Damn!

There goes the Court:

Justice Ruth Bader Ginsburg, the demure firebrand who in her 80s became a legal, cultural and feminist icon, died Friday. The Supreme Court announced her death, saying the cause was complications from metastatic cancer of the pancreas. The court, in a statement, said Ginsburg died at her home in Washington, D.C., surrounded by family. She was 87.

Moscow Mitch and the holy rollers are licking their chops, because you know McConnell will ram through some brain=dead Christian Dominionist, or worse, to fill the vacancy.

There's much more to the article -- go ahead and read the whole thing.

Via Joe.My.God.

The Dreamers Can Keep Dreaming -- For Now

This "conservative" Supreme Court has handed Trump a double whammy this week, first deciding that "sex" as used in the Civil Rights Act of 1964 includes sexual orientation and gender expression, and now cutting his attempt to cancel DACA off at the knees -- on a technicality. Ian Milhauser examines the decision:

The legal issue in Department of Homeland Security v. Regents of the University of California, an extraordinarily narrow decision preserving the Deferred Action for Childhood Arrivals program, is quite small: whether the Trump administration completed the proper paperwork when it decided to wind down the program.

In a 5-4 decision, the Court held that the administration’s paperwork was insufficient, keeping the program alive for now.

They're so incompetent they can't even get the paperwork right. This is the key element:

The basic rule underlying Regents is that, even when a federal agency has discretion to implement a particular policy, it typically may not do so until it has provided a reasoned explanation for why it chose that policy. Though a court may not “substitute its judgment for that of the agency,” the same court has a duty to assess whether the agency’s decision “was ‘based on a consideration of the relevant factors and whether there has been a clear error of judgment.’”

This means DHS can try again. Hopefully, they'll as be so busy trying (and failing) to get the "president" re-elected that they won't have time.

For the Supreme Court nerds, it's worth reading the whole article.

Via Digby.

This is Probably a Must-Read

An interesting article on the future of LGBT rights -- and perhaps civil rights in general -- under the Trump Court;

There’s no denying it: efforts to protect LGBT+ persons through the federal courts suffered a substantial—perhaps devastating—setback when Justice Anthony M. Kennedy retired on June 27, 2018. The author of Romer v. Evans (1996), Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015), Kennedy had long played a key role in the U.S. Supreme Court’s invalidation of laws that discriminate against gay men and lesbians. His most recent decisions in that vein (Windsor and Obergefell) were written for a five-justice majority, with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito in dissent. Kennedy’s retirement augured the emergence of a solid conservative majority, now including Justices Neil Gorsuch and Brett Kavanaugh, whose members are very likely opposed to meaningful constitutional protection for LGBT+ persons as a class. As we assess the implications of that development, here are some key questions to consider.

It's a little dense, but worth reading. Especially striking was this section:

Will the Court Undermine Antidiscrimination Laws in the Name of the First Amendment?

A holding that Title VII prohibits discrimination against LGBT people would mean a lot less if the Court subsequently held that the First Amendment immunizes anybody who describes acts of discrimination as expression or religious practice. However, in recent years, the right-leaning justices have taken worrisome steps toward imposing novel constitutional limits on antidiscrimination law.

I can't help but wonder, though, whether the Court giving carte blanche to religiously inspired bigots might also be held as establishment of religion.

We'll see how it all turns out. I'm not optimistic, unless the House grows a spine and starts impeachment proceedings against, say, "I like beer" Kavanaugh, who probably lied during his confirmation hearings.

Today's Must-Read: Rogue Court: A Twofer

While the continuing circus of the shenanigans of the occupant of the White House and Congressional investigations are hogging the news, the Supreme Court is taking us back to barbarism:

On Monday, five justices of the Supreme Court authorized Missouri to torture a man to death. In the process, they appear to have overruled decades of Eighth Amendment precedents in a quest to let states impose barbaric punishments, including excruciating executions, on prisoners. The court’s conservative majority has converted a once-fringe view into the law of the land, imperiling dozens of decisions protecting the rights of death row inmates, as well as juvenile offenders. Its ruling signals the end of an Eighth Amendment jurisprudence governed by “civilized standards”—and the beginning of a new, brutal era in American capital punishment.

I don't want to paint with too broad a brush, but Gorsuch's decision as described in the article seems to reflect the attitude of the "Christian" right. It's difficult to excerpt, but essentially, Gorsuch has adopted an interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishment" that not only ignores sixty years of precedent, but ensconces the interpretations of Clarence Thomas and Antonin Scalia, which the Court has previous found "dangerously extreme", in the law.

That's bad enough, but when you add religious discrimination into the mix, it paints a pretty nasty picture:

Domineque Ray died at 10:12 p.m. Thursday night, by lethal injection at the Holman Correctional Facility in Atmore, Alabama. The execution was allowed to proceed after the U.S. Supreme Court declined to stay it earlier in the day on Thursday. The request for the stay came via a religious argument — the prison’s policy only allowed a Christian chaplain into the execution chamber. Ray’s attorneys argued this policy violated his religious freedoms—Ray was Muslim.

(Emphasis added.)

If this isn't a clear-cut violation of the Establishment Clause, I can't think of anything that would be. The Court's conservatives, however, did not address that issue: they thought it was all about the timing. But the timing wasn't really left to Ray's discretion:

The Alabama statute in fact provides that both the chaplain of the prison and the inmate’s spiritual adviser of choice “may be present at an execution.” The prison refused to give Ray a copy of its own protocols—so he only learned about the Christian chaplain rule on Jan. 28 and petitioned five days later. Too bad, says the court, the state’s urgent need to carry out the execution overcomes Ray’s religious freedom. Kagan concludes, pointedly: “Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.”

Just remember: "Elections have consequences."

Read them both.

With thanks to commenter billbear1961 at Joe.My.God.

Tweet du Jour

Here is the text of the #WeThePeopleAmendment introduced today by @RepJayapal. The amendment will overrule SCOTUS and make clear constitutional rights are for people, NOT corporations! https://t.co/VND2xxDgVB pic.twitter.com/r42lUIaPgS

— Move To Amend (@MoveToAmend) February 25, 2019

I remember reading the Court's majority opinion in Citizens United. As I recall, the "reasoning", if you want to call it that, was so tortured as to be embarrassing. If you want to wade through it, the decision is here. There's also a good, if somewhat dense, discussion at Wikipedia.

To say that this was one of the most controversial decisions in recent history is putting it mildly. It was also one of the most unpopular. (It's worth noting that a Google search for "Citizens United decision" turns up lots and lots of commentary, but I had to refine my search to "Citizens United decision text" to get the actual decision.)

At any rate, it's nice to know that someone is working on overturning one of the most damaging Supreme Court decisions ever. And it's sobering to realized that we can expect much worse now that the Republicans have managed to stack the Court with a "conservative" majority.

Thanks to commenter Max_1 at Joe.My.God.

Constitution? What Constitution? (Update)

From His Wannabe Majesty, Donald the First:

Trump told "Axios on HBO" that he has run the idea of ending birthright citizenship by his counsel and plans to proceed with the highly controversial move, which certainly will face legal challenges.

"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump said, declaring he can do it by executive order.

When told that's very much in dispute, Trump replied: "You can definitely do it with an Act of Congress. But now they're saying I can do it just with an executive order."

"We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States ... with all of those benefits," Trump continued. "It's ridiculous. It's ridiculous. And it has to end." (More than 30 countries, most in the Western Hemisphere, provide birthright citizenship.)

"It's in the process. It'll happen ... with an executive order."

"They're saying" again. He must mean the voices in his head.

And joining the chorus, first Sen. Lindsey Graham (R-Ol' Dixie):

Sen. Lindsey Graham (R-S.C.) on Tuesday said that he will introduce legislation to end birthright citizenship after President Trump suggested he wanted to do so through an executive order.

"Finally, a president willing to take on this absurd policy of birthright citizenship. I’ve always supported comprehensive immigration reform — and at the same time — the elimination of birthright citizenship," Graham said in a string of tweets.

He added that he plans "to introduce legislation along the same lines as the proposed executive order" from Trump. Congress is out of session until Nov. 13.

And of course, VP Mike Pence has to jump in:

But Vice President Pence said "we all cherish" the 14th Amendment but appeared to suggest that the administration had an opening if Trump issues an executive order.

"The Supreme Court of the United States has never ruled on whether or not the language of the 14th Amendment subject to the jurisdiction thereof applies specifically to people who are in the country illegally,” Pence said at a Politico event on Tuesday.

Pence is, as usual, playiing word games. while he's correct that the Supreme Court has not ruled specifically on the issue of children born to residents who are not legally in the country, the Court ruled quite definitely on the issue of birthright citizenship in United States v. Wong Kim Ark (1898), which doesn't really leave much wiggle room. (It's also interesting to note how much that decision made use of English Common Law and the Napoleonic Code,, for those who get all worked up about our courts even acknowledging foreign law.) The wording of the Amendment itself is quite plain, and the phrase "subject to the jurisdiction thereof" is quite thoroughly explored in Wong Kim Ark.

In the final analysis, this is going nowhere, but, like most observers, I think it's pretty obvious that this is another of Trump's attempts to get the deplorables to the polls.

Update: Via Digby, this analysis by Ian Milhauser goes into more depth:

Donald Trump, in an interview with Axios, said that he plans to sign an executive order stripping many Americans of their citizenship. Though it is unclear how far Trump wants to go, or whether he would attempt to retroactively strip many existing citizens of their citizenship, Trump apparently wants to target the children of undocumented immigrants.

“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits,” Trump falsely claimed. “It’s ridiculous. It’s ridiculous. And it has to end.”

Trump’s plan is unconstitutional. It’s not even arguably constitutional. It is so obviously unconstitutional that it was rejected by a notoriously racist Supreme Court more than a century ago. The few scholars who think that Trump can actually do this are considered radicals even within conservative legal circles.

By the way, that bull-pucky about being the only country in the world with birthright citizenship is, as might be expected, just that: bull-pucky. There are at least 30 other countries who recognize that right.

Well, That Didn't Take Long

Now that Rape-a-holic Kavanaugh is on the throne -- excuse me, I mean Supreme Court -- the government is jumping right in to give Tony Perkins another wet dream:

The Justice Department today told the U.S. Supreme Court that businesses can discriminate against workers based on their gender identity without violating federal law.

Solicitor General Noel Francisco told the high court that a civil rights law banning sex discrimination on the job doesn’t cover transgender bias. That approach already has created a rift within the Trump administration, contradicting the Equal Employment Opportunity Commission’s view of the law it’s tasked with enforcing.

This was, you understand, the EEOC's view under the Obama administration. They just haven't gotten around to changing their minds yet.

If the Court decides to take this case, it will be interesting to see what logical gyrations they undertake to find that Title VII does not protect against anti-LGBT bias. The Sixth Circuit was quite definite:

With its ruling in the funeral home case, the Sixth Circuit last year became the first federal appeals court in the country to conclude that transgender bias is sex discrimination under Title VII of the 1964 Civil Rights Act. It previously recognized transgender discrimination as a form of prohibited sex stereotyping.

The court said Harris Funeral Homes violated the law by firing Stephens after she told owner Thomas Rost she was transitioning to a woman.

“It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” Judge Karen Nelson Moore wrote for the Sixth Circuit.

The court rejected the company’s claim that Stephens overstepped a funeral home dress code requiring her to wear clothing corresponding to her birth gender and that allowing her to continue to work at the funeral home would distract mourners. It also said the company wasn’t protected by a federal religious freedom law, even though Rost said allowing Stephens to continue working would conflict with his Christian beliefs.

“You’re talking about someone with the same bundle of experience and qualifications coming back in the form of a woman,” Nevins said. “That sounds like not only a viable sex discrimination case but a slam dunk case.”

I wonder if they can come up with a decision as badly reasoned as Citizens United or Hobby Lobby.

Via Joe.My.God.

Image du Jour

From commenter Jean-Marc in Canada at Joe.My.God.:

In case you're wondering, it's referencing this story.

Well, Who Would Have Guessed?

Well, I guess that settles that:

Sen. Chuck Grassley (R-Iowa), the chairman of the Senate Judiciary Committee, released a statement Thursday claiming the FBI’s report on SCOTUS justice nominee Brett Kavanaugh found “no hint of misconduct.”

Why do I think that was the instruction given to the FBI? Maybe because of this:

Grassley added that the report contained nothing that “we didn’t already know.”

And it looks as though at least one Democrat agrees with me:

Just read the FBI report on Kavanaugh - if that’s an investigation, it’s a bullshit investigation. pic.twitter.com/9D8oeVMEoU

— Senator Bob Menendez (@SenatorMenendez) October 4, 2018

The link in the first post from Joe.My.God. cited above does not lead to the CNN report, as it claims, but to this, which is another confirmation of what I expected:

Two key Republican senators who have been undecided on whether to vote to confirm Brett Kavanaugh described the FBI's findings of an investigation into President Donald Trump's Supreme Court nominee as a thorough report, contrasting with Democrats' objections that the inquiry was rushed and incomplete.

Republican Sen. Susan Collins of Maine said Thursday that the FBI probe into allegations of sexual assault and inappropriate sexual behavior against Kavanaugh seems to be "very thorough" and said she would read the findings in full later in the day.

"It appears to be a very thorough investigation," Collins, who has not yet indicated how she plans to vote on the nomination, told reporters in the Capitol.

Collins is among a handful of senators whose votes could decide the fate of the nomination. The Maine Republican -- along with Republican Senators Jeff Flake of Arizona, Lisa Murkowski of Alaska and Democratic Senators Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota -- are under intense scrutiny for clues as to how they may vote on the nomination as Senate Republicans push for a final vote, which could happen as early as Saturday.

So they've got the cover they need to vote "yes". How nice for them.

How awful for the rest of us.

If anyone thought this "investigation" was going to produce anything substantive, or anything that in any way jeopardized Kavanaugh's confirmation, they've been living in an alternate reality.

And this in itself should disqualify him:

SCOTUS nominee Brett Kavanaugh took the unusual step of publishing a Wall Street Journal op-ed claiming he’s been a victim in the process.Wrote the candidate, who ran to the totally non-partisan FOX News for an interview when he felt his nomination was in trouble:

“As I explained that night, a good judge must be an umpire—a neutral and impartial arbiter who favors no political party, litigant or policy. As Justice Kennedy has stated, judges do not make decisions to reach a preferred result. Judges make decisions because the law and the Constitution compel the result. Over the past 12 years, I have ruled sometimes for the prosecution and sometimes for criminal defendants, sometimes for workers and sometimes for businesses, sometimes for environmentalists and sometimes for coal miners. In each case, I have followed the law. I do not decide cases based on personal or policy preferences.”

Based on his record, horsepucky.

Footnote: Here's one take on why the "investigation" was a sham.

Numb

I can't believe it took this long to get to Friday. I'm not even going to try to do a post on the Kavanaugh hearings -- it's all over the place, too many stories to digest, but the consensus is that Ford was more than credible and Kavanaugh behaved like a -- well, like a privileged frat boy.

And Trump is already bringing out "the Chinese stole the election for the Democrats" defense. I'll put in a link if I can find it again, but right now I'm rushed for time.

Today's Must-Read: The "Conservative" Court

Digby has a post on one part of the Kavanaugh hearings that I think everyone should know about. This graphic says it all:

This is from Sen. Sheldon Whitehouse (D-RI). The post includes a transcript of his opening statement. Key quote:

There is a feature to these eighty cases. They almost all implicate interests important to the big funders and influencers of the Republican Party. When the Republican Justices go off on these partisan excursions, there’s a big Republican corporate or partisan interest involved 92 percent of the time.

A tiny handful of these cases don’t implicate an interest of the big Republican influencers — so flukishly few we can set them aside. That leaves 73 cases that all implicate a major Republican Party interest. Seventy-three is a lot of cases at the Supreme Court.

Is there a pattern to those 73 cases? Oh, yes there is.

Every time a big Republican corporate or partisan interest is involved, the big Republican interest wins. Every. Time.

Let me repeat: In seventy-three partisan decisions where there’s a big Republican interest at stake, the big Republican interest wins. Every. Damned. Time.

And Kavanaugh will just make it worse -- a lock on the Supreme Court for the oligarchy.

Don't Hit the Panic Button

With Anthony Kennedy's retirement from the Supreme Court, the gay press is going nuts forecasting doom and destruction to gay rights, embodied in the predictions of the complete overturn of Obergefell. This is a good capsule of the prognostications:

MSNBC’s Ali Velshi said he’s worried that LGBT Americans could see their civil rights stripped away by President Donald Trump’s replacement for retiring Supreme Court Justice Anthony Kennedy.

Velshi warned a newly conservative high court could undo the landmark Obergefell v. Hodges ruling to legalize same-sex marriage, and he said LGBT people could find themselves at the mercy of state laws.

Velshi goes on to enumerate all we could lose if Obergefell is overturned.

As it happens, overturning Obergefell is not going to be that easy, in spite of the pronouncements of certified ignoramus Mat Staver. For starters, whoever wants to sue to end same-sex marriage has to prove that they're somehow harmed by it. How do you prove you've been harmed by marriage between two strangers? There's also the fact that the decision in Obergefell is solidly grounded in the Fourteenth Amendment's requirement for equal protection under the law and due process. As a reminder, the Fourteenth Amendment begins as follows:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Now, I realize the "Christian" right doesn't like the idea of everyone being treated equally, but that's America for you: it's in the Constitution, so live with it.

Velshi's guest, Sarah Warbelow of HRC, I think is more on target:

Sarah Warbelow, legal director for the Human Rights Campaign, said she believes same-sex marriage is settled law that one court ruling could [not] nullify.

“What we’re really worried about is the chipping away of rights under marriage,” Warbelow said.

She said Trump’s first court pick — Justice Neil Gorsuch, who was nominated after Senate Republicans refused to seat an Obama nominee — believed same-sex couples should have fewer rights than heterosexual couples.

“It’s this creation of skim-milk marriage that’s really at risk for LGBTQ families and couples around the country,” Warbelow said.

(I inserted the "not" because otherwise the whole passage makes no sense.)

What the right will try to do is chip away at marriage rights on the state level, leading to years of law suits. If one makes it up to the Supreme Court, there is a possibility that the "conservative" justices could find a way to weasel their way around the Fourteenth Amendmemt. One only need look at the "reasoning" in Citizens United and Hobby Lobby to see how far they would go. That, however, would be very unlikely to give them an excuse to overturn Obergefell.

So, don't look for any dramatic gestures from the Court on same-sex marriage. Watch out, though, for the chip-chip-chip that has worked for the retrograde element on abortion rights.

Today's Must-Read: We're Screwed

The Supreme Court seems to feel that police need to be protected from accountability when they shoot someone on a whim:

In recent years, the justices have regularly shielded police from being sued, even when officers wrongly shoot innocent people in their own homes.

They have done so by extending a rule adopted in the 1980s that gave government officials "qualified immunity" from being sued over constitutional violations unless they did something that the court already had clearly defined as illegal and unconstitutional. It is not enough to cite the words of the Constitution, such as its ban on "unreasonable searches and seizures." To bring a claim before a jury, the injured plaintiff must show the officer had obviously and unquestionably violated a recognized and specific right. In practice, this rule has served as a broad shield to prevent cases from proceeding.

There's a pending case described in the opening paragraphs of this article that may change this course, but I have no confidence that this Court will see fit to protect civilians from police misconduct: they're real big on authority. There is one small ray of hope, however:

Last year, Justice Clarence Thomas cited law professor Baude's criticism of the court's approach to these cases. "In the appropriate case, we should reconsider our qualified immunity jurisprudence," he wrote.

Yes, you read that right: Clarence Thomas wrote that.

However, given the Court's tortured reasoning in cases such as Citizens United and Hobby Lobby, I can hardly wait to see what rationale they'll come up with should they decide in favor of the police.

Yes, read the whole thing -- some of the incidents described are appalling.

As If You Didn't Have Enough to Worry About

How about Neil Gorsuch, Trump's prime suspect for elevation to the Supreme Court? Some of his opinions sound like he got his degree from the Southern Baptist Convention Seminary. As Dahlia Lithwick points out in identifying a "toehold" for Democrats to oppose the nomination:

But there’s another, almost more consequential issue at play when it comes to talking about Judge Gorsuch. It’s a problem that has to do with faith, and the many ways in which it has become the third rail of judicial confirmation politics. This has nothing to do with the prospective justice’s personal faith as an Episcopalian and everything to do with his willingness to let people of faith impose their views on others. The problem of religion in the courts centers on the alarming tendency to honor the claims of religious people that their suffering is the only relevant issue. If we cannot begin to have a conversation about why this is a problem, it will be all but impossible to talk about Gorsuch’s qualifications in a serious way.

Our current religious-liberty jurisprudence, as laid out by the Supreme Court in its Hobby Lobby opinion, is extremely deferential toward religious believers. What believers assert about their faith must not be questioned or even assessed. Religious dissenters who seek to be exempted from neutral and generally applicable laws are given the benefit of the doubt, even when others are harmed. Sometimes those harms are not even taken into account.

Gorsuch agrees with all of this and then some. His record reflects a pattern of systematically privileging the rights of religious believers over those of religious minorities and nonbelievers. It is, of course, vital and important to protect religious dissenters; the First Amendment could not be clearer. But the First Amendment is equally anxious about state establishment of religion, an anxiety Gorsuch is less inclined to share.

It's much worse than that:

It’s not just the great deference Gorsuch shows religious adherents that is worrisome. He also believes that the views of religious adherents are beyond factual debate. Again in the Hobby Lobby case, he wrote that companies must pay for “drugs or devices that can have the effect of destroying a fertilized human egg.” That claim is simply false, even with regard to Plan B. It is a religious conclusion, not a medical or legal one. Whether that view is his or he simply declines to probe whether the religious conclusion is accurate, the effect is the same: He has written into a legal opinion a religious “fact” not supported by medical science.

This kind of thinking matters especially when the tremendous respect for religious dissenters is not balanced against the harms incurred by nonadherents. Gorsuch sometimes minimizes or outright rejects the third-party harms of religious accommodations. As Yuvraj Joshi points out at NBC, “while the Supreme Court’s decision in Hobby Lobby considered the impact of the case on women, Judge Gorsuch’s opinion does not even acknowledge the harmful effects of denying access to reproductive health care on female employees and dependents. Instead, his sole concern is for religious objectors who feel complicit in the allegedly sinful conduct of others.”

The thrust of all those cases involving florists, bakers, photographers, etc. with regard to marriage equality has been to hold a certain group of "Christians" as above the law. The confirmation of Neil Gorsuch may very well cement that into our jurisprudence, in effect gutting the First Amendment Establishment Clause.

Via Tom Sullivan at Hullabaloo.

They Just Don't Get It

Sen. John McCain is still against filling Supreme Court vacancies -- if candidates are nominated by Democratic presidents:

"I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up," McCain said.

And then, of course, comes the "clarification":

"Senator McCain believes you can only judge people by their record and Hillary Clinton has a clear record of supporting liberal judicial nominees," said McCain spokesperson Rachael Dean. "That being said, Senator McCain will, of course, thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career."

One wonders if bullshit smells better in Arizona than in other places.

I really think it's time for the voters to retire McCain. Maybe he can get a gig co-hosting the 700 Club: two dotty old men telling people how to ruin their lives.

As Ian Millhiser points out at Think Progress, this is a very dangerous game:

The tactic that McCain is proposing is nothing less than an existential threat to the Supreme Court itself. Unlike elected officials, who wield legitimate power because they were elected by the people, federal judges cannot claim democratic legitimacy. Their legitimacy flows from their obedience to a written text and the knowledge that they were selected in a fair and constitutional process.

McCain, however, is effectively proposing that only Republicans should be allowed to choose Supreme Court justices. And, as McCain notes, two or even three more vacancies could open up on the Court during the next president’s term, as three current justices are quite elderly.

If those justices are replaced through the same legitimate process that every other justice has endured, then the Supreme Court retains the same legitimacy that it enjoyed before Scalia’s seat became vacant. But imagine a world where Scalia’s seat — and two others — remain vacant for five years because a Republican Senate refuses to confirm anyone named by the president.

What Millhiser doesn't mention is that eroding the legitimacy of the Supreme Court is in line with conservatives' attitudes toward the federal courts in general: they hate an independent judiciary because they can't control it. These are the people who railed against the Court's decision in Obergefell as "lawless" and "unconstitutional" (oxymorons if ever there were such). And these are also the people who created, first, the Tea Party, and now, Trump, who certainly has no discernible respect for the Constitution.

And most Americans think the Senate should just do its job, hold hearings, and vote. Senate Republicans are being viewed with a fair degree of cynicism on this:

A wide majority of Americans, moreover – more than seven in 10 – think Senate Republican leaders are refusing to hold hearings mostly for political reasons rather than because they think delay is best for the country. That view is shared by nine in 10 Democrats, three-quarters of independents and even a slim majority of Republicans.

Maybe Republicans should not be allowed to vote on Supreme Court nominees. Just leave it to the Democrats. Or maybe just not bother with a Senate vote at all.

Today in WTF?

All the leftie sites are carrying stories about Justice Sonia Sotomayor's dissent in Utah vs. Strieff. First, some background:

The Supreme Court issued an extraordinarily disappointing 5–3 decision on Monday in Utah v. Strieff, a Fourth Amendment case about police searches. . . .

Strieff itself involves a fairly simple question of constitutional law. Typically, when police illegally stop an individual on the street without reasonable suspicion, any fruits of that stop—such as the discovery of illegal drugs—must be suppressed in court, because the stop was “unreasonable seizure” under the Fourth Amendment. Strieff gave the justices an opportunity to affirm this constitutional rule. But instead, Justice Stephen Breyer joined the court’s four conservatives to add a huge loophole to that long-established doctrine. In an opinion by Justice Clarence Thomas, the court found that if an officer illegally stops an individual then discovers an arrest warrant—even for an incredibly minor crime, like a traffic violation—the stop is legitimized, and any evidence seized can be used in court. The only restriction is when an officer engages in “flagrant police misconduct,” which the decision declines to define.

The end result of this decision, according to Justice Sotomayor (and anyone else who still has two functioning brain cellsl), is far-reaching, to say the least. She concludes:

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

In short, anyone is fair game.

Let me leave you with this parting thought, courtesy of Linkin Park:

Welcome to American, land of the free -- once upon a time.

Sweet Dreams Are Made of This

From the Washington rumor mill, this:

Justice Clarence Thomas, a reliable conservative vote on the Supreme Court, is mulling retirement after the presidential election, according to court watchers.

Thomas, appointed by former President George H.W. Bush and approved by the Senate after a bitter confirmation, has been considering retirement for a while and never planned to stay until he died, they said. He likes to spend summers in his RV with his wife.

His retirement would have a substantial impact on control of the court. The next president is expected to immediately replace the seat opened by the death of conservative Justice Antonin Scalia, providing a one-vote edge in the court that is currently divided 4-4.

Of course, these "court watchers" are anonymous, and absent any independent corroboration, I'm taking it as rumor.

But one can dream.

And via NCRM, Keith Olberman nailed it:

Keith Olbermann Verified account ‏@KeithOlbermann

Wait. Clarence Thomas may be the next to leave the Supreme Court? How will we be able to tell?

• Retweets 451
• Likes 980
• 

12:32 PM - 19 Jun 2016

451 retweets 980 likes

 

Today's Must Read

Very interesting article at The New Civil Rights Movement by Claude Summers on Justice Anthony Kennedy's "jurisprudence of dignity."

Justice Kennedy is author of four historic gay rights rulings from the Supreme Court, Romer v. Evans (1996), Lawrence v. Texas (2003), U.S. v. Windsor (2013), and Obergefell v. Hodges (2015). These decisions, each building upon the other, are marked by a deep concern for human dignity. More precisely, they address forthrightly the ways in which discrimination against lgbt individuals is an affront to personal dignity. Indeed, his rulings on gay rights may be said to constitute a jurisprudence of human dignity, one that has expanded and given heft to the principle of equal protection under the law.

There's more, including historical background on Kennedy and these four crucial cases, and several videos. The CBS Special Report on the decision on Obergefell especially is worth watching -- it gives a good sense of the excitement of the day. In fact, here it is:

Today's Must-Read

From Bruce Hay, one of Antonin Scalia's former law clerks:

His own weapon was the poison-barbed word, and the battleground was what he once labeled the Kulturkampf, the culture war. The enemy took many forms. Women’s rights. Racial justice. Economic equality. Environmental protection. The “homosexual agenda,” as he called it. Intellectuals and universities. The questioning of authority and privilege. Ambiguity. Foreignness. Social change. Climate research. The modern world, in all its beauty and complexity and fragility.

Most of all, the enemy was to be found in judges who believe decency and compassion are central to their jobs, not weaknesses to be extinguished. Who refuse to dehumanize people and treat them as pawns in some Manichean struggle of good versus evil, us versus them. Who decline to make their intelligence and verbal gifts into instruments of cruelty and persecution and infinite scorn.

This is the Supreme Court justice beloved of the right, the same one who thought that procedure is more important than innocence.

Read the whole thing -- it's devastating.

Via Bark Bark Woof Woof.

Today's Must-Watch: The Real Scalia Legacy

Cenk Uygur, a reformed conservative (can we say "ex-rightie"?), on the rush in conservative circles to create the myth of "Antonin Scalia, the Greatest Legal Mind Ever."

Scalia's comments about evolution are total bullshit. And no, most people have not believed in the Devil. Jews didn't even believe in Hell or the Devil (as Christians conceive of him) until late.

I'm sure you can find more nonsense.