Sunday, April 30, 2017

Under Trump, Stock Market Up, Justice Index Down

      The Trump presidency has marked its 100th day with the stock markets up, but the justice index sharply down. The markets may have fallen victim to premature exuberance over the cloudy prospects for tax breaks for the well-to-do and regulatory relief for business and industry. But justice advocates are rightly troubled by all the steps the administration has already taken and seems intent on pursuing to set back the cause of equal rights and social justice both at home and abroad.
      A word first about the Trump stock market bubble. The S&P index closed on Friday [April 28] up 5 percent from its setting on Inauguration Day, Jan. 20. Among post-World War II presidents, that gives Trump bragging rights over all but two: Kennedy and Bush41, who saw the market rise 9 percent in 1961 and almost 8 percent in 1989 respectively. The market fell 5.5 percent in Bush43's first 100 days, according to data from CNBC; it rose 2.8 percent in Obama's first 100 days and then another 18.7 percent over the next six months as Obama's policies helped lift the country from the Great Recession.
      The current stock market gains mean very little for the supposedly forgotten white working-class voters who gave Trump the margin for his Electoral College victory in a few battleground states and who depend on wages and salaries to earn a living. The fragmentary tax plan released by the White House on Wednesday [April 26] confirms the hopes of Trump's better-heeled supporters for lower tax bills for the rich and for corporations and dashes any hopes for significant tax breaks for middle- and lower-income taxpayers.
      To date, Trump has done little for the economically stressed middle-class workers he promised during his campaign to help, apart from photo-op announcements of supposedly saving factory jobs. And in a telling policy move on Trump's first full day in office the  Department of Housing and Urban Development reversed an Obama administration decision that would have lowered mortgage insurance premiums on loans insured by the Federal Housing Administration. FHA-insured loans are popular among first-time homebuyers and those with poor credit; they stood to save hundreds of dollars a year under the policy quietly jettisoned by Trump's HUD.
      On issues more directly related to law and justice, the administration has been anything but quiet in instituting policies or signaling future moves to set back criminal justice, LGBT rights, voting rights, immigrant rights, and human rights abroad. The setbacks for justice policies come as no surprise given Trump's selection of the conservative Alabama senator Jeff Sessions as attorney general to head what, it must be remembered, is called the Department of Justice.
      Sessions has echoed the president's inaugural address warning about the supposed "carnage" in American cities, inciting public support for punitive anti-crime policies even with the crime rate at historically low levels. In perhaps the most distressing and least justifiable of his policy moves, Sessions has scaled back the Justice Department's oversight of local police departments. Sessions called the kinds of investigations that brought court-monitored, agreed-upon reforms to such troubled cities as Baltimore and Ferguson, Mo., as part of a war on police. He directed a review of the existing consent decrees in nearly two dozen cities and stalled work on future agreements.
      As attorney general, Sessions has also echoed Trump in unsubstantiated warnings about voter fraud, thus attempting to shore up the dubious rationales for stricter voter ID laws even as federal court challenges proceed. In the highest-profile of such cases, the department under Sessions switched its previous position that Texas was guilty of intentional racial discrimination in enacting its strict voter ID law in 2011. Private plaintiffs fortunately are still pressing the claim, which could result in reinstituting preclearance requirements for any Texas voting law changes.
      Sessions also played a decisive role in reversing another Obama administration policy: the Education Department's directive to local school districts to allow transgender pupils to use restrooms and locker facilities corresponding to their gender identity. Reportedly, Sessions had to prevail on a reluctant Education Secretary Betsy DeVos to reverse the Obama administration policy guidance broadly interpreting the sex discrimination law known as Title IX to encompass gender identity. The move caused the Supreme Court to back away from a ruling in a transgender rights case, Gloucester County School Board v. G.G., by sending the case back to a federal appeals court to take account of the new Trump administration policy.
      The Justice Department was also tasked with defending two of Trump's most legally dubious moves. So far, federal courts have rejected Trump's first and second "travel ban" executive orders that amounted to thinly disguised Muslim bans as Trump had called for in his campaign. A federal judge in San Francisco last week also rejected the executive order Trump issued in his first week threatening to cut off federal funds to so-called "sanctuary cities" that resist being commandeered into enforcing federal immigration law.
      Trump's most concrete legal accomplishment, of course, has been his appointment of the committed conservative Neil Gorsuch to the Supreme Court. In 13 oral arguments over the past two weeks, Gorsuch gave court watchers no reason to doubt his future alignment with the court's conservatives in pro-law enforcement positions in criminal cases and pro-business stances in regulatory and civil justice cases. Even without recorded votes, Gorsuch evidently saw no need to tighten Supreme Court review of death penalty procedures as the justices allowed to go on an unseemly execution spree over the past two weeks.
      Far from concerned about these issues, Trump signaled his confidence in administration policies and U.S. standing in the world by proclaiming May 1 to be Loyalty Day. "The United States stands as the world's leader in upholding the ideals of freedom, equality, and justice," Trump declared. However true or not in years past, that claim rings hollow indeed as his administration moves past the 100-day milestone used to judge previous presidents.

Friday, April 21, 2017

Judges' Role in Death Cases Curbed as Sotomayor Urged

      Justice Sonia Sotomayor can now take a bow for significant reforms in death penalty cases in two of the states with among the highest number of executions since capital punishment was reinstituted in 1976: Alabama and Florida.  Those two states were until recently the only two where judges in recent years could and actually did impose death sentences even after juries voted for life or long prison sentences instead.
      Both states have now enacted laws eliminating judges' power to impose a death sentence except based on factual findings or recommendations from a jury. Alabama's new governor, Kay Ivey, signed a bill repealing the state's judicial override procedure earlier this month [April 11] just one day after taking over following the resignation of her sex scandal-plagued predecessor, Robert Bentley.
      Florida changed its law in March 2016 to eliminate a judge's power to impose a death sentence without input from the trial jury. The change came three months after the Supreme Court ruled in Hurst v. Florida that the state's procedure ran afoul of a decade-long line of precedents generally limiting a judge's power to make factual findings needed to increase a defendant's sentence.
      Sotomayor authored the 8-1 decision in the Florida case, but she had first spoken out against judge-imposed death sentences in an Alabama case two Supreme Court terms earlier. In Woodward v. Alabama, Sotomayor wrote an impassioned dissenting opinion
from the court's refusal in November 2013 to consider an Alabama death row inmate's challenge to the judicial override procedure.
      A judge had sentenced Mario Dion Woodward to death for the killing of a Montgomery police officer, but in the face of an 8-4 jury recommendation that he be spared the death penalty and sentenced to life imprisonment instead. In her opinion, Sotomayor noted that Alabama was the only state within the previous decade where judges had actually imposed death sentences in the face of contrary verdicts.
      Alabama judges had actually made somewhat frequent use of this power, Sotomayor noted. She listed in an appendix the 95 defendants sentenced to death by Alabama judges after contrary sentencing recommendations by juries. By contrast, Alabama judges had overridden jury-recommended death sentences only nine times. And Sotomayor pointed out that the number of judge-imposed death sentences appeared to spike in election seasons. One judge, she noted, had noted in his campaign literature the six defendants he had sentenced to death, including one that the jury had recommended be given a life sentence instead.
      Sotomayor was joined in her dissent by Justice Stephen G. Breyer, but not by the court's other two liberal justices: Ruth Bader Ginsburg and Elena Kagan. She acknowledged in her opinion that the Supreme Court had previously upheld Florida's judicial override procedure in capital cases.
      Florida had once led the nation in what Sotomayor called "life-to-death overrides," with 89 in the 1980s compared to 30 in Alabama and six in Indiana. By the 1990s, Alabama had taken the lead with 44 compared to 26 in Florida and four in Indiana. After 2000, Alabama stood alone with 26 life-to-death overrides; in the only other case, in Delaware, the judge-imposed death sentence was reduced on appeal to a life term.
      Sotomayor achieved her goal in March 2015 when the court agreed to hear a new Florida case challenging that state's judicial override procedure in capital cases. The case was argued early in the new term, in October 2015, and ended with a nearly unanimous decision overruling the previous decisions upholding Florida's procedure. "Time and subsequent cases have washed away the logic of [the earlier decisions]," Sotomayor wrote. As the lone dissenter, Justice Samuel A. Alito Jr. argued that the "advisory" role played by the jury under Florida law satisfied the line of precedents requiring juries not judges to make factual findings needed to increase a defendant's sentence.
      Florida passed its new law three months later to eliminate judges' power to impose death sentences unless recommended by at least a 10-2 jury vote. The writing appeared to be on the wall for Alabama's judicial override procedure after the court sent an Alabama case back to the state's court to consider the impact of its decision in Hurst. The Alabama legislature completed approval of a bill to repeal the judicial override provision on April 4; Bentley had promised to sign it, but it fell to Ivey to sign the measure after Bentley's resignation.
      Robert Dunham, executive director of the Washington-based Death Penalty Information Center, called the repeal "significant." He noted to the Birmingham Times that historically judicial overrides had been seen as a safeguard against runaway juries, but that in contemporary times the power "has been used to impose death sentences against the will of the community and has been disproportionately used in election years in cases of white victims and African am defendants."
      Today, Sotomayor has become the court's most vocal critic of the lethal injection procedures currently used in death penalty states. She spoke for the four liberal justices in dissenting from the decision in Glossip v. Gross (2015) upholding the current three-step lethal injection procedure.
      Sotomayor reiterated her points from that dissent as recently as Thursday night [April 19] in voting to grant stays of executions to the Arkansas inmates seeking to halt the state's plans to carry out eight executions within a span of two weeks. With one significant reform to her credit, Sotomayor can be expected to keep up the pressure on this issue as well.

Sunday, April 16, 2017

On Use of Force, Law Is Toothless, Not Pointless

       The results of President Trump's decision to launch missile strikes against the Syrian air force base in retaliation for its use in a chemical weapons attack on civilian populations can now be toted up. In short, the strikes achieved little in terms of military or diplomatic objectives, but Trump got a bump in his approval rating and a distraction from the investigation into possible collusion between his campaign and the Russian government.
       The episode also lays bare for all to see the rank hypocrisy of Republican politicians and Republican voters who rushed to Trump's support despite having opposed any similar U.S. intervention four years ago when President Obama was in the White House. A survey by the Pew Research Center found overall support for Trump's action — 58 percent to 36 percent — with Republicans supportive by a 4-1 margin: 77 percent to 19 percent.
       Four years earlier, Pew's survey found Republicans opposed to intervention: 35 percent in favor, 40 percent opposed. The 2013 survey found Democrats and independents opposed by larger margins: 48 percent to 29 percent for Democrats, 50 percent to 29 percent for independents. But it was opposition from Republicans on Capitol Hill that forced Obama to fold his cards. Obama had argued that he could act on his own but explained that he wanted Congress's support to strengthen the U.S. position.
       Trump's all but unilateral decision prompted a useful if inconclusive debate over the legality of his actions, with no more than minimal consultation with leaders in Congress and no resort to international law or the peacekeeping machinery of the United Nations. The history of this and similar debates earlier gives pause to any sticklers for separation of powers or international law. But it is too facile to treat either domestic or international law merely as toothless restraints on the president's power to use military force.
       The constitutional debate over the president's warmaking powers is long-lived, a built-in feature of the separate provisions that make the president the commander in chief but give Congress the power to "declare" war. The debate was well joined in the Vietnam era. The various legal challenges to the Vietnam War were never fully adjudicated, but Congress eventually responded by enacting the War Powers Act in an effort to limit any extended commitment of U.S. forces abroad without congressional approval.
       The law, adopted in November 1973 over President Richard Nixon's veto, requires the president to notify Congress within 48 hours of committing U.S. forces abroad and requires withdrawal of U.S. forces within 60 days unless Congress affirmatively approves. Trump followed other presidents' examples by notifying Congress of the missile strikes two days after the launches but without formally acknowledging any obligation to do so.
       The three-paragraph letter sent to Congress on April 8 was admittedly brief, but constitutes the most formal statement of Trump's intentions and justifications for his decision. "I directed this action in order to degrade the Syrian military's ability to conduct further chemical weapons attacks and to dissuade the Syrian regime from using or proliferating chemical weapons," Trump wrote, "thereby promoting the stability of the region and averting a worsening of the region's current humanitarian catastrophe."
       Two days earlier, Trump had announced the missile strikes to Americans and the world in a televised address from Mar-a-Lago not even three minutes long: heavy on bathos, light on tactical or legal content. Now, more than a week later, Trump has still been light on explaining the policy or exploring the implications even as his principal advisers send conflicting signals on long-term goals regarding the future of the Syrian strongman Bashar Al Assad.
       As for the War Powers Act, Charles Stevenson, an adjunct professor at Johns Hopkins University's School of Advanced International Studies in Washington, argues that the law has achieved its purposes even without formal presidential acknowledgment. Stevenson, an aide to the dovish Iowa senator Harold Hughes back in the Vietnam era, notes that no overseas conflict since 1973 has lasted more than three to four months without congressional approval.
       International law operates as even less of a formal restraint on presidential warmaking, but it too should not be completely discounted. Trump's televised address sounded not like an "America First" foreign policy but more like what some experts are calling an emerging doctrine of humanitarian intervention in international law.
       Ironically, Trump has gotten support for the missile strikes from a liberal veteran of the Obama administration: Harold Koh, the human rights-minded Yale law professor and State Department legal adviser under Obama. Koh argued in a law review article that humanitarian intervention, even without U.N. Security Council approval, may be legal under international law if various conditions are met. The humanitarian crisis must be one that threatens international order, and the intervention must be limited and necessary to prevent a per se violation of international law, such as use of chemical weapons.
       Trump's impulsive resort to missile strikes was satisfying no doubt: an eye poke to Assad and, incidentally, to his Russian ally Vladimir Putin. But Trump could have strengthened his case, and shown more respect for public opinion at home and abroad, by dotting the i's and crossing the t's of applicable law, even now if only after the fact.

Tuesday, April 11, 2017

With Shoutout to Scalia, Gorsuch Reaffirms Likely Course

      After taking the oath of office as Supreme Court justice, Neil Gorsuch turned to the widow of his predecessor, Antonin Scalia, to give one more tribute to the man he was to succeed. "I won't ever forget," Gorsuch said, facing Maureen Scalia as she sat in the front row of the Rose Garden ceremony, "that the seat I inherit today is one of a very, very great man."
      Gorsuch had gone further when President Trump announced his selection on Jan. 31 by praising "the towering judges" who had served in the seat: not only Scalia but also Robert Jackson, a Democrat named by President Franklin D. Roosevelt in 1941. Somewhat oddly, Gorsuch skipped over Scalia's immediate predecessor, William Rehnquist, who held the seat as associate justice until his elevation to be chief justice in 1986.
      Apart from Jackson and one other justice, the seat that dates back to 1863 has been held by judicial conservatives for all but a 30-year period. The seat that Gorsuch is shown in Supreme Court charts as seat #10: historically, the tenth seat of what is now a nine-seat court.
      The Republican-majority Congress added a tenth seat to the court in 1863 partly to give President Abraham Lincoln stronger support on a court that had upheld his wartime blockade of southern courts by only a one-vote margin. To fill the new seat, Lincoln appointed Democrat Stephen Field, then serving on the California Supreme Court after having relocated to the West from his native Connecticut.
      Field was commended to Lincoln as a strong supporter of the Union and an expert in land and mineral issues then of special interest to western states. He became a stalwart on a court that became increasingly conservative over time — as seen in decisions striking down federal civil rights laws and the first federal income tax.
      Field served for what was then a record 34 years until, with his mental abilities in evident decline, the other justices prevailed on him to retire in 1899 at age 82. The court had long since reverted to nine members, however. When Justice Joseph Catron died in April 1865, the Republican Congress abolished what was then shown as the court's eighth seat rather than allow the new president, the ex-southern Democrat Andrew Johnson, to fill the seat.
      All but one of the six justices to hold the seat after Field until Gorsuch were Republicans appointed by Republican presidents; of those five, four proved to be reliably conservative on the bench. Two others had more liberal records: Harlan Fiske Stone, nominated by Calvin Coolidge in 1925, and Jackson, who was Democrat Franklin Roosevelt's choice for Stone's seat when he elevated Stone to chief justice in 1941.
      As Field's successor, President William McKinley chose Joseph McKenna, a one-time colleague of McKinley's in the U.S. House of Representatives. McKenna had a generally conservative record on the bench. Like Field before him, McKenna overstayed his welcome. With his mental faculties noticeably in decline, Chief Justice William Howard Taft persuaded McKenna to retire in 1925 at age 81.
      As McKenna's successor, Coolidge picked Stone, his attorney general and a former Wall Street banker. Stone aligned himself in the 1930s with liberal justices Louis Brandeis and Benjamin Cardozo in voting to uphold some of FDR's New Deal enactments that were struck down often by 5-4 votes. When FDR got a series of Supreme Court appointments beginning in 1937, Stone became part of a reliable pro-New Deal majority. And in 1941 Roosevelt was persuaded to name Stone as chief justice to gain Republican support as World War II loomed.
      To succeed Stone as associate justice, Roosevelt picked his attorney general, Robert H. Jackson, who had been FDR's initial choice for the center seat. Jackson is held in high regard today as one of the best writers in Supreme Court history and as one of the strongest defenders of civil liberties — for example, in striking down mandatory flag salute laws and in dissenting from the decision to uphold the wartime internment of Japanese Americans.
      Jackson died in office in 1954 after joining, despite initial doubts, the Brown v. Board of Education decision to prohibit racial segregation in schools. As his successor, President Dwight Eisenhower chose John Marshall Harlan, namesake grandson of the justice now best remembered for dissenting in 1896 when the court upheld legally enforced racial segregation.
      Harlan faced questions about Brown from southern senators and was confirmed by what was then an unusual divided vote of 71-11. He compiled a generally conservative record during the Warren Court's upheavals on civil liberties and criminal law. Harlan retired in September 1971, gravely ill at age 72, and died three months later.
      President Richard Nixon chose Rehnquist, then an associate attorney general in the Justice Department, for the vacancy barely a month after Harlan's retirement. Rehnquist's conservative record provoked a fight with Democrats in the Senate, but he won confirmation by a vote of 68-26. As associate justice, he was the most conservative member of the Burger Court and was then chosen by President Ronald Reagan as Burger's successor in 1986.
      The controversy over Rehnquist allowed Scalia to glide unopposed to a 98-0 confirmation despite his already evident conservative views. Scalia's legacy after a tenure that fell seven months short of 30 years was a constant backdrop for Gorsuch's nomination: praised by Trump and Republican senators but his judicial philosophy criticized by Democrats. Gorsuch's final shoutout before getting down to work gives the strongest clue yet that he expects to be true to Scalia's memory.

Sunday, April 9, 2017

Republicans Made High Court a Partisan Battleground

      Republicans and Democrats exchanged bitter accusations on the Senate floor last week as the GOP majority went nuclear to clear the way for Judge Neil Gorsuch's confirmation to join the Supreme Court in time for the final arguments of the term later this month. Senators on both sides of the aisle uniformly decried the politicization of the Supreme Court while trading bitter accusations that the blame lies with senators or dark-money special interest groups on the opposite side.
      The blame starts, however, with Richard Nixon, who turned the Supreme Court into a partisan battleground as part of the divisive campaign he waged for the presidency in 1968. He was the first of what are now five Republican presidents who have pushed the ideological envelope with appointments that have given the high court a seemingly permanent conservative orientation.
      Nixon tapped into law-and-order sentiment by accusing the Warren Court of coddling criminals while his so-called southern strategy drew on the South’s continuing resentment of the court’s role in school desegregation. Today, most of the Warren Court’s flashpoint rulings are accepted as legal mainstream. The Miranda rule on police interrogation is now part of popular culture, according to no less a judicial conservative than the late chief justice William Rehnquist. The Gideon ruling on right to counsel is hailed as a landmark even if its promise less than completely fulfilled. Outside criminal law, few if any mainstream legal figures would go back on the Brown desegregation ruling, the Baker v. Carr line of cases on reapportionment, or the New York Times v. Sullivan First Amendment decision on libel law.
      Still, Nixon turned immediately to setting a new course. After a Republican-led filibuster blocked Abe Fortas's nomination as chief justice, Nixon turned in his first months in office to the most prominent judicial conservative of the time: Warren Burger, an outspoken critic of Warren Court rulings on criminal law. For a second vacancy, Nixon picked two conservative judges rejected by the Senate’s Democratic majority, Clement Haynsworth and G. Harrold Carswell, and was then forced to turn to the moderate Harry Blackmun.
      To fill two more vacancies, however, Nixon chose Rehnquist, a Goldwater conservative transplanted to Arizona from the Midwest, and Lewis Powell, an establishment business-oriented Virginian seen as somewhat moderate. Powell went on, however, to help form 5--4 conservative majorities in such decisions as those that limited school desegregation remedies, cut off death penalty challenges, and upheld state anti-sodomy laws.
      President Gerald Ford deliberately moved to the center with his sole Supreme Court appointee: John Paul Stevens, a Republican with a non-ideological record on the federal appeals court in Chicago. President Ronald Reagan’s decision to name Sandra Day O’Connor as the first female justice was likewise more political than ideological, but she was vouched for by her conservative Stanford Law School classmate, Rehnquist.
      Reagan followed with the three most conservative Supreme Court nominations since the 1920s: Rehnquist as chief justice to succeed Burger, Antonin Scalia to fill Rehnquist’s seat, and one year later the archconservative Robert Bork to succeed Powell. Bork showed himself in his confirmation hearing testimony to be outside the legal and popular mainstream: the Senate’s bipartisan 58-42 vote to reject the nomination refutes the continuing conservative meme that he was mistreated or misjudged. And, as with Nixon’s situation two decades earlier, Reagan first tried another committed conservative, the pot-smoking Douglas Ginsburg, before turning to the moderate Californian Anthony Kennedy.
      History provides no definitive answer whether President George H.W. Bush should have known that David Souter would prove to be less conservative than vouched for by his principal White House supporter, the fellow New Hampshirean John Sununu. For his second Supreme Court appointment, however, Bush turned to Clarence Thomas, who had already flashed his doctrinaire conservative views in writings and speeches though not yet in his brief record on the federal appeals court in the District of Columbia. Thomas won confirmation only because southern Democrats saw political risks back home in rejecting the only African American nominee Bush was likely to choose.
      As the first Democratic nominees in a quarter-century, President Bill Clinton picked two appellate judges with centrist records and reputations: Ruth Bader Ginsburg and Stephen Breyer. Two decades later, President Barack Obama’s first two nominees, Sonia Sotomayor and Elena Kagan, had supporters across the ideological spectrum: Sotomayor had been appointed to the district court by the first president Bush and then elevated by Clinton to the federal appeals court in New York; Kagan had famously soothed the ideological warfare at Harvard Law School during her tenure as dean.
      Sotomayor and Kagan were both rightly seen as “progressives,” but Obama had more liberal candidates to choose from. His third nominee, Merrick Garland, was more conspicuously chosen as a moderate over candidates who had more liberal records and stronger support from liberal advocacy groups. But Senate Republicans replied to his de-escalating move not with accommodation but resistance by refusing even to consider Garland’s nomination much less to put it to a vote.
      Obama’s actions contrasted with President George W. Bush’s record on Supreme Court appointments. John Roberts came with gold-plated academic and professional credentials, but also a solid record as a Reagan-era conservative. Conservatives shot down Bush’s nomination of his White House counsel Harriet Miers, and he followed by turning to a judge, Samuel Alito, who satisfied the conservative groups’ litmus tests and has proved to be as conservative as they had hoped.
      President Trump’s outsourcing of the Supreme Court nomination to the Federalist Society and the Heritage Foundation carries the conservative politicization of the court one significant step further. Neil Gorsuch may not have been the most conservative judge on Trump’s list of 21 candidates, but he has a deserved reputation as a reliable conservative and revealed himself as such through his calculated silences in his confirmation hearing.
      With his confirmation, the Supreme Court now includes three justices with among the narrowest Senate mandates in history. The Senate’s 54-45 vote to confirm Gorsuch was the fourth closest in history; Thomas’s 52-48 margin was the third closest, and Alito’s 58-42 vote was also narrow by historical standards. A half-century of Republican moves have left a picture of the court as little more than the third of three political branches of the national government.
      Despite what Republican senators would have the public believe, it is the conservative justices today who have an activist ideological agenda, not the liberal bloc. Gorsuch's calls to make it easier to overrule administrative agencies or harder to regulate political campaign contributions point him toward the Thomas-Alito alliance that views many liberal precedents as ripe for reversal. The court has a deep reservoir of public confidence, but the Republicans' siege on the marble palace has weakened that confidence. As Gorsuch's presidential benefactor might say, Sad!

Tuesday, April 4, 2017

On Gorsuch, Senate Should Debate, Deliberate

      The Senate should not vote this week on the Supreme Court nomination of Judge Neil Gorsuch. Not because Democrats can block Gorsuch's nomination or would be likely to get a more acceptable nominee if they could.
      No, the reason for slowing down the vote is that Senate Republicans owe it to the American people to allow full debate and deliberation on Gorsuch's nomination before sending him to the Supreme Court for what is likely to be 25 years or longer.
      There may be no mystery about the outcome, as Senate Judiciary Committee Chairman Chuck Grassley said at the start of a 4-1/2 hour meeting that ended with an 11-9 party line vote to send the nomination to the floor. But the same American people who figured in the Republicans' decision to block President Obama's nomination last year of an equally qualified nominee, Judge Merrick Garland, deserve to know what they will be getting from a Justice Gorsuch. They will be getting
      * A justice who is a threat to reproductive rights, LGBT rights, and workers' and consumers' rights.
      * A justice who is a threat to clean air and clean water regulations.
      *A justice who would invite a larger role for money in politics by narrowing the power of Congress or state legislatures to limit campaign contributions.
       * A justice who could be a pivotal vote for expanding presidential power at a time when the president is a constitutional time-bomb waiting to go off.
       * A justice with no record of promoting racial justice or protecting voting rights at a time when those issues tarnish America's claims to liberty and justice for all.
       Nine Democratic senators laid out the bill of particulars against Gorsuch's nomination one by one with careful citation to Gorsuch's record during 10 years on a federal appeals court and his year-long stint in the Bush administration Justice Department. Significantly, Gorsuch was often all by himself in some of the instances cited.
      While at the Justice Department, Gorsuch drafted a signing statement for President George W. Bush that would have justified torture-like "enhanced interrogation techniques" such as waterboarding despite Congress's clear intention to prohibit those practices. The passage was deleted in the final version at the instance of the then-solicitor general Paul Clement, no shrinking violet on issues of presidential power.
       On environmental regulations, Gorsuch used an unrelated case to call for reconsidering the so-called Chevron doctrine, a 30-year-old precedent for deferring to federal agencies' interpretations of ambiguous congressional enactments.
       As for campaign finance, Gorsuch called in a concurring opinion for subjecting laws on campaign contributions to the strictest constitutional standard -- so-called "strict scrutiny." The Roberts Court has invoked that standard to overturn federal and state laws to limit corporate spending in campaigns.
       Republicans countered the charges by citing Gorsuch's admittedly outstanding academic and professional credentials and by accusing Democrats of imposing a political agenda litmus test. Democrats invited the critique perhaps by depicting Gorsuch as too often siding against the "little guy" in close cases. The Democrats needed to try even harder than they did to explain that they were criticizing Gorsuch's approach in analyzing and applying laws enacted for the very purpose of protecting or empowering individuals against more powerful organizations or entities.
       In the notorious stranded trucker case, for example, Gorsuch took a federal law enacted to give truck drivers a safety-based right to refuse a company's instruction on operating a vehicle. Alone among seven judges to consider the case, Gorsuch construed the key term in the law so narrowly as to leave the trucker defenseless in his decision to avoid the risk of freezing to death in subzero weather while waiting for a long-delayed repair service.
       In somewhat like vein, Gorsuch gave a narrowing interpretation to the federal law guaranteeing a "free appropriate public education" to students with disabilities. Taking a minority position, the Tenth U.S. Circuit Court of Appeals had adopted a standard that schools must provide some "de minimis benefit" to special-ed students. Applying that precedent in a subsequent case, Gorsuch opted for an even weaker standard: merely a de minimis benefit. The Supreme Court threw out that standard in an 8-0 decision issued coincidentally just as Gorsuch was wrapping up his Judiciary Committee testimony.
       Republicans have been impervious to all these criticisms. They have voted in near lockstep for President Trump's nominees, even some with weaker qualifications than Gorsuch's: think Rex Tillerson at State, Ben Carson at Housing, and so forth. Betsy DeVos for Education was too much to swallow for Maine's Susan Collins and Alaska's Lisa Murkowski, but they are apparently on board for Gorsuch.
       Democrats have enough votes -- 41 as of late Monday night -- to block a vote on Gorsuch's confirmation under the current rules requiring 60 votes for a motion to proceed. Senate Republican leader Mitch McConnell is vowing to change the rule if necessary to bring the nomination to a vote with a simple majority.
       Even without the rules change, Democrats are in fantasyland if they think Trump would respond to a rebuff by looking for a consensus choice instead of going back to the Federalist Society-approved list. Recall: Nixon nominated Carswell after Haynsworth was defeated; Reagan turned to Douglas Ginsburg after Bork was rejected; moderates Blackmun and Kennedy emerged only on third tries; and Bush43 picked the hard-line conservative Alito after the weakly qualified Harriet Miers withdrew.
       Democrats have a losing hand. Gorsuch may be as good as they can expect from this president. Gorsuch's challenge as successor to a stolen Supreme Court seat will be to try to live up to the self-portrait he drew of a careful, apolitical judicious judge.

Sunday, April 2, 2017

Replay of Brutal Murder Might Have Been Avoided

      Catherine Fuller was brutally murdered on her way home from a late-afternoon shopping trip barely two miles from the U.S. Capitol one month before Ronald Reagan's landslide re-election in 1984. Longtime Washington-area residents still recall the murder and the long trial a year later that ended with the convictions of 11 black youths for what prosecutors depicted as an opportunistic robbery that turned into a savage gang-style killing.
      Three decades later, the gruesome events were replayed at the U.S. Supreme Court last week [March 29] as two of the defendants asked to have their convictions thrown out because the prosecution withheld evidence potentially useful to their defense. Charles Turner and Russell Overton are asking the justices to put themselves in the impossible position of deciding whether the jury that deliberated on their fate for a full week would still have convicted them if the withheld evidence had been turned over back then.
      Frustratingly, the reopening of the case might have been avoided under current Justice Department policies that take a broad view of the government's disclosure obligations under a well-established Supreme Court precedent, Brady v. United States (1970).  Brady requires the government to give the defense any potentially exculpatory information in its files. Today, the government concedes that the prosecution violated Brady by failing to turn over evidence from two witnesses pointing toward the possibility that someone else could have killed Fuller.
      Jerry Goren, the Harvard-trained lawyer who led the prosecution team and now lives in California, testified in the later post-conviction hearing that he investigated the evidence from the witnesses placing another black youth, James McMillan, in the vicinity around the time of the killing. McMillan, who would later be convicted of a somewhat similar murder, was said to have been seen concealing some object that could have been the lead pipe used to sodomize Fuller before she died.
      In his 2012 testimony, Goren said that homicide detectives interviewed the witnesses, but he did not give the information to the defense because he did not find their accounts credible. Prosecutors naturally suspect defense attorneys will grasp at any straws, however insubstantial, to try to conjure up reasonable doubt in some jurors' minds. So a minimalist approach to Brady naturally leads prosecutors to withhold evidence if they think they can get away with it.
      Representing Turner in the Supreme Court arguments, attorney John Williams had no doubt that the withheld evidence would have been helpful to the defense at trial. "This whole case would have been cast in a different light," Williams told the justices. The prolonged deliberations on Turner and Overton after the jury had convicted nine other defendants showed that jurors had doubts about their guilt, he said. Deanna Rice echoed the point in the five minutes she was allotted for divided argument representing Overton.
      For the government, deputy solicitor general Michael Dreeben had the unenviable task of explaining away a now-admitted Brady violation. The evidence to suggest an "alternative perpetrator theory" was "weak and speculative," Dreeben told the justices. By contrast, the evidence of a group attack on Fuller was "strong" and corroborated by some of the members of the group who testified for the government in hopes of a shorter sentence. Given all that, Dreeben said, there was "no reasonable probability" that the jury would have rejected the government's theory in favor of a single perpetrator.
      The justices were somewhat hard to read in what was for them an unusually fact-specific set of arguments, but Justice Elena Kagan was one of three — along with Ruth Bader Ginsburg and Sonia Sotomayor — who voiced discomfort with the withholding of the evidence to suggest an alternative perpetrator. "It would have been a completely different trial," Kagan told Dreeben.
      Dreeben explained the long jury deliberation by detailing the difficulties of a case that could have been a Law and Order episode.. The prosecution witnesses' testimonies naturally "diverged" in places, the veteran criminal law specialist conceded, given the "chaotic" pace of events in the killing. The prosecution's reliance on some of the participants was also perfectly natural, Dreeben said.
      The government looked for other witnesses, but none came forward, he said. The community in what was then a run-down neighborhood felt "under siege," he said. And the reality, Dreeben continued, is that in criminal cases "it's frequently the case that the only people who can really tell you what happened are those who participate."
      Ginsburg followed by bluntly asking Dreeben to explain the withholding of the evidence. At the time, Dreeben replied, the government's policy was to comply with Brady but to do no more. Todya, under policies adopted in 2006, prosecutors are instructed, according to Dreeben, to "go above and beyond Brady and disclose information that a defendant might use even if it is not [required]."
      The evidence of other witnesses in the case surfaced only in 2001 through doubts raised in a story by a Washington Post reporter, Patrice Gaines, and work by researchers with the Mid-Atlantic Innocence Project. Turner and Overton have now been arguing in court for more than a decade to try to reopen their case. A well-regarded D.C. Superior Court judge, Frederick Weisberg, reaffirmed the convictions after the 2012 hearing; the D.C. Court of Appeals upheld his ruling in an exhaustive, 94-page opinion in June 2015.
      Government lawyers routinely cite the importance of finality in urging appellate courts to spurn defendants' post-conviction petitions. Supreme Court handicappers are forecasting a ruling to uphold these convictions. In this painful reminder of a brutal killing, however, the government itself is to blame for the doubts cast on a hard-won verdict so long ago.

Sunday, March 26, 2017

Gorsuch Unharmed, but His Silence 'Speaks Volumes'

      Supreme Court nominee Neil Gorsuch must have had the Hippocratic oath firmly in mind as he underwent more than 20 hours of questioning from senators during his confirmation hearing last week. "First, do no harm," the ancient Greek physician Hippocrates prescribed for medical practitioners.
      Given the Republicans' 52-48 majority in the Senate, Gorsuch had a partly clear path to confirmation, but he faced and largely avoided two risks. He needed to avoid giving the chamber's Democratic minority evidence of out-of-the-mainstream legal views to justify a filibuster. He needed to make it hard for red-state Democrats to support any vote-blocking parliamentary tactic or for blue-state Republicans to break party ranks in deference to their moderate suburban constituents.
      Democrats tried but succeeded no more than part way to use Gorsuch's record in 10 years on the federal appeals court in Denver to prove him to be a doctrinaire conservative and indifferent to interests of workers or consumers, reproductive freedom, or LGBT rights. It can never be known whether they would have done better by focusing more on questions than on speeches with their allotted time, but the National Law Journal end-of-hearing headline said it all: Gorsuch emerged "unscathed."
      Gorsuch ducked the Democrats' questions by sticking with a mantra that he was a judge, not a legislator, committed to ruling in every case on the basis of law and facts, not personal opinion. He promised to faithfully follow precedent  except when "the law of precedent" allows departures or reconsideration. And he skillfully used the power of precedent as a shield against questions about his own legal views .
      Gorsuch demurred when asked whether her considers himself an "originalist," as he was described by any number of Republican senators and some of his supporters who appeared later on the fourth and final day of the hearings. The term "has different meanings" for different people, Gorsuch said in begging off. The Democrats tried but failed to get Gorsuch to admit that originalism is guesswork at best and prevents the adaptation of the Constitution to meet present-day legal issues.
      On a different tack, Democrats tried to get Gorsuch to give his personal evaluation of Supreme Court precedents, but he refused except for one. The landmark school desegregation decision in Brown v. Board of Education was "a shining moment" in Supreme Court history, Gorsuch said. But on other decisions Gorsuch said that giving his own opinion would be "an act of hubris" and would carry no weight in any event.
      The abortion-rights decision in Roe v. Wade was among the precedents Gorsuch promised to follow but declined to endorse. Gorsuch and several Republican senators justified the nominee's reticence by citing what they called the Ginsburg rule, drawn from Justice Ruth Bader Ginsburg's confirmation in 1993. Ginsburg had promised "no hints, no forecasts, no previews." Unlike Gorsuch, however, Ginsburg in 1993 had not hesitated to embrace Roe v. Wade as protecting a right "central to a woman's life."
      Democrats voiced their frustration with Gorsuch's reticence. "I don't buy that," Illinois' Richard Durbin chided the nominee at one point. Later, Connecticut's Richard Blumenthal told Gorsuch, "Your silence speaks volume."
      Blumenthal pressed Gorsuch especially hard to try to find out what he knew about the $10 million campaign being waged in support of his confirmation. Gorsuch insisted he did not know who was paying for the TV ads being broadcast mostly in states with Democratic senators. Gorsuch told Blumenthal that Congress could decide whether to require more disclosure of donors in such campaigns and insisted that Congress had "ample authority" to legislate in the area. But he acknowledged only under questioning that he had suggested, in an opinion striking down an unusual Colorado law, that limits on campaign contributions should be subject to stricter constitutional scrutiny than current Supreme Court precedents require.
      On LGBT rights, Gorsuch appeared to accept the marriage equality ruling in Obergefell as precedent and generally to acknowledge that gays and lesbians are encompassed within the Fourteenth Amendment's Equal Protection Clause. But, perhaps because of imprecision in the questioning, Gorsuch never addressed whether he would find sexual orientation and gender identity to be a protected characteristic for equal protection purposes or whether religious beliefs could be invoked to justify discrimination against LGBT individuals.
      On the latter issue, the testimony from opposing advocates indicated they think they know Gorsuch's mind. Hannah Smith, a senior counsel with the religious-liberty litigating Becket Fund, praised Gorsuch's support on those issues, while Sarah Warbelow of the Human Rights Campaign said that Gorsuch's record indicated "a level of indifference to the LGBT community."
      By the end of the hearing, South Carolina Republican Lindsey Graham had lost whatever patience he had allowed the Democrats. The prospect loomed that Democrats would stick together in preventing the 60-vote majority needed under current Senate rules to bring the nomination to a vote on the floor. Graham, who underlined his own votes in favor of confirming the Obama-nominated justices Sonia Sotomayor and Elena Kagan, said that it was unclear that Democrats would back any Republican nominee for the court.
      Democrat Durbin was right in saying at the outset that any Republican complaints about partisanship "ring hollow" after the refusal last year to consider Obama's nominee for the seat, Merrick Garland. Gorsuch strived to keep himself out of the partisan bickering, disclaiming the labeling of "Republican judges" and "Democratic judges." But the partisan lines remain sharply drawn as the committee moves toward the vote to send the nomination to the floor.

Friday, March 24, 2017

Clashing Views of Gorsuch as Hearings End

      The Senate Judiciary Committee ended its confirmation hearing on Supreme Court nominee Neil Gorsuch on Thursday [March 23] after hearing glowing testimonials from the judge's colleagues, ex-clerks, and conservative interest groups but continuing doubts from liberal groups about his commitment to along with rights-favoring legal precedents.
      The committee's six-hour day began with leaders of the American Bar Association's Standing Committee on the Federal Judiciary detailing the committee's  rating of the veteran federal appeals court judge as "well qualified" for elevation to the high court. The 15-member, nonpartisan committee has rated nominees for the federal bench since 1953 and gave the "well qualified" ratings to seven of the current justices and the middling rating of "qualified" to Clarence Thomas when he was nominated in 1991.
      Nancy Scott Degan, a New Orleans lawyer and the ABA committee's chairwoman, said Gorsuch was found well qualified based on an assessment of his integrity, professional competence, judicial temperament, and judicial independence. The Senate committee's chairman, Iowa Republican Chuck Grassley, briefly endorsed the ABA panel's conclusions.
      California's Dianne Feinstein, the committee's ranking Democrat, used the ABA witnesses' appearance to underscore that the lawyers' group had given the same "well qualified" rating to Judge Merrick Garland, President Obama's blocked nominee for the seat. Degan ducked Feinstein's question whether the committee found Gorsuch to be a "mainstream" judge, but when Feinstein asked whether Gorsuch was reasonable, Degan had a one-word reply: "Absolutely."
     The final day of the hearings was barely under way when the Senate's Democratic leader, Chuck Schumer, went to the Senate floor to declare his opposition to Gorsuch's confirmation and vow to filibuster the nomination to prevent a vote. "Judge Gorsuch's nomination will face a cloture vote," Schumer said in a simultaneously posted tweet, "and as I've said, he will have to earn sixty votes for confirmation. My vote will be 'No.'"
      Two of Gorsuch's colleagues on the Tenth U.S. Circuit Court of Appeals — one appointed by the Republican president Ronald Reagan, the other by Democrat Bill Clinton — followed with similarly effusive praise for Gorsuch's qualifications. The Reagan-appointed judge Darrell Reese Tacha, now a former dean at Pepperdine Law School, called Gorsuch "an elegant and exceptional writer" with a commitment to "originalism and textualism and precedent but not in a formalistic way." Robert Henry, the Clinton appointee and now president of Oklahoma City University, followed by praising Gorsuch for a "truly remarkable intellect," "his demonstrated mastery of rules and precedent," and "his fine judicial temperament."
      Two witnesses invited by the comminttee's Democratic minority questioned Gorsuch's role while serving in the Bush administration Justice Department in 2005 and 2006  in the sharp legal and political debate over the post-9/11 treatment and interrogation of suspected enemy combatants. Elisa Massimino, president of Human Rights First, noted that Gorsuch was "directly involved" in defending Bush administration claims that the president could authorize torture-like interrogation techniques despite torture bans in U.S. law and international treaties. Jameel Jaffer, a former American Civil Liberties Union lawyer now executive director of the Knight First Amendment Institute at Columbia University, urged the committee to postpone action on the nomination pending further exploration of Gorsuch's role in the controversy.
      At Democrats' urging, the committee received what Feinstein described as 150,000 pages of materials from the Justice Department on Gorsuch's work at the department. In their appearance, the ABA witnesses said their group had had no time to analyze the material. In his earlier appearance, Gorsuch had minimized his personal involvement in the controversy by saying that he acted as "a lawyer with a client." But Feinstein briefly remarked that government lawyers should be held to a higher standard for legal positions they take.
      Interest group representatives followed with points corresponding to the one or the other party that had lined them up. Karen Hamed, executive vice president of the National Federation of Independent Business, praised Gorsuch's call to reconsider the so-called Chevron doctrine of deferring to administrative agencies' regulations. She criticized "the rising tide of regulations promulgated by unelected officials."
      Hannah Smith, senior counsel with the Becket Fund, a religious-liberty advocacy group, praised Gorsuch for what she called "a commitment to protecting this vital freedom." She underscored Gorsuch's votes in the so-called Hobby Lobby and Little Sisters for the Poor cases to allow religiously-motivated exceptions to providing coverage for contraceptives in health insurance for employees or students.
      From the other side, a labor union representative rehearsed one more time Gorsuch's dissent in the so-called frozen trucker case: the stranded trucker fired for leaving his trailer on the roadside to find warm shelter in subzero weather. Guerino Calemine, general counsel of the Communication Workers of America, said that Gorsuch's interpretation of the federal law at issue "would have made life a little more dangerous for truck drivers."
      Other Democratic-invited witnesses faulted Gorsuch for tentative answers on reproductive rights, LGBT rights, and race-related civil rights issues. "We need judges who will oppose unnecessary restrictions on abortion rights," said Amy Hargstrom Miller, executive director of the clinic in the Supreme Court's decision last year to strike down a restrictive Texas law. Sarah Warbelow, senior litigation director for the Human Rights Campaign, criticized Gorsuch for what she called "a level of indifference to the LGBT community."
      Among other Democratic witnesses, the Sierra Club's Pat Gallagher warned that Gorsuch's stance on the Chevron doctrine threatened regulatory protections for the environment. Heather McGhee, president of the political reform group Demos, said that Gorsuch could provide a "deciding vote" in favor of continuing the Roberts Court's trend of striking down laws regulating money in politics.
      Grassley gaveled the hearings to a close after admonishing committee members to submit any written questions by Friday [March 24]. Grassley wants the committee to vote on the nomination on Monday [March 27], but Democrats are likely to exercise their right to call for laying the vote over for one week.

Thursday, March 23, 2017

Republicans Confident as Gorsuch Testimony Ends

      Supreme Court nominee Neil Gorsuch ended two long days of testimony before the Senate Judiciary Committee with Republicans confident of his confirmation and Democrats frustrated with his elusiveness at the witness table.
      Committee chairman Chuck Grassley gaveled the 10-hour session to a close shortly before 8 o'clock Wednesday evening [March 22] with lavish praise for the veteran federal appeals court judge for his "patience" and "thoughtfulness in all that you do." The Iowa Republican ended by saying that Gorsuch had "pretty well demonstrated how you're going to handle things when you get to the Supreme Court of the United States."
      For their part, the committee's outnumbered Democrats made no similar predictions of blocking or even slowing the nomination despite the call from the Democratic leader Chuck Schumer of New York to block any vote pending the investigation into Russian interference in the presidential election.
      The committee's nine Democrats came up mostly short after a second full day of using a handful of Gorsuch opinions from the Tenth U.S. Circuit Court of Appeals to depict him as a threat to civil and constitutional rights and a champion of corporate interests over workers and consumers. And they also failed to pin him down on how he might vote on a range of legal issues ranging from conservative causes such as gun rights and campaign finance to liberal agenda items such as abortion rights, gay rights, and voting rights.
      Even so, the Democrats got an unexpected assist from across the street early in Gorsuch's second day of testimony in the Senate's Hart Office Building. Shortly after 10 o'clock, Chief Justice John G. Roberts Jr. announced a unanimous high court decision rejecting a Tenth Circuit test crafted by Gorsuch on educational standards under federal law for students with disabilities.
      The ruling in Endrew F. v. Douglas County School District came in a case that had applied a test from Gorsuch's opinion in an earlier case on how to apply the federal Individuals With Educational Disabilities Act (IDEA). Under Gorsuch's standard, local school districts could satisfy the law by offering students who cannot be taught in mainstream classrooms "an educational benefit [that is] merely . . . . more than de minimis." In a relatively short opinion, Roberts said the goal was too low and instead students were entitled to "a program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances."
      Asked about the decision by Illinois Democrat Richard Durbin, Gorsuch said he was handed the decision during a bathroom break in the hearing. Durbin said that the National Education Association had found that Gorsuch had ruled against students in eight of 10 cases under the federal law. But Gorsuch defended his opinion in the earlier decision, saying that he was bound by precedent.
      Gorsuch ducked Democrats' specific questions by adopting what he and the committee's Republican senators called the "Ginsburg rule," as set out by the future justice Ruth Bader Ginsburg during her 1993 confirmation hearing. "I've tried very hard to abide by the Ginsburg rule," Gorsuch explained at one point. "No hints, no previews, no forecasts."
      Republicans were fully satisfied. "I respect your absolute resistance to giving your feelings about the precedents of the Supreme Court of the United States," Idaho's Mike Crapo said. "You're consistently making clear that you're keeping your personal opinions out of it."
      Earlier, Illinois Democrat Richard Durbin rejected Gorsuch's mantra that he would follow precedent and decide cases on the basis of the facts and the applicable law without regard to his personal opinions. "I don't buy that," Durbin said forcefully. "We're looking for insights into your values and your judgment."
      Minnesota's Al Franken made the Democrats' point even more forcefully as the  hearing neared an end by referencing a series of 5-4 Roberts Court decisions that he said had hurt small businesses, workers, consumers, and — alluding to voter ID laws — Americans who do not have driver's licenses. "I want to know whether you'll consider the real world consequences of your decisions," Franken said.
      Republicans continued to defend Gorsuch's noncommittal stance. "The bottom line is that you cannot give the answers the other side would like," South Carolina's Lindsey Graham said.
      President Trump nominated Gorsuch on Jan. 31 for the seat left vacant by the death of Justice Antonin Scalia a year earlier. The Republican-controlled Senate refused to consider President Obama's nominee for the seat — Merrick Garland, like Gorsuch a highly-credentialed and well-regarded federal appeals court judge. Garland would have given Democratic-appointed justices a majority on the court for the first time since 1969.
      Gorsuch avoided answering a number of questions during his two days at the witness table by depicting the judiciary as nonpolitical. "You said there are no Republican judges and no Democratic judges," Franken said mockingly. "But if that were true, what was Merrick Garland about?"
      Graham answered by insisting that had the tables been reversed, a Democratic-controlled Senate would have refused to consider a Supreme Court nominee from a Republican president in his final year in office. As evidence, Graham cited an oft-quoted comment to similar effect that then-Sen. Joe Biden made in 1992 as he chaired the Judiciary Committee during the fourth year of President George H.W. Bush's term.
      The hearing resumes at 9:30 a.m. on Thursday with some 28 outside witnesses scheduled to testify. A first panel will consist of members of the American Bar Association's standing committee on the federal judiciary, which gave Gorsuch its highest rating of "well qualified." Three subsequent panels will be equally balanced between supporters and opponents of Gorsuch's confirmation chosen by the Republican and Democratic sides.
      Grassley says he wants to bring the nomination to a committee vote on Monday [March 27], but he acknowledges that Democrats have the right to request a one-week delay.  Republicans want to complete the confirmation in time for Gorsuch to join the Supreme Court for a two-week calendar of arguments that begins April 17.

Wednesday, March 22, 2017

Gorsuch Unfazed as Democrats Probe Record, Views

      Supreme Court nominee Neil Gorsuch moved toward Senate confirmation Tuesday [March 21] by repeating pledges of impartiality and independence and fending off Democrats' efforts to pin him down on legal issues or prove disqualifying ideological bias in his judicial record.
      Gorsuch ably fielded questions from politically divided committee members for 10 full hours on Tuesday, hitting Republicans' softball questions for easy singles and fouling off Democrats' curve balls. Republicans repeatedly thanked a judge they openly described as conservative for his "patience" and "perseverance," while Democrats came up empty in trying to paint Gorsuch as a threat to abortion rights or a tool of corporate interests over workers' rights.
      Gorsuch countered one line of Democrats' questions by using what he called an opening question from the Republican committee chairman Chuck Grassley to pledge independence from President Trump if confirmed. "That's a softball," Gorsuch replied amiably to Grassley's request that he describe judicial independence. "I have no difficulty ruling against or for any party," Gorsuch continued, "other than based on what the law and the facts and the particular case require."
      Later, Gorsuch answered Democrats' questions about Trump's critical tweets with a generally phrased rebuke of attacks on judges' independence. "When anyone criticized the honesty or integrity or the motives of a federal judge, I find that disheartening," Gorsuch replied to Vermont Democrat Patrick Leahy. "I find that demoralizing."
      Gorsuch also rejected Democrats' efforts to link him to Trump's campaign season pledges to appoint "pro-life" judge who would overrule the landmark abortion-rights decision in Roe v. Wade "automatically." Gorsuch said that Trump had mentioned abortion as a divisive political issue in their pre-nomination Trump Tower interview but that Trump had not asked him how he would vote on abortion cases.
      Gorsuch acknowledged that he had heard campaign-season discussion of  Trump's "litmus tests" for filling the Supreme Court seat now left vacant for more than a year after Justice Antonin Scalia's death in February 2016. But he flashed his professed independence for all to see when South Carolina Republican Lindsey Graham asked how he would have responded if Trump had asked him for a commitment to vote to overturn Roe. "I would have walked out the door," Gorsuch declared.
       “I have offered no promises on how I’d rule in any case to anyone,” Gorsuch told Grassley earlier, “and I don’t think it’s appropriate for a judge to do so, no matter who’s doing the asking.”
      Gorsuch avoided Democrats' efforts to pin him down on political issues, including the Senate Republicans' decision last year to refuse a hearing to President Obama's nominee for the vacancy, the veteran federal appeals court judge Merrick Garland. Gorsuch called Garland "a fine man," but he demurred when Leahy asked whether Garland had been treated fairly. "I can't get involved in politics," Gorsuch said. "It would be very imprudent for me to comment on a political dispute."
      One by one, Gorsuch skirted Democrats' other efforts to ferret out his views on pending issues, including the litigation that so far has blocked Trump's executive order restricting immigration from seven or six majority-Muslim countries. Asked whether the government could impose a religious test for entry into the United States, Gorsuch hesitated before offering a generally phrased response.
      "That looks an awful lot like a pending case," he said, but then added. "We have a Constitution and it does guarantee free exercise and it also guarantees equal protection of the law."
      Gorsuch skirted questions about controversial Supreme Court decisions with a stock answer describing each one as "a precedent" entitled to the respect normally accorded prior high court decisions. He declined to answer a question from California Democrat Dianne Feinstein, the party's ranking member, on whether the gun-rights decision in Heller v. District of Columbia would allow states to ban military-style assault weapons.
      Leahy had no better luck when he pressed Gorsuch about the court's decision in Shelby County v. Holder to strike down a major part of the federal Voting Rights Act. As with other decisions, Gorsuch volunteered no personal view about what he called the "recent" precedent. "What its reach will be remains to be seen," he concluded.
      Outside judicial decisions, Feinstein sought to plumb Gorsuch's role in controversial issues while working on detainee interrogation and treatment policy during his year-long stint at the Justice Department under President George W. Bush. Feinstein, longtime member of the Senate Intelligence Committee, questioned Gorsuch's handwritten affirmation that the so-called enhanced interrogation techniques had produced actionable intelligence.
      Gorsuch mostly neutralized the questioning by citing his role in helping to produce a bipartisan bill, the Detainee Treatment Act, that barred some of the practices. He acknowledged, however, that he had helped draft a provision barring habeas corpus review for inmates at the Guantanamo prison camps that the Supreme Court later struck down.
      Rhode Island Democrat Sheldon Whitehouse also failed to pierce Gorsuch's shield with questions about the reported $10 million campaign being waged by conservative groups in support of his nomination. With Whitehouse calling the funds "dark money," Gorsuch said that he did not know who was funding the campaign. "If you wish to have more disclosure, pass a law," Gorsuch said.
      Gorsuch's day on the witness stand ended well past the dinner hour after 30-minute rounds of questions from each of the 20 senators: 11 Republicans and nine Democrats. He faces a shorter day on Wednesday, with senators allowed 20-minute rounds. The committee moves on Thursday to public witnesses, with 28 witnesses in all scheduled to appear —  half of them selected by Republicans and half by Democrats.

            

Tuesday, March 21, 2017

Gorsuch Praises Consensus as Senators Clash

      Supreme Court nominee Neil Gorsuch presented himself to a sharply divided Senate Judiciary Committee on Monday [March 20] as a consensus-minded judge, devoted to the law, free of partisan or ideological bias, and steeped in family, faith, and the common-sense goodness of his native Colorado.
      Gorsuch broke from his unassuming pose long enough to boast that out of 2,700 appeals in which he has participated in his decade as a federal judge, 97 percent were decided unanimously and he was in the majority 99 percent of the time.
      "In the West we listen to one another respectfully," Gorsuch said, "we tolerate and cherish different points of view, and we seek consensus whenever we can."
      Gorsuch spoke for about 20 minutes at the end of a five-hour hearing that began with Republican and Democratic senators using their 10-minute opening statements to offer contrasting views about Gorsuch's record on the Tenth U.S. Circuit Court of Appeals.
      Eleven Republican senators, beginning with committee chairman Charles Grassley of Iowa, all praised Gorsuch as eminently qualified and committed to applying the Constitution and laws as written. But nine Democratic senators, one by one, faulted Gorsuch for taking a narrow view of constitutional rights and siding too often with corporations over the interests of workers and consumers.
      Gorsuch sat impassively as the senators laid the groundwork for what could be as much as 16 hours of questioning over the next two days. However embattled the senators, Gorsuch was genial and even folksy as he traced his upbringing and thanked his large extended family in Colorado, "united in love" despite holding "different political and religious views."
      On substance, Gorsuch opened by affirming his commitment to the law. "I pledge to each of you and to the American people that, if confirmed, I will do all my powers permit to be a faithful servant of the Constitution and laws of our great nation," he said.
      Later in the statement, Gorsuch echoed the Republican senators in depicting what he called "the modest station" for judges in the U.S. constitutional system. "If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk," he said.
      The committee's ranking Democrat, California's Dianne Feinstein, used her opening statement to highlight a possible risk to abortion rights if Gorsuch were confirmed. Later, Rhode Island's Sheldon Whitehouse rattled off without naming them a long list of Roberts Court 5-4 decisions on campaign finance, voting rights, civil rights, and class actions all decided by five Republican appointees. "Will you saddle up with the other Republican appointees?" Whitehouse asked rhetorically.
      Gorsuch gave an answer of sorts to the Democrats' complaints by noting that he had decided cases in favor of Native Americans seeking to protect tribal lands and in favor of class actions such as one seeking compensation for victims of nuclear waste pollution. He also said he had ruled for disabled students, prisoners, and workers alleging civil rights violations, while ruling against such persons in other cases.
      "My decisions have never reflected a judgment about the people before me," Gorsuch said, "only my best judgment about the law and facts at issue in each particular case."
      Democratic senators made clear they are smarting from the Republicans' refusal to hold hearings last year to consider the veteran judge Merrick Galand as President Obama's nominee to fill the vacancy left by the death of Justice Antonin Scalia. Vermont's Patrick Leahy, a former committee chairman, the tactic "an extraordinary blockade and totally unprecedented in our history."
      Grassley made no reference to the Garland episode in his remarks, but Texas's junior Republican senator Ted Cruz defended the strategy. "If Obama had been allowed to fill the seat," Cruz said, "we would have had a new liberal activist court."
      Cruz was among several Republicans who praised Gorsuch as an advocate, like Scalia, of originalism in constitutional interpretation. Feinstein had opened by saying that she was "troubled" by the philosophy. "I firmly believe that the Constitution is a living document that was intended to evolve as our people evolved," she said.
      Scalia's seat has been vacant since his death on Feb. 13, 2016, just before the court was set to holds the fourth of its seven two-week calendars of arguments. With only eight justices, the term ended with four cases deadlocked on 4-4 votes and one other sent back to lower courts to resolve after the justices appeared in arguments to be split down the middle.
      With a 52-48 majority, Senate Republicans appear to be in a position to confirm the 49-year-old Gorsuch for the life-tenured seat on the high court. Grassley outlined a schedule that could bring the nomination to a vote in early April in time for Gorsuch to join the court for its final two-week argument session late in the month.
      Over the weekend, however, Connecticut's Democratic senator Richard Blumenthal vowed to use "every tool we have" to block Gorsuch's confirmation "if he is outside the mainstream." No Republicans have indicated any likelihood of breaking ranks on the nomination, but under current rules Republicans need to pick up eight Democratic votes to meet the 60-vote threshold needed to bring the nomination to a vote on the floor.

Monday, March 20, 2017

Gorsuch: Picked for Court by Federalist Society?

      Neil Gorsuch comes before the Senate Judiciary Committee this week as a Supreme Court nominee not so much from Donald Trump as from two influential conservative legal groups: the Heritage Foundation and the conservative-libertarian Federalist Society. Gorsuch came to Trump's attention during the campaign from a list of 21 potential Supreme Court candidates the two legal groups put together  at his request.
      As a candidate, Trump promised that his judicial nominees would "all [be] picked by the Federalist Society." That pledge was unusual and undesirable, according to Christopher Kang, the principal White House adviser on judicial recruitment under President Obama.
      "We certainly reached out to organizations" in looking for judicial candidates, Kang remarked at a Feb. 17 program sponsored by the liberal American Constitution Society (ACS). "But we never went to any organization and said we'll look only at your list."
      "The very idea that [Trump] would outsource the process to two ideological groups," exclaimed Kang, now executive director of an Asian-American advocacy group. "He doesn't see anything wrong with that."
      Gorsuch confirmed the Federalist Society's role in his Senate questionnaire by stating that his initial contact came from the society's longtime executive director, Leonard Leo. As elaborated in a long story by New York Times reporters Eric Lipton and Jeremy W. Peters [March 19],  Leo has played a significant role in judicial nominations by Republican presidents in his nearly 30 years with the society.
      Trump met with Leo shortly after the November election and over the next two months Gorsuch and two other Republican-appointed federal appeals court judges emerged as the leading candidates for the vacancy left by the death of the conservative lion Justice Antonin Scalia. Trump picked Gorsuch after interviewing all three and announced the selection in a prime-time televised ceremony with the 49-year-old Gorsuch and Gorsuch's wife on stage with him.
      In accepting the nomination, Gorsuch stressed the need for courts "to apply, not alter," the laws as enacted by elected representatives. "A judge who likes every outcome he reaches is very likely a bad judge," Gorsuch said, as laughter rippled through the audience, "stretching for results he prefers rather than those the law demands."
      Leo was quick out of the box the next morning to sing Gorsuch's praises on the MSNBC program Mornings With Joe. "What he is doing in many opinions is saying the best way to protect freedom and accountability is to look at the Constitution and to interpret the law as it's written and originally intended," Leo commented. Two days later, Heritage Foundation legal analysts Elizabeth Slattery and Tiffany Bates echoed Leo in a short essay praising Gorsuch for his "demonstrated fidelity to the Constitution."
      In his questionnaire, Gorsuch noted his Federalist Society membership and frequent speeches to society chapters over the years. Gorsuch is still found on the Federalist Society web site as one of its "experts." Gorsuch listed no professional memberships or speaking appearances with liberal legal groups.
      In the seven weeks since his selection, several liberal interest groups have produced reports strongly criticizing Gorsuch's record in his decade on the Tenth U.S. Circuit Court of Appeals and raising questions about his year-long stint in a ranking position at the Justice Department under President George W. Bush. The Heritage Foundation has sponsored two programs stacked with conservative legal experts; Leo has continued to speak out in favor of the nomination. No one from either organization has been heard to criticize any of Gorscuh's rulings.
      To apply Gorsuch's test, his record could be read to indicate that he is "very likely a bad judge." His rulings or dissenting opinions tilt strongly in favor of outcomes agreeable to a judge who reached the bench after a career steeped in conservative politics and law. He started an alternative conservative student newspaper as an undergraduate at Columbia. He had a dual Supreme Court clerkship with two moderate justices, Byron White and Anthony Kennedy, but then moved on to a corporate law firm and the post at the Bush Justice Department.
      The liberal groups — ACS, the Alliance for Justice, and the NAACP Legal Defense Fund — all generally view Gorsuch as favoring interests of business and employers over consumer and worker rights. In civil rights cases, "he's able to see the facts through the eyes of the employer but not through the eyes of the people who have been discriminated against," Sherilynn Ifill, the Legal Defense Fund's president and counsel-director, remarked on MSNBC on Sunday.
      Appearing on the same program, moderated by MSNBC's chief legal correspondent Ari Melber, Cecile Richards, national president of Planned Parenthood, said Gorsuch has "a disturbing record on women's issues." Gorsuch has not ruled in a squarely joined abortion rights case, but the book-length dissertation that he wrote criticizing assisted suicide laws is viewed by abortion rights groups as a worrisome sign of pro-life views tilting toward a vote to overturn the landmark decision in Roe v. Wade. In the controversial Hobby Lobby case, he voted to allow religiously motivated employers to opt out of the Obamacare requirement to provide coverage for contraceptives in employee health plans.
      In like vein, Gorsuch's call to reconsider the 30-year-old precedent that established so-called Chevron deference toward federal administrative agencies would be, in the present context, a boon to business and anti-regulatory conservatives. Gorscuh's mother, now known as Anne Gorsuch Burford after a remarriage, was strongly criticized for dismantling environmental regulations while head of the Environmental Protection Agency under President Ronald Reagan.
      Despite the pronounced tilt in his opinions, Gorsuch is widely admired as a careful and cautious jurist. He is likely to be that much more cautious on the witness stand as outnumbered Senate Democrats seek to pin him down on major issues and highlight problematic opinions. But Senate Republicans who have voted in virtual lockstep for all of Trump's nominees so far seem unlikely to break ranks, making confirmation the most likely outcome after a contentious hearing and sharply debated votes in committee and on the Senate floor.

Sunday, March 19, 2017

On Travel Ban, Critics Hope Trump Keeps Talking

      Time and again over the past two months, Trump voters have defended the president's actions in office by saying that he is doing exactly what he promised during the campaign. Two federal judges took Trump at his word last week in parallel rulings to strike down Trump's revised executive order on travel and immigration. In rulings issued within hours but thousands of miles apart, both judges found that Executive Order 13,780 amounted to the "Muslim ban" that Trump promised during the campaign to institute if elected despite the administration lawyers’ efforts to explain it on national security grounds.
      With the rulings by federal district court judges Theodore Chuang in Maryland and Derrick Watson in Hawaii, the Trump administration has now struck out in court three times but is refusing to retire to the dugout. Instead, the administration appealed the decision in the Maryland case on Friday [March 17] and presumably is preparing to appeal the decision in the Hawaii case. The appeal in the Hawaii case could go to the same three-judge panel that previously upheld the injunction against the administration’s first executive order in a case brought by the states of Washington and Minnesota.
      At the risk of mixing sports metaphors, the two rulings on the administration’s revised order are the equivalent of an “own goal” in soccer. Both judges naturally cited Trump’s campaign promise to impose a “total and complete shutdown of Muslims entering the United States.” And they quote the Trump adviser Rudolph Giuliani as saying that Trump tasked him with coming up with “the right way to do it legally.”
      That was enough evidence to convince Judge James Robart in the Washington case that the first executive order was in fact a Muslim ban that violated constitutional principles on freedom of religion. Stephen Miller, a 30-something “senior” policy adviser in the White House steeped in anti-immigrant views since he was a teenager, gave the plaintiffs in the new cases the evidence they needed to kick the administration’s case into its own net. Interviewed by Fox News on the White House lawn, Miller declared that EO2 would have “mostly minor technical differences” from EO1 and would represent “the same basic policy outcome for the country.”
      The facts in the cases are bad for the administration, but the two new rulings, though strongly written, are by no means free of legal doubt. If one or both cases reach the Supreme Court, the outcome would be less than certain. And it could turn on the vote of a yet-to-be-confirmed ninth justice: hypothetically, Trump’s nominee for the vacancy, the conservative federal appeals court judge Neil Gorsuch.
      The administration claims that the ban on travelers from originally seven and now six majority-Muslim countries after Iraq was deleted from the list was needed to protect the homeland from attack by “radical Islamic terrorists.” The administration argued as justification that the Obama administration had warned against travel to those countries, but plaintiffs’ lawyers echoed immigration rights advocates in pointing out that no terrorist attacks within the United States have been linked to immigrants from the countries included in the ban.
      Trump was speaking to a political rally in Nashville right after getting word of the ruling in the Hawaii case. He called it a “political decision” and for good measure voiced regrets that he had been prevailed on to water down the original order. The partisan critique is belied, however, by the rulings in the Washington case. Robart was appointed by President George W. Bush; the three-judge panel that unanimously upheld the injunction he issued included two Democratic appointees — William Canby and Michele Friedland— and one Bush appointee, Richard Clifton. With 29 judges on the Ninth Circuit altogether, only five Republican appointees voted to rehear the government’s appeal of the injunction.
      The two new cases include individual plaintiffs with arguably stronger arguments for legal standing to challenge the executive order in court than the two states, Washington and Minnesota, that brought the earlier suit against the first executive order. Hawaii is the named plaintiff in that case, but the plaintiffs also include a local Muslim leader, Ismail Elsheikh, a U.S. citizen with a Syrian-born wife, who says the ban will prevent a family visit by his Syrian mother-in-law. The Maryland case, brought by the International Refugee Assistance Project, also includes individual plaintiffs with similar interests in travel by relatives from the affected countries.
      All three rulings collide with the usual deference that courts give to the executive branch on national security issues and with the usual preference to rely on representations in court over out-of-court statements, such as campaign speeches or news interviews. In addition, former U.S. solicitor general Paul Clement rebutted the criticism of the administration’s singling out of individual countries in the order. “You can't have an immigration regime unless you focus on the country of origin," he remarked at a law school appearance, noting as an example the 50-year ban on travel from Cuba.
      Still, plaintiffs’ lawyers are optimistic and confident. “Keep talking, Mr. President,” Omar Jadwat, the ACLU’s lead lawyer in the Maryland case, taunted in a blog post. Harvard law professor Alan Dershowitz similarly saw Trump as his own worst adversary in the case. The best thing the president could do for the case, Dershowtiz quipped, would be to stop talking — however improbable that might be.

Sunday, March 12, 2017

On Racial Justice, Thomas's Original Misunderstanding

      The Supreme Court struck a glancing blow for racial justice last week [March 6] by giving judges in criminal cases the power — and even the responsibility — to police racism in the jury room. The court's 5-3 ruling established a constitutional rule that entitles defendants to challenge a conviction if they have substantial evidence that a jury's verdict may have been tainted by racial stereotypes or animus.
      The ruling in a Colorado case seeks to enforce the Sixth Amendment's guarantee to "an impartial jury" by mandating a racial-bias exception to the general rule that prevents jurors from impeaching a verdict after the fact. The so-called "no-impeachment rule," aimed at protecting the confidentiality of jury deliberations, dates back to 18th century England and has prevailed generally in the United States but with a variety of specific exceptions.
      The ruling gives Miguel Peña-Rodriguez, a Mexican immigrant brought to the United States with his family as a child, a chance to overturn a sexual misconduct conviction that rested on shaky eyewitness testimony. In lengthy jury deliberations that ended with a compromise verdict, a former policeman told fellow jurors that Mexican men were sexual predators and that Peña's alibi witness, also Mexican, was not to be believed.
      The 5-3 majority in Peña-Rodriguez v. Colorado consisted of Justice Anthony M. Kennedy and the bloc of four liberal justices. Writing for the majority, Kennedy linked the ruling to an historical imperative: "The Nation must continue to make strides to overcome race-based discrimination," he wrote in a concluding paragraph.
      Writing for the three conservative dissenters, Justice Samuel A. Alito Jr. acknowledged the "great damage" from "even a tincture of racial bias" in the criminal justice system, but marshaled a series of doctrinal and practical objections to the "intrusion" into the confidentiality of jury deliberations. Chief Justice John G. Roberts Jr. joined Alito's opinion without writing separately, but Justice Clarence Thomas also added his own separate dissent to denounce the ruling as inconsistent with "the original understanding of the Sixth or Fourteenth Amendment."
      For Thomas, it was enough to know that the common-law right to a jury trial recognized by the English jurists William Blackstone and Lord Mansfield gave defendants no right to impeach a jury verdict with juror testimony about juror misconduct. Thomas cites his own concurring opinion from a 2000 decision as authority for limiting the Sixth Amendment right to the right as it existed in 18th century England.
      Even if one subscribes to the original understanding cult, Thomas overreads the history of the no-impeachment rule in 18th century England. The English common law gave judges the power to set aside a jury verdict because of "partiality." Thomas prominently cites a decision by Lord Mansfield in 1770 declaring that a juror's affidavit to impeach a verdict "can't be read." In a footnote, however, Thomas concedes that prior to 1770 juror affidavits "were sometimes received" to impeach a verdict though only "with great caution."
      Thomas concedes further that after independence American states took different positions on the issue in the 19th century. But he stresses, as the majority themselves acknowledge, that Lord Mansfield's rule had become "firmly entrenched" by the time the Fourteenth Amendment was ratified in 1868.  Thomas fails to note, however, that race was not an issue in 18th century England and that as of 1868 the United States had not even begun the effort to eliminate race from criminal justice system.
      For the original understanding crowd, history and law apparently stop there. But Kennedy notes in the majority opinion that some states began adopting more flexible rules by the early 20th century. He also lists in an appendix the 15 states and the District of Columbia that have recognized a racial-bias exception to the no-impeachment rule in judicial decisions going back as far as 1961. Answering the dissenters, Kennedy said none of the states have reported that jury deliberations have been chilled or that courts have had problems applying the exception.
      Colorado is one of nine other states that have codified exceptions to the no-impeachment rule generally to allow evidence of juror misconduct, such as use of alcohol or drugs or communication with nonjurors. The Colorado Rule of Evidence at issue in Peña's case followed many other states in allowing post-verdict evidence from jurors as to the use of extraneous prejudicial information, improper outside influence, or a mistake in the verdict form. The Colorado Supreme Court split 4-3 in rejecting Peña's plea for a full hearing to explore the influence of the racist juror's remarks on the other jurors.
      In federal courts, Congress enacted a no-impeachment rule in 1975, as recommended by the Supreme Court, that included only the three limited exceptions found in state rules. And the Court itself had declined to go further in decisions unrelated to racial issues in 1987 and more recently in 2014. In his dissent, Thomas argued that any further exceptions should be left to "the political process."
      For the majority, however, Kennedy said that eliminating racial prejudice from the criminal justice system could not be left to legislatures alone. "[B]latant racial prejudice must be confronted in egregious cases like this one . .  .," Kennedy wrote. "It is the mark of a maturing legal system that it seeks to understand and implement the lessons of history."

Sunday, March 5, 2017

Update on 'Deconstructing' the Administrative State

      Ryan Zinke marked his first day as secretary of the Interior by rescinding an Obama administration directive aimed at protecting wildlife from lead poisoning. News of Zinke's action appeared deep inside the print edition of the Washington Post, but the move fit in with the front-page story a week earlier featuring presidential policy adviser Steve Bannon's call for "deconstruction of the administrative state."
      Bannon used his appearance at the Conservative Political Action Committee's (CPAC) annual get-together in Washington last month [Feb. 23] to commit the Trump administration to an "unending battle" to roll back the web of federal regulations promulgated since the dawn of the modern administrative state. Those regulations help protect workers, consumers, investors, small business operators, and, yes, even birds and other wildlife. But in Bannon's doctrinaire mindset they do nothing but hold back economic progress.
      Zinke, a second-term Republican congressman from Montana, moved to the Interior post on March 3 after winning Senate confirmation on a mostly party-line vote of 68-31. Others of Trump's Cabinet nominees won confirmation on even closer votes. Most notably, Education Secretary Betsy DeVos became the only Cabinet nominee in history to need the vice president's tie-breaking vote for confirmation after two Republicans worried about DeVos's attacks on public schools joined 48 Democrats to produce a 50-50 deadlock.
      Trump has accused Senate Democrats of delay and obstruction toward his Cabinet nominees. In fact, the pace of confirmations has not been especially slow, but the succession of party-line votes has been unusual. Bannon's remarks at CPAC make clear, however, that Democrats had no choice but to oppose many, or even most, of the nominees.
      Many of the nominees, Bannon boasted to the conservatives, "were selected for a reason, and that is deconstruction." One example would be Scott Pruitt, confirmed on a 52-46 vote to head the Environmental Protection Administration (EPA) after having repeatedly sued the EPA in his previous position as Oklahoma attorney general.
      After six weeks in the White House, Trump has less to boast about than President Obama had after his first two months in office. Most notably, Obama won congressional approval of the $787 billion economic stimulus just four weeks after taking office and then watched the measure over the years help lift the country out of the worst economic slump since the Great Depression.
      Trump has nothing by way of legislative enactments despite Republican majorities in the House and the Senate, only a succession of executive actions. A list compiled by a lawyer with the conservative Southeastern Legal Foundation begins with the Inauguration Day freeze on new agency regulations pending installation of Trump nominees and continues through the Feb. 24 order for all agencies to create regulatory reform task forces and to report regularly on efforts to reduce regulation.
      More specifically, Trump acted to allow construction of the Dakota Access and Keystone pipelines, to re-examine finance industry reforms included in the Dodd-Frank Act, and to withdraw the so-called "Waters of the United States" rule aimed at limiting dumping toxic materials into tributary-feeding wetlands. Bigger plans are afoot, such as abolishing the independent Consumer Protection Finance Bureau (CPFB) and cutting EPA's budget by more than 25 percent.
      The list from the conservative legal foundation passes over what amounts to a series of "deconstruction" moves at the Justice Department under the second most controversial of Trump's Cabinet nominees, Attorney General Jeff Sessions.  The fourth-term U.S. senator won confirmation on a 52-47 vote, the closest ever for a successful attorney general nominee. With Sessions himself not voting, one Democrat crossed party lines to join the 51 other Republicans in voting to confirm their well-liked colleague.
      In his confirmation hearing, Sessions repeatedly assured senators, including skeptical Democrats, that he would enforce laws fairly and impartially at the Justice Department even if he had personal disagreements. Sessions has not been true to that commitment. Instead, he has moved to weaken legal protections for minority voters, transgender students, and civilian victims of police abuses.
      Within his first month, Sessions presided over a shift in the Justice Department's previous position of opposing Texas's restrictive voter ID law as an intentional act of racial discrimination. He also prevailed on his reluctant Education Department colleague DeVos to join in withdrawing the previous, jointly issued guidance directing public schools to allow transgender students to use bathrooms and locker room facilities corresponding to their gender identity.
      Most ominously, Sessions signaled that the Justice Department would drop the Obama administration's practice of investigating local police departments for "patterns and practices" of violating civil and constitutional rights. The Obama administration had used the authority granted under a 1993 law to investigate police abuses and promote reforms needed to prevent police killings of unarmed or unresisting civilians.
      Sessions deserved more scrutiny for these policy moves even before the disclosure that he misled the Senate committee in denying any contacts with Russian officials before the election. His decision to recuse himself from any investigation of the Trump campaign's contacts with the Russians was a no-brainer, but it fails to address the well-grounded calls that he resign in the light of his possible perjury before the Senate committee.
      Zinke's low-profile deregulatory move at Interior came as a sop to gun rights and hunting groups that had opposed the last-minute directive from the Obama administration. The directive called on managers of national wildlife refuges to phase out the use of lead ammunition on the sites by 2022.
      Lead poisoning is linked to the deaths of 10 million to 20 million birds annually; as the Post explained in its story. Lead poisoning occurs when fragments of shot are eaten by scavengers or leach into the environment. Hunters opposed the policy because copper or steel ammunition is more expensive.
     When he spoke to the nation's governors last month, Trump explained the slow progress on repealing and replacing the Affordable Care Act by saying that "nobody" knew that health care was so complicated. Federal regulation is easily demonized, but the rules that help make the economy work for the benefit of all are also complicated. Trump's nominees may come to realize that as they settle into their new jobs.