Minor Thoughts from me to you

Qualified Immunity gives police officers blanket protection from being sued for their bad behavior, no matter how egregious it is. I hope the Supreme Court cleans up this mess that it created.

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Jordain Carney, writing for The Hill:

But Democrats are powerless to stop Trump’s nominees on their own after they went nuclear in 2013 and lowered the 60-vote filibuster for most nominations to a simple majority. Republicans followed suit in 2017 and nixed the 60-vote hurdle for Supreme Court picks.

​I said at the time that destroying the minority's political power of obstruction was a short-sighted move that would come back to haunt the Democrats. And I'll say right now that Republicans following suit over Supreme Court nominations was equally stupid. How many Progressives would like to have that power back, both right about now and over the last 2 years?

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Tonight, President Trump nominated Judge Gorsuch to the United States Supreme Court. I'll give credit where credit is due: I didn't think President Trump would nominate someone that I liked, but he surprised me. From what I've read, I'll like Justice Gorsuch quite a bit.

I'm basing my opinion on SCOTUSblog's potential nominee profile. First of all, Judge Gorsuch is definitely qualified.

Neil Gorsuch was appointed to the United States Court of Appeals for the 10th Circuit by President George W. Bush on May 10, 2006, and confirmed shortly thereafter. Both his pre-judicial resumé and his body of work as a judge make him a natural fit for an appointment to the Supreme Court by a Republican president. He is relatively young (turning 50 this year), and his background is filled with sterling legal and academic credentials. He was a Marshall Scholar at the University of Oxford, graduated from Harvard Law School, clerked for prominent conservative judges (Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit, as well as Justices Byron White and Anthony Kennedy of the Supreme Court), and was a high-ranking official in the Bush Justice Department before his judicial appointment.

And he has the potential to live up to Justice Scalia's legacy. Given that Justice Scalia was my second favorite Supreme Court Justice, this is no small thing.

He is celebrated as a keen legal thinker and a particularly incisive legal writer, with a flair that matches — or at least evokes — that of the justice whose seat he would be nominated to fill. In fact, one study has identified him as the most natural successor to Justice Antonin Scalia on the Trump shortlist, both in terms of his judicial style and his substantive approach.

With perhaps one notable area of disagreement, Judge Gorsuch’s prominent decisions bear the comparison out. For one thing, the great compliment that Gorsuch’s legal writing is in a class with Scalia’s is deserved: Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why. Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making. He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia).

​It's especially refreshing to see that Judge Gorsuch shares Justice Scalia's disdain for vague and overly broad criminal statutes. A Justice should be skeptical of the government's position and should demand that criminal law be unambiguous and clearly defined. My biggest complaint with Judge Merrick Garland was that his record showed too much deference to the government. I'll be very happy indeed if a Justice Gorsuch is Scalia's heir on criminal law.

Bad News

• Trump won the Presidential election.
  • We had a choice between Nixon and Smoot-Agnew for the Presidency. We elected Smoot-Agnew. This is not likely to end well.
  • As President-elect, Trump is now the head of the Republican Party. The Republican Party is now anti-free trade and anti-immigration.
  • I am no longer a Republican.
  • Conservatives have spent the past year creating an imaginary version of Donald Trump. This imaginary person is a savvy businessman and a strong leader who will rely on the wisdom of others as he governs. They'll now have four years to learn the truth. I wish them joy of it.
  • Searching for a silver lining: maybe Trump will accidentally nominate an engaged jurist for the Supreme Court.
  • Who honestly thought that Florida, North Carolina, Pennsylvania, Ohio, Michigan, and Wisconsin would all go for Trump? I'm gob smacked. Wisconsin in particular is a surprise. I thought that people in this state were too fundamentally nice to stomach Trump's brand of meanness.

Good News

• The Senate stays in Republican hands. This was the outcome I was hoping for.
  • I hoped the Senate would stay Republican, to block the worst of President Clinton's Supreme Court picks.
  • Given that Senators are less populist, I'm hoping the Senate will block the worst of President Trump's policies.
• Maine is adopting ranked choice voting for federal and state elections. This will be an interesting experiment to watch.
• Marijuana was legalized in four more states and medical marijuana was legalized in four. Thirty-six states have now legalized marijuana in some form: 8 have legalized recreational marijuana and 28 have legalized medical marijuana.

I've been seeing a lot of left wing people celebrating the Supreme Court vacancy and calling for President Obama to nominate a replacement post haste. Furthermore, they state that such a staunch originalist as Scalia shouldn't argue for the President to wait or for the Senate to refuse to vote. They argue that the Constitution gives the President the authority to appoint a justice and he should do just that—and the Senate should support him.

It's not that I don't see some level of irony here, but I don't think it's as stark as my friends on the left do. Two points.

1. The Constitution doesn't specify a time frame for appointing a replacement. "He shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court". It's not going against the original text to say that the President should wait. He doesn't have to, but neither is he required to rush into things.

2. He can nominate, but the Senate has a duty to advise him and the nomination only turns into an appointment with the Senate's consent. I think the Senate (any Senate, of any party) is well within their rights to refuse to consent to nominees that they don't like.

In fact, the Senate's refusal to consent to the nomination of Judge Robert Bork is the reason why everyone got to celebrate Justice Kennedy's majority opinion in Obergefell instead of cursing Justice Bork's majority opinion in the same.

(Note that it was a Democrat Senate that refused to consent to a very conservative Reagan nominee that led to the nomination and confirmation of the much more moderate Justice Kennedy.)

Tamara Tabo writes at Above the Law.

Liberal critics frequently bash Thomas for haplessly following the lead of fellow conservative Justices such as Antonin Scalia, unable to form reasoned opinions on his own.

Thomas’s many dissents belie the criticism that he marches in lockstep. This Term, he holds the weakest voting relationships of any Justice with his or her fellow Justices. His rate of disagreement with Justice Sonia Sotomayor — currently 57% — is the weakest voting relationship of any two Justices on the Court. Even his agreement rates with Scalia and Roberts amount only to 77% and 66%, respectively — far cries from the 90+% relationships between some other Justices.

…Thomas’s dissents often represent radical departures from the fundamental approach of the rest of the Court. He’s not quibbling over factual judgment calls. He’s often applying an entirely different method of deciding the case. ​> …Clarence Thomas is either unafraid of correcting bad precedent, or he is flagrantly disrespectful of stare decisis, depending upon how one looks at it. His fidelity to text might seem downright obsessive, even to a fellow originalist like Justice Scalia. Thomas has the tunnel vision of a man sure of his method, regardless of what his colleagues see. ​ I've long appreciated Justice Thomas. He doesn't write with the wit and sarcasm of Justice Scalia. But his opinions are always principled and well reasoned.

I love his willingness to go with what's right, regardless of the precedent established by the errors of previous courts. When it comes to upholding the Constitution as written, Justice Thomas has no peers.

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Ilya Shapiro writes in the Wall Street Journal abut the President's run-ins with the Supreme Court.

As the world awaits the Supreme Court's ruling on ObamaCare, there's a larger story that the pundits are missing: the court's rejection of the Obama administration's increasingly extreme claims on behalf of unlimited federal power.

This term alone, the high court has ruled unanimously against the government on religious liberty, criminal procedure and property rights. When the administration can't get even a single one of the liberal justices to agree with it in these unrelated areas of the law, that's a sign there's something wrong with its constitutional vision.

It's never a good thing to lose a case by a unanimous 9-0 vote, let alone 3 cases in 3 very different areas of law.

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CQ has a very nice profile of Randy Barnett, libertarian legal scholar. I’ve been a fan of Randy Barnett ever since I read his 2005 book Restoring The Lost Constitution. (Which, Amazon helpfully reminds me, I purchased on December 26, 2004.)

In less than two years, Barnett, 59, has accomplished what few law professors ever manage to do: make an arcane constitutional argument so compelling and clear that it becomes part of the national conversation.

But what makes Barnett unique is how his influence has extended beyond the elite circle of litigators fighting the health care law and into the grass roots. He has helped members of the tea party movement and supporters on Capitol Hill formulate a proposed constitutional amendment that would authorize the repeal of laws enacted by Congress to which two-thirds of the states object. While its chances of being adopted are slight, that effort, and his work against the health care law, has made Barnett an intellectual favorite of House Republicans.

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I really should start posting my predictions publicly. Not only would it vindicate me when I'm right, it would keep me honest when I'm wrong.

Last week, I predicted that Justices Scalia and Roberts would be very negative towards the idea of resurrecting the "Privileges or Immunities" clause of Section 1 of the 14th Amendment. From reading his past opinions, I know that Justice Scalia isn't a big fan of overturning precedent, especially when said precedents have been around for 140 years. (The Privileges or Immunities Clause was strangeled by the Supreme Court just moments after birth, in the Slaughter-House Cases.) Everything I've read about Chief Justice Roberts says that he's a cautious incrementalist who prefers to make changes to the law in the smallest way that's likely to be effective. I was pretty sure that both Justices would be in favor of expanding gun rights but would be hostile to doing so through the Privileges or Immunities clause.

It turns out, I was right. Here's what happened during oral arguments this morning, in McDonald, et al., v. Chicago, et al..

The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, Virginia, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument.

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why Gura would “undertake that burden.” And Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions– was available as the vehicle for incorporation, and added: “Even I have acquiesced in that.”

Last week, Justice Clarence Thomas spoke on the Constitution. Here are part of his remarks. How to Read the Constitution - WSJ.com

As I have traveled across the country, I have been astounded just how many of our fellow citizens feel strongly about their constitutional rights but have no idea what they are, or for that matter, what the Constitution says. I am not suggesting that they become Constitutional scholars -- whatever that means. I am suggesting, however, that if one feels strongly about his or her rights, it does make sense to know generally what the Constitution says about them. It is at least as easy to understand as a cell phone contract -- and vastly more important.

The Declaration of Independence sets out the basic underlying principle of our Constitution. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ..."

The framers structured the Constitution to assure that our national government be by the consent of the people. To do this, they limited its powers. The national government was to be strong enough to protect us from each other and from foreign enemies, but not so strong as to tyrannize us. So, the framers structured the Constitution to limit the powers of the national government. Its powers were specifically enumerated; it was divided into three co-equal branches; and the powers not given to the national government remained with the states and the people. The relationship between the two political branches (the executive and the legislative) was to be somewhat contentious providing checks and balances, while frequent elections would assure some measure of accountability. And, the often divergent interests of the states and the national government provided further protection of liberty behind the shield of federalism. The third branch, and least dangerous branch, was not similarly constrained or hobbled.

Four justices attended the State of the Union address last night: Justices Roberts, Thomas, Alito, and Breyer. It is an interesting thing to be a Supreme Court justice, the world's most non-political job, at a State of the Union, one of the world's most political events. Dana Milbank reports on when the Justices chose to Clap On or Clap Off:

At times, Alito followed the lead of the other three justices who sat with him in the front row. When Bush said "We love our freedom, and we will fight to keep it," Thomas looked at Roberts, who looked at Breyer, who gave an approving shrug; all four gentlemen stood and gave unanimous applause.

At other times, Alito showed independence from his senior colleagues. When Bush delivered the stock line "The state of our union is strong," Alito dissented while the other three robed justices in the front row applauded. When Bush declared that "liberty is the right and hope of all humanity," Alito was the only member of the judicial quartet to provide his concurring applause.