was confirmed thee months before midterm elections.  But when do fact matter to partisans who talk out of both sides of their mouths to gain advantage?  The difference in 2016 is that Republicans were in the majority and set the agenda.

Some partisans focused on the political horse race postulate that it might make sense to hold the confirmation until after the midterms to have Trump supporters Get Out The Vote (GOTV).  Such a strategy is needless and short sighted.   While our elected officials do not work in a vacuum so they need to be mindful of elections, the decision should not be primarily driven by political advantage. However, the deferral of confirmation in 2016 was a prudential decision by Senate Majority Leader Mitch McConnell (R-KY) to let voters decide. This move respected a 73 year old tradition for about Supreme Court openings in the last year of a Presidential term.

If one looks through a partisan lens, it makes little sense to stall the confirmation until after the midterms. Republicans have a majority in the Senate.  Thanks to ex Democrat Majority Leader Harry Reid (D-NV) blowing up comity in the Senate by exercising the Nuclear Option in 2013 and Democrat Majority Leader Chuck Schumer (D-NY) leading a Supreme Court confirmation filibuster in 2017, cloture votes are obviated and a only a majority vote is required.   While Senate Democrats have a hard midterm election cycle, one never knows what the future holds, so it would be better to try to get it done sooner rather than later.

Summers in the District of Calamity are often the silly season as political news is either trivial or outrageous, but typically few people pay attention as they are on vacation. Democrats are intent on fighting any Supreme Court nominee from President Trump tooth and nail, so the expected vitriol and direct action will not have as much resonance as it would be if it became a campaign issue.

If President Trump did not have a booming economy or positive news from foreign relations, it might make sense to make a SCOTUS nomination a campaign issue.  But George Barna pointed out through polling of evangelicals about the 2016 election, the two issues which that 11% segment of the population cared most about was the Supreme Court and pro-life positions.  Evangelical turned out 98% in 2016 and 96% voted for Trump, so there is little reason to gin up that base over a Supreme Court nomination.

It seems pretty clear that the nomination of Trump's second Supreme Court choice will be sooner rather than later.  During the 2016 Presidential election campaign, Mr. Trump had circulated a list of twenty five jurists who would be considered.  This list was augmented with five names after his inauguration which included now Justice Neil Gorsuch.

The White House indicated that it will announce the President's choice before he flies to Europe on July 10th. In fact, two days after Kennedy announced his retirement, President Trump announced that he had winnowed the frontrunners to five, including two women and set the selection announcement on July 9th.  So we will not play this Between the Beltways parlor game for long.

Moreover Majority Leader McConnell proclaimed that there will be a vote for confirmation by October.  This is in keeping with Senate Judiciary Chair Charles Grassley's (R-IA) timeline that from nomination to confirmation vote, the Senate could do its work in 78 days.

II. Traits

A Supreme Court nomination is one of the marquis decisions during a President's time in the Oval Office. The pick stays on the High Court long after the Chief Executive leaves the White House.  The fact that it is Justice Kennedy's replacement is even more significant.  Even though Kennedy was appointed by President Ronald Reagan in 1987, he has been a swing vote in his 31 years on the Supreme Court.  So Mr. Trump's choice will significantly impact the balance of power on the High Court.

At a campaign rally in Minnesota, President Trump mused that his choice could be on the bench for forty years.   Many of the jurists on the list are in their 40s and 50s so it seems that prospective longevity on the Supreme Court is an important attribute.

Does race or gender matter?  Perhaps.  Other Presidents have tried to make their mark by appointing "the first" identity group (e.g. Johnson with the first black of Thurgood Marshall in 1967, Reagan with the first woman Sandra Day O'Connor in 1982, Obama with the first Hispanic with Sonya Sotomayor in 2009). 

Trump is not likely to bow to political correctness or play identity politics.  Still, with 40% of Trump's short list being comprised with women, selecting a female could put vulnerable Democrats in a difficult position.  Prominent Democrats (and their media allies) have been strident in seeking to savage any pick made by President Trump.  There are already ten Senate Democrat incumbents in states where President Trump won in 2016 who have tough re-election races.  If these vulnerable Democrats are associated with an unjust evisceration of a female Supreme Court nominee, this may play very poorly for them during the midterms with key groups (suburban Moms, traditional Democrats, Independents).

Because of the timing of the selection, President Trump may want to ensure that the background vetting of a prospective nominee is speedy.  That might give an advantage to candidates who have recently been confirmed, as they have fresh FBI full field background investigations. So when speculation draws to a fevered pitch, consider who has been recently appointed to the federal bench.

III. Temperament


Despite contradictory indications during the 2016 primary campaign, President Trump has proven to be a Pro-Life President.  Yet he maintained that he will not ask about abortion when he interviews his short list.  This is hardly surprising because a good Supreme Court candidate will wisely deflect such a probing question, pointing to not answering hypothetical questions or not tipping one's hand on pending matters.  As the left has made abortion rights a keystone issue, much of the pre-nomination hysteria revolves around the potential overruling of Roe v. Wade (1973).  Any prospective candidate for the nation's High Court needs to be prepared for hard questions from the Senate Minority.

This points to a couple of qualities which Supreme Court nominees need to possess at least through confirmation.  A SCOTUS choice must be prepared.  Harriet Miers was a failed choice of President George W. Bush, in part, because she was not impressive in constitutional chit chat with Senate Majority members when making courtesy calls.

To present well in the Senate Judiciary Committee, successful candidates must master "Murder Boards",  that is the harsh mock interviews preparing for the hard questions.  Once they are on the bench, Supreme Court members deliberate in private.  But before confirmation, they must skillfully parry with hostile questions, which generally do not tip the hand of a prospective justice yet sufficiently satisfy the interlocutor. 

For a contentious candidate, mouthing the mantra "I can't comment on a prospective matter" or "Courts adjudicate real cases and I do not comment on hypotheticals" will not suffice.  As Roe v. Wade will mostly likely be touchstone for skeptical questioning, whoever is nominated must be well prepped to answer questions about "the right to privacy" and the primacy precedence (a.k.a. stare decisis).

When John Roberts went through his confirmation hearings, he did not totally deflect about questions of precedence, noting that there are some instances of bad precedence that should be upheld (like "Separate but Equal" Plessey v. Ferguson in 1896 which was overturned in 1954 by Brown v. Board of Education).


Nominees also must be mindful how simple questions can be abused by opponents to their confirmation.  When Judge Bork was asked why he looked forward to being on the High Court, and Bork answered that it would be an intellectual feast.  That answer was twisted to portray Bork as being an elite intellectual who was only in the position for himself.  Combined with vilification of Bork's record by liberal Senators, chiefly Ted Kennedy (D-MA), the nomination was defeated. 



While Supreme Court candidates should be sufficiently deferential to tough questioning, sometimes they can successfully fight back.  The left tried to "Bork" Clarence Thomas in 1991 with allegations about a subordinate employee Anita Hill.  Thomas famously refuted his treatment as a "high tech lynching of an uppity negro."  Despite that contentious quip, Thomas was narrowly confirmed.

As for judicial temperament, President Trump's list of 30 prospective selections, prima facia most would be deemed conservatives.  But their legal logic is not necessarily uniform.  Justice Thomas's jurisprudence rests on "natural law", whereas Justice Gorsuch is a textualist who looks to the letter of the law  which defers to the will of the legislature (even if they pass stupid laws).  Then there is originalism, which sees things through the prism of an understanding of the Constitution when it was originally ratified. 

A judicial trait which seems to be in favor with President Trump is the notion of judicial humility.  




Former Judge Andrew Napolitano characterizes this jurisprudence to interpret the law and apply the Constitution to the laws Congress has written. Judicial humility has not been the prevailing model of Supreme Court activism over the last sixty years, with the High Court legislating from the bench by inventing rights (e.g. "The Right to Privacy") or rewriting law to rule it constitutional (e.g. "Obamacare").

Since the Kennedy retirement has been announced, there has been rampant speculation about Mr. Trump's picks.  Even though the President has interviewed seven prospective SCOTUS picks, it has been generally considered that the list has been narrowed to four candidates.  Some even say that there are just two front runners.  Senator Orrin Hatch stirred up the rumor mill when he stated in an Op/Ed that he will fight for Mr. Trump's pick.  But some wonder if he had insider information, as Hatch's release  opined


"But no matter the nominee's background or credentials, progressives will do everything they can to paint her as a closet partisan, if not an outright extremist."

This could well be a MacGuffin to throw off all speculation, a ghostwriter using inclusive language or a retiring Senator tipping the hand. If Hatch was not just being deceptive or politically correct, there is only one female on the short list of choices, Judge  Amy Coney Barrett, who made headlines when Senator Diane Feinstein rebuked her by saying: "The [Catholic] dogma lives loudly within her" during her September 2017 confirmation hearings.   If President Trump is raring for a fight, picking Barrett could paint Democrats as being bigoted towards Catholics, and hint that Roe v. Wade might not stand.  But considering the vitriol which Democrats have been displaying and the importance that they place on abortion rights, this may also be a dangerous donnybrook.

One thing can be said with certainty -- the Simpsons were being satirical rather than sagacious with their rending of a Trumpian Supreme Court pick.




Ivanka will not be sporting a black robe (in public) anytime soon.