Some Observations on Our New SCOTUS Justice, Ketanji Jackson

A few days ago, Justice Ketanji Jackson was sworn in as the first black female on the Supreme Court.  Yes, she should be congratulated, and she was, and still is.  However, I have some timely issues and grievances I think must be discussed as well.  May I offer these “6 theses,” so to speak? 

Unless one is living under a rock, regarding politics the past 3 years, it is nearly impossible to escape the meme of, “We need more people of COLOR, as well as more WOMEN…in Congress, on SCOTUS, everywhere.  Now, with Justice Clarence Thomas (regardless of politics) the High Court absolutely gained a very accomplished and very intelligent so-called “person of color.”  Did the far-left  (aka, the “woke”) celebrate that?  No. —  Why?  Because although Justice Thomas was the right “color,” he was the wrong kind of “person of color.” Simply put, he did not think as highly educated black people are “supposed” to think, which is through an ever progressive-leaning lens.

A couple years ago, we finally received another woman, Justice Amy Coney Barrett, to  SCOTUS.  Again, did progressives generally celebrate that as progress, a celebration of womanhood?  No way!  She was a woman (more on that later), but sadly, not a “woke” woman. She was the wrong kind of woman.  Period.  So, how to object to her?  Tear HER down! — I’ve noticed it’s been quite engrained in some on the far-left that it’s OK to “hate” certain folks NOW, if those folks, in theory…will contribute to “greater hate” in the FUTURE, or something like that.

Let’s discus Justice Ketanji Jackson further. Is she accomplished? Yes. I will not debate that; i can’t. She is indeed accomplished and has proven her knowledge of law.  That said, does it not seem some left-leaning pundits have, at times, fawned over her as being almost the apex of intelligence?  Full stop.  Yet, when it came to recognizing the equal “brilliance” of Justice Barrett, as a highly respected woman, nope, not much to see there.  Don’t believe me?  Well, view CNN reruns.

Respectfully, here’s a huge issue I’ve with Justice Jackson:  She was soft on online “pedo-porn” traders/transferers/sellers.  Some of the content, sadly included pre-pubescent children. This is bad.  But the mainstream media countered, opining this issue was just the right “bullying” Mrs. Jackson.  How dare they??  If that had been a conservative judge in the hot seat, I do not think he/she would have been treated with such tiny kid gloves!

Here’s something about Justice Barrett worth knowing: The Girl Scout Administration (GSA) originally included Justice Barrett as one of the accomplished US women for Women’s Day a couple years back. (Good for her!) Then, because of the outrage of some (not all) of the our progressive friends, with so much contempt for her as being the a “conservative” woman, the GSA actually took her off their list!  These current times are truly a crossroads of intersecting values. 

Last, but not least, when calmly asked what a woman was at her hearing, Ketanji Jackson seemed stunned at first, then said, with uncomfortably shy honesty, “I’m not a biologist.” (By the way, this got me thinking, even if she were a biologist, would she have answered? I doubt it.)  Anyway, even if the definition of a woman has gotten so “muddied up,” partly because of the trans movement (definition of “woman” has gotten lost in “trans-lation,” pun intended), I still DEMAND a better answer from a future justice on our Supreme Court.  Should not we all?  Furthermore, if she claims the high authority to decide important SCOTUS cases concerning women’s issues/rights, how can she, in good faith, be trusted to decide such cases, until she can offer a definition of what a woman is??  In other words, if I said I’d be faithfully deciding cases on the rights for “xyz people,” then I was asked, “Just who are ‘xyz’ people for which you will be making decisions…” and I replied, “Um, I can not answer that,” I don’t think the average person’s knee-jerk response would be, “Yep, I want that guy!”  As a final footnote here, the mainstream media afforded us zero favors by minimizing this too, as once again, unfair bullying of a “woman” of color, by the nasty right.  May God help our country.

Issa Slams AOC, Pelosi Over SCOTUS Security Bill Stall: ‘It is Astonishing’

 California Republican Rep. Darrell Issa slammed both House Speaker Nancy Pelosi, D-Calif., and “Squad” Rep. Alexandria Ocasio-Cortez, D-N.Y., over blocking a bill to give Supreme Court justices and their families police protection.

Issa torched Pelosi and Ocasio-Cortez as the bill remains stalled in the House after passing the Senate unanimously last month, going after the pair for preventing House members from “voting their conscience.”

“The House legislation I authored already passed the Senate 100-0 and I don’t know of a single Member of Congress who will end up opposing it,” Issa said in a press release first obtained by Fox News Digital. “It is astonishing that Speaker Pelosi and AOC are not only blocking this bill, but also bragging about it on social media.”

“Enough is enough. President Biden, Speaker Pelosi, Senator Schumer, and AOC need to tell their shock troops to stop breaking the law and cease threatening people in their homes,” Issa continued. “And Speaker Pelosi should let my Democrat colleagues vote their conscience on this vital bill.”

“This essential security needs to happen before somebody gets killed — because it almost happened last week,” the California Republican added.

Issa’s statement came Monday, two days after Ocasio-Cortez touted her blocking of the bill that didn’t see a single “no” vote in the Senate — even from the top Democrat, Senate Majority Leader Chuck Schumer of New York.

“Fly-out days are also days of maximum high jinks from party leadership, both Democratic and Republican Party leadership,” Ocasio-Cortez said in a Saturday Instagram Live video.

“I wake up this morning and I start to hear murmurs that there is going to be an attempt to pass the Supreme Court supplemental protection bill the day after gun safety legislation for schools and kids and people is stalled,” she said.

“Oh, so we can pass protections for us and here easily, right? But we can’t pass protections for everyday people?” the New York Democrat continued. “I think not.”

Ocasio-Cortez and her fellow “Squad” members have actively pushed “defund the police” rhetoric while simultaneously paying thousands of dollars in campaign funds for private security forces.

Rep. Cori Bush, D-Mo., and other members of the far-left “Squad” collectively spent over $325,000 on private security in 2021 despite promoting the “defund the police” movement during the George Floyd unrest of 2020, according to Federal Election Commission (FEC) records reviewed by Fox News Digital. 

Click here to read the full article at FoxNews

New SCOTUS Petitions Claim Public Employees’ First Amendment Rights Violated by Unions

California Teachers Assoc., United Teachers LA, SEIU, Oregon Educational Assoc. named in petitions

Last week, National Right to Work Legal Defense Foundation attorneys, in partnership with attorneys from the Freedom Foundation, filed petitions asking the United States Supreme Court to hear several cases from public employees in California, Oregon, and Alaska government employment.

The cases challenge union-created schemes that violate public employees’ First Amendment rights by stopping them from cutting off financial support to unions of which they disapprove.

The Petition says:

Petitioners are public employees in the States of California and Oregon who exercised their FirstAmendment rights to resign their union memberships, revoke their authorizations for their public employers to withhold further union payments from their wages after they became nonmembers, and object to subsidizing union speech. The respondent government employers and unions ignored petitioners’ revocations and continued seizing payments for union speech from these objecting nonmembers until an escape period (contained in their dues deduction authorizations) for stopping union deductions occurred.

In 2018, the Court in Janus v. AFSCME, Council 31 held that nonunion public employees have a First Amendment right not to subsidize union speech. 138 S. Ct. 2448, 2486 (2018). The Court also held that governments and unions violate that right by seizing union payments from nonmembers unless there is clear and compelling evidence the employees waived their constitutional right.

Two petitions appeal Ninth Circuit Court of Appeals decisions which allow union officials to continue limiting employees’ rights under the 2018 Foundation-won Janus v. AFSCME Supreme Court decision, the NRTW explained. In Janus, the Court recognized that forcing public employees to financially support a union violates their First Amendment rights.

Each of the cases brought before the court now challenges a union boss-created “escape period” scheme, the NRTW said. “Escape periods” are designed to limit the time in which public employees can exercise their Janus right to end union dues deductions, to just a few days every year. Often, public employees whom union officials never informed about Janus rights in the first place try to cut off support to an unwanted union, only to be told by state officials that, per the “escape period,” they must endure another year or more of union dues being siphoned from their paychecks, according to the NRTW.

The majority of these cases are class action lawsuits, seeking to reclaim money that union bosses seized from petitioners and their coworkers’ paychecks after they resigned union membership and tried to exercise Janus rights.

The Petition explains:

After Janus, petitioners resigned membership in their unions, revoked their authorizations for further deductions of union dues or moneys from their paychecks, and objected to the continued subsidization of union speech. Respondent unions accepted petitioners’ membership resignations, but continued to instruct the respondent governments to deduct union dues from their wages until the end of the annual deduction period, forcing petitioners to continue paying union payments for months after they resigned their union membership and withdrew their consent to fund union speech.

The legal questions presented to the Supreme Court are:

1. Under the First Amendment, to seize payments for union speech from employees who resigned union membership, became nonmembers, and objected to subsidizing union speech, do government employers and unions need clear and compelling evidence that those nonmember employees knowingly, intelligently, and voluntarily waived their First Amendment rights to refrain from subsidizing union speech in order to constitutionally seize union payments from these employees?

2. When a union acts jointly with government to deduct and collect union payments from nonmember employees’ wages, is that union a state actor participating in a state action under 42 U.S.C. § 1983?

“Petitioners file this joint petition for certiorari to present to the Court the important question of whether governments and unions need clear and compelling evidence that employees waived their First Amendment rights, or just proof of a contract, to seize payments for union speech when those payments are seized after union members resign their membership and are objecting nonmembers,” the Petition says.

“The Ninth Circuit created a massive loophole to the Court’s Janus holding that public employees have a First Amendment right not to subsidize union speech and must waive that right before governments and unions may seize union payments from nonmembers, the Petition says. “It did so by finding that both Janus’s holding and the First Amendment do not apply to public employees, governments, and public-sector unions, when those employees sign union membership and dues deduction authorizations that limit employees’ exercise of their right to stop subsidizing union speech except during short escape periods.”

Click here to read the full article at the California Globe

The Unions Keep Rigging the Rules as Workers Sue Them

Unions2The public employee unions have not been at all contrite since their 41 year run of legalized theft came to an abrupt halt. On June 27th, the Supreme Court overturned 1977’s abysmal Abood v. Detroit Board of Education decision and ruled for Mark Janus, thus freeing government workers from all forced union payments. But, ahead of the SCOTUS decision – pretty much a forgone conclusion – the union wheels were already grinding away, notably in California where a bevy of bills that attempt to re-rig the rules in favor of organized labor are currently going through the legislative process.

California’s creepy AB 119, already law, gives government unions access to all workers’ personal contact information and requires new hires to attend a mandatory union “orientation” meeting, during which a captive audience is harangued about the joys of union membership. A companion bill, AB 2970, would prohibit government agencies from publicly disclosing information about the new employee orientations. Some organizations like the Freedom Foundation and the Mackinac Center, you see, are trying to counter the union spin by contacting public employees. Like all good totalitarians, however, the unionistas are doing their utmost to stifle free speech.

In another anti-free speech, Big Brotherly move, the unions are behind an attempt to expand existing law that prohibits an employer from “deterring or discouraging public employees from becoming or remaining members of an employee organization.” AB 2017 would broaden the definition of “public employer” and also prohibit public employers from deterring or discouraging prospective public employees “from becoming or remaining members of an employee organization.”

In a direct slap at taxpayers, SB 1085 would grant leaves of absence, without loss of compensation or other benefits, to allow unionized employees to do union business on work time. Moreover, as provided in this bill, the worker would have a right of reinstatement to the same position and work location held before the leave, “or if this is not feasible, a substantially similar position without loss of seniority, rank, or classification.” While the union would have to compensate the state for any work done for the union, this law clearly could be extremely disruptive to the workplace and quite costly to taxpayers.

SB 550 stipulates that if there is a dispute alleging an employer’s failure to provide wages, benefits, or working conditions and it winds up in court, the employer, if he loses, must pay the union’s attorney’s fees and any other expenses incurred. But the “loser pays” provision only applies to the employer, not the union.

There is much more that the California legislature has been doing to give government unions perks that none of the rest of us could ever dream of. The California Policy Center’s Ed Ring has posted a detailed list of the new and proposed legislation, as has the law firm of Lozano Smith. They can be accessed here and here.

On the other side of the coin, there is worker-initiated litigation, most of which was set in motion before the Janus decision was handed down. In fact, as of this writing there are class action law suits against teachers unions in seven states, including three in California. All the litigation revolves around educators who never wanted any part of a union, but were forced to pay “agency fees” – about two-thirds of a full dues payment – because the union-friendly law in 22 states said they had to. One of the California cases is typical, where six current and former teachers allege that despite refusing to join the union because they disapproved of its political advocacy and collective-bargaining activities, they were still forced to pay a fee to the California Teachers Association as a condition of employment.

And it’s not just the teachers unions that are under fire. Hamidi et al v. SEIU Local 1000, filed by the National Right to Work Legal Defense Foundation (which litigated the Janus case) could force the union to refund money taken from 40,000 California state workers dating back to 2012. The money had been seized from employees who wanted to have no union involvement but were forced to pay some money to them nevertheless. The lawsuit, which includes suing for return of the forced dues payments as well as for compensatory damages, could cost the union $100 million.

While the Janus ruling ended Abood, the door has opened to a new world in which unions are desperately trying to recapture their former status as a very special interest. But at the same time, workers are fed up with union privilege and are determined to fight to get monies forcibly taken from them by an organization they never wanted any part of.

The wheel is in spin and will remain in motion for some time to come.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

Court Case Could Free Public Employees from Unions


Supreme CourtThe U.S. Supreme Court will hear arguments in the Janus v AFSCME case on February 26, with a decision scheduled to be announced in June. If successful, it would free public employees in 22 states from having to pay any money to a union as a condition of employment.

Many union leaders are beside themselves with the thought that their days of collecting forced dues payments may well be numbered. And in an attempt to convince anyone who will listen to them, the lies and whines are flowing like raw sewage. Perhaps Numero Uno on the BS meter is Mr. Eric Heins, president of the California Teachers Association. In the current issue of California Educator, the union’s magazine, Heins spews some whoppers that would make Richard Nixon and Bill Clinton blush.

“They want to use the Supreme Court to take away the freedom of working people to join in strong unions.” Blatant crock. The case is about giving working people a choice to be a part of a union.

“A decision in Janus to strip public employees of their collective bargaining rights in the workplace moves us further in the wrong direction.” Uh, nice bait and switch. The case has nothing to do with collective bargaining; it’s about the Constitutionally-guaranteed freedom of association for workers.

“No other organization exists to protect California’s children the way CTA does – in the classroom and beyond.” Okay, technically not a lie, but it’s a distinction without a difference. In his opinion, CTA, which has burdened the Golden State with tenure, seniority and dismissal statutes so onerous that firing a pedophile is almost impossible, is “protecting children.” No, the union is there to preserve teachers’ jobs at any cost…whether they deserve preservation or not. The children you pay lip service to – not to mention taxpayers you profess to champion – are hardly “protected” by your union.

Other unions have also ramped up their rhetoric as the oral argument date nears. The American Federation of Teachers, stressing precedent, is invoking the 1977 Abood ruling, which allows for forced dues. Using the stare decisis argument, the union adopted a resolution “urging the court to reaffirm its long-standing position rather than imposing a national ‘right to work’ landscape.” Surely the union would admit that using a prior ruling as the basis to justify a law is not always the right and just thing to do. For example, AFT wouldn’t have been caught dead using stare decisis to support Plessy v Ferguson, which advanced the “separate but equal” doctrine for public facilities, including schools, when  Brown v. Board of Education, which claimed that separate educational facilities are inherently unequal, challenged the 58 year old ruling in 1954.

In the “whine” category, one meme that keeps popping up is the unions’ insistence that they will become insolvent without compelled dues. AFSCME President Lee Saunders called Janus a political attack against union finances. To be sure the unions will take a financial hit, but if it doesn’t have anything to offer to a worker, it should lose business or even fold up. Think Edsel.

In the “misdirection” department, Slate writer Mark Joseph Stern deserves to be singled out for chutzpah. He asserts that the claim made by Janus that the First Amendment flatly prohibits the government from compelling Americans to subsidize speech with which they disagree is bogus. He writes, “… this happens all the time: Tax revenue, for instance, is frequently used to promote messages that a taxpayer does not endorse, yet nobody seriously believes that taxes are unconstitutional.”

What Stern conveniently omits is that the union is not a government entity, but rather a private corporation. For better or worse, making people pay for services they neither asked for nor want is a “privilege” we reserve for government. In other words, while I must pay state and federal taxes, I don’t have to pay the Auto Club a fee because they say they provide certain necessary services. I am not forced to fork over money to the NRA because the pro-Second Amendment group advocates for me. AAA and NRA are private entities but, unlike unions, are not allowed to coerce money from unwilling individuals.

Given the originalist majority on the Supreme Court, Mark Janus should be successful in his attempt to continue in his job as a child support specialist at the Illinois Department of Healthcare and Family Services without being made to pay one red cent to any union to keep his job. And a union will then have to convince him (and several million other government employees) that it’s in his best interest to join up. What a concept.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

Never Mind Never Trump


To do a brief full disclosure, I was a national director of the Super PAC which created the Draft Ben Carson for President movement and, after he officially announced his candidacy, the Super PAC (2016 Committee) supporting that candidacy. After Carson withdrew I wanted to support Marco Rubio, but he imploded shortly after Carson, so for about a nano-second I was the congressional district chairman for Ted Cruz in my Glendale, CA based congressional district.

That means Donald Trump was my fourth choice for president. He is now my first choice, indeed the only choice that makes any sense. He is the only choice that gives hope that America and her traditional freedoms will not be thrown down the rat hole represented by putting another Democrat in the Oval Office on January 20, 2017.

Since Trump clinched the nomination thousands of trees and millions of electrons have been sacrificed to document the nascent (for UCLA grads that means “new”) “Never Trump” movement among Republicans. There are some well-meaning activists, supporters of one or more of the other 147 GOP candidates for president, among the Neverland folks.  Many newbies to the political process among them, their disappointment is palpable and understandable. They get a pass. What is not excusable is, for lack of a better definition, the “conservative establishment” types who are spearheading and cheerleading for the NeverTrump, Neverland crusaders.

I know most of the NeverTrump/Neverland folks. I’ve worked with some of them. A smaller group of them I consider friends. That said, with very few exceptions the NeverTrump leadership (largely confined to the East Coast) consists of navel gazing, thumb sucking narcissists. Most of them have never run for office or been in a hands-on position in a winning political campaign. I wouldn’t trust them to win a municipal water board campaign in California.

But they are “very important people” and “deep thinkers” – just ask them. In fact, you don’t need to ask them, they’ll tell you…over and over again. They are mad as Hell that the Republican primary voters did not follow instructions. So to punish the GOP plebeians who disobeyed orders and nominated someone outside the acceptable Conservative Caste, these conservative “leaders” are willing to turn the country, and most importantly the Supreme Court, over to Hillary/Bernie/Joe, all of whom would govern as Obama’s third term.

As my dear old friend John Nolan used to say, “stupid, stupid, stupid. I am so tired of stupidity!” (Side note to personal and political friends, John Nolan was Pat’s father).

I am hardly blind to Donald Trump’s deficiencies as the ideal conservative or even ideal Republican. But neither am I blind to the fact that one – and only one – issue truly matters for the future of the country, and that is the future of the Supreme Court of the United States.

Like it or not SCOTUS is where the action is in re: determining the future direction of American governance. For the past 40 years, from Roe v. Wade through Kelo (eminent domain) to gay “marriage” and Obamacare, the left has won its most significant victories in SCOTUS – victories it could never have won at the ballot box. Sadly but truly, SCOTUS has had and will continue to have much more influence on America than any majority in Congress.

The next president is likely to have at last two and perhaps four appointments to SCOTUS. Given the current 4–4 balance in SCOTUS, the next president will set the ideological balance for the next 20–30 years, and that ideological majority will form America’s politics, mores and future … until most of you reading this column are dead.

We cannot be sure what kind of appointees we’d get from President Trump, but we most certainly can be sure what we’d get from Hillary/Bernie/Joe – far left ideologues who would pave the way for America’s descent into a dark, extended nightmare of socialist tyranny.

My NeverTrump-Neverland friends rightfully point out that there’s no assurance that Trump’s appointees would be stellar conservative constitutionalists. They are right of course. SCOTUS appointments are notoriously fickle. Hence Ronald Reagan’s huge mistake in putting Sandra Day O’Connor  on the bench juxtaposed with George H.W. Bush’s enormous favor to America in adding Clarence Thomas to the Court. So who was the better conservative in that trade-off?

Here’s the exercise I want Trump deniers to do. Pick a number between one and one hundred, said number representing what you think are the odds that President Trump would put good judges on SCOTUS. Then pick a similar number for Hillary/Bernie/Joe. This is a trick question, as it really doesn’t matter what number you chose for Trump. His number is going to be bigger than the Democrats’ number, which is zero. That is game, set and match for me.

There are many other issues on this topic worthy of discussion, and I will do my best in future columns to do justice to both the pro and anti Trump viewpoints. I will close with a quote from the always wise Dennis Prager, who recently wrote: “I just don’t understand how anyone who understands the threat the left and the Democrats pose to America will refuse to vote for the only person who can stop them.”

Bill Saracino is a member of the Editorial Board of CA Political Review. 

SCOTUS declines to review CA asset seizure practice


Photo courtesy Envios, flickr

Photo courtesy Envios, flickr

The U.S. Supreme Court declined to take on a 15-year-old case challenging California’s asset seizure practices.

The justices decided “they would not hear a long-running lawsuit that contends the state does not do enough to notify the rightful owners before seizing their assets,” the San Francisco Chronicle reported. “Under the state’s law, accounts can be seized if a bank or retirement fund has lost track of the owner for three years. But lawyers who sued called the state’s system a ‘recipe for abuse’ because many people are unaware that their assets or those of a relative are being held by the state.”

The suit put the court’s interpretation of fundamental constitutional rights at stake. “Lead plaintiff Chris Taylor filed the class action at issue back in 2001, taking aim at California’s Unclaimed Property Law, which provides for the conditional transfer to the state of unclaimed property such as savings accounts or shares of stock,” Courthouse News reported. “Taylor accused state controller Betty Yee of violating due-process rights by transferring property to the state without providing the potential owners adequate notice.”

“During the intervening years, the challenge brought several amendments to the law’s notice procedures. Chief among them, California now notifies potential owners before the state transfers the unclaimed property, not after.”

Room for abuse

But the state has not changed its passive stance on money “which they freely admit they owe to someone (or that person’s heirs if they are deceased) but are unable to deliver because they can’t find them,” as HotAir noted. Other states, the site observed, had reason to watch the case closely. As CNN Money has calculated, “States, federal agencies and other organizations collectively hold more than $58 billion in unclaimed cash and benefits. That’s roughly $186 for every U.S. resident. The unclaimed property comes from a variety of sources, including abandoned bank accounts and stock holdings, unclaimed life insurance payouts and forgotten pension benefits.”

Critics have charged that governments take advantage of the perverse incentive to keep people in the dark about what they’re owed. California alone has amassed some $8 billion in unclaimed assets, according to the Los Angeles Times; “from this fund, it takes about $450 million a year to add to the state budget,” the paper reported.

Future hopes

Two justices did offer Taylor and his supporters a small consolation prize. In a concurring opinion, Justices Samuel Alito and Clarence Thomas recommended that the court consider “in a future case” how proactive states should be in similar situations.

“As advances in technology make it easier and easier to identify and locate property owners, many states appear to be doing less and less to meet their constitutional obligation to provide adequate notice” prior to seizure, Alito reasoned. “Cash-strapped states undoubtedly have a real interest in taking advantage of truly abandoned property to shore up state budgets. But they also have an obligation to return property when its owner can be located.” Alito said “the convoluted history” of Taylor’s suit “makes it a poor vehicle for reviewing the important question it presents[.]”

Legislative divisions

More broadly, asset forfeiture laws have become a target for reformers in both political parties, with bills attracting controversy in states across the country. Last year, a divided Legislature in Sacramento saw Senate Bill 443 sail through the Senate but sink in the Assembly. State Sen. Holly Mitchell, D-Los Angeles, and Assemblyman David Hadley, R-Torrance, “would have reformed the state’s asset forfeiture regulations to require that police and prosecutors actually convict citizens of crimes before seizing ownership of their assets to spend on themselves,” as Reason magazine noted. Between the Senate’s vote and the Assembly’s, state police and prosecutors mobilized effectively to prevent the bill from becoming law.

Originally published by CalWatchdog.com

SCOTUS Showdown: Obama’s Dysfunctional Relationship With Congress


SCOTUSbuilding_1st_Street_SEAfter this week’s news that Republican Senate leaders will not even consider any Supreme Court nominee until a new president is in office, current President Obama is taking it to the streets in an effort to get his yet unnamed pick approved. Or at least to make some much-needed political hay.

In a guest column on the acronymically-named SCOTUSblog, Obama makes his case that he will do his constitutional duty by naming an appointment and he expects the Senate will do the same by giving the Obama nominee a fair hearing and, at least in Obama’s world, the thumbs up in an up-or-down vote.

The president’s implication is that he is fulfilling his duty while a Republican Senate contingent which has clearly stated it will not act on a Supreme Court replacement for Justice Scalia until the next president is in office, would be guilty of a dereliction of duty. If you read between the lines, it almost could be an admonition straight out of Gilbert and Sullivan: “He has done his duty. I will do mine. Go ye and do yours.”

Obama talks about his putative nominee’s virtuous qualities: fierce independence; understanding the role of the judiciary in interpreting, not making law; a keen intellect; faultless integrity. Of course. But let’s cut through the crap. At this stage it’s all political posturing. On both sides.

And in some ways, the president’s predicament reminds me of situations faced by the kids in my high school forensics class who after getting busted by the teacher for some infraction or other were faced with detention or another equally odious punishment. In such situations, Bonnie Miller’s response was invariably the same: “Sorry, hon, you did it to yourself.”

In the past, we have heard criticisms from the White House when Congress passed bills which the president had signaled he would veto. On such occasions it was as if one could hear in the background of the White House declarations Seinfeld’s Larry Thomas deliver one of his lesser-known classic lines with gusto: “Please, you’re wasting everyone’s time.” The president would then go on to veto the bill in question with a slight head-shake, as if to say “kids will be kids.”

On a number of occasions, if the president wanted to be spared the inconvenience of a veto, he got his Senate acolytes to use the filibuster. In this way, for example, he was able to see his recent Iran deal sail through, despite majority opposition in both houses of Congress. While the deal was voted down by the House, it failed to get an up-or-down vote in the Senate.

At that time, of course, it was the Republican Senate leadership which decried the Democrats’ use of the filibuster. As a key element of American foreign policy, the Iran deal, they claimed, deserved a full hearing and an up-or-down vote. The Democrats not only responded with the “waste of time” argument, but also suggested that the use of the filibuster was simply yet another way in which – through their duly elected Senators – the people of the United States were speaking. Sorry, Republicans, you didn’t have the votes. Next!

Now that the shoe is on the other foot, Democrats are crying “Foul!” and trying parse the differences between their own use of the filibuster and the Republicans’ unwillingness to consider any Obama SCOTUS nominee, which is in itself a form of filibuster.

“Ah, but the filibuster is often used when it comes to legislation. It is unprecedented when it comes to Supreme Court nominees.”

This is sheer nonsense, and it is all political game-playing within the wacky, arcane set of rules the Senate in all its old-school glory sets for itself. When you change those rules, as for instance when the Democrats under then-Majority Leader Harry Reid used the “nuclear option” to eliminate the filibuster for lower court nominees, don’t be surprised when the new rules are used against you if ever that shoe moves feet. And be even less surprised when the existing rules are used against you. You’re all playing by the same rules, unless, of course, you change them.

Let me make it clear: I personally believe the Republicans in the Senate should give any Obama nominee a hearing (though I do not feel their “advise and consent” role obligates them to an up-or-down vote). If anything, the Republicans are playing within those old-school rules which allow them to make a decision without actually voting on it. They are not changing the rules, as the Democrats did when they used the nuclear option.

Now it is the president who is on notice that his nominee has no chance of clearing the Senate, as the Senate exercises its constitutionally mandated “advise and consent” role. In this case of reversed fortunes, it is the Senate which effectively is threatening a veto. And yet, just as the Republicans in Congress don’t always pay heed to the president’s veto threat when it comes to legislation, the president himself seems undeterred by the Senate’s veto threat.

It’s a classic game of political chicken. This time the Republicans will want to frame the matter as one of the American People’s right to decide the matter through the upcoming presidential election; they will want to paint the president as “wasting time.”  The president will want to paint the Republicans as “obstructionist” and “derelict in their duties.” Each side will attempt to inflict the maximum amount of political damage on the other in this election year.

In a sense, the president is reaping what he has sowed through his inability to reach across the aisle during his 7+ years in office. Ultimately, the SCOTUS showdown and game-playing are nothing more than a symptom of his dysfunctional relationship with the Republicans in Congress, which has been exacerbated by his own abuse of executive orders. In short: how can Republicans in Congress trust the president to pick a justice who understands the Supreme Court’s constitutionally mandated role when he himself doesn’t seem to understand his own?

Just as Republicans shouldn’t be surprised when the president follows through with a threatened veto, so should the president not be surprised when the Senate, led by the Republicans, exercises its veto. The immortal words of Bonnie Miller seem to ring truer than ever before.

John Mirisch has served on the Beverly Hills City Council since 2009.  He is currently Vice Mayor and will become Mayor next month.  In a previous turn as Mayor he created the Sunshine Task Force to increase transparency and public engagement in local government.

Comity is Dead – A Reflection on the Supreme Court Vacancy


Photo courtesy Envios, flickr

Photo courtesy Envios, flickr

We began this drama with Republicans suggesting there will be no action on any Obama nomination, followed by Democratic outrage.

I have been convinced all along that the Senate will not go down that path; it would be too easy for the Democrats to portray inaction as a willful refusal to do a task required by the Constitution, and thus even worse than the government shutdown.  That could cost the GOP control of the Senate in November, which will be decided by a handful of races, most likely the open seats in Nevada and Florida.

But a vote by the 54 GOP Senators to reject the nomination is more likely and far more justifiable. Senate Judiciary Chair Charles Grassley signaled in his interview on Tuesday that he would consider holding hearings, at least hinting at that strategy.

THE 2016 ELECTION

Despite the many predictions that the court vacancy and deadlock will be a winning issue for Democrats this year, the issue may benefit Republicans just as much. In the opening primaries, the energy on the right was very high (see record turnout in Iowa), and conservatives have long emphasized the importance of the court majority as the last line of defense of their views.  And in general, the side that fears losing something it now has will always be the most passionate – and that is the conservatives. A new liberal justice could, among other things, overturn the Second Amendment right to gun ownership. But it seems unlikely that replacing Scalia with a like-minded jurist would lead to the end of abortion rights or other existing freedoms.

Republicans need to talk about the context behind their strategy. President Obama spent all of 2015 expanding the reach of the Imperial Presidency beyond anything Richard Nixon ever did. His foreign policy initiatives, such as restoration of relations with Cuba, are more defensible, given that presidents have their greatest power in foreign affairs, but he is on shakier ground with his domestic “orders.” His immigration policy and coal rules represent a much broader assertion of new powers, and are being challenged in the lower federal courts, with mixed results so far.

The president believes he has a mandate to enact his views, and despite losing a net of 69 House and 14 Senate seats since 2009, he has basically said, “I’m doing what I believe in because Congress will not act.”

The Senate response is then to reciprocate by voting no on any nominee, which is an explicitly granted constitutional power. It is the same kind of maximalist posture that the president has been employing for a year. So we can say with certainty that comity among the branches of government is dead.

Republicans also need to bring up the history. Democratic politicians insist that a president has the right to have a qualified nominee confirmed. Yet while there has been occasional mention of the 1968 rejection by a Democratic Senate of Abe Fortas, everyone seems to have forgotten the 1987 nomination of Robert Bork, which was rejected on ideological grounds by a Democratic Senate.

THE POLITICS OF SELECTION

If any nominee is doomed, that means candidates for the most prestigious and important legal body in the world are now being weighed and measured on how they will boost election turnout among certain groups – e.g., will Hillary Clinton get a larger boost in key states from an African American or a Latino nominee? That is a sad state of affairs indeed.

This has led many to predict that an African American woman will be chosen. Names floated include Attorney General Kamala Harris and Judge Ketanji Brown Jackson of the federal District Court in D.C. And if it were up to me, I might push for Justice Leondra Kruger of the California Supreme Court, who used to work in the Obama administration.

However, the early leader in the speculation derby was Attorney General Loretta Lynch, who has the advantage of having been fully vetted by the Senate.

But court watchers have noted a problem. We know Senate Judiciary will ask for every conceivable piece of information on a nominee, in the hopes of finding something that will make a rejection easy. And the incumbent AG may have internal documents that directly address discussions of or investigations into Benghazi, the email servers or the Clinton Foundation.

If such documents exist, they might reflect unfavorably on Secretary Clinton, or might make it appear DoJ has shown favoritism in its investigations. Justice would then have to choose between withholding the material, giving the Senate a reason to reject Lynch, or releasing it, at a potential cost to Mrs. Clinton.

The other choice facing the president is moderate or firebrand? Most seem to think he will avoid the firebrands – no Sen. Elizabeth Warren types – as that offers the best chance of political success.

Choosing a nominee known to stand for overturning 5-4 decisions that absolutely infuriate the left, especially the Heller case establishing an individual right to gun ownership and the Citizens United decision on campaign spending, will help motivate and turn out core Democrats. But an activist nominee eager to overturn recent rulings could be more easily rejected as someone who lacked the appropriate judicial temperament.

The alternative approach would be to nominate a judge whose views are less known and/or more moderate, and who ideally has already been confirmed. While her defeat would be less motivating to the Bernie Sanders demographic, it would allow Democrats to attack the GOP all year as rejecting a qualified woman for purely political reasons (and perhaps throw in accusations of racism as well). That does seem like a winning strategy for the president. But who knows? If there’s one thing we can count on this election cycle, it’s that what we think we know turns out to be wrong.

Lawrence Molton is an attorney and political consultant in the San Francisco Bay Area.

Mainstream Misdirection in SCOTUS Search


 

Photo courtesy Envios, flickr

Photo courtesy Envios, flickr

Antonin Scalia’s death has begun a new Supreme Court battle. And much of it will be expressed in terms of whether nominees are “mainstream” or not.

Senator Charles Schumer already demonstrated this pattern. In 2007, he said any Bush nominee “must prove … that they are in the mainstream rather than we have to prove that they are not,” but has now doubled down in the opposite direction, saying, “many of the mainstream Republicans, when the president nominates a mainstream nominee, will not want to follow Mitch McConnell over the cliff.”

Why so much mainstream rhetoric? To be in it sounds good; to be out of it sounds bad. But it rests on a distorting analogy.

The analogy equates mainstream to “normal,” or majority, views. They are then further equated to “correct” views. But while majorities choose representatives, our Constitution was far from majority rule (“mob rule,” to many founders). It put many choices off-limits to political determination, and subjected others to very stringent standards. In short, it defended liberty against government encroachment. This is especially critical in evaluating justices, whose primary role is preserving the Constitution against majority abuses.

The analogy presumes a speaker’s mainstream evaluation is accurate. But where the mainstream is and how far from its supposed center is acceptable are indefinable.

The core issue is not, then, about being in the current mainstream, but where that mainstream should be. Advocating respecting the Constitution as written, as Scalia was famous for, focused on that.

That is, the mainstream may be in the wrong place. It has clearly changed in our country, but only because some were out of the previous mainstream. Men being created equal, with inalienable rights against government abuse, is far from the once mainstream belief in the divine right of kings. And our Bill of Rights freedoms to speak, write and worship as we choose, and to have our property protected from government predation, were not always mainstream.

Federalist 78, America’s most famous statement of the judiciary’s role, reveals that the political mainstream has indeed jumped its constitutionally enumerated banks, arguing for re-routing it toward its original course: “A limited Constitution…can be preserved in practice no other way than through…courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”  Further, “whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter…to guard the Constitution and the rights of individuals.”

If the mainstream has moved from its original American course, only those now out of it can shift it back. For example, the now-common view that using government to rob Peter to pay Paul is acceptable means anyone acting to undo such policies would be outside today’s mainstream, though not that of our founders. As Jefferson said, “The majority, oppressing an individual, is guilty of a crime, abuses its strength, and…breaks up the foundations of society.”

In fact, “out of the mainstream” nominees are the only ones who might resist further expanding government encroachment or even reclaim eviscerated freedoms once taken for granted. In contrast, those recently advocated as mainstream have enabled “new and improved” encroachments.

Expanding the divide between the Constitution and current interpretation increasingly threatens our founders’ mainstream belief in liberty and the Constitution they designed to defend it. Consequently, advocates for the modern mainstream are opposing the mainstream that made America great. That is why Antonin Scalia fought vigorously for our founders’ understanding. It is also why Americans don’t need more justices from the modern mainstream, but more from its original channel.

Gary M. Galles is a Research Fellow at the Independent Institute and a Professor of Economics at Pepperdine University. His books include Lines of Liberty (2015), Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013).