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Filibuster Folly

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The WSJ has this editorial on Senate Minority Leader Charles Schumer's decision to call for a filibuster of the confirmation of Judge Neil Gorsuch for the Supreme Court.

On what ground is the drastic action of a filibuster called for?  The hearings have turned up nothing that makes this nominee any more deserving of such a blockade than just about anyone a Republican president could nominate.  He is an originalist, of course, which is exactly what the people who vote for President Trump wanted.

Sen. Schumer says Judge Gorsuch was "groomed by the Federalist Society and has shown not one inch of difference between his views and theirs."  I don't know what he means by "groomed," and the "one inch" remark makes no sense at all.  There is such a variation of viewpoints within the Federalist Society that everyone in it has a wide space of viewpoint from lots of other people in it.

The worst problem is that the confirmation process is getting worse instead of better.  The political pendulum has swung back and forth since the end of World War II, but since the 1980s every time the Republicans have had the White House the Democrats have taken the polarization and partisanship of judicial confirmations to a new level. 

Democrats Retake Mantle of Stupid Party

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No sooner had Republicans re-asserted their long command of the moniker "Stupid Party"  --  this time by failing to round up the votes to pass an Obamacare replacement before they loudly unveiled it  --  than the Democrats, in a lightning fast maneuver, re-seized it by announcing hours later that they will filibuster the nomination of Judge Neil Gorsuch to the Supreme Court.

You don't need to think about it for very long to understand that this is actually good news for Gorsuch, and for those who hope for more mainstream conservatives and originalists on the Court  --  but bad news for the country, which will now see the selection of Justices descend further into sheer political backbiting.

Standing on Principle

Some Senate Democrats seem to be really desperate to have a special prosecutor appointed over the Russia allegations.  They are really, really hoping, I think, that a special prosecutor would be the kind of thorn in President Trump's side that Lawrence Walsh was in President Reagan's and Ken Starr was in President Clinton's.  It was that bipartisan experience that produced a bipartisan consensus that the independent counsel law be allowed to expire in 1999.

Aruna Viswanatha and Nicole Hong report for the WSJ:

President Donald Trump's nominee to be deputy attorney general on Tuesday wouldn't commit to appointing a special prosecutor to investigate any Russian interference in the 2016 presidential election, saying he wasn't in the job yet and didn't know all the facts needed to make a decision.

The New McCarthyism

Marc Thiessen has this column in the WaPo:

[Attorney General Jeff] Sessions is the victim of the type of McCarthyite character assassination that the left used to condemn. Remember when accusing people without evidence of coordinating with the Kremlin was frowned upon? No longer, apparently.

Lesson 3: Judge-Shopping Must Be Curbed

Here is the third lesson to be learned from the debacle noted this morning.

Plaintiffs seeking to enjoin government actions have way too much choice where to file their suits.  Further, there is not enough control on conflicting decisions when it comes to injunctions.

The WSJ article noted in a previous post this morning reports on the development of the strategy of the opponents:

Democratic attorneys general and their aides held a series of conference calls. They agreed to mount separate lawsuits across the country. The goal: try lots of different arguments to block the ban in hopes that one of them would succeed.

Minnesota's attorney general, Lori Swanson, joined the Washington lawsuit. New York Attorney General Eric Schneiderman joined the American Civil Liberties Union's case in federal court in Brooklyn. Massachusetts Attorney General Maura Healey did the same with an ACLU case in Boston.

Not only did they throw as much against the wall as they could to see what stuck, they threw it against as many walls as they could, and it only needed to stick to one.  Judge Gorton in Boston declined to extend his earlier, temporary block of the executive order, but Judge Robart in Washington did block it, and the result was that it was blocked.  Conceivably, a group of persons opposed to some government action could file coordinated suits in every district in the country, and they would only have to win one to get a halt for the time being.

Even when only one suit is filed, broad venue rules and "related case" rules give the challengers too much leeway to steer cases to the judges they know will be favorable to them.  The habeas corpus "fast track" regulations were held up for over three years by order of a judge with no jurisdiction in a case steered to her in exactly that manner.

Congress should take a hard look at the rules regarding venue in cases that seek nationwide injunctions.  "Venue" sounds like a boring subject, but this case illustrates how much it can matter.

Lesson 1: Line and Staff

Here is the first lesson to be learned from the debacle noted this morning.

The chief executive of an organization of any size has two kinds of subordinates.  In the military, the commanders of the component units are the "line," while the people in the chief commander's office are the "staff."  Other organizations may use different terminology, but the distinction is always there in one form or another.

Relying too much on the staff and not keeping the line officers in the loop is a major error.  In the very early days of the Trump Administration, some of the important line positions were vacant, and some still are, because of stalling in the Senate.  The Acting Attorney General at the time of the travel restriction executive order was a dyed-in-the-wool leftist holdover from the Obama Administration.  The extent to which the Secretary of Homeland Security was in the loop has been the subject of conflicting reports.

President Trump nominated some solid people to head the government departments, and the confirmations are coming in now, albeit delayed.  He needs to use them and listen to them.  That is not to say he shouldn't listen to his staff also, just not exclusively.

A Debacle and a Learning Moment

The WSJ has this editorial titled Trump's Judicial Debacle noting a number of ways that the Administration and the courts were both wrong. "President Trump's immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy."

The editorial goes to explain several ways the Ninth Circuit decision is wrong and how the Administration seemed ill-prepared to defend the order.  At the end, the editorial has some worthwhile thoughts on what to do now.

There are lessons to be learned from this debacle, though.  I will note a few of them in separate posts.
Yesterday I said the Administration should, in addition to rewriting the travel restriction executive order, take the present case up to the Supreme Court.  That was based on a legal assessment that the Ninth Circuit decision is wrong.  (See also Rivkin & Casey in today's WSJ.)

In addition to the reasons that I gave yesterday, let me add that the claim that this order is a "Muslim ban" is absurd.  Based on data from the Pew Center, I estimate that the seven countries in question have only 11% of the world's Muslim population.  If one wanted to ban a whole group of people, an action that only affects one out of nine of the group is not the way to go about it.

However, sometimes there are strategic reasons for not taking a position.  Even though the decision is wrong, and clearly so in my opinion, there may not be five votes on the present eight-member Supreme Court to overturn it.  Affirmance by an equally divided court is a nothingburger, and that would be a real possibility.

Finally, and perhaps most importantly, the presence of this very hot-button case in the Supreme Court would give the Democrats and the left-leaning media ammunition in the critically important confirmation battle for Judge Gorsuch.  The Democrats will ask him about the case or questions closely related to the case, he will decline to answer, and even though that declination is quite proper it will look evasive on camera.  The Dems will still try to use it, of course, but their efforts will be less effective if it is behind us.

Sometimes you have to cut your losses and move on.  While the Administration's legal position is correct, taking the case up to SCOTUS may not be strategically wise.

Update:  The Ninth Circuit this afternoon ordered briefing on whether to hear the case en banc.
Wondering why the Senate leadership has not held the confirmation vote for Jeff Sessions as Attorney General yet?  Ted Barrett and Tom LoBianco at CNN suggest an answer.

The nomination of Betsy DeVos for Secretary of Education has been scheduled for tomorrow.  Two Republican Senators have bailed.  If the vote is 50-50, Vice President Pence will cast the tie-breaking vote, the first such Veep vote on a cabinet nominee in history.

If that vote came in the gap between Senator Sessions resigning from the Senate to take the helm at DoJ and Gov. Bentley's naming of a successor, Ms. DeVos's nomination would go down 50-49.

Sessions Nomination Moves to the Floor

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The Klan's main goal in life is to deprive black people of the ordinary rights of citizenship, dignity and equality that white people take for granted.  At its best  --  "best" being viewed from the Klan perspective  --  the organization attacks not merely the rights but the lives of African Americans.  Jim Crow was a substantial accomplishment, sure, but the crown jewel was lynching!  Why merely intimidate blacks when you can murder them?

Even now, when the Klan has been mostly subdued (but cf. Dylann Roof), murder of black men is still a national scandal.  The culprit has changed, however.  It's not the machinations of the Klan.  It's a poisoned culture in our big cities, north and south, that tolerates and breeds drug dealing, thugishness, violence and murder.  Young black men are, to a grossly disproportionate extent, its victims.

The Klan must be thrilled.  They now have a whole culture, not merely in the South but across the country, that will do their work for them.  Liberals hold dithering conferences to talk to each other in Very Earnest Tones about "compassion" while murder of black people skyrockets.

But danger is lurking.  Indeed, it comes up in a Senate hearing tomorrow.
This Politico article pretty much lays it on the line:  

Senate Democrats are going to try to bring down President Donald Trump's Supreme Court pick no matter who the president chooses to fill the current vacancy.

With Trump prepared to announce his nominee on Tuesday evening, Sen. Jeff Merkley (D-Ore.) said in an interview on Monday morning that he will filibuster any pick that is not Merrick Garland and that the vast majority of his caucus will oppose Trump's nomination. That means Trump's nominee will need 60 votes to be confirmed by the Senate.

I have only a question and a comment.  The question is what happened to the urgent cry, heard only very recently, that, "We have to end the partisan gridlock in Washington and learn to compromise!"  The comment is that, under the current Democratic stance, Antonin Scalia, one of the greatest legal minds in American history, would not be considered, much less confirmed, for his own seat.  

To Nuke or Not to Nuke?

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Democratic Leader Sen. Chuck Schumer has signaled intransigence on confirming a Supreme Court nominee. He has said that Democrats would refrain from using the filibuster against a "mainstream" candidate, but made it clear that what he means by "mainstream" is a jurist who buys the legal and "living Constitution" agenda of the last Administration.  It is, to say the least, improbable that President Trump will put forward such a nominee. Accordingly, a filibuster seems likely at this point.

According to this article from the Hill, Majority Leader Mitch McConnell is reluctant to part with Senate tradition by ending the filibuster for Supreme Court nominees (i.e., by "going nuclear").

Earlier, I made one suggestion about how this might be handled.  A person well-acquainted with Senate procedures now makes another. 

Counterproductive Intolerance

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Barbara Smith describes a sudden change in her attitude in this article in the WSJ.

At best, I had been a lukewarm and silent Trump supporter, a Goldwater-Reagan-George W. Bush girl who had decided to attend the ball mostly for the opportunity to wear a fancy dress. But when my heels hit the sidewalk that second time, I committed: I would now back President Trump.

Sessions Confirmation Delayed

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Seung Min Kim reports for Politico:

The powerful panel officially agreed to delay the official committee vote on his nomination due to requests from Democrats, who said they wanted more time to review Sessions and the paperwork surrounding his nomination. The vote will now be Jan. 31, and his nomination will head to the Senate floor after that.
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With support from Republicans, Sessions is expected to be confirmed when his nomination comes to the Senate floor, despite limited Democratic support.

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