Supreme Court

Momentous Week in Washington Touches on Core National Values

The Supreme Court ruled on gerrymandering and the Census citizenship question, Congress debated emergency border funding and set a date for testimony by former Special Prosecutor Robert Mueller, Trump flew to Japan for a G20 summit and Democratic presidential candidates debated in Miami. It was a pretty momentous week.

The Supreme Court ruled on gerrymandering and the Census citizenship question, Congress debated emergency border funding and set a date for testimony by former Special Prosecutor Robert Mueller, Trump flew to Japan for a G20 summit and Democratic presidential candidates debated in Miami. It was a pretty momentous week.

This has proven to be a momentous week in Washington, DC that touched on the nation’s core institutions and values and how they interrelate.

The Supreme Court, in separate 5-4 rulings, left untouched partisan-tinged congressional district gerrymandering and blocked the Trump administration’s attempt to place on a question about citizenship on the 2020 Census.

The high court’s majority said the US Constitution doesn’t bar politically influenced gerrymandering or allocate authority to the court to police it. In an impassioned dissent, the minority said the ruling is setback for democratic values.

Speaking for the majority, Chief Justice John Roberts said the Trump administration failed to make a persuasive argument that the citizenship question is needed to help enforce the Voting Rights Act. "If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case," Roberts wrote. The Census Bureau has said it wants to start printing questionnaires next Monday. Calling the ruling “ridiculous,” Trump indicated he would try to delay the Census “for as long as it takes.”

Meanwhile, Congress struggled to reach bipartisan agreement on an emergency funding measure to address border migration issues before the July 4 recess. The Democratically controlled House and the Republican controlled Senate passed separate versions this week. Among the differences between the two bills is whether there will be specific directions on how the $4.5 billion can be spent. President Trump has threatened to veto the House version. 

The picture of the drowned bodies of Salvadoran migrant Oscar Alberto Martínez Ramírez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande shocked the nation and accentuated calls for actions to address the humanitarian crisis on the border. (Photo Credit: Julia Le Duc/AP)

The picture of the drowned bodies of Salvadoran migrant Oscar Alberto Martínez Ramírez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande shocked the nation and accentuated calls for actions to address the humanitarian crisis on the border. (Photo Credit: Julia Le Duc/AP)

Republicans and Democrats acknowledge there is a humanitarian crisis on the US-Mexico border, punctuated by the widely circulated photograph of a Salvadoran father and his young daughter clutching his neck who drowned in the Rio Grande trying to enter the United States without going through a port of entry.

The uproar caused by the photo and continuing coverage of child migrant holding facilities prompted John Sanders, acting head of US Customs and Border Patrol, to resign. Tellingly, he submitted his resignation to the acting head of Homeland Security.

As Trump flew to Japan for a G20 meeting on Wednesday, Democratic candidates sparred in Miami in the first of two debates in the 2020 presidential election. They talked about health care reform, immigration policy, climate change and economic policy. Trump, who watched the first night’s debate on Air Force One, called it boring as the first 10 candidates staked out largely progressive agendas that included moving away from private health insurance and increasing taxes on wealthy Americans.

The second set of hopefuls, which includes frontrunners Joe Biden and Bernie Sanders, will debate Thursday night.

In Japan, Trump is expected to meet on the sidelines with Russian President Vladimir Putin and Chinese President Xi Jinping. His conversation with Xi will likely center on an escalating trade war that is taking its toll on both countries’ bottom lines. Trump snarled at reporters who asked what he will discuss with Putin, telling them it was “none of your business.” Heightened tensions in Iran and Russian military involvement in Venezuela are two probable topics.

Ahead of the summit, Trump lashed out at India, Japan and Germany over trade policy and “security freeloaders.” Trump is expected once again to object to any joint statement at the summit that references the Paris Climate Accord, which will further strain US-French relations. 

Congressional Democrats announced former Special Prosecutor Robert Mueller will testify publicly July 17 before the House Judiciary and Intelligence committees. That suggests the two hearings will sequentially deal with Trump’s potential obstruction of justice and Russian interference in the 2016 presidential election..

Questioning of Mueller is virtually certain to zero in on testimony provided to his investigation under oath by White House officials who have been barred from testifying in Congress by Trump’s attorneys. The interrogation could prove pivotal to a decision by House Democratic leaders to draw up articles of impeachment.

Another fight is brewing over foreign policy. Democrats insist Trump needs a congressional declaration of war before launching any military action in Iran. Trump, supported by Senate GOP leaders, says he doesn’t.

A bipartisan resolution calling on the Trump administration to suspend an $8 billion arms sale to Saudi Arabia won’t stop the deal, according to Trump officials.

Under the radar, former Trump Secretary of State Rex Tillerson has been testifying in private to the House Foreign Affairs Committee. A transcript of his testimony released this week included Tillerson’s claim that Trump’s son-in-law Jared Kushner was in contact with world leaders without coordination with the State Department, often leaving him out of the loop on emerging policies. 

“Tillerson also described the challenge of briefing a president who does not read briefing papers and often got distracted by peripheral topics, noting he had to keep his message short and focus on a single topic,” according to a report in The Washington Post.

 

 

Calling Balls and Strikes in the Supreme Court

Supreme Court Chief Justice John Roberts is unequivocally conservative, but as only the 17th chief justice in US history and after 16 years as chief justice, Roberts is in a position to tip the high court in either direction on highly partisan cases such as extreme gerrymandering, the citizenship question on the Census and, once more, on the constitutionality of Obamacare. (Photo Credit: Doug Mills/The New York Times)

Supreme Court Chief Justice John Roberts is unequivocally conservative, but as only the 17th chief justice in US history and after 16 years as chief justice, Roberts is in a position to tip the high court in either direction on highly partisan cases such as extreme gerrymandering, the citizenship question on the Census and, once more, on the constitutionality of Obamacare. (Photo Credit: Doug Mills/The New York Times)

Congress may be deadlocked, but the conservative slant of the US Supreme Court is undeniable with a distinctly conservative chief justice and four ready followers.

Yet, Chief Justice John Roberts, only the 17th chief justice in the history of the country, remains an enigmatic, even secretive figure who broke the hearts of conservatives in 2016 by confirming Obamacare was constitutional. Now, the court he oversees will be faced with deciding seminally partisan cases involving political gerrymandering that could test his ideological leanings. Oral arguments in the cases were made on Tuesday.

The cases involve extreme gerrymandering by Republicans in North Carolina and Democrats in Maryland that good-government advocates are opposing, with electoral results in the pivotal 2020 election in the balance. Both cases, experts say, will test Roberts to see if he is more ideologue than institutionalist. 

Without a lot of fanfare, Roberts has served as chief justice for 16 years. At just 64, he could serve for in his role for another 20 years.

Coincidentally, a biography of Roberts has just been published that confirms advocates from both the political left and right are wary of him, despite his privileged upbringing and a clearly conservative record on voting rights, affirmative action, campaign contributions, abortion rights and same-sex marriage. 

Joan Biskupic, in her biography The Chief: The Life and Turbulent Times of Chief Justice John Roberts, describes him as the son of a steel company executive and product of an upper-class, all-white suburban Catholic prep school education. Roberts then went to Harvard for his undergraduate and law school degrees.

As an attorney, Roberts argued 39 cases before the Supreme Court before his nomination by President George W. Bush to succeed retiring Justice Sandra Day O’Connor. When Chief Justice William Rehnquist died before his confirmation, Bush upgraded Roberts’ nomination to chief justice. In his confirmation hearing, Roberts compared the role of judges to baseball umpires who calls balls and strikes. 

Now, the chief justice, who also doubles as the adult-in-the-room swing vote on the court, must decide on a pair of mirror cases that reflect unvarnished political gerrymandering. He also will deal with a case involving the citizenship question on the 2020 US Census, which also pits GOP ideology against a clear violation of the federal Administrative Procedure Act.

Biskupic thinks these cases could expose a side of Roberts often overlooked – his eagerness to avoid civil division. Citing Roberts’ vote in the Obamacare ruling, she says: “Viewed only through a judicial lens, [Roberts’] moves were not consistent, and his legal arguments were not entirely coherent. But he brought people and their different interests together. His moves may have been good for the country at a time of division and a real crisis in health care, even as they engendered, in the years since, anger, confusion and distrust.”

Roberts has shown a willingness to cross swords with his conservative soul mates, such as when he admonished President Trump for trashing a federal court judge. However, conservatives will expect Roberts to stay at his ideological home on seminal cases involving raw politics. The question is whether Roberts will stick to his ideological roots or, in cases involving partisan issues, perform like his proverbial umpire calling balls and strikes.

 

A ‘Fringe Idea’ to Apply Term Limits to the Supreme Court

A ‘new’ debate is emerging on reforming the Supreme Court, including imposing term limits on justices. What has been a fringe issue may be moving into the mainstream and even the 2020 presidential race. Debating the size and composition of the Court could be a refreshing dip into a rich part of American history that has occurred when the nation was founded, grappled with nationhood, recovered from civil war and addressed the ravages of the Great Depression.

A ‘new’ debate is emerging on reforming the Supreme Court, including imposing term limits on justices. What has been a fringe issue may be moving into the mainstream and even the 2020 presidential race. Debating the size and composition of the Court could be a refreshing dip into a rich part of American history that has occurred when the nation was founded, grappled with nationhood, recovered from civil war and addressed the ravages of the Great Depression.

While the Capitol is buzzing with news about averting a government shutdown, criminal justice reform and a resolution to exit the Yemeni civil war, a new debate is quietly entering the stage that could radically change the US Supreme Court.

With two new conservative justices appointed by President Trump sitting on the high court, liberals are talking about ideas to apply term limits to justices, restrict when presidents can appoint new justices and add more justices to the court. Fivethirtyeight calls the conversation a “fringe idea” that is gaining mainstream attention.

As Fivethirtyeight recalls, court-packing isn’t new or novel. The Supreme Court’s size was shrunk by outgoing Federalists from six to five to prevent incoming President Thomas Jefferson from making an early appointment. Republicans quickly returned the Court to its original size and later added a seventh justice so another Republican could be named.

The Court was increased to nine justices to give President Andrew Jackson two additional seats to fill as part of his battle to end the national bank. Following President Lincoln’s assassination, a Republican Congress reduced the Court to seven to deny his successor, Democrat Andrew Johnson, any nominations that could interfere with their reconstruction plans. Franklin Roosevelt tried court-packing to remove judicial obstacles to his New Deal, but his transparent objective sank his attempt.   

The impetus for the latest spasm of interest in Supreme Court “reform” was the decision by Senate Majority Leader Mitch McConnell to deny a hearing or confirmation vote for President Obama nominee Merrick Garland in 2016. The spectacle surrounding Brett Kavanaugh’s confirmation hearings earlier this year didn’t squelch interest in reforms.

“The whole idea was born out of bleakness,” says David Faris who wrote “It’s Time to Fight Dirty,” which Fivethirtyeight describes as a “highbrow manual” to achieve institutional change. His book includes a chapter on changing the trajectory of the Supreme Court, with ideas Faris credits to Fix the Court, a group that says it is dedicated “to open up the most powerful, least accountable part of government.”

One of the group’s main ideas is to end lifetime appointments for Supreme Court justices and impose 18-year term limits. It says that idea was originally suggested by none other than current Chief Justice John Roberts, who has served on the court since 2005.

“To paraphrase a John Roberts' 1983 memo, term limits would restore an important check on the most powerful, least accountable branch of American government, would increase the rotation of justices serving and would broaden the pool of potential nominees – all positive outcomes no matter where you stand politically.” He wrote the memo while working as associate counsel to White House counsel Fred Fielding during the Reagan administration.

According to Fivethirtyeight, the only elected official to express vocal support for Supreme Court justice term limits is freshman California Congressman Ro Khanna, who took his law degree from Yale University, has taught law and co-authored an amicus brief to the Supreme Court to allow race discrimination suits under the Fair Housing Act. Khanna, who worked in the Obama administration, doubts his former boss would favor the idea, but he thinks American voters might. “Americans love term limits,” he says.

For the idea to have any political legs, Khanna explains, it must be bipartisan. He and others who are intrigued by the idea of court reforms expect the issue to rise up in the 2020 presidential election as part of a broader debate over rehabilitating American democracy.

“Every presidential candidate should talk about their relationship to the Supreme Court, what they would do to reform the court, if anything, how they would go about selecting justices, and what they would do if there was a constitutional crisis,” Khanna told Fivethirtyeight. Polling has shown that candidate Donald Trump’s promises to appoint conservative justices was a factor in securing critical support, including from evangelical religious groups.

One of the other ideas being tossed around is limiting Supreme Court nominations to the first and third year of a presidential term, an idea ironically spawned by McConnell’s defense of ignoring Garland’s nomination in Obama’s final year in office. It also has been suggested to increase the size of the Supreme Court from nine to 11 or 13 justices – “depending on how many justices Trump winds up appointing.”

Term limits can cut both ways. Political conservatives might be thrilled to see Justice Ruth Bader Ginsburg, who joined the Court in 1993 and the subject of a new film, gone. Political liberals would feel likewise about Justice Clarence Thomas, who took his seat in 1991 following a contentious confirmation hearing that featured Anita Hill and charges of sexual harassment.

A current-day debate over the Supreme Court would be like a refreshing dip into American history. The reforms would be newly expressed, but bound to the nation’s ever-evolving democracy over issues such as judicial review, racial discrimination and gender equality.

 

Obama’s Best Week and Finest Hour

President Obama gave the eulogy for state Senator Clementa Pinckney, in perhaps the most stirring speech of his career. 

President Obama gave the eulogy for state Senator Clementa Pinckney, in perhaps the most stirring speech of his career. 

When I think about having a good week, it often involves time to write something worth reading, a good glass of wine and an Oregon Duck football victory.

That pales in comparison to the week President Obama just had. He won approval for fast-track trade pact negotiating authority, saw the Supreme Court validate a key provision of the Affordable Care Act, witnessed history in a court ruling on same-sex marriage and gave a stirring eulogy for one of the Charleston Nine murder victims.

For all I know, Obama may have had time to fit in a game of golf.

While I wish a good week for everyone (or most everyone), I’m glad to see Obama got his. He has put up with six pretty miserable years of congressional non-cooperation, stupid political claims and bad timing. He deserved a break.

It was a week that solidified the Obama legacy, which everyone had assumed was headed toward the dumpster. His eulogy, spoken in a cadence familiar to anyone who has attended African-American church services, was perhaps the most stirring speech of his presidency. It would be hard to imagine another president – even Bill Clinton – who could have given such a soaring and introspective speech with perfect pitch and timing.

Obama went far beyond flags and guns to talk about race realities in our country, the kind of everyday racism we know exists, but try to ignore – the return phone calls from job interviews to Johnny, but not Jamal. He traced today’s subtler forms of discrimination to years gone by when hangings and church burnings were the tools of oppression.

But this wasn’t a polemical piece of rhetoric. Obama touched a different nerve. He talked about grace. He even sang about grace. He said grace is unearned. He said grace was a gift from God.

Obama called grace the unanticipated response to an act of murder intended to spark a race war. The murders, as horrific as they were, sparked something else – a national awareness that hate and hateful symbols lead to violence, while forgiveness, even in the throes of grief, is the path to healing.

That Obama’s eloquent eulogy capped a week that included two Supreme Court decisions to retain a health care plan designed to extend coverage to more Americans and to recognize the equality of marriage made his remarks even more forceful. The eulogy may have transformed Obamacare from a political sling to a presidential signature.

In praising Rev. Clementa Pinckney, Obama talked of the slow march of justice and of the importance of seizing moments like the murders to push forward. And Obama warned against returning to comfortable silence when the headlines fade and other distractions claim our attention.

The Pinckney eulogy was in many respects represented the kind of  leadership that Obama’s supporters had expected sooner, and that his political opponents had feared. Obama towered above a despicable act and draped coffin to deliver a message all Americans needed to hear and heed. It was perhaps President Obama’s finest hour.

Obamacare to Command Continuing Headlines

Obamacare faced a rough 2013, but it could be a walk in the park compared what lies ahead in 2014.

Elise Viebeck, writing for The Hill, identifies five significant stories to watch for in the coming year.

The most obvious is an analysis of how many people and who enrolled in the new health insurance exchanges. Chances are good the total will be less than the Obama administration's target of 7 million enrollees. Who signs up will be followed with intense interest. Will healthy young adults enroll? Will people desert employer-sponsored plans to shop on the exchange? How many people will be covered by the Medicaid expansion? Answers to these and similar questions will have an impact on rates, which also will earn close scrutiny.

President Obama has shown a willingness to postpone deadlines. Viebeck says he pushed back 10 separate deadlines in 2013. One of the biggest pressure points is the individual health care insurance mandate, a critical lynchpin to the overall success of Obamacare. Viebeck speculates Obama could look for more workarounds to entice broad participation.

The requirement that most employers provide birth control in their plans will go before the Supreme Court in two challenges. The issue arrives on the top court's docket after split decisions by appellate courts.

Another area the media will sniff out is further cancellations of existing health plans. While many of the cancelled plans may not have been a great value, the cancellation undermined Obama's claim that no one would be forced to change their health care plan, which in turn eroded political trust in the President and Obamacare itself. Short of plan cancellations, there will be careful analysis of whether newly offered plans trim costs by narrowing patient choices of doctors and hospitals. The Wall Street Journal already has published an initial analysis. But some patients accelerated elective surgeries before the end of the year to take advantage of their existing coverage.

Merkley Lauds Senate Filibuster Deal

Oregon Senator Jeff Merkley lauded a deal that paved the way for Senate confirmation of executive branch appointees, which he called a step in the right direction of filibuster reform.The U.S. Senate reached a compromise that avoided a partisan clash over filibuster delays of White House nominees, which threatened to plunge the upper chamber into deeper political gridlock.

The deal was applauded by Oregon Senator Jeff Merkley, who has championed filibuster reform. He said allowing simple up or down votes on presidential appointees to executive branch posts is a step toward historical normalcy in how the Senate treats confirmations.

The deal, which was reached after an unusual meeting of senators in the Old Senate Chamber where Henry Clay achieved his famous compromise delaying civil war, held as 17 GOP senators voted to end a silent filibuster blocking confirmation of Richard Cordray, President Obama's choice to lead the Consumer Financial Protection Bureau. Cordray, who has been in the job on an acting basis, was formally confirmed later on a 66-34 vote.

Brokered in part by Arizona Republican Senator John McCain, the compromise opens the door to Senate approval of several stalled Obama White House nominees on the National Labor Relations Board and to lead the Labor Department, Environmental Protection Agency and Export-Import Bank.

The Commerce Clause Yellow Brick Road

The Commerce Clause has been used over time by the Supreme Court to enable and block economic regulation. Now a new watershed case involving an individual health care mandate is sitting on the high court's docket.The Commerce Clause in the U.S. Constitution has been a source of strong disagreement since the time of Thomas Jefferson. Arguments over this clause, which on its face controls what economic activity Congress can and cannot regulate, has intertwined with New Deal legislation, the ability to ship wine directly to consumers and, now, the Affordable Care Act.

Nina Totenberg, the encyclopedic NPR reporter who covers the U.S. Supreme Court, delivered a brief history lesson on the Commerce Clause this week, as anticipation builds for the high court's decision on what detractors sneeringly call ObamaCare.

Thomas Jefferson was one of the first to question how far the Commerce Clause could be stretched after the Supreme Court, led by Jefferson nemesis John Marshall, ruled in 1824 that the Constitution gave Congress broad powers.

Totenberg says the argument picked up with intensity 70 years later when the federal government tried to limit the antitrust actions of emerging large corporations. Federal officials suffered a setback in an 1895 ruling involving a sugar company when the court said the government lacked jurisdiction to regulate its activities because most refining was conducted within a state.