ANTONIN SCALIA

ANTONIN SCALIA

I remember when I heard his name for the second  time.

The first time was in the summer of 1981.  Ronald Reagan had been President for about seven or eight months and The New York Times ran a story listing a group of law professors he intended to appoint to the various U.S. Courts of Appeals.  Scalia -- along with Posner, Bork, Winter and Easterbrook -- was on the list.  All of them were ex or current law professors.

And constituted President Reagan's brigade of conservative intellectuals.

The second time was about a year to two thereafter.  By then I was working as a law clerk for one of Reagan's brigade.  In between bench memos, opinion drafts and editing conferences, we clerks drank coffee and socialized with the judge (who, by the way, are in need of constant socializing for the simple reason that being an appellate judge is a very lonely job).  At one of those coffee klatches, we were speculating on who President Reagan would pick as his second appointee to the Supreme Court (Sandra Day O'Connor had been his first, very early in his initial term.)

The Judge's candidate was . . .

"Nino" Scalia.

Who, by then, I had totally forgotten.

When I asked why that would happen, the answer had nothing to do with judicial philosophy or originalism or antidotes to liberal activism.  Instead,  according to my boss, Scalia would get the nod because he was Catholic and Italian.  At the time, the Supreme Court lacked the latter and had only one of the former.

Wow!

I never thought I'd ever say this .

But let's bring back the good old days . . .

When politics was normal and even Supreme Court justices were evaluated by more than their fidelity to extremist ideologies.

Because we are nowhere near normal today.

Justice Scalia, as everyone now knows, died yesterday.  Instead of a bi-partisan period of mourning, we have been catapulted into a year long political mud wrestle.  In the not too long ago old days, Justice Scalia's death would have been greeted with a bi-partisan period of mourning -- one where opponents and adversaries praised the intellectual firepower, side-splitting humor, and genuine loyalty of the man.  Today, however, Nino's passing to the other side is met with an obligatory nano-second of condolences, followed by a torrent of hypocritical posturing.

This is all so childish.

Indeed, so much so  that we have to revert to kids rules even to referee the contest.  Under which, the first comment that has to be made is  .  .  .

Sen. McConnell started it.

That's right.  

Within an hour of the announcement of Justice Scalia's death yesterday, McConnell issued a statement saying that the seat on the Supreme Court left vacant thereby "should not be filled until we have a new President."  McConnell asserted this was necessary because "the American people should have a voice in the selection of their next Supreme Court Justice."  Of course, the American people already had such a voice.  They exercised it in 2012 when they re-elected Barack Obama to the Presidency, a position which -- on this issue -- comes with a written job description -- called the Constitution -- entitling the holder to nominate justices to the Supreme Court when vacancies arise. Though conservatives like McConnell regularly praised Justice Scalia for a commitment to enforcing our founding text as written, that rule apparently has been waived in the last year of the Obama presidency.

McConnell's hypocrisy was then met with a cascade of supporting endorsements.

In the Republican debate last night, five of the six left in this season's crop of GOP ideologues agreed that Obama either shouldn't -- or would not be allowed to -- fill the vacancy.  (The outlier was Jeb Bush,  who -- given his relentless attacks on Trump and now unique willingness to abide by the Constitutional rules on selecting members of the Supreme Court -- has become the only GOP candidate I can remotely respect.)  In any case, the Gang of Five claimed there was "precedent" for this refusal, invoking at or after the debate different versions of the assertion made by Republican Sen. Grassley that "It's been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year."

That claim, however, gives hyperbole new meaning.

At one level, it is demonstrably false.   If eighty (80) years is a cutoff, then there have been at least two instances where confirmations have occurred in presidential election years. Justice Butler -- a Roosevelt appointee --  was confirmed in 1940,  and Justice Kennedy, though nominated by President Reagan in November 1987, was confirmed after hearings were held in 1988, both Presidential election years. 

The notion that there is something magical about eighty years is also sheer nonsense. In fact, the reason Grassley chose it is because, before 1940,  there had been numerous Supreme Court nominations and confirmations in presidential elections years. President Taft did it in 1912; President Wilson did it (twice) in 1916; and President Hoover did it in 1932.  Among those ostensibly politicized jurists who, in Sen. McConnell's words, the American people never had a "voice" in selecting were Justices Brandeis and Cardozo.  Brandeis was one of Wilson's appointees in 1916 and Cardozo was Hoover's in 1932.

Neither, of course, were judicial lightweights.

In fact, both of them became giants on the Supreme Court, lauded in their day with the encomia being laid at the feet of Justice Scalia today.

On Meet the Press this morning, conservative talker Hugh Hewitt said the Kennedy confirmation in 1988 didn't count, ostensibly because the nomination came in late '87 (oh what a difference two months makes) and followed the Senate's rejection of President Reagan's original nominee for that vacant seat (Robert Bork).  (Hewitt would say the same thing about the 1912 and 1940 confirmations because, in each case, those nominations were announced late in the year before.)

As with many explanations designed to fit pre-determined conclusions, this one turns out to refute itself.  On the one hand, the Senate's deliberations and vote on the Kennedy nomination -- namely, all the interesting and contentious stuff -- occurred in a presidential election year, as will be the case when Obama sends his nominee to the Senate this year.  The two circumstances are perfectly comparable.  On the other, apart from Constitutional requirements, the reason hearings and deliberations had to go forward on Justice Kennedy (after the Bork rejection) is that the Court would have been operating for too long without a sitting ninth justice.  It would have had only eight members instead of nine, creating the possibility of four to four splits.

The problem of equal division cannot be gainsaid.  Without Scalia, the present Court on most contentious issues -- abortion; the right of unions to charge non-members a fee for having negotiated wages; the death penalty; whether Obamacare is authorized by the commerce clause -- is now split four to four. The consequence is that it really cannot decide anything on those cases or issues. Granted, some of them are over (e.g., whether the commerce clause authorizes the Affordable Care Act; it doesn't under current precedent but the taxing power does so the ACA is constitutional). Others, however, are alive and on the Court's current docket.   

If the Court hears these cases and remains deadlocked at four each, the lower court decisions and orders will be deemed "affirmed by an equally divided Court."   In other words, the Supreme Court will no longer be supreme.  Instead, that honor will fall to a lower panel of appellate judges.  And it gets worse.   The federal appellate courts -- there are twelve of them throughout the country -- are often split on issues; in fact, disagreement among the various appellate circuits, and even within them, is a typical reason the Supreme Court agrees to hear a case in the first place.  With a deadlocked court, those splits remain and what is illegal in one jurisdiction can be legal in another. 

That's not the rule of law.

It's chaos.

Had the Democrats not gone forward with hearings and a confirmation vote on Justice Kennedy in 1988, the seat he filled would have been left vacant for more than a year.  If today's Republicans do not hold hearings and confirm an Obama nominee, the vacancy period will be as long.  In 1988, the Democrats controlled the Senate, just as the Republicans control it today.  Had the Democrats wanted to, they easily could have refused to go forward with hearings on Justice Kennedy and taken their chances on winning the Presidency.  But they didn't. 

Because . . .

Sometimes politicians really do put country first.

Finally, there is the whole question of what -- precisely -- Sen. Grassley means when he says there is an eighty (80) year-old "standard practice" of  avoiding Supreme Court confirmations in presidential election years.  As far as I can tell from the historical record, this has occurred only once, with Abe Fortas's nomination to replace Chief Justice Warren in 1968, and in that case, President Johnson did not pull the nomination because it was a  presidential election year; he pulled it because the nomination was being filibustered on a bi-partisan basis.

In Sen. Grassley's arbitrary eighty years, the only other time -- after Justice Kennedy in 1988 --  there was even the possibility of an election year nomination and confirmation was in 1956 when Justice Brennan replaced retiring Justice Minton.  In that case, however, far from refusing to go forward, President Eisenhower actually put Brennan on the Court with a recess appointment that did not even require Senate action. (Though Brennan was thereafter re-nominated and confirmed in 1957 when the Senate was back in session, no one appears to have drawn and quartered Ike for having jumped the appointing gun in a presidential election year.)

Why are we in this mess?

The answer is division,  and -- frankly -- a Republican Party bound by nothing other than the hypocritical assertion of its raw power.  The arguments about "standard practice" and allowing the American people a "voice" are transparently false.  There has been no standard practice (if anything, there's been the opposite) and Americans decided three plus years ago who should fill a Supreme Court vacancy were it to occur in 2016.  They did that in 2012 and the guy they chose was Obama -- not Romney, or any of the six Republicans now running for President, or even Hillary or Bernie Sanders.  None of them has the right to make this decision and giving it to any of them would not honor the Constitution.  It would demean it.

The GOP is preemptively telling Obama it will not go forward on anyone he sends up for one and only one reason.  And that is this . . .

It can.

And, unfortunately, the reason the GOP embraces this raw assertion of power, draping it in a curtain of false justifications, is that this approach worked in the past.  In fact, it worked in the not too distant past . . .

In 2000 . . . 

When five unelected justices invented an equal protection claim that had no precedential support, stopped a re-count which had been ordered by a state Supreme Court, effectively got to vote twice, and then (illegitimately) put George W. Bush in the White House.

One of those Justices was Antonin Scalia.

I praise his intellect, his devotion to public service, his sense of humor, his enormous family, and his close friendship with the liberal Justice Ruth Bader Ginsburg, the latter of which proves he did not take himself too seriously and which -- in the ethereal circles he travelled for almost thirty years of his life -- was a very good thing.  

I am proud he and I graduated from the same Jesuit high school -- Xavier -- in lower Manhattan.  The Jesuits know how to educate people and in his case they obviously did not fail.  

Nevertheless, Antonin Scalia wasn't a genius and his jurisprudence created more problems than it solved.  The invented basis that led to the appointment of Bush II was one of them; we are still dealing with its consequences at home and abroad.  But there were others, principally in the form of an asserted devotion to text that proved to be much less consistent, and much more unbounded, than he (or his legion of conservative supporters) claimed it to be.  Contra Scalia, the Constitution is not a "living" document because a bunch of liberal ex-law professors sitting on the Supreme Court say it is.  It is a living document because the founders used words -- like due process and equal protection -- that do not have fixed meaning.  Today's conservative jurists rarely see this.

So . . .

May Justice Scalia  rest in peace.

And may the rest of us survive his legacy.

WHAT'S WRONG WITH DONALD TRUMP

WHAT'S WRONG WITH DONALD TRUMP

I am writing this just before the Iowa caucuses are set to begin. According to the latest polls, the GOP caucus is a dead heat between Donald Trump and Ted Cruz.  Rubio is a distant third, followed by everyone else far back in the pack.

Over the course of the last year, no one has been able to de-rail the Donald.  The other candidates have failed, even when they have tried (and most of them haven't).  Ditto the media.  Jeb Bush was not far from the truth in the last Republican debate -- the one without Trump (which also seems not to have dented him) -- when he said that most of his co-candidates were MIA earlier in the year when he tried to take on Trump. 

Actually, Bush the Third said they were in the "witness protection program."

But, for our purposes, that's basically the same thing.

In any case, this teflon Trump has everyone flummoxed.  

No one can figure out what is wrong with him, though all are certain something has to be.  His polling floor (about 35%) seems also to be his ceiling, making it difficult for him to grow his vote.  His campaign is based almost entirely on insult; in fact, the New York Times yesterday published an exhaustive list of all the insults he has tweeted over the course of the campaign, as well as all the targets of his vitriol; the list reads like it's the work of an over-testosteroned adolescent (which it well may be).  

His policy proposals border on being stupid, whether they're about building a wall across the southern border (expensive and utterly unnecessary given the fact that more illegals are leaving than arriving), or stopping non-citizen Muslims at any of them (dead on arrival in any court and cat-nip for the terrorists), or repealing and replacing Obamacare (without remotely specifying what the "replacement" will amount to), or denying global warming.  He claims he will create economic growth at the annual rate of 6%; the plan, however, is nothing but the re-jiggered tax cutting Republicans have been advocating and practicing for thirty years, and it has never done so.

Still, the Donald marches on.  And the question is . . .

Why?

Here's the answer.

First, he is at this moment swimming in the smallest of ponds, namely, the GOP primary electorate. Over the course of the last thirty years, that electorate has become (1) increasingly (and radically) right wing and (2) increasingly (and disturbingly) angry. Though some of Trump's one line policy positions are not shared by all of that group (e.g., ending the carried interest loophole for hedge funders), his crypto-fascist xenophobia either is (or is ignored as a needed "conversation starter"). And the insults are simply embraced and adored, which is basically what happens when anger becomes a substitute for reason.

Nevertheless, 35% of the GOP electorate is about 10-12% of the country, and 10-12% does not an ultimate victory make.

Lots of nuts have squirreled away similar slices of the American electorate over the years  (e.g., the Know Nothings in the 1850s, who wanted to stop Catholics from voting, increase the naturalization period from five to twenty-one years to stop immigrants from becoming citizens, and -- when all else failed -- actually kill Catholic voters on election days).

None of them, however, have wound up running the country. 

Second, his current competitors -- with the exception of Bush -- aren't attacking him correctly.  In fact, they can't.  They all want Trump's voters on the day the Donald loses.  So, the attack on Trump's temperament -- which in any normal year would be an immediate disqualifier -- is watered down. Instead of calling him a carnival barking, thin-skinned, dangerous clown who should get nowhere near the nuclear button,  he is treated as an entertaining showman (by Rubio), or as "inexperienced" (Christie's take on the Muslim ban), or as just "overreacting" (Fiorina on the ban).  The total cowards simply disagree politely (Cruz on the Muslim ban -- "that is not my policy"). 

You cannot,  however, beat a bully with an airbrush.

You have to knock him down.

Third, because his current competitors are treating him with kid gloves, Trump has been given a pass on his putative strength as a businessman and deal maker, all of which is at this point assumed by anyone watching the coverage.  The problem with that view, however, is that it is wrong.  Indeed, as Tim O'Brien recently wrote for Bloomberg, "a well-documented and widely reported trail of bad deals litters Trump's career as a real estate developer and gambling mogul." O'Brien continued: "Fueled by a slew of bank loans in the late 1980s, Trump absorbed an airline, a football team, a landmark hotel, a bunch of casinos, a yacht, and other nifty stuff -- almost all of which he lost because he couldn't juggle the debt payments."  

As importantly, on the only real-estate deal he tried to maintain over a period of years -- his plan to develop Manhattan's West Side Rail Yards into a $4.5 billion "Television City" that would combine residential and commercial space and provide a new home for NBC -- he was stiff-armed by NYC's then-Mayor Ed Koch and ultimately wound up with only collateral interests worth a fraction of his planned return on a project owned by foreigners.  His response to all of this -- typical of him even then -- was to insult Koch.  But Koch -- who could out-Trump Trump -- had the last word, telling reporters that the Donald was "squealing like a stuck pig" as his deal went south.

The lesson is clear.  If Trump deals as President the way he has dealt as a business tycoon, we are in trouble.  His deals are usually not that great.  When they go south, he creates the appearance of success by plastering his name on buildings and then jumping on the gold plated jet.  As the Texans say, he's all hat and no cattle.  This won't work in the White House.  All the people Trump is now insulting will be watching.  And watching the Donald botch the latest G-8 summit (he can't fire Merkel et. al.), or budget negotiations (he can't fire Congress), will become a cottage industry.

The other lesson inheres in exploring why Trump's deal-making has been so poor.  The underlying cause appears to be a lack of focus. According to reports, he is good for about a month on any one project and then gets bored.  This too, however, is a character trait pregnant with disaster.  Put simply, we do not need a President with the political equivalent of attention deficit disorder.

In his life, when the going has gotten tough and the deals have started to fizzle, Trump's default move -- packaged in an array of insults -- has been to bail.  Is that what we are looking at here?  

If so . . .

He may have a lot more in common with Sarah Palin than we ever suspected.