US Politics: 50 shades of Scalia

[Kalbear]

I have to wonder how Scalia would have voted on this; you have to think that he would be super freaky. 

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Besides the interesting free speech and due process holdings, the federal district court’s decision in Doe v. Rector & Visitors of George Mason Univ.also discusses whether there is a constitutional right to engage in consensual BDSM sex. No, says, the court, rejecting the view that Lawrence v. Texascreates a general constitutional right to adult noncommercial sexual autonomy.

 

[BloodRider]

16 minutes ago, Kalbear said:

I have to wonder how Scalia would have voted on this; you have to think that he would be super freaky. 

 

Heh.  Nice find.  I do like the way they struck down, 7-1 the Louisiana forced-birth laws.

[lokisnow]

a good link on the current "recession watch" folks

http://theirrelevantinvestor.com/2016/03/08/are-we-due-for-a-recession/

 

***

Obama is interviewing candidates for the SC vacancy, including an in-law of Paul Ryan (whatever, "she is related by marriage to Paul Ryan" means).  He's interviewing three men, who are considered the frontrunners (if a man is confirmed, this would basically kill the possibility of a female majority supreme court for a long time) and two women are considered more long shots.  My favorite is Watford, I'm afraid of a relative conservative like Sri winding up becoming a Democrat Souter, and switching parties once on the court.

 

http://www.npr.org/2016/03/08/469722360/president-obama-meets-with-supreme-court-candidates

 

***

And the court has already changed, absent Scalia:

http://www.slate.com/articles/news_and_politics/jurisprudence/2016/03/antonin_scalia_s_death_has_changed_the_way_the_supreme_court_and_conservative.single.html

 

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But changes at the court itself are only half of it. There’s also a growing sense among conservative interest groups and litigation shops that the good times and rich bounty of the old Roberts court are no longer on offer and that it may be better to cut and run than stick around and lose.

In an incredibly short time frame we have seen, for instance, a major antitrust appeal from Dow Chemical settled for $835 million last month, when the company determined that it wasn’t worth the risk to spin the wheel at a 4–4 court. Having only last month granted a completely unprecedented stay in a challenge to President Obama’s new environmental regulations—before the case had even been adjudicated in a lower court—Roberts batted away a similar request challenging a different pollution regulation without comment last week. Not here, he seemed to be cautioning Michigan and the other states that wanted to challenge the law. Not anymore.

Consider, too, that in New York this week a key gun rights group opted to drop its challenge to Gov. Andrew Cuomo’s SAFE Act—the big post–Sandy Hook gun control initiative—out of a concern that it could not prevail at the high court without Scalia on the bench. According to the New York Daily News, a National Rifle Association board member explained that the challenge had been halted en route to the court because “it’s just the wrong time.” His lawyers advised that “going forward could damage the case because the High Court at the very least would likely deliver a split 4-4 decision that would leave the law in place.”

This is a shocking turn from how the judicial landscape looked earlier this year. Going into this term, a number of important cases had been seen as likely to change the way we vote, the way we regulate abortion, and the way we fund public-sector unions. So certain were some plaintiffs of their likelihood of success that they had their appeals rocketed to the Roberts court on a fast track, catapulted by various interest groups toward the conservative majority. As Mother Jones’ Stephanie Mencimer pointed out immediately after Scalia’s death in February, several of the cases that looked like potential blockbuster wins for the right this term had arrived at the Supreme Court via the fast lane.

The public-sector unions case, Friedrichs v. California Teachers Association, which challenged the way teacher unions are funded, hurtled up to the court in double time. The lawyers for the dissenting teachers specifically asked the lower court to rule against them to speed the case’s route to the Supreme Court. This was in response to a suggestion from Alito in a 2014 decision that the precedent in the union fees case was now “questionable on several grounds.” As Mencimer also noted, two voting rights cases, Evenwel v. Abbott and Harris v. Arizona Independent Redistricting Commission, had sped along by way of unusual three-judge courts. As David Gans explained last June:

… appeals from three-judge courts go straight to the Supreme Court. In the hands of conservative activists, immediate appeal to the Supreme Court has been a potent weapon for deregulating campaign finance law and gutting the Voting Rights Act. Since John Roberts became Chief Justice nearly ten years ago, almost every Term has featured a major election law case coming by direct appeal. And more are on their way.

Like the raven once said: nevermore. Suddenly, in a scenario where the conservative justices have been reduced to four, the high-speed pipeline looks far less attractive. It’s not at all clear these fast-track appeals will continue, so long as outcomes are uncertain and given the possibility of a long-term vacancy. By the same token, the tactics deployed to hustle last year’s big Obamacare challenge to the high court will likely lose their allure now. Nobody wants to rush a case to the court with even odds. Watch for a lot of hurry up and wait from conservatives groups that used to be all hurry.

Expect a lot more weirdness and subtle signaling from the court as the term rolls on. An institution that never wished to be an election issue has become one. What might have once been routine orders have now turned into a complex game of reputation management. Whether it’s the chief justice trying to appear apolitical, the conservative justices trying to fly the flag of ideology, or the liberals making hay while the sun briefly shines, nothing at the court these days is exactly what it appears to be, and it appears it will be that way for a while.

 

[OnionAhaiReborn]

Why Is Obama Convinced His Wall Street Reforms Work?

President Barack Obama met with his financial regulatory chieftains on Monday, and I got the distinct impression that something was on his mind. See if you can figure it out.

“The laws we have passed have worked,” Obama said, referring to the Dodd-Frank Wall Street reform legislation. “I want to emphasize this because it is popular in the media, in political discourse—both on the left and the right—to suggest that the crisis happened and nothing changed.” About three minutes later, he reiterated, “So I want to dispel the notion that exists both on the left and on the right that somehow, after the crisis, nothing happened.” And later, Obama hit that point again: “So when you read articles, whether on the left or the right, that suggest somehow nothing happened and everybody just went back to the same go-go years that they were engaging in before, those are factually incorrect.” 

Looks like somebody didn’t like the ending to The Big Short!

Obama’s frustration probably springs from the fact that the Democratic presidential primary has become a referendum on Wall Street’s influence on politics and the economy—and with 100 percent of precincts reporting, “negative influence” won in a landslide. Senator Bernie Sanders based his entire campaign on antipathy to the banks, and Hillary Clinton has scrambled to argue that her plan to crack down on the financial sector is stronger and more comprehensive. Both believe that more needs to be done to make the system safer and fairer, which is enough to drive to distraction a president who describes Dodd-Frank as the most sweeping financial reform in 80 years.

Obama’s anger should be reserved for Sanders and Clinton, not nameless article-writers and discourse-mongers on the “left.” Nevertheless, as one of those perfidious article-writers, I could perhaps explain to the president why people credibly believe “nothing happened” to disrupt Wall Street, and why stressing that actually bodes well for the future of financial reform. 

Take the examples Obama gave to prove the utility of Dodd-Frank. “We have seen banks that now have much greater capital,” Obama said, referring to the $700 billion available to absorb losses in the event of a crisis. It’s worth noting that none of that is due to Dodd-Frank, which includes no statutory levels of capital, only a minimum floor that the Obama administration worked very hard to eliminate, as explained at length in Sheila Bair’s book Bull By the Horns. International banking regulators designed the capital mandates, and the Federal Reserve decided to push them up further at their discretion. Dodd-Frank added no new discretionary authorities on capital; in fact, regulators were talking about increasing them well before Dodd-Frank passed. 

But more importantly, how do we know for sure that the additional capital in the banking system will be sufficient in a crisis? We haven’t had a crisis yet to check this proposition, and all the stress tests in the world wouldn’t have envisioned 2008.

Obama’s defense of Dodd-Frank is similar to how defenders of welfare reform reacted in the early years of its implementation, concurrent with the best economic expansion in three decades. They said that the late 1990s “proved” that welfare reform works, when the true test would only come when the poor really needed assistance. During the Great Recession, we finally learned that welfare reform was a miserable failure for growing numbers of poor Americans.

[Jaxom 1974]

I love my job, but this Republican fundraiser for the county makes my skin crawl a little.  But hey, Paul Ryan will eat our food.

My staff tonight: two black women, 2 Chinese exchange students, a gay man of Mexican decent, a Jewish man, a lesbian, and a white girl. My assistant also happens to be a first generation Mexican woman.  Take that Republicans!

[desire]

Has the USA lost it's mine? Trump..the guy who stole the line your fired from WWE Vince is leading the polls 

[lokisnow]

Scotus blog analyzes the current field of candidates and concludes Judge Ketanji Brown Jackson will be the nominee.

http://www.scotusblog.com/2016/03/handicapping-the-five-potential-nominees/

I disagree slightly, I think they are underrating Judge Watford in several instances, and I think Judge Brown Jackson's name has been floated to raise her profile so that she can be appointed to a higher court soon and be a frontrunner for either Ginsberg's or Breyer's seat.

I think Obama really wants the appointment to go through, and I think that means it will be Watford. Srinivasan will face moderate resistence from liberal senators (and Obama really can't afford Sanders voting against him), and Grassley and Republicans will be able to say that Judge Ketanji Brown Jackson is not sufficiently qualified--the qualifications argument will be the one that most of the public will care about, such as with Harriet Miers.  Judge Garland will face opposition from liberal senators, and Obama does not want to appoint an older justice. 

So because Watford is relatively moderate, but liberal enough to get every democrat vote, and because Watford brings geographic and law school balance to the court (he's not from harvard or yale and is from the west coast), I think Watford is going to be Obama's choice.

And given that Iowa recruited the strongest possible democrat to run against Grassley in this year's Senate election solely on the grounds that Grassley's opposition to Obama's appointments is wrong, Obama will want to politically keep the pressure on Grassley. Watford, whom Grassley hates, will put the most political pressure on Grassley, especially as Watford's record after being appointed has completely invalidated all of Grassley's baseless criticisms against Watford. 

 

Washington Post agrees with me that the Supreme court is fundamentally a political institution:

https://www.washingtonpost.com/opinions/the-supreme-court-is-a-political-court-republicans-actions-are-proof/2016/03/09/4c851860-e142-11e5-8d98-4b3d9215ade1_story.html

 

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The decision of the Republican Senate majority to consider no nominee of President Obama to fill the vacancy on the Supreme Court created by the death of Justice Antonin Scalia is significant, but not for the usual reasons given — that the work of the court will be disrupted or that the senators are showing disrespect for the president by refusing to consider any nominee he might name. All that happens when the court is reduced to an even number of justices (eight in this instance) is that a few key cases are scheduled for reargument in the court’s next term, which will begin in October. A few months later, after the new president has taken office, the vacancy will have been filled.

Rather, the significance of the Senate’s action lies in reminding us that the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges.

This is not a usurpation of power but an inevitability. Most of what the Supreme Court does — or says it does — is “interpret” the Constitution and federal statutes, but I put the word in scare quotes because interpretation implies understanding a writer’s or speaker’s meaning, and most of the issues that the court takes up cannot be resolved by interpretation because the drafters and ratifiers of the constitutional or statutory provision in question had not foreseen the issue that has arisen. This is notoriously the case with respect to the Constitution, composed in 1787, and the Bill of Rights, composed two years later. But it is also the case with respect to the 14th Amendment, composed in 1866 and ratified two years later; and in the statutory realm, it is the case with respect to numerous old but still influential statutes, such as the Sherman Antitrust Act of 1890, and countless modern statutes as well. Eighteenth- and 19th-century politicians, and many 20th-century ones as well, did not foresee or make provision for regulating electronic surveillance, sound trucks, flash-bang grenades, gerrymandering, child pornography, flag-burning or corporate donations to political candidates.

When judges are not interpreting, they’re creating, and to understand judicial creation one must understand first of all the concept of “priors.” Priors are what we bring to a new question before we’ve had a chance to do research on it. They are attitudes, presuppositions derived from upbringing, from training, from personal and career experience, from religion and national origin and character and ideology and politics. They are unavoidable tools of decision-making in nontechnical fields, such as law, which is both nontechnical and analytically weak, in the sense that there are no settled principles for resolving the most difficult and consequential legal controversies. The tools I am calling priors can in principle and sometimes in practice be overridden by evidence. But often they are impervious to evidence, being deeply embedded in what we are, and that is plainly true of judging — not in every case but in cases that can’t be resolved by interpretation or some other decision-making tool that everyone understands and uses in an identical way.

The priors that seem to exert the strongest influence on present-day Supreme Court justices are political ideology and attitudes toward religion. It is well-understood that there are now, with Scalia’s death, three very conservative Catholic justices (Samuel A. Alito Jr., John G. Roberts Jr. and Clarence Thomas), four liberal justices (Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor) and a swing justice (Anthony M. Kennedy) who is generally conservative but liberal in several important areas (such as gay rights and capital punishment of minors). Before his death, Scalia, a solidly conservative and devoutly Catholic justice, gave the conservatives a definite majority on the court that pushed the court in a conservative direction, much as the liberal justices of the 1950s and 1960s had pushed the court in a liberal direction. (Kennedy and Sotomayor are also Catholic but less influenced by religion; the three liberal justices besides Sotomayor are Jewish but not, it seems, influenced by Judaism in their judicial work.)

President Obama might nominate to the Scalia vacancy a centrist, or even a conservative-seeming judge of sterling qualifications, who yet might be a “stealth” liberal in the mode of John Paul Stevens, David Souter, Harry A. Blackmun and to a lesser extent Sandra Day O’Connor — justices who were or at least seemed conservative when appointed but became significantly less so as justices. Republican senators can avoid the embarrassment of confirming a stealth liberal by refusing to hold a confirmation hearing for any Obama nominee, hoping that the next president will be a Republican and will appoint someone in Scalia’s mold. The Republican senators’ behavior is proof (were any needed) of the Supreme Court’s politicization.

 

[lokisnow]

Contra the above post, here is a passionate and well argued article on Srinivasan's behalf:

 

https://www.washingtonpost.com/news/monkey-cage/wp/2016/03/14/three-reasons-that-nominating-sri-srinivasan-for-the-supreme-court-could-change-u-s-elections/

 

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But we haven’t seen much analysis of another important political factor: the support Srinivasan can expect from Asian Americans. Here’s why we think it could be powerful.

1. Asian Americans have already gotten one Obama administration nominee confirmed — despite opposition from the National Rifle Association

2. A Senate fight over a historic, high-profile nomination such as Srinivasan’s could mobilize Asian American voters like never before.

3. Srinivasan’s nomination could prompt Asian Americans to begin contributing to campaigns in proportion to their wealth

but the best argument they list for Srinivasan is that he is the only immigrant up for consideration by Obama, and given the high profile status of immigrants this election cycle, that could tip things his way.  

They also note that Sanders, Cruz and Rubio all voted to confirm Srinivasan. Personally, I expect all three to flip to opposing him if he's selected. There is no way that Sanders in his campaign mode can confirm a Big Oil corporate attorney to the Supreme Court.

Additionally, I think that Srinivasan is going to be passed over because he has more value as a confirmable justice for the next president, just as Garland has been in reserve for all of Obama's term as a confirmable replacement to be used in emergency when a more liberal justice is not possible. If Republicans hold the senate 51 to 49, Clinton will need Srinivasan available to replace Ginsberg or Breyer, so Srinivasan has more future value than present value I think--because in all likelyhood no judge is getting confirmed, and I'm not sure the modern media will stand for democrats continually appointing the same judge to openings on the supreme court, they want new names and new stories, and will viciously attack a second attempt by Clinton to appoint a justice Obama failed to confirm. So if you risk a valuable asset like Srinivasan now, in all likelyhood you won't be able to appoint him to a future post.

Srinivasan also has value in the opposite case. If a republican wins the presidency, but Democrats have a 51 to 49 majority in the senate, democrats could insist on Garland or Srinivasan as the only judges they will consider confirming.

[BloodRider]

I thought  Srinivasan  removed himself from the running?

[Paladin of Ice]

14 minutes ago, BloodRider said:

I thought  Srinivasan  removed himself from the running?

I believe you're thinking of Sandoval, the Repubican governor who Obama floated only for the GOP to still immediately shoot the idea down.

[lokisnow]

Smoking gun. A whole bunch of heads at the EPA are about to start getting chopped off. I imagine probably five forced resignations from this email alone. Absolutely horrible.

 

http://www.vox.com/2016/3/15/11239438/flint-epa

[NestorMakhnosLovechild]

9 minutes ago, lokisnow said:

Smoking gun. A whole bunch of heads at the EPA are about to start getting chopped off. I imagine probably five forced resignations from this email alone. Absolutely horrible.

 

http://www.vox.com/2016/3/15/11239438/flint-epa

I actually think that Vox really dropped the ball on this one. Politico has a short but more informative article and a link to the actual emails. Link to Politico. Link to more emails, including the full text of the email that's been excerpted. 

Basically, the "I'm not sure Flint is a community we want to go out on a limb for" is being excerpted to suggest that there was some discriminatory motive in the initial inaction on Flint's request to use this particular fund for water filtration systems. Except that's not it at all. The full text of the email makes clear that the real issues are legal and financial.

The basic issues appear to be as follows:

1. The set-aside funds were never used for individual filtration systems before. They're used typically for "wellhead protection." So it's being questioned whether the filtration systems would be an "eligible use." The proposal is that they get a legal opinion on the eligibility of the funds to be used for the requested purpose before it was approved. Also, there's a concern that if they approved this for Flint, other cities that also have lead pipes would be requesting money from this set-aside fund, which could deplete the fund. 

2. There are legitimate financial concerns about Flint's past management of water and sewer fees. Basically, Flint is supposed to use their water and sewer fees to manage and upkeep their water and sewer systems. What they did instead was put all those funds into a general fund that the Flint city government then looted to pay for other things. So in essence, they never spent their water and sewer fees on their water and sewer system.  The EPA, understandably I think, wants to know what they actually spent all their money on before bailing them out. Apparently, some Circuit Court Judge actually found Flint to have wrongfully transferred and spent these funds, and Flint was Court Ordered to lower their water and sewer rates. 

 

 

[Paladin of Ice]

Apple's lawyers start bring out the big guns in their appeal against the FBI

IN THE SHOWDOWN between Apple and the Justice Department over an iPhone used by one of the San Bernardino shooting suspects, one question has loomed large. Why hasn’t the FBI sought assistance from the National Security Agency—which employs some of the nation’s top hackers—to crack into the iPhone? Apple has touched on that question lightly in other briefs filed in the case, but today it focused on it more extensively in its latest brief submitted to the court.

“The government does not deny that there may be other agencies in the government that could assist it in unlocking the phone and accessing its data; rather, it claims, without support, that it has no obligation to consult other agencies,” Apple wrote, noting that FBI Director James Comey danced around the question of NSA assistance when asked about it during a recent congressional hearing.

And if the FBI can’t on its own break into iPhones without NSA help, it should invest in developing that capability, Apple says, instead of seeking unconstitutional ways to force tech companies to assist it.

“Defining the scope of the All Writs Act as inversely proportional to the capabilities of the FBI removes any incentive for it to innovate and develop more robust forensic capabilities,” Apple wrote. The company quotes Susan Landau, a professor of cybersecurity policy at Worcester Polytechnic Institute, who has said that “[r]ather than asking industry to weaken protections, law enforcement must instead develop a capability for conducting sophisticated investigations themselves.”

After this is a whole lot more about whether the All Writs Act, a 200 year old law, gives the government the authority they claim it does in this case, as well as other precedents related to Congress and Supreme Court decisions. My eyes glazed over at it though, and I didn't want to go either the route of quoting the whole article or quoting less significant parts and leaving meaningful bits out, so everyone feel free to pour through it. When we're at half past midnight though, that one is beyond me.

[ummester]

On ‎12‎/‎03‎/‎2016 at 1:52 AM, desire said:

Has the USA lost it's mine? Trump..the guy who stole the line your fired from WWE Vince is leading the polls 

What's mine is mine and what's yours is also mine - but the US lost it's mind a long time ago  Trump is just the current manifestation of decades of mindless consumption, he is proof that we reap what we sow.

I think he'll become president, not because I like him, or that he says anything worthwhile - but because we (and specifically the US, in this case) deserve it.

[Mexal]

WSJ saying Garland is to be the pick. At least that's what their Twitter account says.

[Fez]

7 minutes ago, Mexal said:

WSJ saying Garland is to be the pick. At least that's what their Twitter account says.

Lots of places reporting that.

He's older than I'd like, at 63, but I suspect this is a case where Obama doesn't really think he'll get confirmed by the Senate. If does, hey, awesome; a liberal majority on the court. And if he doesn't, none of the younger possible candidates have gotten damaged by a year-long confirmation fight and can get nominated by hypothetical President Clinton in January.

Or maybe Obama thinks that Republicans would be more likely to accept an older nominee than someone who is, say, 45 and going to be on the court for 40 years.

[Fragile Bird]

Nobody here  mentioned Garland, ever, did they?

 

I am now pissed off with Obama.  Last week Justin Trudeau rolls into town and they are all smiles when they announce Canada and the USA are going to work jointly to protect Arctic waters, and this week Obama announces oil and gas drilling can go ahead off the north shore of Alaska?  WTF?

[Fez]

6 minutes ago, Fragile Bird said:

I am now pissed off with Obama.  Last week Justin Trudeau rolls into town and they are all smiles when they announce Canada and the USA are going to work jointly to protect Arctic waters, and this week Obama announces oil and gas drilling can go ahead off the north shore of Alaska?  WTF?

Well he did also ban drilling off the Atlantic coast, which is arguably bigger news. And the Alaska proposal is a continuation of the status quo rather than anything new, and actually still has oil companies concerned.

[Ser Scot A Ellison]

He's the Chief Judge of the DC Circuit.  Confirm the man.

[Tempra]

11 minutes ago, Ser Scot A Ellison said:

He's the Chief Judge of the DC Circuit.  Confirm the man.

Certainly, he is eminently qualified for SCOTUS.  

 

It will be a shame if his nomination gets held up because of political partisanship.  Of course, Obama should have nominated him a vacancy or two ago...