Constitutional Law

Chief Justice John Roberts To Become The New Balance On The Future Supreme Court?

Chief Justice John Roberts has been on the Court for 13 years now, and he is generally perceived as a conservative.

But he has surprised some conservatives, as when he kept ObamaCare (the Affordable Care Act) alive in 2012.

Also, Roberts has often stated by the doctrine of “Stare Decisis”–to stand by things decided”–although he has not been consistent on this over the years.

The odds of Roberts siding with the liberals on the Court for the image of the Court named after him as Chief Justice, is a thin measure of what kind of balance he might present on the future Supreme Court.

It seems likely that on balance, he will be “number 5”, in the middle, but that middle will be much farther to the Right than Anthony Kennedy or Sandra Day O’Connor represented.

But then again, Justices have surprised their Republican Presidents who appointed them, as with Earl Warren and William Brennan under Dwight D. Eisenhower; Harry Blackmun under Richard Nixon; John Paul Stevens under Gerald Ford; O’Connor and Kennedy under Ronald Reagan; and David Souter under George H. W. Bush.

The best estimate is that no one should count on John Roberts avoiding “his” Court from being regarded as the most right wing, conservative Court since the time of Warren G. Harding. Calvin Coolidge, and Herbert Hoover nine decades ago, before the Great Depression and New Deal began the transformation of constitutional law.

Alan Dershowitz Supports Donald Trump, While Laurence Tribe Warns Of Danger He Presents: Why The Split Over Trump?

Alan Dershowitz is a renowned law professor, and so is Laurence Tribe.

But Dershowitz sees Donald Trump as not having done anything that is impeachable, while Tribe has said that Trump could be impeached or indicted while in office, and is a danger to the Republic.

How can two renowned Harvard Law School professors have diametrically opposite views of Constitutional Law?

One could say that any two experts can disagree on constitutional matters, since there can be honest differences of viewpoint.

But when one looks closer at the two men’s careers, one can start to understand that Dershowitz has long been a gadfly, who often seems to revel in publicity and attention, even if it is based on notoriety. He has often been involved in major controversies, and in many ways, he is the Donald Trump of the legal profession, a real character who has elements of egotism and narcissism in his basic DNA.

On the other hand, Laurence Tribe has had a distinguished respectable career speaking up for progressive values, but avoiding the constant limelight that Alan Dershowitz revels in on a regular basis.

When the history of the Trump Presidency is written in the future, Alan Dershowitz will not look credible and respectable, but Laurence Tribe will have dignity and principle as the basis of his entire life.

2017 Horrible Year Of Reversal, In Many Ways The Most Tragic Year For America Since 1968!

In the past half century, since the tumultuous year of 1968, acknowledged by many scholars and experts as the most significant single year in American history since 1945 (the end of World War II), America has gone through much turmoil and tragedy. This includes Richard Nixon and Watergate; the end of the Vietnam War; the rise of terrorism in the 1990s, leading up to September 11, 2001; two other unwinnable wars in Afghanistan and Iraq; and the Great Recession of 2007-2009, which finally has led to full employment and an economic revival after nearly ten years, but with many Americans left behind.

It has also been a fifty year period of much progess toward civil and human rights amid massive social change , with the Barack Obama years being seen as a positive time in so many ways.

But now, 2017 has revealed that we are in a dramatic retreat from much of the reform and change that has gone on since 1968, and the nation and the world are in total chaos and anarchy, due to the rise of a truly Fascist wannabe, Donald Trump, who has clearly stolen the Presidential election of 2016 and is in process of destroying all of the positive changes of the past 50 years.

Domestic and foreign policy, and constitutional law is in revolution, and 2018 will likely be a continuation of the nightmare of 2017, but with the hope that at least Donald Trump will be forced out of office in some manner, not yet clear.

But the likelihood that Vice President Mike Pence will become the 46th President sometime in 2018, bodes ill for the future, with his extreme right wing evangelical conservative beliefs, which would make him more conservative and extremist than even the most conservative Presidents of the past century, Calvin Coolidge and Ronald Reagan.

So we who are progressives have a lot of work to do next year to attempt to bring America back from the brink of destruction perpetrated by a man who is the most evil President in American history; and a party which has tarnished the reputation historically of Abraham, Lincoln, Theodore Roosevelt, Dwight D. Eisenhower, and so many others who proudly carried the Republican mantle in the past 150 years until now.

It is time for progressives to fight with all their energy and strength to return this nation to the great advancements promoted by a century of Presidents and Congresses from the time of Theodore Roosevelt to Barack Obama.

The End Of The Supreme Court Term: Any Retirements Coming?

This is the last week of the present Supreme Court session, and Court watchers are wondering if we are about to see a sharp swing to the Right, with the potential retirement of Justice Anthony Kennedy, appointed by Republican President Ronald Reagan nearly 30 years ago, and a crucial swing vote ever since on the Court.

Kennedy has been on the conservative side about two thirds of the time, and on the liberal side one third of the time, and without him, for instance, there would have been no advancements on gay rights and gay marriage, as he was the crucial fifth vote.

His vote this week may decide whether the Muslim ban of Donald Trump is upheld, or prevented, as it has been by several circuit courts around the nation.

Kennedy has been the unpredictable vote all by himself in the past decade, since Sandra Day O’Connor left the court at the end of 2005.

For a decade before 2005, it was said the Court was the “O’Connor-Kennedy Court”, and now for the past 12 years, it has been the “Kennedy” Court, more than the Roberts Court, as traditionally, the Court is described by the name of its Chief Justice.

Since Kennedy will be turning 81 in one month, and is the second oldest member of the Court, after Ruth Bader Ginsburg, who is 84, but has made clear she is going nowhere, and hopes to stay on the Court until 2021, so that hopefully a future Democratic President in 2021 can choose her successor.

So if Kennedy does retire this week, it will mark a sharp move to the Right, which will undermine constitutional law for the next generation!

Many Presidents Have Made Court Appointments In Last Year Of Term Or Presidency

The Republican Party is making the preposterous argument that a President, in his last year in office, should not be able to make an appointment to the Supreme Court, when history tells us otherwise.

Just because a President is finishing his time in office does not mean that he has no authority to do his job, which includes appointing judges and Justices!

And what about Presidents running for reelection, with the possibility that he might not be reelected?  Does that mean every President in the last year of any Presidential term should lose his powers to make appointments to the federal judiciary?

History tells us otherwise as witness the following:

George Washington 1796 –two appointments

Thomas Jefferson 1804–one appointment

Andrew Jackson 1836–two appointments, including Chief Justice Roger Taney, who remained on the Court for 28 years

Grover Cleveland 1888–two appointments, including Chief Justice Melville Fuller, who remained on the Court for 22 years

Benjamin Harrison 1892–one appointment

William Howard Taft 1912–one appointment

Woodrow Wilson 1916—two appointments, including the controversial, longest battle, to put Louis Brandeis on the Supreme Court

Herbert Hoover 1932–one appointment (Benjamin Cardozo)

Franklin D. Roosevelt 1940–one appointment  (Frank Murphy)

Ronald Reagan 1988–one appointment (Anthony Kennedy)

Additionally, Presidents have made appointments to the federal district and circuit courts when in the last year in office (Reagan 26 and 7; Clinton 37 and 9; Bush II 26 and 6; Obama 4 and 4).

And from 1947 to 2014, 416 District Court and 79 Circuit Court appointments have been made in Presidential election years.

So the Republican Party has no case for why Barack Obama should not be able to make an appointment, other than that they do not want a liberal replacing a conservative, and bringing the end of the 44 year conservative and Republican dominance on the Court.

But the answer to that is to stop being a crybaby and accept that your reign of dominance is coming to an end, and not too soon.

It is time to move into the 21st century of constitutional law, rather than dwell in the 19th century Gilded Age mentality of the conservatives on the Supreme Court!

 

 

Major Blunders: Bill Clinton’s Denunciation Of Bernie Sanders, And Madeleine Albright And Gloria Steinem Critical Of Young Women Who Support Bernie Sanders Over Hillary Clinton

The Democratic Presidential campaign is getting extremely heated, but the Hillary Clinton campaign is making major blunders that could reverberate on her chances to be the nominee of the party long term.

Husband Bill Clinton unleashing a denunciation of Bernie Sanders is totally unwise, and reminds us of how he helped to ruin his wife’s candidacy in 2008, when he bitterly engaged in what many thought was racism in his attacks on Barack Obama.

The best thing Bill Clinton could do is SHUT UP, and stay out of the campaign, and let his wife fight her own battles, as his involvement is counterproductive.

But also, the decision of former Secretary of State Madeleine Albright at a Hillary Clinton rally; and of feminist icon Gloria Steinem on Bill Maher’s show, to be critical of young women who are flocking to Bernie Sanders’s campaign, is also extremely counterproductive, as no young woman or young man or anyone has an obligation to support Hillary because she is a woman!

All these new developments are doing is make the chance 0f unity of Democrats for the Fall campaign far less likely, and the end result could be the Democrats could lose the national election to the Republicans, and condemn America to a right wing extremist government, that will have the ability to transform the Supreme Court to the far right, and lose a generation or more of reasonable constitutional law!

Proper Republican Strategy: Attack Donald Trump Or Ignore Him? Neither Will Help GOP Brand!

The Republican Party is in deep trouble, as Donald Trump has now emerged in first place in some public opinion polls, passing Jeb Bush, and leaving everyone else far behind.

This brings up the issue: What is the proper Republican strategy to deal with Trump, attack him or ignore him?

In reality, neither will help the GOP brand!

If the decision is to attack him, Trump will be infuriated, and will strike back and set out to destroy the GOP totally. He will bluster and bloviate, and will have the means to form an independent movement or third party.

If the Republicans choose NOT to attack and, therefore, to ignore him, they will be complicit in his racist and nativist viewpoints, which many of them actually agree with.

No political party can succeed now or in the future which sets out to demonize ethnic minorities, because, like it or not, the nation is becoming more diverse, and will be minority majority within three decades, counting Hispanic and Latino Americans, African Americans, and Asian Americans.

There is no way to bring back, even if people wished it, a mostly white Anglo America, as that is not going to happen.

The rapidly aging white Anglo population is dying off, and the nation and the Republican Party MUST face reality.

But is that likely to happen for 2016?

The answer is NO, and therefore, the GOP is rapidly becoming a dinosaur, and trying to make voting more difficult will require more effort to overcome such restrictions through the courts and through political action to register voters and meet the onerous requirements that some Republican governed states have put on the elderly, the poor, college students, and racial minorities in a purposeful manner.

And with a Democratic President, a likely Democratic Senate, and a possible Democratic House of Representatives, the Republicans will be marginalized further. And a Democratic President will have the ability to insure that the Supreme Court and lower federal courts move to the left, and overcome the conservative influence of Ronald Reagan, and the two Presidents Bush.

Once constitutional law goes back to the Warren Court image of the 1950s through the 1970s, the country will have been transformed in a way that the Republicans will never recover, until they abandon the far right image they have developed over recent years. Only then will the Tea Party influence finally dissolve and disappear!

HUGE Victory For Obama And Democrats In Reform Of Filibuster Use!

Finally, after almost five years as President, Barack Obama can savor victory, knowing he will be able to get his nominees for all federal executive branch positions and federal judiciary, except for the Supreme Court, confirmed by the Democratic Senate. Majority rule will govern, as it should, and as it does, in the House of Representatives!

And because the Republicans shot themselves in the foot, not allowing the approval of three nominees for the DC Circuit Courts, they will now see the federal courts tip dramatically toward Democratic and more liberal judges!

At the moment, there are exactly 390 federal judges appointed by Republican Presidents, and an equal number of 390 federal judges appointed by Democratic Presidents.

If Mitch McConnell, the Senate Minority Leader, had allowed the confirmation of those three judges that were just voted down by the use of the filibuster, requiring 60 votes to move a nomination, then the balance would have remained on the federal courts between Democratic and Republican appointments.

But now, that is not so, and the Democrats and Barack Obama will gain a potential total of 93 appointments for vacancies on the courts, making for a one sided Democratic control of the judiciary, which will last for years, as the judiciary are on the court for life, not limited terms.

So as the Republicans lick their wounds, and realize their abuse of the filibuster in the past five years, and their arrogance, have led to this moment, the Democrats have a lot to celebrate about, as nothing is more important than affecting the future of constitutional law, and the Republicans have given the Democrats a huge victory, which will reverberate for decades, and give those who believe in progressive reform and change, a sense of hope that there IS a future in America, for others than rich, white people!

Associate Supreme Court Justice Ruth Bader Ginsburg: A True National Treasure!

Associate Supreme Court Justice Ruth Bader Ginsburg, appointed by President Bill Clinton 20 years ago, has suffered two serious bouts with cancer, and has lost her husband, but she continues to plug on at age 80, with no plans for retirement.

Since other Supreme Court Justices have stayed on in their 80s, it is not all that surprising that Ginsburg refuses to consider retirement.

Always very friendly and accessible, unusual in the history of the Supreme Court membership, Ginsburg has become more openly outspoken over the years, being the true champion of the progressive side of the Court, and critical in a gentle way of her conservative colleagues, while expressing respect for them as individuals.

And she set new ground by marrying two gay men in the past week, one of them being the President of the Kennedy Center, and the other a well known economist. And she also has spoken out now on the Constitution as the promoter of equal rights for all—race, gender, and sexual orientation—even though it might take a long time, many generations, for the promotion of equality to become the norm, in the story of American history!

Ginsburg is an inspiration to all who believe in equality, justice, decency, and fairness, and a great symbol to women, as to what they can attain, as she is the second woman appointed to the Supreme Court, after Sandra Day O’Connor.

It is certainly clear that Ginsburg, O’Connor, and the only other two women appointed to the Supreme Court, Sonia Sotomayor and Elena Kagan have all contributed to the humanization of the Court, and advocated an open minded attitude, which will have a long range effect on Constitutional law!

Applause and commending of the role and significance of Supreme Court Justice Ruth Bader Ginsburg is certainly in order!

What Barack Obama’s Election To A Second Term As President Means

The second term victory of Barack Obama has many meanings, including:

ObamaCare is here to stay, although there will be tinkering and fine tuning of the program. Who would have thought that Chief Justice John Roberts would save it, and that the ability of the Republican Party to smash it would be a total failure?

The Supreme Court is safe from a right wing tilt, as it is now Barack Obama and a stronger Democratic Senate who will have control over future Court appointments, and lower court nominees as well, and therefore, Obama’s effect on constitutional law will be massive.

The advance of gay rights and gay marriage is now guaranteed, and expect that the Supreme Court will rule on it soon, very likely favorably, and that never again will any state or any religious group be able to deny a basic human right to anyone, the right to marry a person you love.

The environment will be advanced greatly, and likely, often by executive order. Expect that Barack Obama will accomplish enough reform, that he will rank with Theodore Roosevelt, Richard Nixon, and Jimmy Carter as an environmentalist.

The labor movement, in deep trouble for a long time, will now have a champion who will help to revive it, and gain the respect of the American people for the importance of unions.

There will be attempts to deal with the problem of poverty, and expect that Obama will attempt to do what Al Gore planned, had he been inaugurated as President in 2001— a War on Poverty.

Wall Street knows it will have a President who intends to fight them on the subject of regulation, as the voters made clear they wanted government oversight of the financial industry in the public interest.

The right of women to control their reproductive lives, and to have equal pay and respect, will be championed by Barack Obama. No more disrespect for women will become part of the agenda.

The ability to help Latinos and Hispanics achieve advancement in America will be promoted, as they made a dramatic difference in this election, and a plan for immigration reform will move forward, as even sane people in the Republican Party, such as former Florida Governor Jeb Bush, know it is essential for political survival, as well as being what is moral and ethical.

Taxes will go up to make up for past irresponsibility on paying for two wars, and is essential to make budget cuts less onerous, and the rich will go back to paying the rates they paid under Bill Clinton and Richard Nixon and Dwight D. Eisenhower, and they will simply have to understand we are all going to have to sacrifice for the good of the nation and its future.

The possibility of engagement in foreign wars, including against Iran, will be lessened dramatically, although there can never be a certainty that America can avoid foreign conflict, but at least we have a President who will make every effort to avert it.

America will have a President who does not dismiss any percentage of the population, but instead a President who is sincere, genuine, caring, decent, and will work as hard as he can for our advancement. And if he makes mistakes, he will be accountable for them, and will always come across as someone who dedicates every waking moment to our success as a nation.

Barack Obama will have our back, and we will come to appreciate him in the long run of history!