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Kennedy Hands Trump a Final Win

Supreme Court Justice Anthony Kennedy announced his retirement on Wednesday, which is good news for President Donald Trump. No matter how many porn stars Trump pays or longstanding allies and trading partners he needlessly alienates or essential institutions he seeks to undermine, his die-hard defenders can always make the strong argument to pre-Trump conservatives such as ourselves that we’re better of with him making Supreme Court picks rather than that awful Hillary Clinton woman.
Trump got his first chance to pick a Justice because Republican Senate majority leader Sen. Mitch McConnell — now widely reviled by the Trump-ian party as a squishy establishment type — ruthlessly held the seat open through the last year of President Barack Obama’s second term following the death of reliably conservative Justice Antonin Scalia, and Trump’s choice of the equally rock-ribbed Justice Neil Gorsuch further endeared him to his loyal supporters and earned begrudging praise from his party’s last skeptics. Kennedy’s retirement gives Trump an opportunity to replace him with someone even more rock-ribbedly conservative, and although we’re sure he’d appoint his abortion-loving appellate judge sister or idiot-sin-law to the seat if he thought he could get away with it, we’re also sure he’s shrewd enough that he’ll once again let the Heritage Foundation choose someone the fans will love and the conservative skeptics will begrudgingly respect and the Democrats can’t come up with any persuasive beyond-the-pale arguments about.
Kennedy was appointed to the court by President Ronald Reagan and confirmed with unanimous Republican support and several Democratic votes in the Senate, and he was not a judicial activist type who thought that whatever the consensus of liberal opinion believed was constitutional, but neither was he a reliably conservative vote in controversial cases. He acquired a reputation as the rare “swing vote” on the Supreme Court, and for whatever idiosyncratic reasons he frequently wound up on the winning side of many five-to-four decisions that wound up outraging the left some of the time and the right some of the time. In his final session he provided Trump with some much-needed five-to-four wins on the travel ban and a California case involving the free speech rights of anti-abortion advocates and another matter about the power of public unions, but his replacement will likely provide both the Trump-ian and pre-Trump conservatives with even more five-to-four wins over the coming decades.
There’s already concern on the left that the Supreme Court might even undo the 1973 Roe v. Wade decision that found a right somewhere in the penumbra of the Constitution for abortion in the first trimester and exceedingly complicated cases afterwards, which is well past the panic by point even by the left’s panicky standards, but they don’t have much power to stop it. They’ll put up a good fight in the Senate confirmation process, and do whatever they can with the filibuster rules the Republicans used to rely on in their days on the political desert, and make a not-quite-convincig argument that because Obama’s appointment had to await the next presidential election Trump’s pick should await the next mid-term election, but they’ll wind up with Trump winning a more conservative Supreme Court for a long while.
As much as we hate to see it redound to Trump’s political benefit, that’s fine with us. We’ve always believed the Constitution says what the words written in it say, and not whatever the current consensus of liberal opinion is, and we have to admit we do shudder to think of the nominees that awful Clinton woman would have chosen. If Trump’s picks prove the strict constructionists the Heritage Foundation claims they are they’ll probably uphold a special counsel subpoena of the president, and even if the Court does undo Roe v. Wade it will just set off 50 state legislative battles and countless street brawls which the rather recent and obviously insincere pro-life convert Trump will mostly lose.
No matter how stellar a pick the Heritage Foundation comes up with, however, we’ll still be infuriated by almost everything else Trump is doing.

— Bud Norman

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Trump Trumps Easter

There’s a longstanding tradition in America that politicians refrain from making news on Easter Sunday, but President Donald Trump doesn’t care much about longstanding traditions. He “tweeted” an all-caps but otherwise fairly traditional happy Easter greeting to the country, but while his many evangelical Christian supporters were celebrating the Resurrection of Jesus, Trump was “tweeting” disparaging remarks about Democrats and threatening to deport all the so-called “dreamers” and tear up the North American Free Trade Agreement.
By now it’s well known that Trump does not like being upstaged, and has a tendency to fire subordinates who wind up on magazine covers, which does not bode well for current Time Magazine cover boy Attorney General Jeff Sessions, but trying to steal the spotlight from The Savior on Easter Sunday strikes us as especially Trumpian. The blasphemy aside, it seems another case of Trump wading into a fight chin first.
Those so-called “dreamers” are so called because of the acronym of the failed legislation that President Barack Obama pretty much enacted by executive fiat with his Deferred Action for Childhood Arrivals, which deferred any deportation actions for any illegal immigrants who had arrived here through no fault of their own as children, and it’s one of those very thorny and hot-button issues best left to the Monday after Easter Sunday. Trump got a head start on the conversation by “tweeting” about the “ridiculous liberal (Democrat) laws” impeding border enforcement, and ominously warning the situation was “getting worse. ‘Caravans’ coming. Republicans must go to Nuclear Option to pass tough laws NOW. NO MORE DACA DEAL!”
The bad timing aside, Trump is making some losing arguments. Despite a recent uptick in his approval ratings Trump still polls worse than those telegenic “dreamers,” many of whom are undeniably sympathetic and stellar semi-citizens, and tear-jerking footage of their forcible removal from the only land they’ve ever known will be hard to “tweet” away. Trump is convinced he can successfully convince enough voters it was the Democrats’ fault, as it wouldn’t have happened if they’d only given him enough money to build a wall along the entire Mexican border, which he’d repeatedly promised Mexico would pay for, but it’s going to be a hard sell in Latino-heavy districts and elsewhere.
Those darned Democrats do indeed have some damned dumb ideas about border enforcement, but it’s hard to explain that in “tweet”-sized characters, no matter how many capitalizations and exclamation marks you use. It’s an argument best made calmly, without racial animus, and in parseable sentences, but that’s another thing Trump doesn’t do. The report of “caravans” of illegal immigrants heading to our southern border apparently came shortly after the Fox News network reported, and although it might prove true we’d prefer the president was checking with his own intelligence agencies.
That disquieting Easter “tweet” about the Nuclear Option is another idea that might not work out for Trump. The Senate’s longstanding tradition of requiring a 60-vote supermajority for certain legislation has historically come in quite handy for both parties over the years they’ve been in the minority, and given the Republicans’ already razor-thin 51-to-49 advantage it’s well within the realm of possibility they’ll once again be needing that filibuster power within a year.
Holy Week is now officially over, and we’re back in the secular world, where Trump hogs the spotlight. We don’t envy him the role.

— Bud Norman

Going Nuclear, and Why Not?

At this point it seems certain the Republicans in the Senate are going to employ the “nuclear option.” That’s not nearly so bad as it sounds, as it doesn’t involve any literal mass destruction or lingering radiation, but it’s nonetheless a sorry state of affairs for everybody.
If you’re not hip to the political lingo, the “nuclear option” means they’ll confirm Judge Neil Gorsuch’s appointment to the Supreme Court with a mere majority rather than the 60 votes required to end a filibuster. The Republicans currently hold more than a majority of votes, with all of them ready to confirm Gorsuch, but the Democrats have more than the 40 votes need to sustain a filibuster, with all of them seemingly ready to keep it up until hell freezes over or whatever else might follow the administration of President Donald Trump, so it seems a natural outcome. All the Republicans used to consider the filibuster rule sacrosanct back when a Democratic president was making Supreme Court picks and they held a filibustering plurality in the Senate, and at that point all the Democrats considered it a silly and not even constitutionally-mandated rule that needed to be “nuked” on behalf of whatever Democratic nominee happened to be up for consideration, so as usual both parties are a bunch of hypocrites. There’s still something to be said for that old rule about a super-majority being needed for such weighty matters, even from an old-fashioned Republican’s traditionalist perspective, but but parties have brought us to such a sorry state of affairs that it such niceties are no longer sustainable.
The Democrats are understandably miffed that the Supreme Court seat in question became vacant during the administration of Democratic President Barack Obama, yet his nominee — whose name was either Merrick Garland or Garland Merrick, we keep forgetting — never even got a hearing from a Republican-controlled Senate, but there was plenty of historical precedent and a very persuasive case for the Republicans’ obstruction of a lame duck president’s appointment. Nothing against Garland or Merrick or whatever his name was, who struck us as yet another disastrous post-constitutional Democratic appointment but about as good as you could hope for from an Obama administration that knew it couldn’t press its luck by that point, but the Republicans did have historical precedent and a persuasive case as well unbearable pressure from every last Republican voter in the country including ourselves. The Republican establishment thus forwarded the pick to Trump, who had ironically run on the argument that the Republicans needed to burn down the establishment that rolled over for everything Obama wanted to, and he chose the impeccably constitutionalist Gorsuch, which relieved even such still-skeptical-of-Trump Republicans as ourselves and of course outraged the Democrats.
All the nasty hearings in the Senate’s committees and sub-committees and friendly press appearances haven’t come up with any compromising information about Gorsuch’s character, and his constitution-means-what-it-says judicial philosophy isn’t all that controversial and has usually wound up on the majority of his lower-circuit opinions, and from a Democratic perspective he’s about as good as you could hope for from any old Republican much less a Trump administration prone to pressing its luck, but these days there’s an extra amount of Democratic Party pressure being brought to bear against anything Trump. We’re not so crazy about Trump our own Republican selves, as regular readers are well aware, but this seems a political miscalculation. If Gorsuch is rejected by a Democratic minority under the old rules they once defended they’ll be obliged to reject the next candidate, and the next one after that, and so on for at least four years of an eight-member Supreme Court, and at some point the Democrats will start polling even worse than Trump on the issue. With Gorsuch replacing the late and great-to-us-Republicans Justice Antonin Scalia his confirmation won’t change any decisions, and the Democrats can hope for more favorable conditions when the next Democratic seat inevitably opens, so we figure their best bet is to cede a battle and save that filibuster rule for a moment in the future when it will surely come in handy, and in the meantime let Trump continue to hog all the headlines.
Over the long term the best bet for the Republicans might be to retain that old filibuster rule they once relied on, but at the moment it doesn’t make any sense at all. Employing a merely figurative “nuclear option” isn’t going get much notice, and anyone who is paying attention but hasn’t already chosen sides will probably conclude that the Democrats are just dead-set against Trump even if he turns out to be right about something. The next vacancy on the Supreme Court will probably be one of those post-constitutitionalist Democrats, which raises the stakes, but the betting death-pool odds have the Republicans still holding on to Senate Majorities and even the White House when that happens, and there’s a shot that the Republican establishment will still be around for that, and the Democrats aren’t going to be any bi-partisan mood soon, so now’s as good a time to go “nuclear” as any.
There’s still something to be said for gaining enough bi-partisan support for something as a Supreme Court Justice, and it pains our traditionalist Republican souls to let it pass, but these are partisan times and any establishment has gotta do what its gotta do. We just hope there’s enough establishment left when the next seat comes up that there will be another Gorsuch.

— Bud Norman

A Long, Long Cruze

Sen. Ted Cruz is still talking as we write this, and might yet be talking as you read this. We’re still not clear on what he hopes to accomplish, other than expressing his full contempt for Obamacare, but we admire the effort nonetheless.
The rules of the Senate are so confoundingly arcane that nobody has offered an understandable explanation of what advantage, if any, Cruz will achieve by his night-long harangue against the hated health care law. He apparently will not delay a vote on a House bill to fund everything in the government except Obamacare, meaning that in the strictest sense it is not even a filibuster, and nothing he can say even in hours of oratory is liking to change enough minds to prevent the Democrat-controlled Senate from rejecting this sensible proposal. His lengthy speech has even annoyed some of his fellow Republicans, still skittish about the inevitable stalemate that could temporarily shut down much of the government and bring the public’s wrath onto the party, and much of the news coverage has been sneering.
Still, anyone who goes to such extraordinary lengths to express his full contempt for Obamacare deserves congratulations and support. No matter how long his voice and legs hold out Cruz will not speak long enough to mention everything that is wrong Obamacare, and even if it’s nothing more than a publicity gimmick it is bringing valuable attention to a worthy cause. Those Republicans who are trying to dent the Senator’s rising popularity with the party’s conservative base are unlikely to succeed, and will only undermine the unity required to ultimately repeal a law that they also claim to oppose.

— Bud Norman

An Oratorical Drone Strike

As we write this Sen. Rand Paul of Kentucky is still talking on the Senate floor, waging a filibuster against the confirmation of Paul Brennan as director of the Central Intelligence Agency.
All the press reports have dubbed Paul’s effort an “old-fashioned” filibuster to distinguish it from the modern easy-to-use variety, which is any procedural maneuver to block a simple majority, and some could not resist a reference to the climactic scene of “Mr. Smith Goes to Washington.” The marathon speech-making was intended as a protest against the Obama administration’s drone policies, which claim broad powers to strike against Americans without due process, but the tactic might have garnered more attention than the point it was making.

Which is a shame, because the drone policy deserves careful public scrutiny. In testimony before a Senate committee on Wednesday, Attorney General Eric Holder offered an assurance that “the government has no intention” of carrying out drone strikes in America but nonetheless insisted it has a right to do so in an “extraordinary circumstance.” Holder cited the attack on Pearl Harbor and the terrorism of Sept. 11, 2001, as examples, but questioning by Texas’ Sen. Ted Cruz revealed that more ordinary circumstances also suffice. Cruz asked “If an individual sitting quietly at a café in the United States, in your legal judgment, does the Constitution allow a U.S. citizen on U.S. soil to be killed by a drone?” A discomfiting amount of hemming and hawing followed before Holder replied that he did “not think that that would be an appropriate use of lethal force.” Only when pressed further by Cruz, who noted that he had asked about the legality rather than the propriety of such an attack, did Holder concede that there might be constitutional issues involved.

Such an expansive view of government power seems odd coming from Holder, who had been an outspoken critic of the previous administration’s harsh interrogation techniques, formerly insisted on civilian trials for such terrorists at Halide Sheik Mohammad, and whose law firm had noisily represented several of the detainees at Guantanamo Bay, but none of the senators bothered to question him about the consistency of his views. Many critics of the Bush administration’s anti-terrorism protocols have undergone similar conversions since Obama took office, so perhaps the senators felt it wasn’t remarkable enough to warrant comment.

Some will contend that Obama’s critics are guilty of the same hypocrisy, and there probably are a few conservatives out there who would have felt quite comfortable with the new drone policies under the old administration, but Paul comes from strictly libertarian wing of the Republican and has been opposed to the war on terror’s expansion of government powers since the beginning. Although we have our doubts about Paul’s isolationist tendencies, they serve him well in this instance.

— Bud Norman