Redefining “Presidential,” And Reconsidering Overreaction

In some way, Donald Trump is like the weather:  you’d like to ignore him, but you just can’t.  He’s like that blustering, loud summer thunderstorm that blows in on the day you’ve scheduled an outdoor party and requires everybody to change their plans whether they want to or not.

It’s pretty obvious, after only a few days in office, that the era of Trump is going to change how we look at our presidents, and what we consider to be “presidential” behavior.  In recent decades, we’ve become used to our presidents maintaining a certain public decorum and discretion.  Sure, there have been a few exceptions in the sexual dalliance department, but for the most part our modern presidents have tried to take the personal high road.  They leave the attacks to their minions and strive to stay above the fray.

Imacon Color ScannerNot President Trump.  He’s down there himself, throwing punches via Twitter.  His most recent activities in this regard involve lashing out at the federal district court judge that issued a temporary restraining order against Trump’s immigration executive order.  Trump referred to Judge James Robart as a “so-called judge” and said his ruling was ridiculous.  Senate Minority Leader Chuck Schumer immediately attacked Trump, saying his comment “shows a disdain for an independent judiciary that doesn’t always bend to his wishes and a continued lack of respect for the Constitution.”

I’ve got mixed feelings about all of this.  I personally prefer the more genteel, above-the-fray presidential model; I think it’s more fitting for a great nation that seeks to inspire others and lead by example.  I wish our President wouldn’t “tweet.”  But I also recognize that American presidents haven’t always been that way.  The behavior of presidents of the 1800s — think Andrew Jackson, for example — was a lot more bare-knuckled than what has come since.

I also think there’s danger for the Democrats in repeatedly overreacting to Trump.  If you argue that everything Trump does is the most outrageous travesty in the history of the republic (and that’s pretty much what you get from the Democrats these days) you ultimately are going to be viewed as the boy who cried wolf — which means the townspeople aren’t going to pay attention when you really want them to listen.  And in this case the reality is that, since the very early days of our country, elected politicians have been strongly criticizing judges.  Andrew Jackson famously declined to enforce a Supreme Court ruling, and Abraham Lincoln harshly lambasted the Supreme Court, and its Chief Justice, after the Dred Scott decision.  More recently, the rulings of the Warren Court became a political lightning rod during the ’60s, and President Obama saw fit to directly criticize the current Supreme Court, sitting right in front of him during a State of the Union speech, about their Citizens United ruling.

So Trump’s reference to a “so-called judge” really isn’t that big a deal when viewed in the historical context.  What’s weird about it is that it comes out in tweets — which makes it seem less presidential and, because it’s a tweet, less serious.  When Trump has these little outbursts I think if the Democrats simply shook their heads and said that what Trump is doing is “regrettable,” without acting like his every move threatens to bring down the Constitution, Trump’s Twitter act will wear thin on its own.

But they can’t help themselves right now, and neither can Trump.  So we’re going to have to ride out a few of those thunderstorms.

Looking To Fill The “Stolen Seat”

Last night President Trump nominated Neil Gorsuch, a judge on the federal 10th Circuit Court of Appeals, to fill the vacant seat on the United States Supreme Court.  His formal nomination triggers the start of what will undoubtedly be a bruising confirmation process, with some Democrats already promising to do everything they can to prevent seating Gorsuch on the high court.

US-POLITICS-COURT-NOMINATIONThere are three reasons for this.  First, the Supreme Court has assumed an increasingly important role in the American political process over the last 70 years, with people at all points on the political spectrum looking for the judiciary to recognize a new right, provide a remedy, issue an injunction, or overturn a statute or executive action.  The Supreme Court is the head of the judicial branch, and every year, the Court accepts and decides cases that require it to tackle difficult issues — some constitutional, some statutory, some procedural — that can have broad ramifications for people, businesses, the legal system, and how government works.

Second, as the importance of the Supreme Court has increased, the process for nominating, reviewing, and approving potential Supreme Court justices has changed.  Republicans blame Democrats for the growing politicization of the Supreme Court confirmation process, and Democrats blame Republicans, but no one doubts that we have moved into a new era of “extreme vetting.”  Nominees not only have their credentials, backgrounds, and prior opinions scrutinized for the tiniest kernel of a potential argument against nomination, but advocacy groups immediately declare sides and start their scorched-earth campaigns before the nomination speech is even completed.  Last night, only a few minutes after Gorsuch was nominated by President Trump, an anti-confirmation demonstration began on the Supreme Court steps, and opponents of the Gorsuch nomination appeared on the cable news shows, describing him in the darkest, most ominous terms imaginable.

And third, the atmosphere has become even more poisonous because the seat on the Supreme Court Gorsuch has been nominated to fill has been vacant for almost a full year, and the Republicans in the Senate refused to take any action on Merrick Garland, the jurist that President Obama nominated to fill that seat.  That’s why the New York Times, in an editorial today, calls the vacancy the “stolen seat” — reasoning that if the Senate had just acted properly last year, Garland would have been confirmed, and the balance of power on the Supreme Court would already be changed.  The Times editorial castigates the Senate Republicans for obstructionism and abuse of power in their treatment of the Garland nomination, but seems to also implicitly encourage — with a wink and a nod — Senate Democrats to respond to the Gorsuch nomination in kind.

So now we’ve got a Supreme Court nominee who has served on the federal appellate bench for 10 years, has all of the educational bona fides you would wish, and is classified by some as a “very conservative” judge.  I’m interested in seeing how the confirmation process plays out and what is brought out about Gorsuch’s background and judicial opinions — but that means the confirmation process has to actually start.  Here, too, as in other areas I’ve pointed out recently, Congress needs to do its job.  The Republicans need to shut up about the “nuclear option” that Harry Reid unwisely imposed, and the Democrats need to get over the Garland nomination inaction, and both sides need to acknowledge that the Supreme Court has nine seats that can only be filled if the Senate acts and start to address the Gorsuch nomination on its own merits.

One other thing:  as the current Supreme Court justices age, delay and inaction is not an option.  If we don’t get over this self-imposed roadblock to the proper functioning of our government, we might soon have another vacancy to fill, and another.  If the Republicans and Democrats don’t get over their political titting for tatting, we might end up with a gradually vanishing Supreme Court.

The Justice Scalia I Knew

The news media is reporting that United States Supreme Court Justice Antonin Scalia died today, apparently of natural causes, at age 79.

Justice Scalia served on the Court for 30 years.  He was a staunch conservative, and as a result he was the subject of lots of controversy and attention — as is seemingly every member of the Court, from one end of the political spectrum or the other, in these days when the Supreme Court and politics are more intertwined than ever.

960I want to write about Justice Scalia for a moment, however, because he was one of two members of the Supreme Court I met personally.  (His friend and colleague, Justice Ruth Bader Ginsburg, was the other.)

I met Justice Scalia before he reached the high court, when he was a judge on the United States Court of Appeals for the District of Columbia Circuit.  In those days, 30 years ago, trying to achieve a balanced budget was a big political issue, and Congress had passed a law called the Gramm-Rudman Act that provided that, if Congress couldn’t meet certain budget targets, automatic spending cuts would be imposed by the comptroller general.  The law was immediately challenged in court on a number of constitutional grounds, including separation of powers, and the judge that I was clerking for, Senior United States District Judge Oliver Gasch, got the case by random draw.  In those days, such constitutional challenges to federal statutes could be heard by a three-judge court — comprised of the original judge, a court of appeals judge, and a second district court judge — and then be subject to immediate appeal to the U.S. Supreme Court.  Judge Scalia was the appellate court judge, and Judge Norma Holloway Johnson was the other district court judge on the panel.

The panel members and their clerks met regularly to discuss the case before the decision was announced, which is how I met Justice Scalia and got to work with him briefly.  Judge Gasch knew him, called him “Nino,” and liked him very much — so much so that my Judge gave some of his treasured cigars to Judge Scalia.  I came to like Judge Scalia, too.  He was witty and engaging and nice to the clerks working on the case, which could not be said of all of the judges serving on the district court and court of appeals at that time.  He had a fantastic sense of humor and told a pretty good joke.  He also was obviously a brilliant mind, which made working with him, when you knew his keen intellect would be reviewing your work product, a nerve-wracking experience for a new lawyer just out of law school.  Justice Scalia, though, was gracious, and his attitude made working with him a real pleasure.  He used his brilliance affirmatively, to bring out the best work from others, rather than negatively, as a cudgel or means of silencing contrary views.

The Gramm-Rudman case ended with our three-judge court unanimously voting to strike down the law, everyone went back to their respective chambers, and my brief exposure to Judge Scalia ended.  Within a short period the Supreme Court affirmed the panel decision and Judge Scalia himself was nominated to a seat on the Supreme Court — which was where his sharp legal mind really belonged — and confirmed.

I knew him only for a short time, but that limited experience left a very strong and positive impression on me, and I thank him for that.  Whatever people might say about his jurisprudence, I know from personal experience that he was a good man.  Condolences to his family and friends.

The Value Of Marriage

I’ve long supported same-sex marriage because I think marriage is a great institution.  It has made my life immeasurably better — so why shouldn’t every couple have the opportunity to enjoy its timeless benefits?  I simply don’t understand the objection to couples who want to legally declare and formalize their fidelity to each other.

I was therefore struck by the fact that Justice Kennedy’s majority decision in Obergefell v. Hodges, where the Court held that same-sex couples have a constitutional right to legally marry their partner, extols the value of marriage.  In fact, the opinion concludes with a ringing endorsement of the core, intrinsic value of marriage:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

I am thrilled for my same-sex friends, and happy for every couple that will now have the ability to explore and revel in the wonders of a happy marriage.

Protecting Cell Phone Privacy

The Supreme Court issued an important ruling yesterday.  In a 9-0 decision, the Court ruled that police must obtain a warrant before they search the cellphones of people they have arrested.  The ruling won’t directly affect most of us — unless you’re planning on being arrested in the near future, that is — but it represents a significant recognition of the central role of cellphones in our lives and an important bit of line-drawing in the ongoing battle between personal privacy and law enforcement.

IMG_6186In the ruling, Chief Justice John Roberts addressed both the pervasiveness of cellphones in modern America and the sweeping extent of information that people store on them.  From photos and video to address books, emails to calendars, financial information to maps, and other records of where we have been and who we have communicated with, cellphones are a handheld repository of huge amounts of very personal information about our private lives.  The Chief Justice thus reasoned that allowing warrantless searches of cellphones would be akin to the hated “general warrants” executed by the British authorities during colonial times that allowed them to rummage freely through homes in an effort to find some evidence of some kind of otherwise uncharged criminal activity — which is what drove the creation of the warrant clause of the Bill of Rights in the first place.

The Court also rejected arguments that a search of cellphones is needed to protect police officers or prevent the destruction of evidence.  When an arrest is made police can examine the cellphone to ensure that it can’t be used as a weapon and secure it, and if there is concern that evidence on the phone might be destroyed the officer can turn off the phone, or remove the battery, or place it in a foil bag to prevent any exchange of signals.  But before the police can access the cellphone and begin reviewing recent emails, the logs of recent calls, and other information, they must make the probable cause showing required by the Fourth Amendment and convince a judge to issue a warrant.

Two other points about the opinion seem worth emphasizing.  First, it was a unanimous decision.  For all of the fretting about political fracturing and the liberal and conservative wings of the Court, all of the Justices were able to agree on how to resolve a very central issue of how the Constitution works in modern life.  There’s nothing wrong with members of the Supreme Court disagreeing about legal issues — that’s why there are nine of them and the majority wins — but it’s nice to see the different perspectives coalesce around a simple, common approach to protecting individual liberty and privacy rights.

Second, many people have criticized jurists who return to the intent of the Framers of the Constitution and seek the meaning of its provisions in the historical context in which they were adopted, arguing that the Constitution should be a living document with meaning that changes in response to the realities of modern life.  Others contend that such an approach strips America’s core founding document of any objective significance and leaves it to mean whatever five Justices of the Supreme Court say it means.

The Court’s cellphone opinion, with its reference to the history of general warrants, shows how it is possible to draw upon historical context to identify the basic motivating principles underlying the Constitution and then apply those principles to the modern world.  Those observers who poke fun at purportedly hidebound efforts to discern “original intent” likely are happy with the opinion yesterday, but not about how the Court got to that result.

No DOMA Nation

Yesterday the Supreme Court struck down a key provision of the Defense of Marriage Act, a 1996 federal law that denied rights and benefits to same-sex couples, and rainbow flags flew from sea to shining sea.

The Court’s decision was one of two rulings yesterday that addressed gay marriage.  In the DOMA decision, a 5-4 majority of the Court concluded that the statutory provision violated the right to liberty and to equal protection for legally married gay couples.  The ruling means that the thousands of gay couples who are legally married under the laws of certain states will be able to take advantage of federal tax and pension rights and other benefits that are available to other married couples.  In the other ruling, the Supreme Court held that proponents of California Proposition 8, which prohibits gay marriage, lack standing to defend the law.  That ruling leaves a lower court ruling that struck down Proposition 8 intact and therefore allows California to resume with state-sanctioned same sex marriages.

The Supreme Court decisions are not the last word on the subject, because gay marriage is not legal in a majority of the states and the DOMA decision did not address a provision of that statute that provides that states are not required to recognize gay marriages performed in other states where gay marriage is legal.  Opponents of same-sex marriage say they will continue to advocate on the issue.

I’m in favor of same-sex marriage, and I’m thrilled for my gay friends whose legal marriages are now given all the rights and benefits available under federal law.  I’m also hoping that the Supreme Court’s decision helps the United States to put this issue behind us — as opposed to becoming the lightning rod on a bitterly contentious social issue, as happened with the abortion rights decision in Roe v. Wade.  It’s time for this country to stop focusing on issues that divide us, and to start focusing on how we can work together to solve our problems.

An Unfortunate Air Of Plausibility (Cont.)

It turns out that the “President Obama wants to pay your utility bills” scam isn’t the only government-related scam making the rounds these days.

Now, crooks are taking advantage of the recent Supreme Court decision upholding the constitutionality of the Affordable Care Act in a ruse to try to get our personal information.  According to the Federal Trade Commission, the scammers are calling people, saying they are from the government, and asking for personal information — Social Security numbers, Medicare ID numbers, and credit card and bank account numbers — that they say is needed to implement the law.  The FTC says that if someone from the government calls and asks for your personal information, you should recognize it as a scam and hang up.

Of course, it’s not exactly far-fetched that the government would contact you about your personal information.  We routinely provide such information whenever we file tax returns or complete other forms that the federal government requires from us.  And since the Affordable Care Act says the government will be paying even more attention to our economic activities — such as whether we have appropriate health care insurance — and our health care usage, it’s not implausible that the feds might need our bank account or credit card information.

The FTC says with confidence that the government won’t be making unsolicited requests for information by phone — but isn’t it going to need to collect such information at some point, in order for the law to work?  What happens when an official-looking letter to your home address that purports to come from the federal government asks you fill out a form that provides your confidential financial and personal information, including where you current have your health insurance, and instructs you to mail it to some random P.O. Box in Kansas City, Missouri?  Should we just crumple it up and throw it away?