Courting Disaster

Okay, Ted Cruz trounced Donald Trump in Wisconsin, and Bernie Sanders trounced Hillary Clinton, so everything changed, or didn’t. In two weeks it’s New York and a few other states. In June, it’s California. By then Trump will have this locked in, or he won’t. Bernie Sanders will pull off the impossible, or he won’t.

It can wait. There are other matters that can’t wait, or shouldn’t wait, like filling the vacant Supreme Court seat.

That damned Antonin Scalia died at just the wrong time. The Republicans won’t even meet with President Obama’s Supreme Court nominee, Judge Merrick Garland, and refuse to give him a vote. Let the next President – Cruz or Trump or Paul Ryan – choose who should replace Tony. Letting Obama choose would make a four-four liberal-conservative court shift left, for decades – but the Republicans have already been stung by a four-four split decision that let a default lower court decision stand, keeping those evil public sector labor unions alive. There will be more of those. They want to wait – let the people decide with their vote for president – but that’s risky, and their guy might not win the presidency – and in 2012 the people did decide on Barack Obama, for four years, not three. It’s an awkward position.

And what are they looking for anyway? It’s hard to tell who Donald Trump would nominate – he knows nothing about law or government or domestic or foreign or economic policy – he’s a real estate wheeler and dealer who had a good run on reality television. He might nominate Ted Nugent – but Ted Cruz is another matter. He’s argued many a case before the Supreme Court, and he clerked for William Rehnquist, the actual Chief Justice of the United States, so he knows how things work over there. His choice would be more informed, by his firm views on what the courts should or should not do.

That’s where things get interesting, as this Reuters item demonstrates:

Republican presidential candidate Ted Cruz often tells supporters about his Supreme Court win against the federal government in 2008, defending Texas’ right to execute a Mexican man for murder, as evidence of his conservative and anti-establishment credentials.

But there is one part of the story that goes untold. The Medellin v. Texas case, decided when Cruz was the state’s solicitor general, set the stage for years of diplomatic tension between the United States and its southern neighbor.

Mexico has publicly protested U.S. executions of its citizens over the years, but interviews with diplomats and reviews of official Mexican government communiqués reveal that the turmoil caused by the Medellin case ran deeper, coming up at nearly every meeting between the United States and Mexico and leading to an official protest to the United Nations Security Council in 2014.

Yes, Cruz made big trouble:

“I think relations would be complicated with a President Cruz,” said Sergio Alcocer, who was Mexico’s deputy foreign minister responsible for North America between 2012-2015.

Alcocer praised Cruz as intelligent and pragmatic but said the senator was too inflexible on issues like immigration and the death penalty. “Cruz takes certain positions that are very clearly defined. And he’s much more conservative, much more dogmatic than Trump,” Alcocer said.

And this is how Cruz sees the law:

In the Medellin case, Cruz defended the death sentence a Texas court imposed on Mexican citizen Jose Ernesto Medellin after he was convicted in 1994 for his role in the gang rape and strangling of two teenage girls in a Houston park.

In 2004, the International Court of Justice of the United Nations ruled that Texas and other states had violated the Vienna Convention by failing to notify Medellin and 50 other Mexicans on death row of their right to contact the Mexican consulate after arrest. President George W. Bush ordered Texas and other states to review the sentences.

Cruz argued that, while the United States had submitted to the international court’s decisions, the White House could not implement an international agreement that required states to change their court procedures without action by Congress. The Supreme Court agreed in a 6-3 decision.

He is a states’ rights man, and he forced the issue, and that made him a hero with that crowd:

Winning the case raised Cruz’s profile in conservative circles. He has recently said he would appoint justices who would narrowly interpret the Constitution – as he did in the Medellin case – a crucial talking point in the election following the death of Supreme Court conservative icon Antonin Scalia.

“It was an unusual thing at the time for the state of Texas to be standing up against the president of the United States in front of the Supreme Court, particularly when that president was a Texan and a Republican and the former governor of this state,” Cruz told cheering supporters at a Houston rally in February, one of the many times he has brought up the case.

Well, we’d know what we were getting, and this issue still isn’t resolved:

In 2013, Mexico warned Washington in another letter that the executions of Mexican nationals who had been denied consular access would mean “our whole forward-looking bilateral engagement could be questioned.”

A year later the government wrote to the president of the United Nations’ Security Council expressing indignation over the executions of Mexican citizens in violation of the international court directive.

But this was about the very real Nation of Texas, not the hypothetical United States:

Texas Governor Greg Abbott, a former attorney general who was Cruz’s boss at the time of the Medellin case, introduced the presidential hopeful at the February rally in Houston.

“He fought against the United Nations, the world court and the United States of America itself to defend Texas’ sovereignty,” Abbott said to cheers.

That is what he did, successfully, and one assumes he’d nominate someone who sees the United States as a sort of trade union of fifty sovereign nations who, for convenience, share a common currency and chip in for a shared military. That is how the South saw things way back when. Now they’ll have finally won the Civil War.

It may not get to that, as Jay Michaelson argues that Obama still has options:

While the president may not be able to compel hearings, he does have a nuclear option available: force the Senate into session when its members would rather be out campaigning.

Article II, Section 3 of the Constitution states that the president “may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.” 

And that’s the president’s call:

“It appears that it is within the president’s unchecked discretion” according to the redoubtable Lyle Denniston at SCOTUS-Blog. Given that broad leeway, it’s easy to see how a prolonged period of an eight-person Supreme Court could count as “extraordinary.”

For example, Obama could argue, a run of 4-4 deadlocks, like last week’s crucial public-sector unions case, could lead to unsettled law, and uneven practice, on everything from immigration to abortion to Obamacare. The whole reason the Court has taken these cases is that circuit courts disagree, after all. So what’s legal in Texas is illegal in Illinois, with no guidance from the Supreme Court. That is extraordinary.

The short-handed Court could also begin to bend under the heavy workload. To take but one example, the justices generally parcel out last-minute death penalty appeals. If even a single such appeal cannot be adequately reviewed because of short staffing, that, too, would be extraordinary.

Worst of all, imagine a contested presidential election in November – like Bush v. Gore on steroids. It’s not hard to see this happening in light of recent voting shenanigans in Arizona, Donald Trump’s love of litigation, and the real possibility of a credible third-party presidential run. And there is nothing more extraordinary than a deadlocked court unable to enable the transition of power.

And add this:

Nor would an “extraordinary session” be new: it’s happened 46 times in American history – 46 for the Senate alone, 28 for both the Senate and the House. It may be unfamiliar, since the last time was under President Truman, but it’s hardly unprecedented.

And many of them were much more thinly justified than Obama’s would be. In 2008, for example, Republicans wanted President Bush to call an extraordinary session for Congress to discuss soaring gas prices (remember those?). And President Truman’s call, during the 1948 election season, was in fact a baldly political stunt meant to expose Republican inaction on civil rights.

Obama really could do this, but then things get dicey:

Either the Senate would convene or it wouldn’t. If it didn’t convene, that would be a true constitutional crisis: one branch of the government denying the clear authority of another. (Of course, Republicans would say that Obama, the “imperial president,” started it – yet another way the party has come to resemble its putative presidential candidate.)

It would also be grounds for a Supreme Court case, filed by the White House, demanding that the Senate obey the president’s order. If the Court ruled in Obama’s favor and the Senate still didn’t convene, it would be disobeying both the executive and judicial branches of government – ironically, all the name of a pseudo-constitutional argument that “the people” only elected President Obama to a three-year second term.

Whatever electoral consequences Senate Republicans face now, they’d surely be punished fourfold for violating a direct order from the Supreme Court and the White House combined. It would make the Clinton Impeachment seem like a class in civics.

Ah, but then they’d do nothing:

As commentators have noted, the “speech and debate” clause of the Constitution makes it very hard to compel the Senate to do anything at all. Just as President Obama has wide discretion in calling them to convene, so the Senate leadership has wide discretion in deciding how to do its business.

Indeed, “nothing” is what happened in 1948; Republican Sen. Robert Taft simply blocked all votes from taking place. Perhaps the GOP would take a cue from House of Cards and issue a slow-motion “quorum call,” taking attendance for hours, or even days. Perhaps Ted Cruz would read Dr. Seuss again. Anything other than actually issue advice and (non-)consent on Obama’s nominee.

But that still would be quite a show…

But that’s just not going to happen, maybe:

Such a confrontational position might poison whatever appetite Senate Republicans have for a lame-duck confirmation. And there’s reason to believe that may be Obama’s strategy all along: nominate someone who eventually will look better than the alternative. Maybe this is just a waiting game.

If not, though, President Obama is not out of options. The Senate has the power to say no, over and over again. But the President has the power to make them do it.

That would, however, be mean. It’s best to let them look like fools all on their own:

Senate Minority Leader Harry Reid (D-Nev.) fired back Wednesday at what he suggested was unfounded criticism of Supreme Court Chief Justice John Roberts.

“I’m here to defend Chief Justice John Roberts. I’m here because he has been attacked without cause by the chairman of the Judiciary Committee,” Reid said from the Senate floor. “The senior senator from Iowa hit a new low in trying to justify his unprecedented obstruction of President Obama’s Supreme Court nomination.”

What, the Republican is attacking the quite conservative chief justice and the Democrat is defending him? That’s odd, but Reid was doing just that:

His comments come after Sen. Chuck Grassley (R-Iowa), the chairman of the Judiciary Committee, took a shot at the current justices – particularly Roberts.

Shortly before Justice Antonin Scalia’s death, Roberts suggested a partisan confirmation process is part of why Americans think justices are political or misunderstand how the court is different from other parts of government.

Grassley, however, said Roberts “would be well-served to address the reality, not the perception, that too often, there is little difference between the actions of the court and the actions of the political branches,” adding, “Physician, heal thyself.”

Roberts has come under fire from Republicans over decisions by the court upholding ObamaCare, leading conservatives to suggest his confirmation was a mistake. …

Grassley noted that many of his constituents believe Roberts “is part of the problem” and should avoid politics. He added that justices should “follow the law,” even on cases involving “hot-button” issues.

Grassley then explained that in a prepared statement:

The Chief Justice has it exactly backwards. The confirmation process doesn’t make the Justices appear political. The confirmation process has gotten political precisely because the court has drifted from the constitutional text, and rendered decisions based instead on policy preferences… In fact, many of my constituents believe, with all due respect, that the Chief Justice is part of this problem. …

As the Chief Justice remarked, although many of the Supreme Court’s decisions are unanimous or nearly so, the Justices tend to disagree on what the Chief Justice called the ‘hot button issues.’ We all know what kinds of cases he had in mind. Freedom of religion, abortion, affirmative action, gun control, free speech, the death penalty, and others.

The Chief Justice was very revealing when he acknowledged that the lesser known cases are often unanimous and the ‘hot button’ cases are frequently 5-4.

But why is that? The law is no more or less likely to be clear in a ‘hot button’ case than in other cases. For those Justices committed to the rule of law, it shouldn’t be any harder to keep personal preferences out of politically charged cases than others… The explanation for these 5-4 rulings must be that in the ‘hot button’ cases, some of the Justices are deciding based on their political preferences and not the law.

Kevin Drum is amused:

That sounds… surprisingly reasonable. It was anger at Supreme Court rulings that turned confirmation hearings political, not the other way around. And Grassley is right that for truly impartial justices, the law shouldn’t be any harder to interpret in hot button cases than in more obscure cases. And yet, hot button cases are very often split along partisan lines.

Now, it’s worth noting a couple of things. First, Grassley’s beef with Roberts is precisely that he didn’t vote on partisan lines when he upheld Obamacare. So he’s not exactly on the moral high ground here. Second, the court has always been political. But for most of its history it was politically conservative and mostly confirmed Republican positions. That changed after World War II, and what conservatives are really upset about is that the Supreme Court now hands down both liberal and conservative rulings. They want it to go back to being an arm of the Republican Party.

So Grassley is hardly presenting a balanced picture here. But he’s a Republican partisan, so why would he? More generally, though, I’d say his view of the Supreme Court is pretty defensible, and certainly more accurate than Roberts’ view. I see no particular crazy talk here.

Erwin Chemerinsky – everyone’s favorite constitutional law professor – also sees nothing crazy here and imagines an actual liberal Supreme Court:

Since 1970, the year Harry Blackmun received Senate confirmation, there always have been at least five justices appointed by a Republican president on the Court. If Merrick Garland is confirmed to replace Antonin Scalia, he will join Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan as Democratic appointees to the high Court.

Also, the next president, especially if he or she serves two terms, is likely to have three other vacancies to fill on the Court. Since 1960, the average age at which a Supreme Court justice has left the bench is 79 years old. There will be three justices 79 or older in 2017, when the next president is inaugurated. Ginsburg will turn 85, Anthony Kennedy 81, and Breyer 79, all in 2017.

Thinking of a Court where there are five or even six justices appointed by Democratic presidents is tantalizing for those on the left, like me, who have spent their entire careers with a Court that has been decidedly right of center. So, where might it most make a difference?

That’s easy:

Most obviously, Roe v. Wade and the right to abortion would be secure. State laws imposing restrictions on abortions would be far less likely to be upheld. Since 2010, states have adopted about 290 laws limiting access to abortion. These statutes impose regulations on abortion providers, prohibit abortions earlier and earlier in pregnancy, restrict the use of insurance to pay for abortions, limit medicine to induce abortions, and create many other restrictions. These laws likely would not survive review in a Court dominated by Democratic appointees.

And there’s this:

In a series of recent 5-4 decisions, the Supreme Court has made it much harder for consumers and employees to sue businesses. The Court has limited class-action suits and strictly enforced mandatory arbitration agreements that keep people from being able to sue. A Court with five or more Democratic appointees is likely to be much more inclined to rule for consumers and employees and their ability to sue in courts.

And there’s this:

In recent years, the Roberts Court has struck down a number of federal and state laws regulating campaign finance. Most famously, in Citizens United v. Federal Election Commission in 2010, the Court held that corporations have the right to spend unlimited amounts of money to get candidates for public office elected or defeated. It is likely that a Democratic majority on the Court would overrule this highly controversial decision. Just seven years earlier, in McConnell v. Federal Election Commission, the Court had upheld the very provisions that were declared unconstitutional in Citizens United. A Court controlled by Democratic appointees would likely overrule Citizens United and say that it is returning to its earlier approach.

And there’s this:

Conservatives on the Court long have wanted to limit the scope of congressional power. For example, in 2013, in Shelby County, Alabama v. Holder, the Court struck down key provisions of the Voting Rights Act of 1965. This was the first time since the 19th century that the Court invalidated a federal civil-rights law dealing with race. In many states, it has led to significant new obstacles on the ability of minority voters to participate in elections. A Supreme Court with five Democrats would likely reverse this ruling and also be much more likely to uphold congressional power to regulate interstate commerce and to tax and spend for the general welfare.

And there’s this:

With Scalia on the Court, there were five justices who rejected the idea of a separation of church and state, and were likely to uphold religious involvement in government and government support for religious institutions. For example, in 2014, in Town of Greece v. Galloway, the Court, in a 5-4 decision, held that it was constitutional for a town council to have Christian clergy members delivering Christian prayers virtually every month for almost a decade. A Court with a majority appointed by Democratic presidents is far more likely to strike down religious prayers at government functions, religious symbols on government property, and government support for religious schools.

And there’s this:

Until 2008, not once did the Supreme Court find a law to violate the Second Amendment. Then, in District of Columbia v. Heller, the Court, by a 5-4 margin, declared unconstitutional a 35-year-old District of Columbia ordinance that prohibited private ownership or possession of handguns. Scalia wrote the opinion for the Court. A Supreme Court bench with five Democratic appointees will not extend this protection for gun rights and likely would overrule it, returning to the view that the Second Amendment protects only a right to have guns for the purpose of militia service.

Those are just a few from his list. The court may not be political, per se, but all of its decisions have political implications. Some people will end up hopping mad while others will feel the relief of sweet justice at last – from the same decision. Oliver Wendell Holmes, Jr. once tried to straighten that out – “This is a court of law, young man, not a court of justice.”

That makes sense. The law is codified and precise. Justice is in the eye of the beholder. But don’t tell that to Chuck Grassley, or Ted Cruz. They both know the fight for the future of the country is in the courts, not in this chaotic election nonsense. That will take care of itself. This won’t.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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