Two wrongs don’t make a right

I have not watched all of the Senate Judiciary Committee’s hearing of Neil Gorsuch regarding his nomination by President Trump to be a justice of the Supreme Court of the United States (SCOTUS) but I’ve watched a substantial amount of it. I’ve also read criticisms and statements in support of Gorsuch’s nomination. In my opinion, nothing that we know of disqualifies Gorsuch for the highest bench and there’s no reason for the senate to withhold consent to the nomination.

Nonetheless, many Democrat senators would like to prevent or at least stall his confirmation. For the most part, it’s because the Republicans refused to even allow a vote on President Obama’s nomination of Merrick Garland for the SCOTUS. I’ve already stated that the Republican senators’ refusal to consider Obama’s nomination was a dereliction of their duty to uphold the Constitution of the USA. But that applies equally to Democrat senators if they attempt to block Gorsuch’s nomination. Two wrongs don’t make a right.

For that reason, the senate should move to a vote on the nomination within a reasonable amount of time after Gorsuch’s hearing concludes. Democrats should not necessarily vote in favor of the nomination—they should vote their conscience. But unlike the way the Republicans treated Garland, Democrats should at least vote on the nomination. It is their duty and Gorsuch deserves it. Blocking the vote would only harm the Democrats in the senate.

The Democrats will face much more critical challenges in the future that they will need the GOP’s backing on. If the Democrat’s make blocking Gorsuch’s nomination an issue, the Republicans will simply make opposition to the Democrats automatic on future issues for purely partisan issues. It is likely that the senate will have sound, irrefutable grounds to impeach Trump before the end of his term as president but the senate will need the cooperation of the GOP to issue articles of impeachment. The senate will also need to deal with issues like health care, the budget, and immigration during the Trump administration. So I call on the Democrat senators to treat Trump’s nomination of Gorsuch in the same way they would have treated Obama’s nomination of Garland.

Keeping the right to bear arms real

In the wake of the worst mass shooting in U.S. history, we are certain to see another increase in arguments about gun control in the days to come. This is an important issue, so I welcome reasoned public discourse about it. But I do not like to see all the bullshit that is sure to accompany the arguments. I want to see this issue debated with valid grounds, not with fallacy.

Before I get into keeping it real, here is my position for the record:

  • I support Americans’ Second Amendment right to bear arms. I oppose the government taking Americans’ guns away.
  • That right has limitations, just as the First Amendment right to free speech does not permit “falsely shouting fire in a crowded theater.”
  • If my hands were not paralyzed, I would probably buy a gun, get trained on its use, and practice those skills so I could use it safely.

That said, I don’t deny facts presented by those who support abolishing the Second Amendment. The one most commonly used is that the most effective way to reduce gun violence is to take Americans’ guns away from them. The evidence shows unequivocally that there is a direct positive correlation between the level of gun ownership in a given country and the incidence of gun violence. The following charts comprise just one piece in a mountain of evidence that supports this argument.

Charts showing per capita firearm possession and firearm homicides in major countries
Level of firearm ownership compared to incidence of firearm homicides

For Americans who value a reduction in gun violence and mass shootings (like the one that occurred yesterday) over their right to bear arms, it’s a valid argument. But gun rights advocates who rebut by saying that, if guns were outlawed, criminals would still get them and use them violently are being fallacious. Their words are factual but irrelevant to the argument. Although it would not eliminate gun violence altogether, it’s unequivocal that abolishing the Second Amendment would significantly reduce the incidence of mass shootings like the one in Orlando and other gun violence, even though some Americans would still have guns and use them violently. To deny that simply makes a person appear to lack the capacity for rational thought on the issue.

Those of us who support their right to bear arms should keep it real when we argue in favor of it. There’s no need to deny facts because the Second Amendment is clear and unqualified:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Constitution does not qualify that right with a condition that it becomes void in the event that firearm homicides in the USA are much greater than in countries that limit gun ownership. Therefore, the high incidence of mass shootings in the USA is completely irrelevant to the right granted Americans by the Second Amendment.

While the right to bear arms is unqualified, it is also limited. Because my hands are paralyzed, I could not safely handle a gun, so I’m sure that even the staunchest gun rights advocates would say that I should not be allowed to fire a gun around them. As the Supreme Court of the United States decided in District of Columbia v. Heller:

The Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

So Americans should be debating common sense limitations on the use of guns that can protect Americans from attacks like the one in Orlando yesterday without infringing our right to keep and bear arms.

Should the backgrounds of all gun buyers be checked for criminal prosecutions? Should Americans be permitted to own military-style assault weapons and high-capacity magazines? Should people with a history of mental illness be allowed to buy guns? These are good questions to debate and valid points can be made on both sides of the issues. But let’s keep that debate real by doing so rationally and based on facts instead of using fallacy and falsehoods.

Duty to uphold the Constitution

A few weeks have transpired since Justice Antonin Scalia died and the uproar over the nomination of a justice to replace him on the Supreme Court of the United States began. I observed the uproar for about a week and it seemed like Senate Republicans didn’t want President Barack Obama to nominate a replacement for no reason other than just because it was Scalia who died. I have observed for another month since then and have seen Senators’ justifications for not allowing a hearing and a vote on Obama’s nominee Judge Merrick Garland become more nuanced and less focused on Scalia.

It’s ironic and hypocritical that Republicans are not the only Senators who have made the claim that a president should not exercise their duty to appoint a Supreme Court justice. The oft cited “Biden rule” (which is not actually a rule) refers to Vice President Joe Biden saying (when he was a Senator):

It is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President [George H. W.] Bush should consider following the practice of a majority of his predecessors and not—and not—name a nominee until after the November election is completed.

In 2005, Senator Harry Reid (D) said regarding judges that, “The duties of the United States senator are set forth in the Constitution of the United States. Nowhere in that document does it say that the Senate has a duty to give presidential nominees a vote.” Of course, both Democrat senators made those statements when there was a Republican president. Reid was as wrong about the issue then as the GOP leaders are now and it’s no surprise that he is now supporting the polar opposite side of the issue since Obama is in office.

As a wonk, I follow politics closely and have seen, read, and heard many different justifications made in the Sunday morning news shows and other media. In large part, I find that the justifications used by Republican senators are factual. But even though the veracity of their grounds is sound, their justifications are still not valid. The Senators never cite the Constitution of the United States to justify the claim that they should not hold hearings and vote on Garland’s nomination but the Constitution is the only governing document that is relevant to the Senate’s duty to uphold it.

So let’s take a look at what the Constitution actually does say on the issue in Article II Section 2: “The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.” The word “shall” makes it the duty of the president to do so and there are no qualifications such as an exception during a president’s last year in office, when the president is nominating a replacement for a justice with an ideology contrary to the president’s, or during a contentious election season. There are no limitations to that duty of any type in the Constitution.

Regarding that clause, many GOP senators are claiming that the Constitution says nothing about how promptly they must give their advice and consent. While that is a true statement, it is not a valid justification for delaying the appointment strictly for political purposes (which none of these senators deny is the reason they want to delay a vote on Garland—in fact, it is their explicit reason). Otherwise, if the Founding Fathers did not specify how long the Senate could delay giving advice and consent with the intent that the Senate use the lack of a deadline to delay advice and consent indefinitely, no justice nominee would ever get appointed when the Senate majority is a different party than the president’s. The Founding Fathers erroneously assumed that the Senate would act like mature adults in carrying out their sworn duty instead of acting like petty schoolchildren.

The word “and” in the beginning of the clause “and by and with the Advice and Consent of the Senate” ties the Senate’s duty to provide advice and consent to the president’s duty to nominate. That means the Senate must do so as judiciously as possible. If there were a war on American soil or some other extraordinary situation, it would be reasonable for the Senate to delay hearings and a vote until after a new president is inaugurated. But it would only be reasonable because of the urgency of making extraordinary circumstances a priority to deal with, not because of the timing of the inauguration.

Both the President and senators vow to uphold the Constitution when they take office. Therefore, Obama has a duty to nominate a justice, which he has done, and the Senate has a duty to give advice and consent on that nomination. Since 1975, the average number of days from nomination to final Senate vote is 67 days. The current congress has passed fewer laws than any congress in modern history, so it’s not as if the Senate has anything else to do. There is no catastrophic situation occurring in the nation at this time. If the Senate fails to hold hearings and vote on the nomination of Garland by the time the GOP and Democrat national conventions are held (barring a major catastrophe in the USA), they are abdicating their duty to uphold the Constitution.

Just because it’s Justice Scalia

I’ve been observing many responses by Republicans and conservatives to the question of why President Obama should not nominate a replacement for Justice Antonin Scalia on the Supreme Court. Perhaps the most common response is an echo of Senate Majority Leader Mitch McConnell who said (while Scalia’s body was still warm), “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

But what McConnell failed to recognize is that the American people already had a voice. Shortly after electing Obama in 2008, the president nominated two justices to the Supreme Court. This made it clear to the American people that the president is responsible for filling vacancies on the bench. With that in mind, they proceeded to reelect Obama by a large majority.

The other most common response I have observed is that Obama should not nominate a replacement because the justice who died is Scalia. Then the person follows that response up by lauding Scalia. They not only extol Scalia legally but also politically, intellectually, and personally. They warrant that Scalia’s individual characteristics preclude Obama from nominating his replacement. Presumably this is because Obama is too liberal to replace such an influential conservative.

I read Article II, Section 2 of the Constitution of the United States. It clearly states that the President shall nominate Judges of the Supreme Court. It gives no conditions under which the Senate should not perform its obligation to advise and consent the president on his (or her) nomination. If the Senate does not consent to Obama’s nomination by vote, then that nominee should not become a Supreme Court Justice. But the Senate has a duty to at least vote to give consent on Obama’s nomination because each senator vowed to uphold the Constitution.

The Constitution does not make any exceptions to this duty based on a vacating Supreme Court justice’s individual characteristics. It does not say that conservative justices should only be replaced by conservative presidents and liberal justices by liberal presidents. It says nothing about justices who are constitutional originalists, have wit & good humor, are hunters, or have great legal intellect (in fact, the Constitution does not include any legal education, license, or experience in the qualifications for Supreme Court justice).

Thoroughly read the Constitution. You will find that it does not say that President Obama can fill David Souter’s and John Paul Stevens’ places on the bench but replacing Justice Antonin Scalia alone is exempt. The specific justice leaving the Supreme Court has no relevancy whatsoever to a president’s obligation to nominate his or her successor.

Alito v Judiciary Committee – Final Round

Today was the last day of Q&A between Judge Samuel Alito and the Senate Judiciary Committee in Alito’s confirmation hearings for his nomination to the Supreme Court. Before I analyze it, besides the disclaimer I made in my first post on this topic applying again, I should additionally make the following legal disclaimer: I am not an attorney—in fact, I’ve never even played one on TV. However, I am a pretty smart guy and I have studied quite a bit of law. Most importantly when it comes to the law, I understand the principles of logic & critical thinking and many would say that I apply them excessively. Subsequently, my analysis here is devoid of emotion but critically analytical and, therefore, relatively unbiased.

The best part of today’s hearing is that the Democrats finally gave up on the CAP and the Vanguard issues. Democrats repeatedly slashed at Alito with these issues for two days but made no fatal cut…because they are very blunt instruments. Although the issues looked like they could inflict some damage when they were first drawn, the more they were wielded, the less of an edge they held. Granted, they might have said something about Alito personally, but CAP & Vanguard were just red herrings in the context of Alito’s qualifications for the Supreme Court.

Of course, as you would expect with the straw men knocked down, Alito looked much better than he did in Round One. Nonetheless, he was still nowhere near as adept as Roberts at addressing—or deflecting, as the case may be—the committee’s questioning. Subsequently, Alito was much more forthcoming and provided more insights into what he would look like on the bench. In a nutshell, a conservative, thoughtful, analytical, and (like me) unemotional justice.

In effect, whether I agree with his personal ideologies or not, because he appears to think much like I do, I have to appreciate his approach. And when it comes to a Supreme Court justice, the approach is crucial. A justice cannot allow his or her decisions to be driven by emotion. They must have the law drive their decisions, even if that decision ends up to be contrary to the justice’s personal beliefs.

The Democrats on the committee made it clear that they do not agree with Alito’s personal values. However, that’s outside of the scope of the Senate’s purview on this matter. They’re supposed to provide advice and consent, but not selection. Therefore, if they find no substantial grounds to deny the qualifications of the president’s selection for the bench, then the Senate is obligated to confirm the president’s nomination. Regardless of the fact that Alito had nowhere near the superstar performance Roberts did, no one could rightfully say that his performance was grounds for disqualification (at least if you let logic drive that claim rather than emotion).

If Alito gets confirmed and sworn in to the Supreme Court, Americans cannot blame the Judiciary Committee. The Senate cannot blame the president. If you think that Alito should not be on the bench, then you have to lay the blame at the feet of the American electorate. That’s right: the Constitution gives the president the responsibility of nominating Federal judges. The electorate made their bed, now they’ll have to sleep in it—for the next few decades.

Alito v Democrats – Round One

Today was the first day of Q&A between Judge Samuel Alito and the Senate Judiciary Committee in Alito’s confirmation hearings for his nomination to the Supreme Court. Before I analyze it, I should make the following legal disclaimer: I did not watch the hearing from end-to-end. That said, I did watch a good chunk of it.

How did Alito do today? In whole, he delivered very mixed results. Compared to Chief Justice Roberts‘ performance a few months ago, Alito could not hold a candle. However, compared to mere humans, Alito held up okay.

As a staunch supporter of many traditional conservative principles, I was comforted by much of the responses Alito had to today’s questioning. For the most part, he responded as a traditional conservative would.

Sidebar: Why do I keep using the term "traditional" conservative? Because many contemporary conservatives, and in particular neo-conservatives, have abandoned the traditional principles of conservatism. Instead, the most noted people called conservatives nowadays—especially the president—are actually radicals. Ironically, the definitions of "conservative" and "radical" are almost antonyms. Therefore, when I refer to traditional conservatism, I have to be clear that I do not include neo-conservatives.

There was one response in particular Alito made that I was pleased to hear: “The Bill of Rights applies at all times,” he said. “And it’s particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that’s when there’s the greatest temptation to depart from them.” Then he dotted the ‘i’ by adding, “No person in this country is above the law, and that includes the president and it includes the Supreme Court.”

That’s not to say that Alito’s performance was without flaw. He was subjected to withering questioning by the Democrats on the Senate Judiciary Committee. Considering that the Supreme Court is a lifetime appointment, it’s only fair that the scrutiny of all nominees is rigorous, comprehensive, in-depth, and without boundaries. After all, a man of Alito’s age could sit on the bench effecting Americans for well over a generation, so they deserve an eminently qualified justice. However, the Democrats’ questioning of Alito went beyond what’s required to confirm him and extended to the lengths of becoming simply the pursuit of a partisan agenda.

However, his responses to partisan questioning were not the ones that were problematic. Instead, he had a couple of major stumbles in personal matters. First of all, he was asked about his statement that he would recuse himself in any case related to Vanguard mutual funds and his subsequent failure to do so. His response sounded disingenuous, simply saying “I just didn’t focus on the issue of recusal.” Considering numerous references to “Vanguard” in his finding in the Third Circuit Court of Appeals, he couldn’t credibly claim to have forgotten his commitment.

His second major stumble was around questioning on his proud reference to membership in Concerned Alumni of Princeton (CAP) that he included in his CV. Under questioning from Democrats, he tried to dismiss his involvement. At one point he claimed to not have been active in the organization, even though he used his membership to help get him a higher-level job in the Reagan administration. His claims to having joined CAP only for its relationship with ROTC rang hollow—at least on the left side of the Hart hearing room. Personally, I doubt that Alito was involved in CAP so much for its exclusionary position towards women and minorities as much as he was to distance himself from his modest roots and cast himself as an elitist, but that’s a weak endorsement.

All in all, Alito was much more forthcoming in this first round of questioning than Chief Justice Roberts was when he faced the committee. This was good because it gives Americans a better picture of what kind of a justice Alito would make than we had of Roberts. However, it also exposed some of his flaws. But in terms of the fundamentals of Alito’s commitment to uphold stare decisis, his penchant for the Constitution & Bill of Rights, and his unequivocal statement that no one is above the law, he fared very well. Stay tuned for round two.