Tag Archives: Justice Antonin Scalia

Letter To Republican Senator

Posted on by under Election 2020, Law and justice, Political commentary, Racism & Bigotry

What follows is the letter I wrote this morning to the republican senator from my state, Senator Rob Portman.  Feel free to amend and use as a template to send to your own senator, if you feel so inclined.

21 September 2020

Dear Senator Portman …

I am writing to you today to ask that you withhold your vote on the confirmation of any candidate for the Supreme Court between now and January 20th.  I’m sure you have received many such letters, as well as some by those who hold the opposite view, but please hear me out.

First, in February of 2016, after the death of Justice Antonin Scalia, when President Barack Obama nominated a very moderate judge, Merrick Garland, to fill Scalia’s seat, you stated in part …

“I have concluded that the best thing for the country is to trust the American people to weigh in and to have the confirmation process take place in a less partisan atmosphere. Awaiting the result of a democratic election, rather than having a nomination fight in this contentious election-year environment, will give the nominee more legitimacy …”

To change your mind about that now, when the country is even more divided than it was in 2016, is the ultimate hypocrisy and I must question your motives.  I know that Mitch McConnell is an unconscionable sycophant of Donald Trump, as are many of your other colleagues, but I always thought you were better than that.

Throughout your nine-year tenure as a U.S. Senator representing Ohio, I have seen you as a moderate, and while I disagree with you on some things, I was proud when you changed your mind and came out in support of same-sex marriage and voted to reauthorize the Violence Against Women Act.  Granted, I’ve been disappointed by your stance on climate change … too little too late … and other issues such as abortion, but overall you have always seemed one of the better republicans in Congress.

Now, however, you appear to be willing to compromise the integrity of the United States Supreme Court, and I must ask you why?  Do you not realize the implications of a court divided 6-3?  Do you not realize that not only will Roe v Wade be endangered, and thus women’s rights, but also Obergefell v Hodges, thus endangering the rights of the LGBT community?  Do you remember that the Court is supposed to provide checks and balances on the Executive branch, not simply rubber-stamp the president’s wishes?

I would like to remind you that you were elected to represent ALL the people of not only Ohio, but the United States.  Donald Trump appears to believe that he is obligated only to those who slavishly support him, but I would like to think you are a better man than he is.  Please remember that your constituency includes both democrats and republicans, as well as those like myself who are independent.  Your constituency includes people of all races, and people of every and no religion.  You do not solely answer to white, male, republicans, but to every man, woman and child, regardless of party affiliation, ethnicity or religion.

In closing, I ask you to seriously consider what I have said, seriously consider withholding your vote on Trump’s nominee to the Supreme Court, in order to give We the People an opportunity to have our voices heard.  Thank you.

Sincerely,

Jill Dennison, citizen, taxpayer, voter

A Sad Day … R.I.P. Ruth Bader Ginsburg

Posted on by under Election 2020, Law and justice, Political commentary, Racism & Bigotry

Tonight, people all across the nation are broken-hearted over the death of Supreme Court Justice Ruth Bader Ginsburg.  No, it wasn’t unexpected, but still it was a shock.  When I received the first notification on my phone shortly after 7:30, I felt the tears immediately welling, as I’m sure many others did.RBG-1I wish that I could simply write a tribute to Justice Ginsburg without bringing politics into it, but unfortunately that is not possible.  Still, let me take a few minutes to tell you a few things you may not know about RBG as she is affectionately known.

Rejected after law school for a Supreme Court clerkship because she was a woman, she began her legal career as a law professor and pioneering advocate for women’s legal rights.  She got her first teaching position at Rutgers University, where she was paid less than her male counterparts because her husband already had a well-paying job.

Ginsburg went on to a number of other roles in academia, and worked to develop programs to strengthen legal protections for women. She’s credited with making significant advancements for women under the Equal Protection Clause of the Constitution.

Former President Carter nominated Ginsburg to the United States Court of Appeals for the District of Columbia Circuit in 1980, where she served until former President Clinton nominated her to the Supreme Court in 1993.  She was confirmed by a Senate vote of 96-3.

Ruth Bader Ginsburg has said that she wanted to be remembered “as someone who did whatever she could, with whatever limited talent she had, to move society along in the direction I would like it to be for my children and grandchildren.”  I think there can be no doubt that she will be remembered as such, and more.  In some ways, this tiny woman stood taller than many of her colleagues. rbg-4Justice Ginsburg has long been an advocate for justice, for women’s rights, human rights, civil rights and has weighed in on some of the most important cases during her tenure.  At another time, I will write about some of these, and how important Justice Ginsburg has been to the development of this nation in the 20th and 21st centuries.  But for today, I must unfortunately discuss the potential ramifications of Justice Ginsburg’s death just 46 days before what will arguably be the most consequential election of our lifetime.

You will remember February 13th 2016 when Supreme Court Justice Antonin Scalia died.  With nine months left until the presidential election, President Barack Obama nominated a moderate, Merrick Garland, to fill the seat left vacant by Scalia’s death.  However, the Senate, as directed by none other than the unconscionable Mitch McConnell, refused to even interview Garland, let alone hold a confirmation hearing.  Why?  Well, according to Texas Senator Ted Cruz …

“It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.”

Within hours of Scalia’s death, McConnell released the following statement:

“The American people should have a voice in the selection of their next Supreme Court Justice.  Therefore, this vacancy should not be filled until we have a new president.”

And yet, tonight, within an hour … a single hour after the news that Justice Ginsburg had died, McConnell said …

“President Trump’s nominee will receive a vote on the floor of the United States Senate.”

Amazing how in just four short years he has completely changed his opinion, isn’t it?

Now, we all know that if Trump is allowed to place yet another Justice on the Supreme Court, justice in this nation will become a thing of the past for at least two decades, for it will leave the court heavily weighted in favour of those justices who tend to have conservative ideologies that believe women and minorities do not deserve the same rights as white men.  Plain and simple.  Call a spade a bloody shovel.

But there’s something even more ominous, I think. Consider this tweet I saw tonight from Robert Reich …

“GOP now arguing Senate must replace Ginsburg now because if the election is litigated, just 8 justices risks a deadlock, and constitutional crisis. Rubbish. Giving a last-minute Trump appointee power to decide whether Trump is the next president would be a constitutional crisis.”

Remember Bush vs Gore back in 2000?  A short refresher for those who may not remember.

On November 8, 2000, the Florida Division of Elections reported that Bush won with 48.8% of the vote in Florida, a margin of victory of 1,784 votes. The margin of victory was less than 0.5% of the votes cast, so a statutorily-mandated automatic machine recount occurred. On November 10, with the machine recount finished in all but one county, Bush’s margin of victory had decreased to 327.  Florida’s election laws allow a candidate to request a county to conduct a manual recount, and Gore requested manual recounts in four Florida counties. The four counties granted the request and began manual recounts. However, Florida law also required all counties to certify their election returns to the Florida Secretary of State within seven days of the election, and several of the counties conducting manual recounts did not believe they could meet this deadline.  Long story short, after much back-and-forth between the Florida Secretary of State, the counties, and ultimately the Supreme Court, the Supreme Court ruled in George W. Bush’ favour in an opinion written by Justice Antonin Scalia.

Now fast-forward to November 4th, the day after the election.  Assume that Joe Biden has acquired the 270 electoral votes needed to win the election, but not by any major landslide.  A difference in just one swing state might change the results.  Trump has been screeching about “voter fraud” (a figment of his imagination) for months now and has already broken the law by nearly shutting down the United States Postal Service, making mail-in voting less attractive to many.  Imagine if he disputes the vote, demands a recount, and for one reason or another it is left to the Supreme Court to decide.  What if Trump has just appointed another boot-licker like Brett Kavanaugh?  Can you guess the outcome?  I can, and it will no doubt keep me awake tonight.

The nation will miss Justice Ruth Bader Ginsburg.  She spent her life powerfully and effectively advocating for America to make good on its promise of equality and opportunity for all.  Rest in Peace, Ruth Bader Ginsburg – you have earned it.

The Supreme Court — Our Best Hope

Posted on by under Political commentary, Social commentary

scotus-2

Now that Congress has ‘fallen into line’ and is pandering to Trump’s every whim, licking his boots and kissing his posterior, there is one last bastion of justice remaining:  the United States Supreme Court. Last year, after the untimely death of Justice Antonin Scalia, the Republicans in Congress effectively blocked President Obama’s nominee, Merrick Garland, by refusing to hold even preliminary confirmation hearings.  Thus, the position remained open when Trump took office, and it is now up to him to fill.  More about that in a bit.

scotusThe U.S. Constitution does not specify the number of Supreme Court Justices.  Article III of the Constitution established the Supreme Court, but left it to Congress to decide on the appropriate number of Justices.  The Judiciary Act of 1789 set the number at six: a chief justice and five associate justices. In 1807, Congress increased the number of justices to seven; in 1837, the number was bumped up to nine; and in 1863, it rose to 10. In 1866, Congress passed the Judicial Circuits Act, which shrank the number of justices back down to seven and prevented President Andrew Johnson from appointing anyone new to the court. Three years later, in 1869, Congress raised the number of justices to nine, where it has stood ever since. It has mostly worked well for 148 years.

Many of us are understandably concerned about the composition of the court these days.  There is already one vacancy for Trump to fill, a position for which he has nominated Neil Gorsuch.  But there are three other justices who are likely to retire from the court soon:  Justice Anthony Kennedy, a moderate-conservative who is 79, Justice Stephen Breyer, a liberal who is 78, and Justice Ruth Bader Ginsburg, also a liberal who will be 84 next month.  The problem arises when we consider the way these justices tend to vote. All three have voted consistently in favour of human rights, civil rights and social issues.  If Trump had the opportunity to fill all three of these positions, in addition to the one already vacant, the court would be comprised of 7 conservative justices and only 2 liberal-leaning.  This would spell disaster for the LGBT community, for African-Americans, for immigrants, for women … for all of us, really.

 

On a positive note, tonight I was reading about an interview Justice Ginsburg gave to the BBC this week where she said … well, I will let her tell you in her own words:

“I read the Washington Post and the New York Times every day, and I think that the reporters are trying to tell the public the way things are. Our legislature – which is the first branch of government – is right now not working. I am optimistic in the long run. A great man once said that the true symbol of the United States is not the bald eagle. It is the pendulum. And when the pendulum swings too far in one direction it will go back. Some terrible things have happened in the United States but one can only hope that we learn from those bad things.”

Of the Women’s March on Washington, 21 January, she said:

“I’ve never seen such a demonstration – both the numbers and the rapport of the people in that crowd. There was no violence, it was orderly. So yes, we are not experiencing the best times but there is reason to hope that that we will see a better day.”

But the important part was …

“At my age you have to take it year by year. I know I’m OK. What will be next year? I’m hopeful however, because my most senior colleague the one who most recently retired, Justice John Paul Stevens, stepped down at age 90. So I have a way to go.”

ginsburgAt an appearance at George Washington University on Thursday night, Justice Ginsburg said, “we are not as mindful of what makes America great.”  So very true! Ginsburg stopped short of mentioning Trump or his policies directly, as she got into some hot water for that last year when she gave an interview critical of Trump and was taken to task for her candor:

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that. He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

I always did like this woman!  She sees clearly the damage that is being done by the current administration, sees the unwillingness of Congress to stand against Trump, and is determined to try to stay on the court a few more years.  Let us hope that Kennedy and Breyer will do the same.  Though Kennedy is considered a moderate-conservative, he leans toward liberal in most social issues, so even if Gorsuch is confirmed, as is expected, we should still have a fairly well-balanced court.  For now. At least well-balanced enough to keep from overturning such important issues as voting rights, same-sex marriage, and Roe v Wade, which Trump has sworn to see overturned after 43 years.

gorsuchAs for Gorsuch, I suspect he will be conservative on most issues, but then so was Scalia.  But like Scalia, he is known for also being thoughtful and fair, so if Breyer, Kennedy and Ginsburg are able to stay in good health and willing to remain on the bench for a few more years, we should be alright.  But if one dies, retires, or otherwise vacates, all bets are off.  At present, all hope for maintaining the civil and social rights we have fought so hard for lies in the hands of the Supreme Court.

And Then There Were Eight … Seven … Six … Five … Supreme Court Justices

Posted on by under Political commentary

 

While I do not often agree with his political views, I basically respect Senator John McCain.  Yes, he is a republican, a conservative, but his views are more moderate than those of his fellow republicans these days and, I believe, he is basically a good human being.  His rankings by the non-partisan National Journal for 2005-2006 rate him as follows – economic policy: 59 percent conservative and 41 percent liberal; social policy: 54 percent conservative and 38 percent liberal; and foreign policy: 56 percent conservative and 43 percent liberal. Following his 2008 presidential election loss, McCain began adopting more orthodox conservative views. By 2013, some aspects of the older McCain had returned.

Overall, his ideology has seemed to be closer to moderate than the uber-conservative ideologies we see from the Trump camp and others, although I still disagree with him on many issues.

trump-ridicules-mccainMost of us with consciences were horrified last year when Donald Trump singled out McCain for ridicule over his war record, saying that he was not a hero because he was captured.  Senator McCain served in Vietnam and was captured by the North Vietnamese in 1967 when his plane was shot down.  Already badly wounded, the soldiers proceeded to crush his shoulder, then refused medical treatment.  He was tortured and kept imprisoned for five-and-a-half years.  He certainly was a war hero, and Donald Trump actually gave McCain a boost in popularity when he attempted to denigrate him.

Of late, since Donald Trump threw his hat into the ring of fire, I have liked Senator McCain more often than not.  Which brings us to today.  A brick has been placed on each side of the balance scale, and I find myself conflicted.

mccainFirst, I was proud of Senator McCain for withdrawing his support for Trump on October 8th, the day after news broke of a 2005 recording of Trump talking about women in crude and vulgar ways, and even seeming to trivialize sexually groping them. “When Mr. Trump attacks women and demeans the women in our nation and in our society, that is a point where I just have to part company. It’s not pleasant for me to renounce the nominee of my party; he won the nomination fair and square. But I have daughters. I have friends. I have so many wonderful people on my staff. They cannot be degraded and demeaned in that fashion.”

But then came this …

“John McCain: Republicans will block anyone Clinton names to the Supreme Court” – Think Progress

“McCain Suggests GOP Would Oppose Clinton Supreme Court Picks” – The New York Times

“John McCain points to indefinite Supreme Court blockade” – MSNBC

scotus-2The vacancy left when Justice Antonin Scalia died unexpectedly in February should have been filled long ago.  Why wasn’t it?  Because Republican Mitch McConnell called on the Senate to refuse to even consider any nominee, saying that it should be filled by the next president after the November election.  This means that the vacancy will extend, in all likelihood, past the one-year mark, since the incoming president will not be inaugurated until January, and it will take time for candidates to be screened, nominated, and considered by Congress.

The Supreme Court currently stands with eight Justices.  However, in the next year or two, three are likely to retire:  Stephen Breyer is seventy-eight, Anthony Kennedy is eighty, and Ruth Bader Ginsburg is eighty-three.  That would leave a Supreme Court with only five Justices, if the Senate refuses to confirm any nominees.  Those five would be: Chief Justice John G. Roberts, Jr. (nominated by George W. Bush), Clarence Thomas (George H. W. Bush), Samuel Alito (George W. Bush), Sonia Sotomayor (Barack Obama), and Elena Kagan (Obama).

The Constitution places the power to determine the number of Justices in the hands of Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates. Over the years Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten in 1863. Then in order to prevent President Andrew Johnson, who was soon to be impeached, from naming any new Supreme Court justices, Congress passed the Judicial Circuits Act of 1866. This Act reduced the number from 10 to seven. The decrease was to take effect as the seats became vacant. However, only two seats were freed up by 1869, so there were eight justices. Congress added one seat back in, and decided that there should be nine justices. The Judiciary Act of 1869 officially set the number at nine, and it has not changed since.  Is Congress willing to play a game again next year with the number of Supreme Court appointments, just to keep President Clinton from being able to appoint a single Justice?

There is a little known clause that requires a quorum of six for the Court do to its work. There is no magic to the number ‘nine’, though it has served us well for 147 years now. But it is, I think, inexcusable for Congress to refuse to even hold confirmation hearings, as they did this year in the case of President Obama’s nominee, Merrick Garland, simply based on their dislike of the president.  One hopes that Congress is comprised of adults, not junior high school students, but more and more I question that premise.

Senator McCain is up for re-election and, as I predicted earlier this year, he is doing well, some 10 points ahead of his opponent.  Until his statement about the Supreme Court, I would have wished him well in the election, but now I am less enthused for his success.  I still believe the Senate will hold a democratic majority at the end of the day on November 8th, and this situation makes the down ballot even more imperative.  I would not like to see the Supreme Court reduced to five Justices for the next four years!

President Obama is a Constitutional Law scholar.  As some have posited before me, would it not be poetic justice for Hillary Clinton to nominate Barack Obama to the Supreme Court, and a majority Democratic Senate confirm him?  John McCain, Mitch McConnell, and their cronies would have only themselves to blame.  President Obama is only 55 years old, so he could serve on the Supreme Court for, say, 20-25 years!

Three Cheers For Justice Ginsberg! Or not …

Posted on by under Political commentary

Supreme Court Justice Ruth Bader Ginsburg, in addition to being a Supreme Court Justice, is also a citizen, a taxpayer and a voter.  And she, like all the rest of us, has an opinion about the upcoming election and the candidates, specifically da trumpeter:

ginsberg-trump“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president, for the country, it could be four years. For the court, it could be — I don’t even want to contemplate that. He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

Pretty mild, if you ask me (compared to much of what I have said about the same candidate).  My initial reaction was a fairly substantial chuckle, and a desire to know more.  In feeding that desire to know more, I have had to temper my chuckle with some concerns, but beneath those concerns there is still a remnant of the chuckle, if for no other reason that because her comments really annoyed the heck out of the thin-skinned trumpeter!

Article III, Section I of the U.S. Constitution provides that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”  It is this that provides judges and justices with a lifetime tenure (assuming “good behaviour”) and also states that their salaries cannot be decreased during their tenure.  The reason for this clause is to allow justices to remain Independent from the legislature, to remain above partisan politics.  But does this mean that they are completely non-partisan?  No, of course not, especially in their personal lives.  But it does mean that they should be cautious about expressing partisan views, particularly as they may apply to cases that are or might come under their review.

All of which I agree with, at least in theory.  The courts, especially the Supreme Court, need to be above the dirt and grime of partisan politics in order to be completely fair and impartial.  That said, the justices are also human beings.  They are, as I mentioned above, citizens, taxpayers and voters, and it would be unreasonable to assume that they had no opinion concerning candidates and their ideologies.  However, there is some question among legal scholars (not to mention the media and the GOP, but let us confine this discussion to those whose opinions actually matter) regarding the wisdom and effect of Justice Ginsberg’s comments:

  • Richard W. Painter, a professor of law at the University of Minnesota and a former ethics counsel for President George W. Bush, said Justice Ginsburg’s blunt criticism could provide Mr. Trump with ammunition to try to undermine the moral authority of the Supreme Court.
  • The code of conduct for federal judges says that they shouldn’t “publicly endorse or oppose a candidate for public office.” The code does not apply to Supreme Court justices, but they are generally guided by it.
  • Ilya Shapiro, a senior fellow in constitutional studies at the libertarian Cato Institute, said Justice Ginsburg’s comments “make the judiciary just as political as the other branches of government, and that’s a bad thing. It’s inappropriate for judicial branch officials to do this because it removes even the illusion of impartiality.”
  • Bloomberg’s Noah Feldman noted the Constitution doesn’t require justices to be nonpartisan. Even John Marshall, the father of American constitutional law, served as both chief justice and John Adams’s secretary of state at the same time, he pointed out. “As a lawyer and as a citizen, I’d always rather know what justices and judges think rather than have enforced silence and pretend they have no views.”
  • Her comments make it clear that she would be forced to recuse herself if the election comes down to a Bush v. Gore-type case.

So, while Justice Ginsberg’s comments broke no laws, no established protocols, and indeed, the late Justice Antonin Scalia was known for making such partisan, political comments, her remarks were probably not the wisest thing she could have done.  However, there are only two scenarios under which I see them coming back to haunt her.  One, as mentioned above, is if the election should become a contested election and the Supreme Court is called upon to adjudicate.  The other, potential situation would be if Donald Trump were to actually become president, in which case he would likely claim that the Supreme Court is biased against him due to Justice Ginsberg’s remarks.  He of thin skin also has the memory of an elephant when it comes to those he feels have insulted him.

All that said, one must still obtain a bit of humour over the fact that Justice Ginsberg got under the thin skin of da trumpeter.  His response was predictable (we are getting to know him so well through his tweets and speeches!) and tedious, but I just love seeing anyone get under his skin!

“I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly. I think it’s a disgrace to the court and I think she should apologize to the court. I couldn’t believe it when I saw it.”

Justice Ginsberg was well within her rights to state an opinion.  The 1st Amendment applies to her just as much as to anyone else.  But yet, there are times when it is just smarter to keep one’s mouth shut.  This may well have been one of those times, for at the very least, those troublesome Republicans who are yet trying to use smoke and mirrors, trickery and skullduggery to score a win for their despicable candidate, will no doubt raise a cry and hue over this one.

Addendum:  Between the time I wrote this post and the time of its publication, Justice Ginsburg issued the following statement:

“On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”

Presumably her comment is in response to widespread criticism by legal experts and the media.  I am disappointed, though not surprised.

Westboro Strikes at the Scene of Tragedy … AGAIN

Posted on by under Rants, Social commentary

I had another post completed and ready to go for this evening, but then this caught my eye:

Westboro Baptist Church Plans to Protest Funerals for Orlando Shooting Victims

Aw, man, say it ain’t so!  But sadly, apparently it is, in fact, ‘so’, as the story is reported in Time, USA Today, The Orlando Sentinal, Washington Post, and others too numerous to name here.

Westboro Baptist ‘Church’ members are, to my way of thinking, the scum of the earth.  Even Christians deny them, saying they are not Christians, but are evil.  They are known only for hatred and more hatred.  Who do they hate?  Everybody, it would seem.  They hate anybody who was ever in the military, they hate LGBT people, they hate Jews, Catholics, Muslims, and the list goes on.

Hating every person in the universe is one thing.  Acting upon that hate is something else altogether.  Let it eat you from within, for it is, after all, your choice, but do not inflict it upon innocent people who, merely by luck of birth or circumstance, happen to be on your hate list!  Westboro members have actively picketed funerals of soldiers killed in action, celebrity funerals, gay funerals, events, etc.  You can read about them for yourselves, as it makes me nauseous and my intent here is not to discuss their filth and hate, but to talk about that which forces us to accept them in this so-called civil society. This much I know.  I have LGBT friends and also family members, and I would inflict serious physical damage to anybody from Westboro who dared to show their face at a funeral of any of them.

It is interesting to note that Westboro members are banned from entering Canada as of 2008, and the UK as of 2009!  Would that we could air-drop them into the middle of a Daesh encampment and ban them from re-entering the U.S.!

So why are we in the U.S. forced to accept these psychopaths disrupting the grieving of families and loved ones after every tragedy?  Why?  We call it the 1st Amendment.  Now those of you who either know me or have followed this blog for a while know that I am a long-time scholar and supporter of the United States Constitution.  As such, I fully support the 1st Amendment.  However, I do not think the framers of this historic document quite had this in mind when they drafted it.

There are a number of interpretational theories regarding the Constitution.  The late Supreme Court Justice Antonin Scalia was a textualist who believed that the constitution should “mean the same thing in 2013 as its writers intended in 1787”.  Justice Hugo Black argued that the First Amendment’s wording in reference to certain civil rights that Congress shall make no law should mean exactly that: no law, no exceptions.  The problem with this line of thinking, of course, is that the world is a far different place today than it was in 1787 and nothing in the framer’s experience could have given them the slightest bit of insight into how the world would evolve, what society would become over 200+ years.  A simplified example:  you set bedtime for your toddler at, say, 8:00 p.m.  That is the rule.  But 15 years later when your toddler is 17, do you still make him/her go to bed at 8:00 because that is the rule?  Probably not, unless you want a mutiny on your hands.  As times change, the rules must also change.  That is one part of the reason we even have Legislative and Judicial branches.

We, as humans, were given some really great gifts … original equipment, if you will.  Among them are the ability to think and apply logic to a variety of situations.  There are currently almost no limitations on the 1st Amendment, as the Supreme Court has been unwilling to restrict the Bill of Rights any more than is absolutely necessary.  I get that, I really do.  However, I also think that when the 1st Amendment rights of a small group (Westboro) deprive a much larger group (all the rest of us) of our 4th and 5th Amendment rights, or even our own 1st Amendment rights, then it is time to draw some boundaries around the 1st Amendment.

Some laws have actually been passed limiting Westboro’s access to funerals, but they are not nearly sufficient, and they cover mainly military funerals.  Indiana, Illinois, Arizona and Michigan have enacted laws that ban protestors from being within 300-500 feet of a funeral, but these are misdemeanors with relatively low penalties and this is only 4 states out of 50!  On a federal level, President George W. Bush signed into law the Respect for America’s Fallen Heroes Act in May 2006 prohibiting protests within 300 feet of the entrance of any cemetery under control of the National Cemetery Administration from 60 minutes before to 60 minutes after a funeral.  Penalties for violating the act are up to $100,000 in fines and up to one-year imprisonment.  President Obama signed into law another that increased the time frame to 2 hours before and after.  This is better, but note the phrase ‘National Cemetery Administration’.  Military funerals only.  While I am certainly glad that we are protecting military funerals, I do not think it is enough.  The family members of those victims of the Orlando massacre last weekend deserve the same level of protection from harassment as do the family members of fallen soldiers.  Period.  No argument.

There have been a few legal challenges to the Westboro group’s 1st Amendment ‘rights’.  On March 10, 2006, WBC picketed the funeral of Marine Lance Corporal Matthew A. Snyder in Westminister, Maryland.  On June 5, 2006, the Snyder family sued both Westboro Church and its members for defamation, invasion of privacy, and intentional infliction of emotional distress.  The legal battle was long and arduous, passing through the U.S. District Court twice, the Federal Appeals Court, and eventually, in 2010 ending up in the U.S. Supreme Court.  I will not bore you with details, but the ultimate ruling was an 8-1 ruling in favour of Westboro.  Chief Justice John Roberts wrote the majority opinion stating: “What Westboro said, in the whole context of how and where it chose to say it, is entitled to ‘special protection’ under the First Amendment and that protection cannot be overcome by a jury finding that the picketing was outrageous.”  Justice Samuel Alito, the lone dissenter, said Snyder wanted only to “bury his son in peace”. Instead, Alito said, the protesters “brutally attacked” Matthew Snyder to attract public attention. “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” he said.

Westboro is an abomination, and I include all their members, as well as anybody who would support them in that statement.  There is, however, one bright spot in the Orlando story.  A group of some 200+ people launched a counter-protest, blocking the street in downtown Orlando and preventing the Westboro group from gaining access to the funeral proceedings.  The counter-protest group included bikers, priests, young people, members of the LGBT community and locals carrying signs saying “God is love” and the motto the City Beautiful adopted in response to the massacre, “Orlando strong.”  Yet another group, a line of “angels” clad in white sheets mounted with wings constructed from PVC pipes walked in front of the throng, saying nothing as the crowd cheered. The wings were the idea of the Orlando Shakespeare theater, which outfitted their volunteers with sheets wide enough to block view of the church members.  Just past 11 a.m., the Westboro church members left and retreated toward their vehicles, and the crowd roared. A large contingent of the counter-demonstrators drew in close into a huddle and chanted, “Orlando strong! Orlando strong!”

This was a fairly long post, but when I rant, I do it up right!  Anyway, the moral of this whole thing, as I see it, is that if the Supreme Court feels its hands are tied in cases like these, and if the ‘thinking and humane’ portion of society agree that Westboro is scum that must be stopped, perhaps we take a page from the book of the counter-protestors in Orlando this weekend.  One couple, upon hearing of the counter protest being formed, flew from their home in Pennsylvania to be a part of stopping the Westboro group!  We The People have the power to stop the hatred!  We can first let our representatives in Congress know how strongly we feel about these situations, and when laws fail us, we find other ways, though always within the law and in peace, without violence.  For me, though the headline initially made me see red, I am encouraged to see that there are a lot more good people out there than bad.  I never doubted this, but sometimes we need to be reminded.

Who Did NOT Kill The Judge?

Posted on by under Social commentary

Last week Supreme Court Justice Antonin Scalia died in his sleep at a resort in Texas.  This week, the conspiracy theorists have swooped in with all manners of theories and accusations ranging from ‘Obama killed him’ to ‘Dick Cheney killed him’.  I am waiting for Richard Belzer to add his two cents worth any day now and theorize that he knows just how the CIA had him killed.

This whole scenario could have been so easily avoided if only Scalia had the courtesy to die someplace other than Texas!  Or if only somebody had the good sense to perform an autopsy.  There was no murder, and Justice Scalia died of natural causes.  He was not a well man, as his family knew and has told us.  So why all the mystery?  Because under Texas law, it is permissible for the pronouncement of death to be made by phone, without the Medical Examiner or anybody acting in an official capacity ever having seen the body, which is exactly what happened in this case.  The local Justice of the Peace was out of town, so she pronounced Scalia dead by phone without ever seeing his body.  Also, no autopsy was ordered, at the family’s request.  This combination is the base recipe for disaster … enough gaps in procedure and credibility to get those bored, over-imaginative minds brewing.  Then, to add insult to injury, the resort owner, who discovered Scalia’s body, mentioned that he had “a pillow over his head”.  Throw another log on the fire.

Conspiracy theories are nothing new.  In recent history, the ten (10) top conspiracy theories were:

  • Lee Harvey Oswald did not act alone (or possibly at all)
  • Princess Diana was killed on purpose
  • Aids is a manmade disease
  • The government was involved in 9/11
  • Elvis never really left the building
  • The 1969 Apollo moon landing did not happen
  • A UFO crashed in Roswell, New Mexico
  • Global warming is a hoax
  • President Obama was born in Kenya (another ‘Trump-ism’)
  • Holocaust revisionism

With the possible exception of the first one, all of the above, every single last one, have been credibly de-bunked, as will the “murder” of Justice Scalia.  Were it not an election year, were it not for Trump and his “road-show mentality”, and were it not for ultra-conservative radio personality Alex Jones, the rumour would likely never have seen the light of day. First of all, despite Donald Trump’s hasty conclusion that the pillow was “on his face, which is a pretty unusual place to find a pillow”, the resort owner who found him clarified that the pillow was leaning against the headboard and above his head, not on his face.  And besides … what kind of murderer is going to leave the pillow over the victim’s face, for Pete’s sake???  Secondly, what was to be gained by murdering Scalia?  He was one of nine justices serving on the Supreme Court.  His textualist/originalist views were disagreeable to some, but that never kept him from being well-liked and well-respected by all who knew him.  There was, simply, nothing to be gained by his death and much to be lost.

Justice Scalia was known to have heart problems, high blood pressure and was recently rejected for surgery to treat a shoulder injury based on his other health problems.  “Our family just has no doubt that he was taken from us by natural causes,” Eugene Scalia, Justice Scalia’s youngest son said on Wednesday.  “We accept that. We’re praying for him. We ask others to accept that and pray for him.”

Meanwhile, it is a tragedy that his family, friends, and the public must suffer through politically-motivated rumours. Though I often disagreed ideologically with Scalia’s conservative, textualist decisions, I had great respect for him.  One quote, in particular, stays in my mind, “I attack ideas. I don’t attack people. And some very good people have some very bad ideas. And if you can’t separate the two, you gotta get another day job.”  He was a good man, and he served the Supreme Court and this nation well for over 30 years.  Let us not diminish this memory by allowing the conspiracy theories and theorists to turn this into yet another three-ring circus.

The Supreme Court Becomes a Political Pawn

Posted on by under Political commentary

“Justice Antonin Scalia, whose transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court, was found dead on Saturday at a resort in West Texas, according to a statement from Chief Justice John G. Roberts Jr. He was 79.” (New York Times, 13 February 2016).  Scalia was intelligent and best known for his “caustic dissents that alienated even potential allies.”  Although I rarely agreed with his opinion, he being a conservative and a textualist, I respected his intellect, enjoyed reading his acerbic opinions, and the Supreme Court is a little less bright now.  That said, it is not my intent to eulogize nor criticize the man, but to address a conflict that began brewing within minutes of the news of his death being announced.

Article Two of the United States Constitution places the power of appointing Justices with the President of the United States, stating:

“he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…”

It is clearly the responsibility of President Obama to nominate a candidate to fill the vacancy left by Justice Scalia’s death.  However, Senate Majority Leader Mitch McConnell (R-Ky.) said in a statement that the Senate controlled by his party should not confirm a replacement for Scalia until after the election.  Presidential candidate Ben Carson reiterated McConnell’s stance.  President Obama still has nearly eleven months left to serve as President of the United States, and it makes no sense whatsoever to wait that long to replace Scalia.  Obviously, the republicans are hoping to see one of their own elected as president in November, but never mind that it seems a long shot at this time, the issue here is whether it makes sense to leave the vacancy open for that long.

The Supreme Court consists of nine justices … now there are eight.  Not only does this create a possibility of a tie when deciding and ruling on cases, but under the circumstances, it creates a great probability that there will be ties in many cases over the coming months.  Why?  Because of the remaining eight justices, four are conservative (Kennedy, Roberts, Thomas, Alito) and four are liberal (Kagan, Sotomayer, Ginsburg, Breyer).  Some highly controversial issues are on the docket for the coming months:  abortion, affirmative action, the rights of religious objectors to the contraceptive mandate in the Affordable Care Act, the president’s powers on immigration, and deportation.  An eight-member court could very well be deadlocked on all of these issues.

While it is extremely unusual for a Supreme Court vacancy to be unfilled for a long period of time, it is not without precedent.  The longest was 2 years, 3 months and 18 days in a situation similar to the current one.  When Justice Henry Baldwin died April 21, 1844, John Tyler was president.  Followers of Henry Clay, believing he would be elected, voted to postpone consideration of all Tyler’s appointments.  Clay lost the election to James K. Polk at the end of 1844, but Polk’s first appointments were also rejected, thus it would be August 1846 before the Senate finally confirmed Robert C. Grier to fill the position.  (American Political Leaders 1789-2005, CQ Press Editors, 2005)

President Obama stated that he will nominate a Supreme Court Justice “in due time”, that it is his responsibility and that of the Senate to do so.  The reason, according to McConnell’s argument, that the next president should be the one to make the nomination, is to “give the voters a say in the selection”, but the fallacy in that is that the voters have no say whether President Obama or the next president make the appointment.  Unless, that is, it becomes a campaign issue.  The Supreme Court, by the nature of the Constitution, is the one branch of the federal government that is specifically not intended to be subject to the whims of politics.  That is why justices are appointed for lifetime terms, so that they will not face re-election, not be tempted by the corruption that is inherent in the political process.  So it would be unconstitutional to allow the nomination and appointment of a justice to become a political issue.

There is no doubt that, unless President Obama is able to pull a rabbit out of his hat and appoint a candidate who is unarguably acceptable to the republican controlled Senate, that same Senate will do everything in its power to block his appointments.  It is an abominable state of affairs when one party brings the wheels of justice to a screeching halt, but I fear that is what is going to happen.  And all for naught, as it is highly unlikely at this point that a republican will become the next elected president.  But alas, they must play their little games, and we, the citizens, must pay the price.