Constitutional Law

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

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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

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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

Ronald 20 Comments

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!

Ronald 13 Comments

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!

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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!

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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

Ronald 3 Comments

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!

The REAL Issues Of 2012 That Are Being Ignored In The Presidential Campaign

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If one follows the Presidential campaign of 2012, one would think that ONLY the economy matters.

YES, the economy matters, but the newest jobs report demonstrates that this nation is on the mend, and that over the next Presidential term, the economy will recover, with some experts saying that up to 12 million jobs will be created, whether Barack Obama or Mitt Romney wins the White House on Tuesday.

Others would say the danger of Iran is the major issue, but even on that, it is clear that both Obama and Romney would react similarly to an actual Iranian attack on Israel or any other part of the Middle East.

So the REAL issues are not the economy or Iran!

Instead, they are the following, although ignored in campaign rhetoric:

Climate Change or Global Warming—the reality of it, as demonstrated yet again by Hurricane Sandy, and the need to take the lead in moving away from oil and coal as the major energy resources. But, of course, Republicans and conservatives deny the reality of this threat, and the oil and coal industries do everything they can to protect themselves at the expense of the nation in the long run.

Gun Violence—as demonstrated by what happened so many times in the past few years, including Tucson, Arizona in 2011 to Congresswoman Gabrielle Giffords; the mass murders in the Aurora, Colorado movie complex in 2012; the constant murders in cities such as Chicago, often ignored because the victims are African Americans; and so many other cases. And again, the Republicans and conservatives fight any type of gun control, and allow the National Rifle Association to hold America hostage.

Education—the dire need to promote more people attending and graduating four year colleges and universities. Many would say that having a four year degree does not guarantee that one gets the job he wants or needs. While that is true, the unemployment figures make clear that those with a four year degree or more have an unemployment rate under FOUR percent, while those with less education or dropping out of school have an unemployment rate of TWELVE percent! Is there any evidence other than this to convince parents and children of the urgency of getting an education through a four year degree? And besides, there are intangibles other than just getting a degree for a job, such as improving one’s basic skills of reading, writing, and speaking, and improving one’s mind and knowledge; making one a better person in social situations and parent situations; and raising people up from ignorance, conspiracy theory beliefs, and over reliance on religious doctrine, which unfortunately makes many people unwilling to reason for themselves, and just accept gospel as absolute fact. And of course, Republicans and conservatives argue against extra funding and assistance for education, and would prefer to lean on organized religion to “control” the masses, keep them ignorant, and willing, therefore, to accept ideas without questioning or challenge!

The Supreme Court—not understood by many for the important role it plays, and will continue to play, and the urgency of having a President who will select nominees who wish to look to the future, and not the past, and prevent regression politically, socially, and economically back to the Gilded Age and the 1920s. The Republicans and conservatives and Mitt Romney want more Antonin Scalias, Clarence Thomases, and Samuel Alitos, to insure that we go backward for the next 30 years! So the election of Barack Obama is urgent for the future of constitutional law and the preservation of the advancements of the Earl Warren and Warren Burger Supreme Courts.

These issues mentioned above SHOULD be understood before people, who have not voted before Tuesday, vote for our next President, and the best decision for any sane individual is to vote for the candidate who represents a willingness to deal with the future, President Barack Obama!

The Supreme Court: The MOST Crucial Issue In The Presidential Election Of 2012!

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Plenty of attention is being paid to economic and domestic policy in the Presidential campaign of 2012.

Also, now with the Middle East crisis that erupted this week, foreign policy is, suddenly, being given tremendous emphasis.

It is right that attention is being paid to both areas of national policy, as they really matter!

But an area which still is NOT being focused on adequately, if in fact at all, is the effect of the election on constitutional matters, which are determined primarily by the Supreme Court of the United States, along with the federal circuit courts.

First, the circuit courts consistently have vacancies, even in a one term Presidency, which can have a dramatic effect on constitutional law. Also, it must be remembered that the tradition has been to appoint Supreme Court Justices from this level of the judiciary, although that was certainly not the norm in the long history of the Supreme Court.

Ultimately, however, it is the Supreme Court which is the final arbiter of the Constitution, as the nine members of the Court, once they have made a determination, rule the day, unless a constitutional amendment can be passed to overrule a Supreme Court decision, or the members of the Court, through changes of personnel, decide to revisit areas of controversy already decided by an earlier Court.

After a decade of no changes on the Court, from 1995 to 2005, suddenly, in a period of five years, from 2005-2010, there were four changes on the Court–Chief Justice John Roberts in 2005 and Associate Justice Samuel Alito in 2006 under President George W. Bush; and Associate Justice Sonia Sotomayor in 2009 and Associate Justice Elena Kagan in 2010 under President Barack Obama.

Now in 2012, there are four Justices in their 70s, who are seen as possible or likely retirees from the Court over the next four years—Associate Justice Antonin Scalia (76), appointed by President Ronald Reagan in 1986; Associate Justice Anothony Kennedy (76), appointed by Reagan in 1988; Associate Justice Ruth Bader Ginsberg (79), appointed by President Bill Clinton in 1993; and Associate Justice Stephen Breyer (73), appointed by Clinton in 1994.

By the end of the next term, if none of these four Justices left the Court, they would range in age from 77 to 83!

It seems certain that one or more will retire, or unfortunately, die, in the next four years, and who is appointing their successors, is all important for the future of constitutional law!

If Obama makes one to four appointments, it will, at the least, keep the present balance, slightly toward the conservative side, but if Mitt Romney makes the choices, it could make the Court more conservative, more to the right, than it has been since at least the 1920s, if not the Gilded Age of the late 19th century!

This is NOT a minor matter, considering the areas of criminal justice, affirmative action, abortion, gay rights, and the constitutionality of laws passed under the New Deal of the 1930s and the Great Society of the 1960s, and recent actions on health care, campaign fund raising, and many other touchy, controversial areas of policy, and of civil rights and civil liberties!

The Court could turn back a century of political, social and economic reforms, if it turns in the direction of the far Right, a danger with Mitt Romney in office!

We can expect that by 2020, if not 2016, all of the members of the Court will be those appointed in the previous 15 years, with the possible exception of Associate Justice Clarence Thomas (64), appointed by President George H. W. Bush in 1991, and stating he would not retire or leave the Supreme Court until he breaks the all time record of Associate Justice William O. Douglas, appointed by President Franklin D. Roosevelt in 1939, and serving 36 years on the Court under seven Presidents, until he left in 1975!

So this issue needs to be addressed in the Presidential debates in October, as it is an issue for voters to consider, and to recognize its significance!

Three Subjects Ignored At Republican National Convention: George W. Bush, Foreign Policy And Constitutional Law

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The Republican Party is holding its national convention in Tampa, and so far has not mentioned President George W. Bush by name, or referred to the issues of foreign policy and constitutional law.

It is as if Bush was never President, and instead Democrat Barack Obama is being blamed for everything, including original sin! The economy was apparently fine, until Obama became President in 2009. This is what is called the rewriting of history, and making Bush a non person.

But Bush also took us into two foreign wars that have bankrupted us, and caused a large portion of the national debt growth, but neither Paul Ryan nor Mitt Romney seems anxious to run a campaign on foreign policy, something neither have them have any experience in dealing with. Of course, the critics say what experience did Barack Obama have, forgetting that he did serve on the Senate Foreign Relations Committee for four years, and did important work with the respect and support of Indiana Republican Senator Richard Lugar, who was, for a period of year, the Chairman of that committee. This, of course, probably helped to contribute to the defeat of Senator Lugar in the Indiana Senatorial primary this year, leading to his forced retirement this December.

And, of course, to bring up constitutional law would make people realize that the President, whoever he is next term, will have a dramatic effect on constitutional law and the Supreme Court, and that this matters more than economic policy in the long run!

So the GOP is ignoring these three issues, hoping to sail through to victory on promotion of ignorance of the citizenry, and creating falsehoods and myths about the Barack Obama record!

Will they succeed? That seems highly doubtful!