News Sips 1/31: The SCOTUS Nominee, So Long Sally, Obama Can’t Resist, and the Nuclear Fili-bluster

Here are the four things you need to know before your coffee gets cold, the January 31, 2017 edition:

SCOTUS Nominee Tonight

At 8pm tonight, the President will announce his pick to replace Justice Antonin Scalia on the nation’s highest court. Justice Scalia, who died last February 13, was not replaced because Senate Majority Leader Mitch McConnell decided not take up the nomination of Obama appointee Merrick Garland. The rationale, for McConnell, was that, in an election year, the people should decide who they wanted to appoint the replacement to Justice Scalia (also, given the ideological makeup of the Court, an Obama appointee would have lurched the Court leftward, regardless of the centrist-credentials of Garland). McConnell’s gambit caused the left to howl and the right to nervously look at judges who Hillary Clinton may have appointed to the Court.

However, Mitch McConnell was vindicated and the American people voted for Donald Trump. One-in-five voters according to exit polls from ABC News saw the Supreme Court vacancy as the most important issue in their choice for President. Of these voters, 57% chose Trump. Mr. Trump now has the opportunity to make good on his campaign promise to appoint a Justice in the mold of Justice Scalia.

Though Mr. Trump has certainly been prone to unpredictability, there is a growing sense of confidence that he will pick one of the following Judges: Neil Gorsuch, Thomas Hardiman, William Pryor, or Diane Sykes. Most “smart money” is on Judge Gorsuch from the 10th Circuit who has significant Supreme Court credentials, including clerking for a Justice, attending both Harvard and Oxford, being a keynote speaker at conservative legal forums, writing a book generally opposed to the practice of euthanasia, and his rulings against the Obama Administration in the Hobby Lobby religious objection to the “Affordable Care Act” (Obamacare).

It should be noted, before people on the right start potential hand-wringing over which Judge gets picked, of the four presented, above, all of them would be solid ideological replacements for the late Justice Scalia. Of course, there are always situations where being on the Supreme Court could change someone’s views, but, given the information and the rulings we’ve seen from each of the names floated (and given that the original list of 21 judges Mr. Trump released on the campaign trail had been created with help from the Heritage Foundation), there’s little doubt as to the conservative, originalist, bona fides of the nominee.

 

So Long Sally

Late yesterday afternoon, the acting Attorney General (Senator Jeff Sessions has yet to be confirmed by the Senate because Democrats are dragging their feet on the nomination), Obama appointee Sally Yates informed the Justice Department that she had serious misgivings about the President’s Executive Order putting a pause on migrants from seven terror hotspots in the Middle East and Africa. She contended that she felt the Order may be unconstitutional.

Suffice it to say, Mr. Trump, true to his character on the Apprentice, promptly fired the acting Attorney General and appointed the US Attorney for the Eastern District of Virginia, Dana Boente, to take her place. Notably, Mr. Boente was an Obama appointee, as well. However, he quickly reversed the course of Ms. Yates and instructed the Justice Department to follow the law.

It’s important to note a few things on this story. First, the Executive Order was cleared in advance of its issuance by the Justice Department’s Office of Legal Counsel. The acting Attorney General to come out against the Order’s constitutionality effectively calls her own office out for doing something that had violated the Constitution. More importantly, however, Ms. Yates serve(s/d) at the pleasure of the President. She knew what she was doing when she flaunted her custodial position against the President.

There was no “Saturday Night Massacre” in this case (referring to the infamous firings under President Nixon when he sought to remove the Special Prosecutor investigating Watergate and kept firing members of the Department of Justice until Robert Bork complied with the President’s directive). Rather than start pruning the upper reaches of the Department of Justice, Mr. Trump simply fired Ms. Yates and appointed a new custodian of the DOJ until Senator Sessions is confirmed. Senator Sessions is expected to get a favorable report from the Judiciary Committee today and could be confirmed later this week.

 

Obama Can’t Resist

The retired ex-President, private citizen Barack Obama just couldn’t help himself. Less than two weeks after leaving office, Mr. Obama has decided to wade back into politics and weigh in on the side of people protesting against President Trump’s decisions. Of course, this flies in the face of the tradition of ex-Presidents not commenting on the actions of their successors. Certainly, Mr. Obama’s gutting of Bush-era policies and forcing the Obamacare mandate on average Americans likely caused outrage for the ex-President, but he had the grace and class enough to realize that there’s only one President at a time. So, George W. Bush stayed silent.

The tradition is not simply just for the graceful Republican ex-Presidents. While Presidents Clinton and Carter have been more vocal that the Presidents Bush, they have certainly opted for a more tempered approach to criticizing the men who followed them in office and certainly gave deference and distance between the transition and any criticism. Not so for Barack Obama. He made it clear before he left office that he would embark on a classless endeavor to continue to delegitimize the election of Donald Trump. We knew it was coming and shouldn’t be surprised. However, that certainly shouldn’t mean that the practice should be condoned or supported.

More important than the classlessness of the ex-President directly chiding his successor less than two weeks after leaving office is the fact that the current President’s opponents will likely see the affirmation as a blank check to increase their protests and dissent. While the right to protest is important, it remains irresponsible to pour fuel on a fire. Mr. Obama’s severe lack of tact and desire to play politics may undermine the current Administration (which, surely, is his goal).

 

Nuclear Fili-bluster

Tonight, we will find out who the President will be appointing to the Supreme Court. This nominee will, of course, be met with criticism from the Left. The “news” articles from CNN and the New York Times have already been written panning the choice as a conservative firebrand who wants to force women into back-alley abortions, take away grandma’s healthcare, and break up gay families. No one will be surprised by the commentary. It’s de rigueur for the left.

However, Senate Democrats have dropped all pretense about “thoughtful consideration” of the President’s nominee with Senator Merkley from Oregon saying that he will filibuster the nominee (requiring a 60-vote threshold to end debate and move to confirm) on principle. His logic: Mitch McConnell gummed up the system for Merrick Garland, so we’re going to do the same thing

Of course, Senator Merkley’s opposition isn’t principled, it’s politics. Given that Republicans have a majority in the Senate and that Mr. Trump’s clear mandate was to appoint a Supreme Court Justice in the mold of Antonin Scalia, there is no chance that Republicans are going to get cold feet and lose their spines (as some are wont to do) on the nominee. Certainly there’s hypocrisy everywhere in the Senate over playing politics on nominees, but there’s a danger for Democrats on Mr. Trump’s nominee that wasn’t, necessarily, there for Republicans blocking Judge Garland.
First, Republicans are in the majority. When Democrats were in the majority, they removed the filibuster for non-Supreme-Court nominees (thus, unintentionally, leading to Mr. Trump’s cabinet picks likely all being confirmed). A Republican majority refused to consider Garland in an election year and because he wasn’t conservative enough to replace Scalia. If Republicans want to, they can remove the filibuster for Supreme Court nominees by a simple majority.

Second, and more importantly, eleven Senate Democrats are up for reelection in 2018 in states won by Mr. Trump. It’s likely that these Senators may have reservations about being obstructionist on a nominee to fill a conservative seat on the Supreme Court (yes, it would probably be different if it were one that would shift the ideological balance). If nine of the eleven Democrats joined with Republicans to end the filibuster, they wouldn’t need to get rid of the rule and the nomination would be confirmed without the procedural “nuclear option.” It’s important to note that no Obama nominees to the Court were filibustered (Garland was just never put on the schedule at all).

Expect a lot of anger, consternation, yelling, and temper tantrums on the left for whoever the President appoints. However, an actual attempt to block the nominee may not come to a head because Democrats know that 2018 will be a difficult year for their attempts to pick up seats in the Senate.

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Of course, there are more things going on in the world, but these should be enough to get your day started.

Matt McDaniel

Attorney and Political Commentator

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