Below is my column in USA Today on the passing of Associate Justice John Paul Stevens. I have another column appearing today in the Sunday Washington Post’s Outlook Section. I remain surprised by the comparatively light coverage of the passage of this great man who gave so much to the country. I disagreed with Stevens on various cases, but I always held him in the highest regard as a person and as a jurist.
Below is my column on the end of the Supreme Court term and the one outstanding piece of business: an apology to Associate Justice Neil Gorsuch. After this column ran, Gorsuch again voted with the liberal justices on a critical due process issue. He has already carved out a principled legacy on the Court that follows his convictions rather than the predictions of his critics.
In a major 5-4 ruling on Monday, the United States Supreme Court ruled Monday that the Eighth Amendment does not guarantee a “painless death” in capital punishment. The opinion, written by Justice Neil Gorsuch, returned to the origins of the amendment and concluded that Russell Bucklew’s rare medical condition raising the danger of hemorrhage and choking does not constitute a constitutional barrier to execution. The opinion is Bucklew v. Precythe.
Below is my column in the Hill newspaper on the recent public statement issued by Chief Justice John Roberts. While I am entirely sympathetic with the statement (which is also true) about the unfairness in referring to “Obama judges” ruling against the Trump Administration, the public rebuke only highlighted the glaring disconnect in Roberts’ defense of apolitical courts and his deafening silence over the conduct on his own Court.
Yesterday, I addressed arguments that the appointment of Matt Whitaker as Acting Attorney General violates federal law. The arguments based on the Federal Vacancies Reform Act, in my view, are unpersuasive. As I noted, however, there remains a different and more fundamental question of whether the Act itself is unconstitutional by allowing an official without Senate confirmation to assume, even temporarily, the office of a “principal officer.” If standing can be found to challenge the Act on that basis, the constitutional arguments are compelling. The constitutional question could be difficult to litigate if a nomination is made in January. However, these constitutional concerns again raise the logic of firing Jeff Sessions immediately after the election as opposed to having him serve until the confirmation of his successor. Nevertheless, this is an issue that is somewhat untested in the courts and challengers would need to establish standing as well as raise a “ripe” issue to argue that Whitaker is lawful under the Act but the Act is unconstitutional under Article II.
As we have discussed over the last couple days, President Donald Trump’s pledge to end birthright citizenship by an executive order has caused a firestorm. Where President Donald Trump is wrong is to claim the ability to end birthright citizenship for undocumented individuals through an executive order. The column below in USA Today explains that Trump would lose under two out of three interpretations of the 14th Amendment. Even if he prevailed on the one possible interpretation, I remain opposed (as I was under President Barack Obama) to unilaterally ordered such major changes through executive orders. Putting aside the means, I have been surprised by the many statements that the meaning of the 14th Amendment as it relates to illegal or undocumented is absolutely unclear and unassailable. In fact, while birthright citizenship is unassailable, the scope of the amendment has long been questioned including both Democratic and Republican members long proposing legislative limits (including former Sen. Harry Reid). An argument can be made for a more limited meaning, even though the plain meaning of the Amendment (and the interpretation that I would tend to favor) would militate toward the broader meaning. Regardless, a clear and final ruling on the 14th Amendment should be welcomed — confirming whether this is a matter for legislative reform or constitutional amendment. Trump should drop the executive order approach so the focus of any judicial review is on the meaning of the 14th amendment and not the means used by the President.
Below is my column in The Hill newspaper on the aftermath of the Kavanaugh confirmation. It is not that there is no winner and loser as much as both Dr. Christine Blasey Ford and Judge Brett Kavanaugh are both winners and losers.
It will take time to decide which party will benefit, but there is clearly Brett bump for Republicans going into the midterms. Yet, the confirmation will also continue to resonate Democratic voters.
In 2010, I (and others) criticized the Democratic leadership (including then Majority Leader Harry Reid and many of the continuing Democratic senators) for their use of the “nuclear option” in curtailing the power of the filibuster. I was equally critical of Republican leaders who previously suggested such a course of action. The Democrats acted with little concern that they might ever be in the minority and need this critical power. They muscled through the Affordable Care Act on a marginal vote that cost various members their seats and passed a highly flawed bill that was plagued by problems of bad drafting and poor planning. Moreover, they secured relatively few confirmations to federal office. The result was the final demise of the filibuster for Supreme Court nominees when the Republicans took power. The result for the Democrats is Justice Brett Kavanaugh, who was confirmed by a 50 to 48 vote. Continue reading “A Bill Comes Due: Reid’s Folly Becomes The Democratic Nightmare”→
As I have written previously, I have long been a huge admirer of former Supreme Court Associate Justice John Paul Stevens — not just for being a fellow Cubs fan. However, I was surprised to see that Stevens broke a long-standing uwritten rule of former and current justices not to speak on pending nominations or confirmations. According to The Palm Beach Post, Stevens spoke publicly at an event with a retirement group that Kavanaugh should not be confirmed. The event was described as “closed” so it is not clear that Stevens realized that he would be quoted, but it was obviously a large crowd setting. Stevens said that the anger and language used by Kavanaugh raises serious questions of his temperament. Continue reading “John Paul Stevens: Don’t Confirm Brett Kavanaugh”→