The Biden Rule: When The Wingtip Is On The Other Foot

VICE PRESIDENT JOE BIDEN:  Merrick, I kinda fubar-ed your nomination.

CHIEF JUDGE U.S. COURT OF APPEALS MERRICK GARLAND:  Yeah, ya did Joe. For totes reals.

BIDEN:  The damned Internet is forever ya know and they dug up that C-SPAN video of me saying, “Action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee…Otherwise we will be in deep trouble as an institution, stuck in a bitter fight, no matter how good a person is nominated by the president.”

JUDGE GARLAND:  Yeah, believe me, I remember it well and let’s not forget that time when the doofus standing on the other side of me filibustered the nomination of Justice Alito.  Why do you think I almost broke down in tears a minute ago?  You guys doomed me.  It’s as if the Sweet Meteor of Death swooped down and destroyed my chances.

BIDEN:  He said he regrets that.  Come on man, can I buy you a nice ice cream cone to make you feel better?

GARLAND:  You really are an idiot aren’t you?

Sen. Joe Biden in 1992 says President Bush should "not name a nominee until after the November election..." #SCOTUShttps://t.co/setQGLzePt

— CSPAN (@cspan) February 22, 2016

.@SenateMajLdr McConnell responds to SCOTUS nomination: "Give the people a voice in filling this vacancy" https://t.co/Yfu961lwAS

— MSNBC (@MSNBC) March 16, 2016

Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington University penned a piece for USA Today in which he noted, “Our political system seems poised to answer the question of what happens when an unstoppable force meets an immovable object. The unstoppable force, Obama, insists that his nominee to replace the late justice Antonin Scalia be given a hearing and a vote. The immovable object is the Republican Senate, which is equally determined to prevent both. Who will prevail?”

A moderate could easily change the results in cases of unions forcing non-union members to pay dues; states crafting districts under standards governing one person, one vote; exempting religious organizations from the Affordable Care Act’s contraceptive mandate; allowing universities to consider race in admissions; and exempting millions of undocumented immigrants from deportation.

Garland will be viewed with suspicion over gun rights. In 2007, a three-judge panel of the DC Circuit ruled against the city's handgun ban in Parker v. District of Columbia. In an unsuccessful move for a rehearing by the full court, Garland voted with three other judges to reconsider and was presumed to oppose the panel decision. The case went on to the Supreme Court and became known as District of Columbia v. Heller, the historic ruling recognizing the individual right to bear arms. For conservatives, Heller is gospel and Garland seems like a non-believer.

Turley postulates, “In the end, the only thing worse for the GOP in barring a vote might be allowing a vote that would literally wipe out core political issues ranging from abortion to affirmative action. A Republican senator can survive a role in obstructing a nominee but would unlikely survive a role in facilitating the loss of gun rights.”

Republicans have presented an impressive unified front against any hearing for the nominee.  However, five GOP Senators whose seats are considered endangered, Ron Johnson (WI), Kelly Ayotte (NH), Mark Kirk (IL), Rob Portman (OH) and Pat Toomey (PA) appear to be waffling. 

Hey, Chuck Schumer, life's a bitch when the wingtip is on the other foot isn't it buddy?

The Most Influential Justice Of The Last Quarter Century, Antonin Scalia, Dead At 79

Via The New York Times

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.

“He was an extraordinary individual and jurist, admired and treasured by his colleagues,” Chief Justice Roberts said. “His passing is a great loss to the Court and the country he so loyally served.”

The cause of death was not immediately released.

Justice Scalia began his service on the court as an outsider known for caustic dissents that alienated even potential allies. But his theories, initially viewed as idiosyncratic, gradually took hold, and not only on the right and not only in the courts.

He was, Judge Richard A. Posner wrote in The New Republic in 2011, “the most influential justice of the last quarter century.” Justice Scalia was a champion of originalism, the theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution. In Justice Scalia’s hands, originalism generally led to outcomes that pleased political conservatives, but not always. His approach was helpful to criminal defendants in cases involving sentencing and the cross-examination of witnesses.

With the retirement of Justice John Paul Stevens in 2010, Justice Scalia became the longest serving member of the current court. By then, Justice Scalia was routinely writing for the majority in the major cases, including ones on the First Amendment, class actions and arbitration.

He was an exceptional stylist who labored over his opinions and took pleasure in finding precisely the right word or phrase. In dissent, he took no prisoners. The author of a majority opinion could be confident that a Scalia dissent would not overlook any shortcomings.

Justice Scalia wrote for a broader audience than most of his colleagues. His opinions were read by lawyers and civilians for pleasure and instruction.

Justice Scalia’s sometimes withering questioning helped transform what had been a sleepy bench when he arrived into one that Chief Justice Roberts has said has become too active, with the justices interrupting the lawyers and each other.

The current occupant of the Oval Office can be expected to appoint a replacement whose views will more align with his own. Once his nominee is chosen, the US Senate will hold confirmation hearings and then put the nominee to a vote. A majority of 51 wins, which may be difficult for Obama in a Senate that currently has 54 Republicans, 44 Democrats, and two Independents. There is definitely a concern that the Republican-controlled Senate will do their best to put off the confirmation of any less-than-conservative nominee in the hopes that a Republican president will be elected in the fall and the task of nomination will then go to him.

The time for all this action to take place isn't set in stone, and having a Democratic president try to replace a conservative justice in a Republican-led Senate will surely prove difficult. The last person to join the Supreme Court was Justice Elena Kagan, who was nominated by Obama on May 20, 2010 in anticipation of Justice John Paul Stevens' impending retirement on June 29 of that year. She was confirmed by a 63-37 vote of the Senate on Aug. 5, 2010. The last Justice to die on the bench was William Rehnquist on Sept. 2, 2005.  

Jan Brewer: “We Are On Our Own, Apparently”

Within hours of the Supreme Court’s ruling on Arizona’s immigration law, the errand boy sent by grocery clerks used the bully pulpit to put more citizens at risk.

He issued a directive telling Janet Napolitano’s Department of Homeland Security to refuse many of the calls it will receive from Arizona Police reporting undocumented Democrat voters illegal immigrants.

KPHO Phoenix has the transcript of the statement issued by Napolitano today:

"I am pleased that the U.S. Supreme Court confirmed that state laws cannot dictate the federal government's immigration enforcement policies or priorities.” 

“DHS remains focused on enhancing public safety and the integrity of our border by prioritizing enforcement resources on those who are in the country unlawfully and committing crimes, those who have repeatedly violated our immigration laws, and those who recently crossed our borders illegally.” 

“The Court's decision not to strike down Section Two at this time will make DHS's work more challenging. Accordingly, DHS will implement operational enhancements to its programs in Arizona to ensure that the agency can remain focused on its priorities.” 

“Over the past three and half years, this Administration has dedicated unprecedented resources to secure the border and to enforcing our nation's immigration laws in a firm and reasonable fashion. We continue to urge Congress to pass comprehensive reform because nothing short of a comprehensive solution will resolve the current patchwork of immigration laws.” 

“Finally, it is important to note that today's Supreme Court decision will not impact the memorandum I issued on June 15 related to prosecutorial discretion eligibility for productive members of society who were brought to the United States as children."

Dave Gibson, freelancing at Examiner on immigration reform takes Big Sis to the woodshed  by pointing out:

“In her time as head of DHS, Napolitano has refused much-needed funds for her department, leveled unfounded accusations at veterans and conservatives by labeling them as potential terrorists, stopped worksite enforcement, refused Texas Gov. Rick Perry’s desperate request for troops along his state’s border and continuously lobbied for amnesty for this country’s enormous illegal alien population.” 

“It is hard to imagine why the Secretary of Homeland Security, who is charged with defending this nation, would end a program which very effectively and efficiently removes huge numbers of illegal aliens from this country. That is unless Madame Secretary has another agenda…An agenda which directly conflicts with the interests of the American people.”

With the stench of betrayal hanging heavy in the air, Arizona Governor Jan Brewer issued this statement:

“As though we needed any more evidence, President Obama has demonstrated anew his utter disregard for the safety and security of the Arizona people. Within the last two hours, I have been notified the Obama administration has revoked the 287(g) agreement under the authority of which Arizona law enforcement officers have partnered with the federal government in the enforcement of immigration law.” 

“Of course, it is no coincidence that this announcement comes immediately on the heels of the U.S. Supreme Court’s ruling upholding the constitutionality of the heart of Arizona’s anti-illegal immigration law: SB 1070. It’s worth noting that 68 law enforcement entities in 24 states have functioning 287(g) agreements with the federal government. But it appears the only agreements eliminated today were those in Arizona, the state that happens to be on the front lines of America’s fight against illegal immigration. We are on our own, apparently.” 

“I suppose I shouldn’t be surprised. The Obama administration has fought the people of Arizona at every turn—downplaying the threat that a porous border poses to our citizens, filing suit in order to block our State from protecting itself, unilaterally granting immunity to tens of thousands of illegal aliens living in our midst, and now this. Still, the disarmament of Arizona’s 287(g) agreements is a new low, even for this administration.” 

“Since 2006, the U.S. Department of Homeland Security credits the 287(g) program with identifying nearly 300,000 potentially-removable aliens nationwide. Immigration and Customs Enforcement has trained and certified more than 1,500 state and local officers to assist in the enforcement of immigration law, including many in Arizona. In fact, even as the President was wiping out Arizona’s 287(g) agreements, the ICE website itself continued to herald the collaborative approach of the 287(g) program, noting, ‘Terrorism and criminal activity are most effectively combated through  a multi-agency/multi-authority approach that encompasses federal, state and local resources, skills and expertise.’" 

“The President’s action should be of concern to all Americans. This fight is not over. President Obama may disregard Congress. He may target individual states like Arizona. He may generally act with impunity. But he is not above judgment—and the American people will have theirs very soon.” [Emphasis mine.]

Final point, Associate Justice Antonin Scalia’s bench statement on today’s ruling is powerful.

“The President has said that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the President declines to enforce boggles the mind.”

He's a shameless scofflaw. 

Supreme Worry: The Fate Of ObamaCare

Writing at The Hill, Juan Williams, the squishy shill for President “Tee-Em-Up” believes, “Every political strategist working the fall elections sees a game changer coming by the end of the month. That’s when the Supreme Court rules on the constitutionality of President Obama’s signature legislative accomplishment, the Affordable Care Act.”

“The Democrats have a nuclear option in this political game if the high court throws out the healthcare law as unconstitutional.”

“That blowup-the-system button, not pushed since FDR’s attempt to stack the court with Democrats during the New Deal, is for Obama to use the bully pulpit of the White House, and the national stage of a presidential campaign, to launch a bitter attack on the current court as a corrupt tool of the Republican right wing.”

“It is a move that could energize Democrats and independents even as Republicans celebrate a major legal victory. Some Democrats, sensing a political windfall, can’t wait to start the offensive.”

By contrast Avik Roy, a contributor at Forbes, provides some insight.

“In her ACS remarks, Ginsburg suggested that she might be on the dissenting side of the case. ‘I have spoken on more than one occasion about the utility of dissenting opinions, noting in particular that they can reach audiences outside the court and can propel legislative or executive change,’ said Ginsburg, in the context of a 2007 pay discrimination case.” 

“Most tellingly, she touched upon the key question that I believe the Court is still working through: what to do with the law if the individual mandate is indeed found to be unconstitutional.”“My sources (which I freely admit to be third-hand) suggest that Kennedy will side with the conservatives and strike down the Affordable Care Act’s requirement that nearly every American must buy health insurance. The key question is: how much of the rest of the law should be struck down along with it?” 

“Ginsburg wittily put it this way: ‘If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?’” 

“My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.”

In any event, those in the know believe the decision will be handed down on June 25.

In other news, New York Magazine reveals, “The Obama campaign announced today that it has picked John Kerry to serve as Mitt Romney's stand-in during President Obama's debate preparation. Kerry was chosen as Obama's sparring partner partly because he knows Romney's life and career so well; partly because he, as the Washington Post writes, ‘has long been considered one of the Democratic Party’s most skilled debaters’; and partly because the robot dad from the Duracell battery commercials had other commitments."