Congress is a broken, fading, branch of government. Fortunately, if she is confirmed, federal appeals court Judge Amy Coney Barrett will help fix that and strengthen Congress.
In the last 50 years, as members of Congress have become distracted by raising money and getting on television, they have produced less actual product — legislation — and what they have produced has lacked precision and specificity. In most cases, Congress has simply left the details of legislation both small and large to the discretion of the executive branch agencies.
Agencies, run primarily by career bureaucrats, have been all too happy to take the power Congress has ceded to them. The courts, left to try to make sense of complicated issues, have deferred to agency “expertise.” More specifically, federal courts have formalized this deference in two particular dimensions.
First, courts now give deference to agencies in interpreting the laws under which the agencies operate. As you might imagine, the agencies tend to interpret those laws in ways that expand their power and jurisdiction. The agencies also tend to make the laws as elastic as possible, stretching them to address all kinds of things that the original legislative text didn’t even imagine. Going back to Congress to get more authority is never the first option.
Second, the courts defer to the agencies’ interpretation of their own regulations. This is an obvious pathology. It creates a system in which agencies, having already created much of their jurisdiction from whole cloth, are given deference in determining the precise contours of that jurisdiction.
The good news is that a Supreme Court including Judge Barrett would scrap both deferences at the earliest possible opportunity. As a practical matter, that would require Congress to update statutes and to provide granular legislative text and direction to agencies. Lawmakers would have to make decisions that they now pass off to unelected bureaucrats.
It also would require Congress to return to a semblance of regular order. If legislative text actually means something, rather than simply be a prompt for agency rulemaking, it would need to go through a meaningful deliberative process — subcommittees, committees and amendments on the chamber floor. When lawmakers are responsible for actual policy outcomes — rather than being able to shift responsibility to someone else — congressional leadership will be unable to simply throw a 1,000-page bill on the floor unread and unexamined.
In short, by getting rid of misguided judicial deference to executive branch decisions, the Supreme Court can re-energize and restore the legislative branch. That would go a long way to reestablishing the idea that voters have an important say in the decisions of government.
There are, unfortunately, people who want the status quo to remain the status quo. Over the next few weeks, some in the Senate will try to get Judge Barrett to commit to this or that or recuse herself from various issues.
Before she joins the court (assuming she is confirmed), Judge Barrett will take two oaths. One is a judicial oath that she will administer justice impartially. The other is the same one all federal officials take — to support and defend the Constitution against all enemies foreign and domestic and to bear true faith and allegiance to the same. She will take no pledge to preserve precedent, bend to fashion, or respond to the loudest barking dog.
• Michael McKenna, a columnist for The Washington Times, is the president of MWR Strategies. He was most recently a deputy assistant to the president and deputy director of the Office of Legislative Affairs at the White House.
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Supreme Court nomination battles get nastier
President Trump hadn’t even announced his Supreme Court pick this weekend yet a whisper campaign had already developed against Judge Amy Coney Barrett questioning whether her adoption of two Haitian children was on the up-and-up. Tactics formerly reserved for only the nastiest of political campaigns have in recent years bled over into battles for the…
President Trump hadn’t even announced his Supreme Court pick this weekend yet a whisper campaign had already developed against Judge Amy Coney Barrett questioning whether her adoption of two Haitian children was on the up-and-up.
Tactics formerly reserved for only the nastiest of political campaigns have in recent years bled over into battles for the judiciary, breaking down one of the last walls of decency in a town not known for it.
It used to be quite different.
One of President Kennedy’s nominees was announced in late March 1962, and about two weeks later was sitting on the high court.
Even as late as the Clinton administration, a former ACLU lawyer — Justice Ruth Bader Ginsburg — could win confirmation to the Supreme Court on a 96-3 vote in the Senate, just 42 days after her nomination was submitted.
Republicans, who control the chamber now, have vowed to try to match that pace, though they have no hope of coming close to that near-unanimous vote of support for Judge Barrett.
The Congressional Research Service says things have gotten worse since the late 1960s, when a series of fights over the nominees of President Richard Nixon ushered in a new era.
Over nearly 200 years before that, it took about a week for the Senate to receive a nominee, sometimes hold hearings, then vote. Since 1967, that time has soared to an average of 68 days.
And it’s not just because of big-time showdowns. While blowups over Judge Robert Bork and Justice Clarence Thomas are well-remembered, there were also legislative knife fights over picks like Justice Samuel A. Alito Jr., a nominee of President George W. Bush, who waited 82 days for confirmation and had to survive an attempted filibuster.
Curt Levey, president of the Committee for Justice, said as the court has inserted itself deeper into social issues, Americans — and the politicians they elect — have grown more combative over picking who’s making those decisions.
“There’s a lot more at stake,” he said.
The battle over Justice Ginsburg’s seat was raging even before Judge Barrett was announced Saturday as the nominee to fill it.
Republicans are speeding to get her approved, with a timeline of acting before the Nov. 3 election. Democrats say that timetable’s a thing of the past, and it should take months to approve a nominee.
And in this case they say any action at all is hypocritical after Senate Republicans just four years ago refused to act on President Obama’s nominee, Judge Merrick Garland, citing the looming election in blocking him for almost a year.
The treatment of Judge Garland is still very fresh in the minds of Democrats.
“Garland was simply an extension of how politicized the court has become. It was a naked abuse of the process to deny a good man even a hearing,” said Jim Manley, a veteran Democratic operative who worked for Sens. Edward M. Kennedy and Harry Reid when they were involved in fights over judges.
Mr. Manley said after what the GOP did to Judge Garland, if they now speed Judge Barrett through, Democrats must “strongly consider” expanding the high court, should they take control of the White House and Senate in November’s elections.
Republicans say they won’t be lectured on treatment of judges.
Indeed, analysts looking for a start to the nastiness often point to how Democrats approached Bork’s nomination in 1987.
A high-powered legal mind and appeals court judge, Bork was deemed “well-qualified” for the high court by the American Bar Association.
But Kennedy delivered a withering repudiation of his judicial philosophy in a famous floor speech, challenging Democrats, who controlled the chamber, to reject him. Everything from his legal writings to his personal video-rental history became fodder.
Bork’s nomination was defeated on a 58-42 vote, and “to bork” joined the lexicon as a term for unfair treatment of a nominee.
Four years after the first borking, Justice Thomas’s nomination arose and then-Sen. Joseph R. Biden led the Senate in a set of hearings over allegations of sexual harassment. Justice Thomas survived the process and was confirmed on a 52-48 vote.
“Compare the treatment of Robert Bork, Clarence Thomas, Samuel Alito and Brett Kavanaugh to that of Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, and it’s clear that there already is one set of rules for a Republican president and one set of rules for a Democrat president,” said Sen. Lindsey Graham, South Carolina Republican.
Mr. Graham, who as Judiciary Committee chairman will oversee Judge Barrett’s confirmation process, said four years ago that he would never move forward with a nominee in a presidential election year.
The treatment of Justice Kavanaugh changed his mind, he says.
Mr. Trump’s previous high court pick was forced to go through a second round of hearings after a woman came forward saying he’d sexually assaulted her in high school. Other women followed.
None of the major accusations was substantiated, and the first woman’s own account was disputed by those she said were present. Justice Kavanaugh squeaked by on a 50-48 vote.
Judging by the numbers, GOP picks have indeed had a rougher go than Democratic nominees.
Since 1980, Republican presidents have submitted 11 high court nominations to the Senate. They’ve lingered an average of 73 days, and earned an average of 71 votes in support.
Democrats over that time have submitted four high court nominees. All of them have been confirmed, they were pending for an average of 67 days, and they were approved with an average of 79 votes in support.
And no Democratic president’s picks have ever faced an attempted filibuster. Six Republican picks have.
Mr. Manley said Republican presidents make more controversial picks.
“For better or worse, Democratic presidents have usually tried to thread the needle by nominating relatively moderate candidates for the court. Republicans on the other hand oftentimes have picked very controversial nominees with very conservative views,” he said.
Mr. Levey saw a different explanation: “The Democrats are just better at, or more prone to, I’m not sure which, the politics of personal destruction.”
He said Republicans have been more deferential to Democratic presidents in the past, but he said that may have been undone by the treatment of Justice Kavanaugh.
“We may look at the days between Bork and Thomas and Gorsuch as the good old days, because a lot of people are angry about Kavanaugh on both sides of the aisle,” he said. “We maybe in for a period that makes 1987 through a few years ago look tame.”
Mr. Levey said there have been some windows of intense court battles before.
The years before the Civil War saw a number of presidential picks defeated or forced to withdraw. And during the New Deal era the court was also a battleground. Then, as now, Democrats talked of stacking the panel with more justices in order to change the playing field.
Today’s nastiness can be broken into two categories: the norm-breaking, and the rule-rewriting.
An example of norm-breaking began in 2003, when Democrats launched filibusters of President George W. Bush’s appeals court nominees. The first target was Miguel Estrada, a young superstar lawyer whom Democrats called “dangerous” because he was on track to become the first Hispanic Supreme Court justice.
After waiting more than two years, Mr. Estrada withdrew his nomination. During the confirmation fight, his wife suffered a miscarriage.
Democrats would go on to filibuster nine other Bush picks for appeals court seats, then attempt to filibuster Justice Alito.
A decade later, the GOP used the same tactic on some of President Obama’s nominees. Then-Majority Leader Harry Reid, Nevada Democrat, engaged in rule-rewriting, using the “nuclear option” to defang the filibuster for all presidential nominees save Supreme Court picks.
When Mr. Trump took office and Democrats launched the first-ever successful partisan filibuster of a Supreme Court nominee, the GOP followed Mr. Reid’s lead and used the nuclear option to complete the rules change for high court picks, too.
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Court rules Congress can sue over Donald Trump’s border wall funding switch
The House of Representatives can sue President Trump over his move to siphon funding from Pentagon accounts toward his border wall plans, a federal appeals court ruled Friday, delivering a major statement on where the power of the purse lies in American government. The ruling does not halt construction of the wall. But it does…
The House of Representatives can sue President Trump over his move to siphon funding from Pentagon accounts toward his border wall plans, a federal appeals court ruled Friday, delivering a major statement on where the power of the purse lies in American government.
The ruling does not halt construction of the wall.
But it does give Speaker Nancy Pelosi and her fellow Democrats a new chance to argue in court that Mr. Trump illegally shifted funds to build the wall, which could curtail future construction, should they prevail.
The Circuit Court of Appeals for the District of Columbia, in a unanimous three-judge ruling, said money spent without the House’s agreement is a specific injury to the House, and as an institution it has the right to sue.
“Failure to recognize that injury in fact would fundamentally alter the separation of powers by allowing the Executive Branch to spend any funds the Senate is on board with, even if the House withheld its authorizations,” wrote Judge David B. Sentelle, a Reagan appointee.
He was joined by two Obama appointees.
Their decision overturns a lower court decision that said the House didn’t have standing.
Mr. Trump had asked for at least $5 billion in border wall money for fiscal year 2019, and sent the government into a partial shutdown to try to get his way, but eventually caved and signed a bill allocating only $1.375 billion
But he then issued directives to shift more than $6 billion in money from Pentagon accounts toward wall-building.
He repeated that same maneuver for fiscal year 2020 as well.
Challenges have been filed in courts across the country and Mr. Trump has lost in most of them, though the Supreme Court has ruled construction can continue while the cases make their way through the process.
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Supreme Court fight fires up campaign
President Trump and Democratic presidential nominee Joseph R. Biden quickly moved to capitalize on the enthusiasm of their party bases for filling a vacancy on the Supreme Court, hauling in a wave of campaign contributions and strategizing messaging to boost voter turnout. Both parties are fired up after the death of Supreme Court Justice Ruth…
President Trump and Democratic presidential nominee Joseph R. Biden quickly moved to capitalize on the enthusiasm of their party bases for filling a vacancy on the Supreme Court, hauling in a wave of campaign contributions and strategizing messaging to boost voter turnout.
Both parties are fired up after the death of Supreme Court Justice Ruth Bader Ginsburg on Friday.
Mr. Trump on Monday said he had a shortlist of five female candidates for the nomination, with four federal appeals court judges and one member of his White House legal team in the mix.
“Five women are being vetted very carefully,” he told White House reporters as he departed for an Ohio trip. “I’d much rather have a vote before the election, because there’s a lot of work to be done and I’d much rather have it.”
“I’m just doing my constitutional obligation. I have an obligation to do this. So I would rather see it before the election.”
The president’s pick of a woman for the high court, which he is expected to announce Friday or Saturday would potentially appeal to the female voters he has struggled to win over.
That’s just one calculation in the nomination game.
Mr. Biden, meanwhile, is revving up his base with a warning that Mr. Trump’s picks will jeopardize abortion rights and Obamacare health coverage.
“You think like Trump [then] you try to take away health care from 20 million Americans in the middle of this pandemic,” Mr. Biden said while campaigning in Wisconsin. “He’s in court today trying to get that done.”
He said this week that millions of Americans are already voting early because they don’t want to see the Supreme Court overturn the 1973 Roe v. Wade decision that guaranteed abortion rights.
Of course, Mr. Biden is hoping the Republican Senate majority can’t muster enough votes to confirm a nomination before the Nov. 3 election. Then he can make the case that if he wins, he should be the one to name a replacement for the late liberal icon and keep the high court’s 5-4 ideological split intact.
Sen. Joe Manchin of West Virginia, the only Democrat who voted to confirm Justice Brett M. Kavanaugh, said that he’s in favor of waiting until after the election, meaning the GOP likely cannot count on bipartisan support for whatever path they choose.
But Sen. John Cornyn, Texas Republican, said Mr. Trump’s loss in November wouldn’t stop them from confirming his nominee during a lame-duck session.
Asked on CNN if Republicans would hold a lame-duck confirmation vote before Mr. Biden’s inauguration, Mr. Cornyn said: “You mean while we’re still in our term of office, and President Trump is? Of course.”
Angling to avoid that necessity, Mr. Trump is calculating which Supreme Court pick could put Senate Democrats on the defensive now and potentially galvanize conservative voters in battleground states.
Mr. Trump’s shortlist includes:
• Judge Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals;
• Judge Barbara Lagoa of the 11th U.S. Circuit Court of Appeals;
• Judge Joan Larsen of the 6th U.S. Circuit Court of Appeals;
• Judge Allison Jones Rushing of the 4th U.S. Circuit Court of Appeals; and
• Kate Todd, deputy counsel to the president.
“All of those have really great stories behind them,” said Carrie Severino, chief counsel of the Judicial Crisis Network, which is planning to spend $2.2 million on an ad blitz backing Mr. Trump’s high court nominee.
At least two of the women — Judge Barrett and Judge Lagoa — are Catholic. Their faith would appeal to Mr. Trump’s pro-religious liberty base but also supply ammunition to pro-choice opponents.
Judge Barrett’s Catholic faith caused a dust-up with Senate Democrats during her confirmation to the appeals court. The top Democrat on the Senate Judiciary Committee, Sen. Dianne Feinstein of California, told her the “dogma” lives loudly within her.
Conservatives see that type of anti-Catholic and anti-Christian bias as a hurdle for Democrats to overcome with voters ahead of November. Ms. Barrett also met with the president on Monday.
But nominating a Catholic is not necessarily unique. Mr. Trump’s last Supreme Court pick, Justice Kavanaugh, is Catholic, as are at least two other justices on the bench.
Matthew Schmidt, a political science professor at the University of New Haven, noted 30% of voters in Pennsylvania — a critical swing state — are Catholic and there’s also a large number of Catholics in Florida, which has 29 electoral college votes.
“But Catholics aren’t monolithic as a voting bloc,” he warned. “And given that many voters have already voted, the effect of a SCOTUS battle takes place in a smaller subset of voters.”
Conservatives also view Judge Lagoa, who is the child of two immigrants who fled Fidel Castro’s regime in Cuba, as a viable option for the president. She is Cuban-American and was the first Hispanic judge to sit on the Florida Supreme Court. Mr. Trump tapped her last year for the 11th Circuit.
Picking Judge Lagoa could help the president court some Hispanic voters in critical swing states such as Florida, which is also her home state.
Similarly, picking Judge Larsen could help Mr. Trump in her home state of Michigan, and Judge Rushing in North Carolina, other key battlegrounds.
“In a close state, if there is a modest increase it can be helpful,” said G. Terry Madonna, the director of the Center for Politics and Public Affairs at Franklin and Marshall College.
As the president is weighing which nominee could resonate best with his base, Mr. Biden has shown no signs of departing from his statements during the primary in which he warned against expanding the number of seats on the Supreme Court.
The move to pack the court has been called for by many progressives if Democrats gain control of the House, Senate, and White House next year.
Instead, Mr. Biden and his running mate, Sen. Kamala Harris of California, honed in on the potential real-world consequences that a 6-3 conservative majority on the court would have on issues like health care and abortion.
The Supreme Court is set to hear oral arguments in a challenge to Obamacare the week after the election.
“We now have almost 7 million people who are going to have the preexisting condition of COVID who if Donald Trump wins his lawsuit could be barred from having coverage,” Ms. Harris said. “This is real. This is real stuff.”
Toeing the ticket line, Ms. Harris punted when asked about expanding the court and who specifically she wants to see replace Justice Ginsberg.
“I am focused on the next 43 days,” she said during an appearance on Instagram Live with journalist April Ryan.
Mr. Biden’s focus is a stark contrast to the approach from some liberals, who are floating everything from packing the court to launching impeachment proceedings to try to push back on Mr. Trump and the Republicans.
Sen. Elizabeth Warren of Massachusetts called for the end of both the legislative filibuster and the Electoral College, which has been in liberal crosshairs for some time.
“If Republicans disregard their own made-up rules to steal a second Supreme Court seat after ramming through the Kavanaugh nomination, after short-circuiting that process as well, Leader Schumer is right: everything should be on the table,” said Ms. Warren, a former 2020 presidential candidate.
She spoke as part of a kickoff event for Just Democracy, a new coalition of liberal advocacy groups calling for adding seats to the Supreme Court, abolishing the filibuster and the Electoral College system, and granting statehood to Washington, D.C.
Democratic strategist Scott Ferson said Mr. Biden is smart to layer in other real-world issues at stake in a court fight, like environmental protections and immigration rights, rather than talk about process issues like abolishing the filibuster.
“There are people out there doing that,” Mr. Ferson said. “He doesn’t need to.”
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