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Nominate and Confirm

23 Wednesday Sep 2020

Posted by pnoetx in Supreme Court

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Absentee Ballots, Amy Coney Barrett, Antonin Scalia, Barack Obama, Bush vs. Gore, Check Schumer, Contested Election, Court Packing, Donald Trump, Hillary Clinton, Joe Biden, Judicial Activism, Lindsey Graham, Living Constitution, Merrick Garland, Mitch McConnell, Originalism, Phil Murphy, Ruth Bader Ginsburg, Supreme Court, Ted Cruz, Tom Wolf, Voter Fraud

Many on the left practically cheered the passing of Antonin Scalia in 2016, a reaction I witnessed with disgust on my own social media feeds. Now, we should all mourn the death of Ruth Bader Ginsburg, but some of the same people seem almost comically furious with her for “choosing such a bad time to die”, just 46 days before the presidential election! Or, for refusing to step down during the Obama administration, when she could have been replaced with a much more youthful lefty jurist.

Of course, the Left is also furious that President Trump plans to nominate a candidate for Ginsburg’s vacancy on the Court, and that Republican leadership in the Senate plans to bring the nomination to a vote, perhaps before November 3rd.

Trump and the GOP majority are entitled to do that under the Constitution, and they should. Senator Ted Cruz explained the primary reason:

“Democrats and Joe Biden have made clear they intend to challenge this election. They intend to fight the legitimacy of the election. As you you know Hillary Clinton has told Joe Biden ‘under no circumstances should you concede, you should challenge this election.’ and we cannot have election day come and go with a 4-4 court. A 4-4 court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of … a contested election.” 

This presidential election might be fraught with more procedural controversy than any before. The coronavirus, or its promoters in the media and the Democrat party, has spooked many voters into the belief that going to a polling place in-person on Election Day is too dangerous. This despite the fact that distancing and masks will be required, and the time it takes to complete a ballot does not require “prolonged exposure” to anyone. So now we face the prospect of mail-in balloting on an unprecedented scale, which is an invitation to manipulation and fraud. A couple of examples:

“… consider some of the suspect decisions already being made in various states that deliberately weaken ballot security. The Pennsylvania Supreme Court, for example, voted last week along party lines (the judges are elected) that county drop boxes, including unattended ones, could be used to collect votes. Gov. Tom Wolf, a Democrat, and his party supported the measure, which reached the court by lawsuits, thus avoiding GOP control of both legislative chambers. The decision obviously opens the door to potential fraud because ballots in unsecured drop boxes could be tampered with or stolen. 

New Jersey’s Democratic Gov. Phil Murphy also made some curious decisions. A Jersey friend sent me a mailer he received that was addressed only to ‘Residential Customer.’ Inside, a pamphlet from the county clerk in Bergen County said that a Murphy order ‘requires’ every county to mail a ballot to ‘every active registered voter.’ That raises the chances of thousands of unmarked ballots being stolen from the post office or front porches, practices not exactly unheard of in New Jersey.”

Already a number of lawsuits have been filed in various states over absentee ballots. There have been missed deadlines, disputes over whether certain candidates should appear on those ballots, invalidated pre-filled applications for ballots, and an incorrect mailer sent by the U.S. Postal Service to voters nationwide regarding absentee ballots. Let’s face it: for all the earlier denials by Democrats that the mail-in ballot process was not subject to gaming or fraud, neither side trusts the other. There will be many more disputes as ballots are counted before and after Election Day.

It’s reasonable to expect that a few cases might rise to the level of the U.S. Supreme Count before election tallies are final in some states, as in the Florida recount in the Bush vs. Gore election of 2000. A 4 – 4 tie on the Court would leave lower, state-court rulings in place that could decide the outcome of a federal election. That’s not how the process is intended to work. Needless to say, that’s another reason why Democrats oppose a Trump nominee prior to the election. There’s no doubt they’d push forward with their own nominee were the shoe on the other foot, however, just as Republicans opposed the confirmation of Merrick Garland in 2016.

So who’s a hypocrite? Republicans who said that they wouldn’t confirm or even conduct a confirmation process in an election year, as in 2016, certainly qualify (Lindsey Graham, among others). It must have seemed expedient to stay so at the time, but it was foolish. And Democrats who now protest after insisting in 2016 (and before) that a Supreme Court vacancy should be filled by the sitting president, even in an election year, also qualify (Chuck Schumer, Barack Obama, Hillary Clinton, and Joe Biden, among others). Here’s what some top progressive legal minds were saying in 2016: It’s a duty and obligation for the president to nominate and for the Senate to undertake a confirmation process!!

Here’s the key issue: The president has the authority to nominate Supreme Court justices any time during his term. If the Senate confirms, then a new justice is seated. If the Senate chooses not to confirm, the vacancy remains. That’s how it works. There have been 29 vacancies on the Court in election years, and in 22 of those cases the sitting president sent a nomination to the Senate. As Justice Ginsburg said in 2016:

“There’s nothing in the Constitution that says the president stops being the president in his last year.”

Her purported wish on her death bed, that her replacement would be chosen by a new president, was not hypocritical. It was a wish, not a legal opinion. It was just as “political” as the contradictory statements made by the politicians, however.

Ginsburg also said it’s the Senate’s job to take up a vote, which the Republicans refused to do in 2016. That was their prerogative, however, and the decision does not bind anyone in the current circumstance.

Mitch McConnell is right:

“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year. By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”  

Democrats have promised to “pack the Court” by adding seats to the bench for new, ideologically-preferred justices if a Trump nominee is confirmed, among other threats. They should heed the caution of moderates who know how dangerous that may be. The mere threat gives Republicans reason to pack the Court themselves, when they can, which might be as soon as January. Moreover, nothing could do more to undermine confidence in the Court. RBG herself had the following to say about Court packing:

“Well, if anything, it would make the court appear partisan. It would be that one side saying, ‘when we’re in power, it was only to enlarge the number of judges so we will have more people who will vote the way we want them to…’ So I am not at all in favor of that solution to what I see as a temporary situation.”

Well, of course the Court is divided along certain ideological lines, and to some extent those differences break along dimensions of legal philosophy, such as originalism vs. a “living Constitution”, or judicial activism. That’s not to say that the Court is always partisan, however. The process of nominating and confirming justices should not be as partisan as it has become in the last 25 years (see the last link). Let’s not make it worse.

Trump will nominate an able jurist. Senators should meet and independently assess that individual’s legal qualifications and temperament. My expectation is they will vote to confirm, and I hope that vote takes place without rancor.

Note: Thanks to the Washington Free Beacon for the wonderful meme at the top of this post.

Borkians Preserve Federal Obamacare Subsidies

29 Monday Jun 2015

Posted by pnoetx in Obamacare

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Tags

ACA, Administrative State, Affordable Care Act, Chief Justice Roberts, Damon Root, Ilya Shapiro, Judicial Activism, Judicial Restraint, King vs. Burwell, Obamacare, Randy Barnett, Robert Bork, Robert Laszlewski, SCOTUS, SCOTUSblog, Tyler Cowen

ACA Supremes cartoon

I have mixed feelings about the Supreme Court’s King vs. Burwell decision upholding federal subsidies for health insurance purchased in states that did not establish their own exchanges. My biggest concerns are that the decision gives a pass to the unchecked exercise of executive fiat as well as congressional carelessness (“lassitude”, to use Justice Scalia’s term), and the smearing of the separation of legislative and judicial powers. I admit that I was eager to see the exchanges unravel under the weight of their own lousy economics. However, the economics remain lousy even with the ruling, which will become more evident as major subsidies to health insurers expire over the next 18 months. It will be interesting to watch as the process of escalating premia plays out. I’m relieved that the Obamacare opposition in Congress (primarily Republicans) is now off the hook. These legislators never coalesced around an alternative and would have received a good portion of the blame for any further disruptions in the insurance “market” had the decision gone the other way. Probably their best approach would have been to extend the subsidies to all exchanges, at least for the remainder of Obama’s term. As Tyler Cowen notes, an extension would have occurred:

“… only after a lot of political stupidity and also painful media coverage. So on net I take this to be good news, although arguably it is bad news that it is good news.“

On the merits of health care policy, given the failure to put forward a better plan, what would have been gained over the next 18 months from a ruling for the plaintiffs? Not much.

Cowen links to a Robert Laszlewski post emphasizing the fragile economic and political condition of Obamacare:

“Obamacare has only enrolled about 40% of the subsidy eligible market in two years worth of open enrollments. That level of consumer support does not make Obamacare either financially sustainable or politically sustainable. The surveys say the 40% who have enrolled like their plans. Of course they do, they are the poorest with the biggest subsidies and the lowest deductibles. The working and middle-class have most often not signed up for Obamacare because it costs too much and delivers too little.

That Obamacare is not financially sustainable is evidenced by the first wave of big 2016 rate increases by so many large market share insurers. The next wave of rate increases a year from now will also be large and will be in the middle of the 2016 election.“

The SCOTUS decision flies in the face of the roles and responsibilities assigned to the branches of government by the Constitution. The implication of the ruling is that a law means whatever the executive branch says it means, even when it says the opposite unambiguously. This goes too far in granting executive power to “reimagine” legislation, and the Left may well come to regret it as a precedent. Executive rulings in implementing laws is nothing new, but one hopes for the courts to keep a tight rein on this discretion in an era when the regulatory environment is growing increasingly complex.

A Randy Barnett post at SCOTUSblog quotes Chief Justice Roberts’ opinion:

“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.“

Improve health care markets? Not destroy them? Wait… I’m confused! But seriously, at this point in the process, Justice Roberts must be confused about actual outcomes. An objective assessment of Obamacare would include an accounting for the many individuals whose policies were cancelled against their wishes, premium escalation, and the fact that the ACA has fallen well short of expectations for reducing the number of uninsured; the law has certainly not improved markets. Barnett describes Roberts’ apparent philosophy on this point thusly:

“... the Chief Justice seems to be telling us that he is once again putting a thumb on the scale for the government here as he did in his solo opinion in NFIB. Rather than assessing the constitutionality of the law as written – or enforcing it according to its terms – the court will rewrite the law to suit the government.” 

This is not merely “legislative deference”, it is legislative rescue and a rewriting of the law. And Barnett points out that the Courts should provide a check on bad legislation, not serve as enablers.

Damon Root offers an excellent clarification of Roberts’ thinking: the strand of conservative judicial philosophy calling for deference to legislative intent is often attributed to Robert Bork. This obviously conflicts with the notion that conservatives are judicial activists. I discussed judicial activism here a few months ago, including Randy Barnett’s assertion that the term seems to be invoked as a pejorative almost any time someone doesn’t like a court decision. If it means preserving the Constitution, then count me as an activist.

Ilya Shapiro sums up the “intent” of the legislation and the “deferential” position taken by the court in King vs. Burwell:

“Roberts explains his transmogrification by finding it ‘implausible that Congress meant the Act to operate in this manner,’ to deny subsidies to millions of people as part of legislation intended to expanded coverage. But it’s hardly implausible to think that legislation that still says that states ‘shall’ set up exchanges—the drafters forgot to fix this bit after lawyers pointed out that Congress can’t command states to do anything—would effectively give states an offer nobody thought they’d refuse. It was supposed to be a win-win: states rather than the federal government would run health care exchanges (yay federalism!) and all those who need subsidies to afford Obamacare policies would get them (yay universal healthcare!).

But a funny thing happened on the way to utopia, and only 14 states (plus D.C.) took that too-tempting offer, perhaps having been burned too many times before by the regulations that accompany any pots of “free” federal money. And that’s why we ended up with King v. Burwell: Obamacare the reality doesn’t accomplish Obamacare the dream.“

We’ll watch to see how badly Obamacare fares over the next two years. And we’ll hope that eventually Congress can fashion a new health care plan that creates more choice, reduces taxes, increases competition and reduces coercive rules and regulatory burdens.

Court Strength In The Constitution

30 Friday Jan 2015

Posted by pnoetx in Judicial Branch

≈ 1 Comment

Tags

Boston Globe, Constitutional rights, Damon Root, Judicial Activism, Judicial Restraint, Original Intent, Rand Paul, Randy Barnett, Reason Magazine

santorumandi

An important function of the judicial branch of government is to defend the U.S. Constitution and the constitutional rights of individuals. In my view, deference on the part of courts to legislative decisions or to court precedent should be viewed with skepticism. The plain text of the Constitution should always come first. Beyond that, however, judges should not interject their personal opinions into decisions. Does this position support so-called “judicial activism”, or “judicial restraint”? Many legal thinkers reject that dichotomy because it embodies contradictions, failing to reliably categorize my position combining constitutional precedence with a rejection of political preference in jurisprudence. The pairing seems natural enough to me.

“Judicial activism” is often used as a pejorative, as Randy Barnett says at the link above, quoting a Boston Globe article that quotes him:

” ‘Most people who use the term don’t provide a coherent definition of it. It typically means judicial opinions with which they disagree,’ says Randy E. Barnett, a law professor at Boston University who considers himself a libertarian and a defender of ‘original intent’ in Constitutional matters. [He should have written ‘original meaning’ not “original intent” –RB.]”

According to Reason‘s Damon Root, Rand Paul calls himself a judicial activist. It would be interesting to hear exactly how he defines it, but he also purports to be something of a strict constitutionalist. In “Why Rand Paul’s Case for ‘Judicial Activism’ Scares Both Liberals and Conservatives“, Root discusses the interesting coincidence that contrary to Paul, both traditional conservatives and progressives seem to believe in judicial restraint. His explanation:

“What these two views share in common is that they each support what amounts to virtually unchecked majoritarian rule over certain aspects of American life. For conservatives, judicial deference means that lawmakers get the last word when it comes to banning birth control and prohibiting ‘homosexual conduct.’ For liberals, judicial deference means that lawmakers get the last word when it comes to bulldozing private property in the name of eminent domain. Each approach demands judicial passivity in the face of its preferred forms of government action.”

Of course, there are lovers of government power on both the left and the right. Rand Paul wants to distance himself from their kind, but many libertarians do not believe he will stick to principles of limited government as he campaigns for the GOP nomination.

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