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Reid, His Lips

We mourn, as we should, the loss of a truly great man. But we can’t do so in full measure—not now. While we can guess at the contours of a Nino-less Court, the horrors will become palpable only over the years. In any event Harry Reid (Frank Underwood without the charm) is leaving no time for decorum, let alone mourning.

In Tuesday’s Washington Post, the Senate minority leader urges GOP Senators to stop their “nakedly partisan” obstruction to considering an Obama nominee for the Supreme Court, “for the good of the country.”  Even Robert Bork, Mr. Reid observes, was given the “basic courtesy” of a “fair hearing and a floor vote” and I suppose that’s one way of describing that particular exercise in “moderation and common sense” (the Senator’s words). “Indeed,” the Senator continues,

in the most recent debates over the judiciary, Democrats’ actions have been aimed at guaranteeing fair votes for as many qualified nominees as possible. In response to unprecedented Republican obstruction, Democrats changed the Senate rules in 2013 to allow qualified nominees to be confirmed by a simple majority vote, instead of 60 votes. This change alleviated judicial emergencies across the country by allowing a flood of qualified nominees to be confirmed. (We stopped short of changing the threshold for Supreme Court nominees — maybe that was a mistake.)

I remember this differently. The exercise of the “nuclear option” in November 2013 wasn’t about “emergencies across the country.” It was about the D.C. Circuit, and the only “emergency” at hand was to cram the President’s agenda through that court. “There are few things more vital on the president’s second-term agenda,” said Constitutional Accountability Center President Doug Kendall [in April 2013] … “With legislative priorities gridlocked in Congress, the president’s best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit.”

That demanded Senate action because, Senator Reid explained, President George W. Bush’s nominees to that court were “terrible” and “don’t … deserve to be on any court.” (Those appointees were now-Chief Justice John Roberts, Judge Janice Rogers Brown, Judge Thomas B. Griffith, and Judge Brett Kavanaugh.) In the Senator’s defense, he doesn’t think much more highly of his own party’s appointees—not really. The appointment of Judge Sri Srinivasan (confirmed unanimously before the nuclear option) and three subsequent judges, he crowed, had changed the “simple math” on the D.C. Circuit and cleared the path for executive exertions—as if those jurists were mere minions who would surely do what was expected of them.

It’s highly telling that the nuclear option and the impending brawl revolve not (as in the past) around “social” issues but around executive government. And it’s a sad fact that the Supreme Court’s record provides some support for Senator Reid’s reptilian perspective. Everyone knows how a Democratic appointee will vote on abortion or gay marriage. But there used to be a hope that “moderate” Democratic appointees would behave like actual lawyers in other sorts of cases—AdLaw, statutory interpretation, preemption, jurisdictional stuff. This is still true of the great majority of the D.C. Circuit judges (clearly including Judge Srinivasan and Judge Millett, one of the post-nuclear option appointees). It is no longer true of the Supreme Court.

The four liberal justices (including Justices Breyer and Justice Kagan, who were at the time of their appointments celebrated as the incarnation of judicial professionalism) vote together in every AdLaw case to uphold executive action on any theory, or none at all. No lawyer can say anything to break that bloc; and occasionally, the Chief or Justice Kennedy or both will join the parade. As it happens, Justice Scalia’s final opinion published prior to his death was a dissent in an administrative law case just like that, involving yet another federal plan (FERC’s) to de-carbonize the economy. The feds’ power over wholesale electricity transactions, Justice Scalia insisted, can’t possibly include authority over retail transactions—least of all when the statute tells you so. Justice Kagan’s opinion for the Court barely bothered to respond.

Stacking courts with advocates of unchecked executive power is what presidents and their henchmen do in countries on the verge of autocracy. It’s also Senator Reid’s agenda. For the good of the country, obstruct.

Reader Discussion

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on February 17, 2016 at 11:37:52 am

No doubt there are those who tire of this repetition, particularly from me; and with apologies for deviating from the important utterances of politicians:

The American Legal System (including the Judiciary; now unto the appellate levels) has become a facility perverted into a means for ends rather than what has been, over something more than the past 500 years, a (if not-the) predominant function of “our” legal systems; to-wit: the identification, delineation, reconciliation (including enforcement) of obligations recognized and accepted within the social orders extant over those periods of time.

With the accession of the Federal Administrative State (coupled with its now ancillaries of state governments) which functions through the mechanism of a government delineated by the Constitution, the legal system, carrying with it the Judiciary, has become predominantly concerned with those functions of that State and the juxtaposition [?] (disjunctive comparisons) of that State's objectives (it's "ends') to the limitations of those delineations.

Now there are dual functions of the SCOTUS in dealing with what are now our two functions of governance: The Federal Administrative State [FAS] and the Constitutionally delineated authority of the Federal Government, the basic governmental mechanism(s).

The FAS is a structure of authority from Rules of Policy (legislation, regulation, administrative fiats, etc.) which provide its general delineations, subject only to popular or judicial limitations (which determine their having "Force of Law").

In the *function* of applying (and interpreting) those Constitutional delineations, the Judiciary operates within the confines of those delineations and the purposes or intent of those delineations. The purposes or intents of the Rules of Policy, without regard to their consequences to the FAS, its purposes, functions, or operations, (should) have no role in that function.

When we move to the function(s) [?] of the Judiciary in treating with the operating effects of the FAS or its sources in Rules of Policy, what are those functions, what have they become - and in response to what? It appears that those functions have now expanded to encompass interpreting the Rules of Policy themselves (rather than their relation to Law) in terms of intents and purposes - and occasionally, operative effects.
So long as popular support (probably more like "demand") continues for the FAS, the dual functions of the SCOTUS are likely to continue; but, to take differing intellectual and political courses; one being a bit more "political" than the other.

Thus, we see the course of perversion.

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Image of R Richard Schweitzer
R Richard Schweitzer
on February 17, 2016 at 11:59:31 am

Amen to that, brudda!!!

In somewhat more mundane terms:

Having quickly scanned the opinion cited by Prof. Greve, I am hard pressed to determine whether the court was adjudicating or legislating / propounding new *rules of policy*

It was refreshing to read a somewhat more straightforward and commonsense approach, i.e., one that accounts for the *actual* text of the Regulation and congressional Statute - that is the opinion voiced by Mr. Justice Scalia.

OMG - we are in for some fun in the future, boyos!!!

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Image of gabe
gabe
on February 17, 2016 at 14:01:52 pm

Reid is a serial liar.

And this is the most depressing true sentence I've read in some time: "The four liberal justices (including Justices Breyer and Justice Kagan, who were at the time of their appointments celebrated as the incarnation of judicial professionalism) vote together in every AdLaw case to uphold executive action on any theory, or none at all."

But thanks for putting it out there...

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Image of Carl Eric Scott
Carl Eric Scott
on February 17, 2016 at 14:14:23 pm

Carl:

Absotively!

I am amused by a number of commentators who have claimed that the Lefties are only a bloc when it comes to social issues. Ha!!!!

Greve is correct - they are ALWAYS a bloc.

It is even more depressing in the case of Kagan who may be said to have actually had a somewhat more moderate stance when she was on the lower court. I suspect that is what Mr. Justice Scalia had in mind when he made a reamrk complimenting her intellect and disposition prior to her nomination.

Oh how things change once one is imbued with the power to have their way.

As the Athenian Stranger says:

"That events should obey whatever orders one feels like giving—invariably, if possible, but failing that, at least where human affairs are concerned."

Imagine the joy of refuting the implied criticism of the Athenian Stranger when one is elevated to the ranks of the Platonic Elite!

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Image of gabe
gabe
on February 17, 2016 at 23:39:05 pm

As it happens, Justice Scalia’s final opinion published prior to his death was a dissent in an administrative law case....

Last published opinion? Perhaps, but not his last official act.

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Image of nobody.really
nobody.really
on February 18, 2016 at 11:47:12 am

And the "significance" of this is precisely what?

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Image of gabe
gabe

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