Category Archives: Supreme Court

A tragedy, and an uncertain future, but not the end

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Well, I tried, as did over 59 million American voters, but Donald Trump was not to be stopped.

The New Yorker’s editor, David Remnick, one of my favorite American journalists, called the election, “An American tragedy” — a triumph for “nativism, authoritarianism, misogyny, and racism.”

Trump’s victory is a victory for the old America and a rejection of the past eight years under Barack Obama. It’s a big step backwards, away from the America of freedom, openness, and multiculturalism that had brought millions of immigrants, like me, to its shores.

Not only did Trump improbably win the White House, but the Republican Party held on to its majorities in the Senate and the House. The political results will come swiftly: Merrick Garland, nominated many months ago by Obama to the Supreme Court will never become a member of the Court, whose conservative majority is now guaranteed for years to come. The Affordable Care Act could be abolished and the fate of those twenty million with new health insurance is unknown. The future of the nuclear deal with Iran is highly uncertain. “Get ready for a rough ride,” writes Los Angeles Times’ Doyle McManus.

Still, this is not the end of America. The political forces, from Trump himself and other Republicans to President Obama and Hillary Clinton, have all quickly urged the coming together to ensure the peaceful transition of power. We are Americans first, patriots first, said Obama. “We all want what’s best for the country.” Tomorrow, he will receive Trump in the White House.

For the anti-Trump forces, for the losing side, there are some silver linings in the dark clouds. Hillary Clinton won the plurality of the vote, 59,679 million to 59,472 million for Trump. But she lost the all-important Electoral College vote, failing to reach the magical number of 270. And that’s really all that counts. That’s happened before, most recently in 2000, when Al Gore won the plurality of votes but still lost the election to George W. Bush. It’s time to do away with this antiquate election system and elect America’s president on the basis of how many votes he/she gets.

California, Hawaii, Maryland, Massachusetts, and Vermont belong to the group of states where Clinton captured over 60 percent of the vote, followed by New York State with 59 percent, Washington State 56, and Illinois, New Jersey, and Rhode Island 55. In Washington, DC, almost 93 percent of the voters supported Clinton. For Trump, Wyoming gave him his largest victory margin with 70 percent of the vote, followed by West Virginia 69, Oklahoma, 65, North Dakota, 64, Alabama and Kentucky 63, and Tennessee 61 percent.

It was urban vs. rural, the two coasts vs. the heartland. The election shows a country split down the middle, more divided than anyone had realized.

The Democrats failed to capture the majority in the U.S. Senate but they had some success by electing three new, female, senators: Kamala Harris, California, Catherine Cortez Masto, Nevada, and Tammy Duckworth, Illinois, an Indian/African-American, a Latina, and a Thai-American. Maryland has a new U.S. Senator, Democrat Chris Van Hollen — my former Congressman — who, in turn, was succeeded by Jamie Raskin, also a progressive Democrat.

In Minnesota, which I have followed closely a few years, Clinton squeaked through with 46.8 percent of the vote, or 43,000 votes, but the Republicans increased their majority in the State House and captured the majority in the State Senate. Democratic governor Mark Dayton’s two remaining years in office will not be easy. Minnesota also elected the first Somali American to the State Legislature. 34-year-old Ilhan Omar, who came to America as a child after years in a refugee camp, captured 81 percent of the vote in her Minneapolis district and became not only the first Somali-American legislator in Minnesota, but in all of America. That’s not Trump’s America, but it is my America.

 

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Scalia’s death raises the stakes but also the question of reforms

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The presidential election campaign all of a sudden got more contentious, more exciting, and more important with the death of Supreme Court Justice Antonin Scalia, the leading conservative on the Court.

The voters on November 8 will now decide not only who occupies the White House after President Obama, and who controls the U.S. Congress, but also who, conservatives or liberals, will control the third branch of the American political system, the Supreme Court.

With Scalia gone, the Court is tied, 4 – 4, between conservative and liberal justices. An Obama appointment would almost certainly swing the Court to a liberal majority and, for the first time since 1972, the justices appointed by Democratic presidents would outnumber those appointed by Republican presidents. The change would be monumental.

The Republicans in the Senate led by majority leader Mitch McConnell have instantly made it clear that they have no intention to consider an Obama nominee, no what who that is. The decision to appoint Scalia’s replacement should be made by the next president. But Obama is not elected to a three-year but to a four-year term. He has almost a year left in office and he has, rightly, declared that he intends to nominate a new justice. So we are in for a big fight, a complicating, new factor in an election campaign already fraught with uncertainty and tension.

McConnell, who famously said during Obama’s first term that his primary political goal was to make sure that Obama was not reelected now wants to deny the president, who has already appointed two new high court justices, the chance to appoint a third. McConnell’s stern “no” could have serious election implications for the Republicans and their goal to keep their Senate majority, as NYT’s Nate Cohn outlines. We’ll see how this plays out.

The death of Scalia is also an important reminder of how totally unpredictable the system of appointing Supreme Court justices is. It’s time to change what’s been, rightly, called an undemocratic system by doing away with life time appointments and create more orderly nomination procedures with term limits and a retirement age. In Minnesota, to which I presently spend a lot of attention, the retirement age for the state’s highest court is 70. That’s a bit young, maybe, but why not 75? And why not a 20-year term limit? Or both?

Sadly, such reforms are seldom part of the American political dialogue. They should be, particularly as the politicization of the Supreme Court shows no signs of abating.

Yes, it was a remarkable week for Obama — and now on to gun control!

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It was a remarkable week for President Obama, as the New Yorker’s David Remnick writes so eloquently: “What a series of days in American life, full of savage mayhem, uncommon forgiveness, resistance to forgiveness, furious debate, mourning, and, finally, justice and grace.”

Indeed, it was a remarkable week for America, capped by Obama’s eulogy over the victims at the AME Church in Charleston, South Carolina. It’s a must to see and to listen to, for all American. So go ahead!

Now, let’s now hope the Confederate flag really does come down from the South Carolina State House, and everywhere else where it might fly. And let’s hope the discussion about the Affordable Care Act and same-sex marriage is over. Because it is done. Finished. Let’s move on!

Sadly, however, most Republicans, including the “clown bus” of presidential candidates, seem reluctant to do so, holding on to something that has passed them by. That doesn’t seem to be a  winning strategy, and it is disappointing.

And let’s hope the Democrats, going against their own President on the Asian trade bill, will come to their senses. I come from a country ruled by Social Democracy for decades and where everyone belongs to a union. Still, it is a country that firmly believes in international trade, in an open world, in the globalization that we are all experiencing. There is no going back here either, so how could Nancy Pelosi and the great majority of the other Democrats go so wrong? It is not a winning strategy for America, and it is, also, disappointing.

Remnick’s article talks about Obama’s “resolve.” He is still the President for another year and half, so let’s hope he uses that remaining time to move forward on gun control. The curse of guns in this country must come to an end. Let’s hope.

Finally, simple majority democracy has come to the Senate

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It’s been called the “nuclear option,” presumably because a decision to change the filibuster rules of the U.S. Senate would be so big, so historic and politically so consequential.

And today’s decision IS a huge deal, as Ezra Klein in his Wonkblog in the Washington Post explains. Most of all, the decision by the Democratic majority in the Senate is about democracy. Tired of the Republican minority’s obstructionist behavior through the filibuster, which has paralyzed the upper body of the U.S. Congress, the Democrats, with 52 votes to 48, said enough! Three Democrats, Carl Levin of Michigan, Joe Manchin of West Virginia and Mark Pryor of Arkansas voted with the Republicans, while the two Independents, Angus King of Maine and Bernard Sanders of Vermont, supported the Democrats.

Finally, simple majority will rule in the US Senate, just like it should in a democracy and just like it does in other democracies, whether the political power lies with a majority of twenty votes or one.  A majority is a majority.

The filibuster rule, that it takes 60 votes for decisions in the Senate, is not a written rule. It is not in the Constitution, and it was for decades seldom used. However, from 1967 to 2012, according to the Congressional Research Service cited by the Washington Post, majority leaders had to file motions to try to break a filibuster of a judicial nominee 67 times — and 31 of those, more than 46 percent — occurred in the five years with Obama in the White House and a Democratic majority, although not a 60-vote super majority, in the Senate.

The filibuster rule change means that the President’s federal judge nominees and executive-office appointments now can be confirmed by a simple majority rather than by the super majority that has been required for more than two centuries. However, there are two important exception: it will still take 60 votes to confirm a nominee to the U.S. Supreme Court and the filibuster can still be used on legislation.

Words of approval from the White House were heard after the vote.  Now, President Obama can get his three nominees approved to the U.S. Court of Appeals for the D.C. Circuit, often called the second most powerful federal court in the country. From   the Republicans in the Senate only howls of protests were heard.

“It’s time to change. It’s time to change the Senate before this institution becomes obsolete,” said the Senate’s Democratic majority leader Harry Reid.

Yes, it was the right thing to do!

Hey, Congressman, your vote does have consequences

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Today, I drove my cousin and his wife down to the National Mall in Washington, DC.  It was a sad an empty sight, with barriers in front of the monuments and museums and barely a  tourist soul in sight. The government is shut down. Hundreds of thousands of federal employees are forced to stay home, without pay. Washington, DC is practically closed.

But in the middle of this, Texas Republican congressman Randy Neugebauer visiting the Mall had the audacity to verbally attack a Park Service ranger in front of the closed World War II Memorial, saying that the Park Service should be ashamed of itself.

Hello! In what world does congressman Neugebauer live? Hey, there are consequences for how you vote, Congressman, at least in a democracy. But Neugebauer does not seem to understand that. The reason the National Mall is deserted today is that you and the other Republicans in Congress are sore losers. You lost on Obamacare. You lost in the Supreme Court. And you lost in last year’s elections, which came pretty close to being a referendum on Obamacare.

Have you never heard of majority rule? The minority never rules. That’s what voting and democracy are all about, and that is what really makes this present political stalemate so scary, well, such a scandal.  If you want to go out and overturn Obamacare, congressman Neugebauer, go out and win an election. That’s how it works!

As Tom Friedman wrote in yesterday’s New York Times, “the future of how we govern ourselves is at stake…”you can’t just put a fiscal gun to the country’s head.”

It’s high time to close Guantanamo Bay

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The terrorist prison at Guantanamo Bay is still open, in spite of what president Obama has declared and in spite of the many demands to close it.

As recently as last week, President Obama said that he continues to believe that Guantanamo should be closed.

“I think it is critical for us to understand that Guantanamo is not necessary to keep America safe. It is expensive.  It is inefficient.  It hurts us in terms of our international standing.  It lessens cooperation with our allies on counterterrorism efforts.  It is a recruitment tool for extremists… And I’m going to reengage with Congress to try to make the case that this is not something that’s in the best interest of the American people.  And it’s not sustainable.”  

Karen Greenberg, head of the Center on National Security at Fordham University Law School, is an expert on the Guantanamo prison. In an interview with me for my book America — Land of Dreams she said that Obama might have succeeded in closing Guantanamo immediately after he won the election in 2008, but he didn’t act fast enough, and he failed. And because Guantanamo is still open, we still have a system of “indefinite detention” and that, for me, she said, is “unacceptable.”

An article by Greenberg in the Washington Post last Sunday, called “Five Myths about Guantanamo Bay,” lays out the situation at Guantanamo today for the remaining 166 prisoners, of whom 100 are hunger-striking. Four of them have been hospitalized and 23 are force-fed.  Read it!

It’s high time to close Guantanamo.

Will President Obama finally take on the gun lobby?

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”We’ll see what happens. Obama still has to do something other than speak”, writes Amy Davidsons today on her blog ”Close Read” in The New Yorker.  Exactly!

ObamainNewtownBut President Obama’s speech last night to the grieving citizens of Newtown, Connecticut, was not like his speeches in Tucson, Arizona; Aurora, Colorado; or Fort Hood, Texas — scenes of previous mass killings during his first term as president – it went further, maybe even a lot further. And it had a different tone, more impatient, sadder, but also more full of resolve, and — more political.

”We can’t tolerate this any more. These tragedies must end. And to end them, we must change,”  he said and promised something he had not previously promised during his four years in the White House:

 ”In the coming weeks, I will use whatever power this office holds to engage my fellow citizens — from law enforcement to mental health professionals to parents and educators — in an effort aimed at preventing more tragedies like this. Because what choice do we have? We can’t accept events like this as routine. Are we really prepared to say that we’re powerless in the face of such carnage, that the politics are too hard? Are we prepared to say that such violence visited on our children year after year after year is somehow the price of our freedom?”

These sentences have resulted in the new hope that Obama, for the first time — finally, is ready to take on America’s culture of weapons and the country’s laws on weapons, or lack of laws. Can the tragedy in Newtown become the ”the tipping point?” We don’t know, but the pressures on the president to do something and fight for what he seems to believe in — to fight the “good fight” — even if that fight does not produce a victory against the gun lobby and its many supporters in Congress, have increased rapidly and markedly since Newtown.

What he can propose is well illustrated on the Washington Post’s “Wonkblog.” But the fight won’t be easy, regardless of strategy and proposals. There are no simple solutions, because the fight concerns a key issue for the American society. It’s about the “god Gun,”  as the historian Garry Wills writes on the New York Review of Books’ blog, which:

  • Has the power to destroy the reasoning process.
  • Has the power to turn all our politicians as a class into invertebrate and mute attendants at the shrine.
  • Has the power to distort our constitutional thinking. It says that the right to “bear arms,” a military term, gives anyone, anywhere in our country, the power to mow down civilians with military weapons. Even the Supreme Court has been cowed, reversing its own long history of recognizing that the Second Amendment applied to militias. Now the court feels bound to guarantee that any every madman can indulge his “religion” of slaughter.

Obama and Romney speak after Supreme Court ruling

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President Obama and Mitt Romney both made statements after the Supreme Court’s ruling earlier today on the President’s health care reform.

Here is Obama’s statement:

Here is Romney’s statement:

The health care law is going to be a big issue, to say the least, in the remaining four months of the presidential election campaign.

Supreme Court hands Obama big health care victory

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U.S. Supreme Court today presented President Obama with an historic victory when it declared his health care reform constitutional.

The victory came with smallest possible majority, 5 votes to 4, and it came, highly sensationally, by the very conservative Chief Justice John Roberts upholding the law when he sided with the four liberal justices. Usually, the role as the swing vote is played by Justice Anthony Kennedy, but this time Kennedy went hard against health care law and joined Samuel Alito, Antonin Scalia, and Clarence Thomas in the minority.

When the decision came down this morning, it quickly became clear that the major issue in the law– so-called individual mandate , i.e., that everyone must buy health insurance or pay a fine, was constitutional in that the mandate can be regarded as a kind of a tax, and Congress, of course, has the right to impose new taxes.

While the Democrats were jubilant, the Republicans, who were expecting a “no” from the Court, were deeply disappointed and the House Republican majority immediately declared to continue the fight to repeal the health care law. It remains to be seen how the Supreme Court’s decision will affect the presidential election in November, although the ruling seems to a big boost for Obama, and the Democrats, in general. A ‘no’ in the Supreme Court would have meant an enormous loss of prestige for Obama from which it would have been very difficult to recover.

The Supreme Court ruling is also a victory for America, the only major Western democracy without universal health coverage for its citizens. Obama’s health care reform does not institute universal coverage, but 30 million more American will now have health insurance so it constitutes a major step towards health insurance and health care for all Americans.

Here is the Supreme Court ruling with the warning that it is long, almost 200 pages!

Supreme Court decides fate of Obama’s health care reform

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An expected decision in June by the U.S. Supreme Court will decide the fate of the Obama Administration’s health care reform, the Affordable Care Act.

All major issues in America in the end reach the country’s highest court. So the fact that the Supreme Court today decided to take the case was no surprise. The Obama Administration wanted it, wanted to have the final arbiter decide the law’s fate, and wanted certainty in order to move forward.

“We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree,” said a White House statement.

But no one today dared to say with certainty what and how the nine justices on the Supreme Court will decide. In any case, a big battle is awaiting about the balance of power in the American political system, the extent of federal power, and the reach of Congress’ powers.

The June decision will come in the middle of the run-up to the presidential election in November. Whatever the outcome in the Supreme Court, its decision will be of great importance for the outcome of the election. A victory for reform, i.e., that it is consistent with the Constitution, will undoubtedly strengthen Obama and his chances in the election, while a victory for those who believe that reform violates the Constitution will be seen as a major setback for the president and greatly impair his re-election chances.

So much is at stake.

Lyle Denniston, veteran Supreme Court reporter, describes the thorny legal and constitutional problems on the SCOTUS blog and calls that which will now take place in the Supreme Court “an historic constitutional confrontation over federal power.”

The New York Times’ legal correspondent Adam Liptak wonders in today’s paper about how far the federal government’s power stretches and points to the many conflicting rulings in the lower courts that transcend all partisan political borders.