#DyingPaper (aka Union Leader) Embraces Supreme Court’s Upholding Obamacare

Say what you will about Donald Trump, but I can’t remember any other Republican Presidential candidate ever standing up to Union Leader publisher Joe McQuaid:

DyingPaper

Indeed voters everywhere owe Trump a thank you for exposing that the “coveted” Union Leader endorsement required taking #StinkyJoe golfing (in the case of Trump and who knows what else in the case of the others).  But this post isn’t about Trump.  I just wanted to explain the title.

Recently, the Union Leader editorialized glowingly about a New Hampshire Supreme Court decision which the Union Leader described as requiring government to provide “reasonable access” to records requested under the Right-to-Know law:

Reasonable access, in this case, would have been for the district to send the information electronically to Green. It already had the information on file; but it insisted that she go to school offices, at times of convenience not to her but to the public staff, to review the information. 

According to the Union Leader, the Supreme Court decided the case based on the purpose of the Right-to-Know law (the editorialist Grant Bosse used the term “premise”):

The state Supreme Court agreed, unanimously. It overturned a Superior Court judge’s ruling that the N.H. Right-to-Know law was “ambiguous” as to how such information could be provided.

The high court said that any ambiguity question should be decided in favor of the basic premise of the law, “which is to increase public access to all public documents and governmental proceedings, and to provide the utmost information to the public about what its government is up to.”

You know what else was decided based on the purpose of a statute?  The United States Supreme Court’s King vs. Burwell case, in which Chief Justice Roberts again saved Obamacare, this time by ruling that the purpose of the statute foreclosed interpreting the text of the statute to mean what the text clearly means.

From Jonathan Adler of the Volokh Conspiracy:

The primary basis for the Chief Justice’s decision is that a “fair construction” of the statute requires more than giving meaning to discrete phrases, so “established by the State” need not mean “established by the State” insofar as such an interpretation — given the intervening decision of several dozen states not to establish their own exchanges — would produce untoward effects that Congress would not have intended or wanted when it enacted the PPACA. Specifically, the Chief Justice argued, insfoar as an interpretation of the PPACA would undermine the statute’s goals — such as by creating a “death spiral” of increasing costs and declining coverage — it is the Court’s job to avoid it.

In response to Roberts’ opinion the late Justice Scalia penned an epic dissent (the jiggery-pokery dissent) in which he coined the phrase SCOTUScare:

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so. …

The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.

Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medi- caid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

I dissent.

(The entire dissent is well-worth reading, but here is a link to one person’s choices for the most memorable quotes.)

As for the New Hampshire Supreme Court’s decision, it apparently involved a request for records that were kept in electronic form.  The Right-to-Know law provides that:

Every citizen during the regular or business hours of all public bodies or agencies, and on the regular business premises of such public bodies or agencies, has the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies, including minutes of meetings of the public bodies, and to copy and make memoranda or abstracts of the records or minutes so inspected, except as otherwise prohibited by statute or RSA 91-A:5. In this section, “to copy” means the reproduction of original records by whatever method, including but not limited to photography, photostatic copy, printing, or electronic or tape recording.” (RSA 91-A:4, I) (Emphasis added)

And that where the records are in electronic form:

“In the same manner as set forth in RSA 91-A:4, IV, any public body or agency which maintains governmental records in electronic format may, in lieu of providing original records, copy governmental records requested to electronic media using standard or common file formats in a manner that does not reveal information which is confidential under this chapter or any other law. If copying to electronic media is not reasonably practicable, or if the person or entity requesting access requests a different method, the public body or agency may provide a printout of governmental records requested, or may use any other means reasonably calculated to comply with the request in light of the purpose of this chapter as expressed in RSA 91-A:1. …” (RSA 91-A:4, V) (Emphasis added) (RSA 91-A:4, IV provides that it must provide the records immediately “when such records are immediately available for such release. If a public body or agency is unable to make a governmental record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied.”)

So when records kept electronically are requested, the government can either allow the person requesting the records to sit at a computer in the government office and review the records or copy the records onto electronic media (unless it isn’t reasonably practical or another method was requested, neither of which were in play here).  Those are the only two choices.  The government cannot provide paper copies instead of the electronic media, which is what the Timberlane Regional School District proposed here.

So I don’t see any ambiguity requiring the Supreme Court to divine the statute’s meaning from its purpose.

Colin Van Ostern Reveals He is No Friend of the Second Amendment

Earlier this week, New Hampshire Public Radio “interviewed” Democrat gubernatorial candidate Colin Van Ostern.  I put interview in quotations because NHPR, unsurprisingly, served up softballs that allowed Van Ostern to repeat his talking points.  But one portion actually is elucidating:

The State Senate recently voted to repeal the requirement to obtain a concealed carry permit. Sign? Veto?

I would veto that. I think we need to trust our local law enforcement to be involved in those decisions. I’m a proud gun owner myself; I have a 12-gauge shotgun with a trigger lock and a gun safe in my house. I go bird hunting a couple times a year. I promise you, the Second Amendment rights that I not just support but I personally exercise are completely consistent with basic common-sense ways to prevent gun violence.

In other words, Van Ostern believes that the Second Amendment allows government to require firearms kept in the home to be rendered inoperable (trigger locks) and/or to require that the firearms not be readily accessible (gun safe versus keeping a handgun in drawer next to one’s bed).  These are precisely the types of regulations that the United States Supreme Court ruled violated the Second Amendment in the 2008 Heller decision:

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitu­tional.

A firearm is of no use for self-defense against an intruder if it is inoperable or not immediately accessible.

It also may be that Van Ostern believes that handguns can be banned altogether, that is that the Second Amendment protects only firearms the government deems appropriate for hunting: “the Second Amendment rights that I not just support but I personally exercise are completely consistent with basic common-sense ways to prevent gun violence.”  As the Heller opinion shows in comprehensive (indeed, excruciating) detail, there is no basis to interpret the Second Amendment to protect a right to hunt.

In sum, Colin Van Ostern is no friend of the Second Amendment.

Why does this matter?  Because if Hillary Clinton is elected President it is a sure bet that Heller will be overturned, as it was a five to four decision with Scalia in the majority.  If that happens, then legislatures and governors (and Congress and the President) will decide what rights, if any, are protected by the Second Amendment.

NHPR’s Ridiculous Definition of Gerrymandering

The term gerrymander originally referred to manipulating the shape of a political district to benefit a political party.  The term apparently originated in 1812, when a Massachusetts newspaper drew a cartoon that likened a state-senate district drawn by the Democrat-Republicans to favor their candidates over the Federalist candidates to a salamander:

Gerrymander.Cartoon

More recently there was the famous I-85 district congressional district in North Carolina, a racial gerrymander to attempt to comply with pressure from the Clinton Department of Justice to maximize the number of majority-minority districts, which the United States Supreme Court ruled unconstitutional.  The district stretched 160 miles and for much of its length was no wider than the highway except where it reached out to pick up pockets of African-Americans:

I85.district

While the objectives were different in both of the above cases, what made the districts gerrymandered was geography.  More specifically,  that the district was purposefully drawn in an asymmetrical shape spanning widely separated towns and cities in order to achieve a political objective.

Now compare the above maps to New Hampshire’s State Senate district twelve, which NHPR, in an article released yesterday (“As New Hampshire Shifts to a Swing State, Why Do Legislative Lines Still Favor Republicans?”) claims represents a Republican gerrymander:

State.Senate.District.12.2014

(The blue (Democrat) and red (GOP) represent how the towns/wards voted in 2014.)

District 12 was redistricted in 2012, but it was also shaped as a rectangle before the 2012 redistricting:

State.Senate.District.12.Before.2012Needless to say, District 12 does not remotely resemble a gerrymandered district.  Yet according to NHPR it is gerrymandered because when the State was redistricted in 2012 the GOP-controlled legislature removed Nashua Ward 9, which NHPR considers a Democrat ward, and added the GOP towns of Greenville, New Ipswich and Rindge.  (As a parenthetical note  in 2010 (the map just above) even the Democrat wards voted Republican).

No court, as far as I know, has ever recognized a rectangularly-shaped district as a gerrymander.  NHPR claims gerrymander on the basis of a recent article in the hard-left New Republic that argues in favor of expanding the definition of a gerrymander to include the “Efficiency Gap.”

Here is how NHPR explains the concept.

The metric hinges on what researchers call “wasted votes.” A vote is wasted if it had no impact on the outcome of a given election. So, any vote for a winning candidate that’s in excess of the number needed to win that race is counted as wasted, since the candidate didn’t need it to secure victory.  And any vote for a losing candidate is also considered wasted, since it had no impact on the result. Some number of wasted votes are inevitable in any contested election. In a truly neutral legislative map, Republicans and Democrats will have roughly the same amount of wasted votes.

But creating districts that minimize wasted votes for one party’s candidates and increase the number of wasted votes for the opposing party—that, in essence, is gerrymandering. The result is an electoral map that reflects partisan intent over voter intent in the final tally of legislative seats.

Thus, even if population were evenly distributed throughout New Hampshire, dividing the State into 24 equally sized symmetrical districts by a neutral method (one that ignores the partisan makeup of cities and towns) would still be a gerrymander if that method resulted in more wasted votes for one party than the other party.  In other words, this theory requires the legislative map-drawers to draw the map by taking into account the partisan makeup of the cities and towns, and drawing them into districts in a way that should result in proportional representation.

There is actually a lawsuit taking place in Wisconsin right now based on this theory, Whitford v. Nichol.  If you are interested in a comprehensive discussion of all of the problems with this theory that NHPR left out of its article, here is a link to a court-submission from election law expert Sean Trende of Real Clear Politics.

Here are some problems that I see:

The assumption that the statewide vote total for all State Senate races accurately measures “voter intent” is far too glib.  For example, the assumption doesn’t account for the quality of candidates (e.g., “cross-over” votes for a good candidate, low turnout for a bad candidate).  It doesn’t account for macro-political forces driving or dampening voter turnout.  It doesn’t account for variables such as the vote being driven by an issue of local concern –for example, Northern Pass or the Kinder Morgan pipeline– that may not break down on party lines.

The theory ignores demographics.  Democrats tend to live in cities, while Republicans tend to live in more rural areas.  Thus, it is unavoidable that there will be more “wasted votes” in districts that do not divide cities.  It makes more sense to include Nashua Ward 9 in District 13 than in District 12 because the residents of Ward 9 probably have more common interest with other residents of Nashua than with the towns.  Yet the theory apparently would require Ward 9 to be included in District 12 in order to even up the number of “wasted votes.”

The theory is based on the premise that the function of the State Senate is to represent political parties, not persons.  The voters in District 12 (which borders Massachusetts) have different interests than the voters in, for example, District 1 (the North Country).  That’s why we elect State Senators by district rather than electing them statewide.  Indeed, the logical endpoint of the theory is to do away with districts and elect State Senators statewide by having the voter either vote Democrat or Republican and then allow the parties to fill the seats based on the percentages as that would eliminate “wasted votes” altogether.

Socialism, Including “Democratic Socialism,” is Intellectually Vacant, Morally Reprehensible and Socially Corrosive

I think the “textbook definition” of socialism is something along the lines of government owning or controlling the “means of production.”

Based on his website, Bernie Sanders’ “Democratic Socialism” involves using a progressive tax scheme (higher tax rates on higher incomes) to redistribute income from the “rich” to the poor and the middle class.  However, this redistribution does not take the form of government cutting checks to the middle class and the poor from the taxes taken from the “rich,” but rather involves expanding existing government programs (e.g. social security) and creating new government programs (e.g. “single payer” health insurance, “free” college).

It is important to note that Sanders’ position is that in order to achieve “Democratic Socialism” the government must be able to limit and ban political speech which it disagrees with.

With that context, let’s discuss three unassailable criticisms of socialism, which apply both to the classic model and Sanders’ variation: socialism is intellectually vacant, morally reprehensible and socially corrosive.

Intellectually vacant:  Needless to say, if socialism worked the Soviet Empire would not have lost the Cold War.  Socialist economies were anemic compared to capitalist economies because socialism provides no incentive to be productive.  Why work harder and/or longer and/or smarter just to have government take the fruits of those labors?

Sanders’ Democratic Socialism suffers from the same fatal flaw.  The empirical evidence shows that people work less when they perceive taxes as too high.  As a result,  higher tax rates on the “rich” actually hurt the poor and middle class more than it hurts the “rich” by reducing economic growth.   Lawrence Lindsey recently demonstrated this point in an op-ed in the Wall Street Journal:

The flip side of the progressive agenda to redistribute income to those with less is to raise taxes on the “rich.” The data show that it is also an ineffective way to reduce inequality.

President Clinton increased the top tax rate on higher earners—yet inequality rose during his administration, and faster than under the tax-cutting Ronald Reagan. The same happened under President Obama. Tax rates went up on upper-income earners. Inequality rose too, and more than under his tax-cutting predecessor.

As Margaret Thatcher famously noted decades earlier, socialists actually prefer that the poor be poorer in order that the rich be less rich:

YouTube Preview Image

Former chess-champion Garry Kasparov says of Socialism that it “corrodes not only the economy but the human spirit itself” stifling ambition and discouraging achievmemt:

Kasparov.Socialism.Facebook.1

Morally reprehensible:  Obviously some taxes are needed in order to exist as a nation.  Government has to provide for the military defense in order to exist as a nation.  It also has to maintain domestic tranquility by protecting the law-abiding from criminals and providing a means for citizens to peacefully settle disputes.  While we can and should disagree over what is appropriate infrastructure, there is a consensus that government should maintain some level of infrastructure.

But everyone benefits from these types of things.  On the other hand, the concept of raising taxes on the “rich” in order to, for example, provide “free college” is simply using the coercive power of government to force some people to work for other people.  Unlike national defense, higher education is not something that has to be done collectively.  There is no “free rider” problem.

Just because the “rich” are forced to work for others by a democratic vote as opposed to at the point of a gun does not make it right.  Imagine an island with nine inhabitants, five men and four women.  By a democratic vote of five to four the islanders vote that rape is legal.  That doesn’t make rape moral.

Socially corrosive:  Socialism divides us into groups and pits the groups against each other.  Rich versus poor.  Employers versus employees.  Blacks versus whites.  Men versus women.  It doesn’t consider us individuals entitled to equal rights that predate government.  Instead, our rights and obligations are determined by government based on factors such as sex, skin color and socioeconomic status.

 

In New Hampshire, the Illusion of a GOP Statehouse

Former State Representative and current political activist Spec Bowers has compiled a scorecard that indicates that 34 State Representatives who ran as and were elected as Republicans actually vote with the Democrats 40 percent or more of the time:

Spec.Bowers.1 Spec.Bowers.2 Spec.Bowers.3 Spec.Bowers.4

I don’t know what votes Bowers used, but he states that, “Almost all of these votes were to pass or kill a bill, or to adopt an amendment. There were 5 that might be labeled procedural and those were important. The simple fact is that the majority of Republicans voted one way, but they voted the other way.”

According to Ballotpedia, the New Hampshire House is nominally 236 to 162 in favor of Republicans (two vacancies).  Bowers’ scorecard indicates that the real composition of the House is  202 to 196 in favor of Republicans.  Given that there is never perfect attendance, the House on any given day may have, as a practical matter, more representatives who vote as Democrats than vote as Republicans.

And this reflects the Republican “wave election” of 2014.

Simply put, New Hampshire is a Blue State.

No, Mexico Is NOT Going to Pay for the Trump-Wall

From Donald Trump’s website, how he intends to make Mexico pay for the wall:

Trump.Plan.Mexico.Pay.for.Wall

The only “real money” listed by Trump is remittances.  The rest is chicken-feed, when you are talking about a wall that according to Trump will cost $8 billion, and according to others $15 to $25 billion.

The amount of remittances in 2014 was $22 billion but that includes remittances from all sources, not just from illegals.

Trump has not explained how he is going to identify remittances from illegals and impound just those.

Even assuming Trump could come up with a way to identify and impound remittances from illegals, it stands to reason that the illegals will find a way to get around it.  For example, Fortune has suggested that the illegals would use bitcoin:

Not only are such exchanges cheaper than traditional wire transfers, but they are faster and would be virtually impossible for the U.S. government to block (given that Bitcoin transfers don’t include identifying information that could be matched against federal identification databases). There is even a service that lets people in the U.S. send Bitcoin to ATMs in Mexico, where the intended recipient can withdraw their money in pesos.

As smartphone penetration increases in Mexico and cryptocurrency technology advances, it’s a trend that should only accelerate (particularly if the U.S. government tries to stop wire transfers).

So that leaves tariffs.  Or more precisely, the threat of tariffs  Because if Mexico doesn’t pay up and tariffs are imposed on Mexican imports, it’s the American consumer not the Mexican government that pays the tariff.

I don’t expect Mexico to cut a check to pay for the wall if threatened with tariffs.  It would be a national humiliation and the government would be voted out of office at the next election.

In sum, Mexico is not going to pay for the Trump-Wall.

Maggie Hassan Blatantly Misleading Voters About the Constitution

The death of Antonin Scalia has unleashed a political war over who should nominate his replacement, President Obama or the next President.  Perhaps nowhere is the battle as fierce as in New Hampshire where incumbent Senator Kelly Ayotte is locked in a virtual dead-heat with the putative Democrat nominee, Governor Maggie Hassan.

The battle began soon after Scalia’s passing, with Senate Majority Leader Mitch McConnell saying the American people should have a voice in the process by allowing a new President and Senate to fill the vacancy:

McConnell.Scalia

Senator Kelly Ayotte was quick to support McConnell’s position:

Ayotte.Scalia

The Democrats responded to McConnell’s preemptive strike by coming up with a meme that the Senate has a “duty” to “consider” (which means hold hearings on and hold an up and down vote on) whomever Obama nominates.

Indeed, on February 14th, Maggie Hassan’s campaign began tweeting that meme:

Hassan.Scalia.14Feb16

The problem with Hassan’s meme is that it is totally false.  The Senate has no “constitutional duty” to “consider, in the sense of holding a hearing and voting on, a Supreme Court nominee.

From Andrew McCarthy, a former Assistant United States Attorney for the Southern District of New York who lead the 1995 terrorism prosecution against Sheik Omar Abdel Rahman, at National Review Online:

Of course President Obama is going to propose a nominee. It is a legitimate exercise of his authority to do so. But it is also a legitimate exercise of the Senate’s authority not to entertain the nomination. That is clear from the Constitution’s plain language and attested to by the history of Democratic obstruction of judicial nominees by senators named Obama, Clinton, Schumer, Leahy, et al.

McCarthy left out Senate Minority Leader, Harry Reid, who expressly said, in 2005, that the Senate had no duty to vote on a President’s nominees to the federal courts:

Reid.Scalia.Vacancy

From an article by constitutional law professor Josh Blackman’s entitled, The Framers Made the Appointment Process Explicitly Political:

The monastic Supreme Court is formally isolated from the political process in all respects, but one — the appointment process. Long before they enter the marble palace, judicial nominees must run a political gauntlet that the Constitution itself has erected. The president has the duty to appoint officials — he “shall nominate . . . judges of the Supreme Court.” But the executive has this power only “by and with the Advice and Consent of the Senate.” Critically, the Senate is under no obligation to give the authority to the president. This disjunction — the president shall nominate, but the Senate does not have to confirm — activates the very sort of structural bulwarks that the Framers hardwired into the Constitution. The Supreme Court’s unanimous 2014 decision in National Labor Relations Board v. Noel Canning reaffirmed this foundational lesson: When there is inter-branch disagreement that cannot be resolved through the political process, no nominee can be confirmed.

Indeed, Blackman’s article notes that the Supreme Court itself has ruled that the Senate is not even under a duty to “consider” (hold a hearing on and take a vote on) a President’s political nominees:

All nine justices forcefully rejected the assertion that the Senate has any duty to confirm a nominee, even if the Senate’s refusal inhibits the efficient operation of the government. … As legal scholar Adam J. White noted in a 2004 article, the Founding-era debates over the confirmation process do “not support an assertion that the constitutional provision for advice and consent contains an implicit obligation to act on the President’s nominations.” The Senate has the constitutional prerogative … to not vote at all.

From Ilya Simin, Professor of Law at George Mason University:

The Constitution is indeed clear on this issue, but not in the way the president suggests. Article II, Section 2 of the Constitution states that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.” Notice that the Senate is not required to give its “advice and consent.” Rather, its consent is a prerequisite to enabling the president’s nominee to take up his or her office.

Article II, Section 2 does not lay out any specific procedure by which the Senate can refuse its consent. It does not indicate whether it must do so by taking a vote, or whether it can simply refuse to consider the president’s nominee at all. However, Article I, Section 5 states that “Each House may determine the rules of its proceedings.” That power includes the rules for considering judicial nominations, as well as all other Senate business. Thus, so long as the Senate has established rules that allow it to refuse to vote on a nominee, it can do so – just as it can refuse to vote on bills, treaties, or any other business that comes before it.

This interpretation of the text is consistent with years of practice. Both Democrats and Republicans have often blocked judicial nominations by filibustering them or otherwise preventing them from coming to a vote. …

Maggie Hassan has not responded to, or even acknowledged, the arguments of these serious legal scholars.  Instead, she just keeps repeating the false meme.

Hassan is able to avoid accountability for misleading the voters about the Constitution because most of the New Hampshire press are effectively Democrat Super-PACs who are aiding and abetting the deception.

Scalia Vacancy Shows New Hampshire Media Are Democrat Super-PACs

The death of Antonin Scalia has unleashed a political battle over who should nominate his replacement, President Obama or the next President.

The battle began soon after Scalia’s passing, with Senate Majority Leader Mitch McConnell saying the American people should have a voice in the process by allowing a new President and Senate to fill the vacancy:

McConnell.Scalia

Senator Kelly Ayotte was quick to support McConnell’s position:

Ayotte.Scalia

The Democrats responded to McConnell’s preemptive strike by coming up with a meme that the Senate has a “duty” to “consider” (which means hold hearings on and hold an up and down vote on) whomever Obama nominates.

Indeed, on February 14th, Maggie Hassan’s campaign began tweeting:

Hassan.Scalia.14Feb16

And, on the 16th, this appeared on the New Hampshire Democrats’ website:

Concord, N.H. – Fearing discontent from her far-right base and pressure to appease her party bosses, Senator Kelly Ayotte has rejected her constitutional duty and decided to back Mitch McConnell’s controversial decision to block the Senate from giving fair and timely consideration to President Obama’s next Supreme Court nominee—a move that would leave the nation’s highest court with an unprecedented year-long vacancy.

Note that the Democrats provide no basis for the assertion that the Senate has a “constitutional duty” to “consider” (hold a hearing and vote on) a Supreme Court nominee.  That’s because there is no such duty.

From Andrew McCarthy at National Review Online:

Of course President Obama is going to propose a nominee. It is a legitimate exercise of his authority to do so. But it is also a legitimate exercise of the Senate’s authority not to entertain the nomination. That is clear from the Constitution’s plain language and attested to by the history of Democratic obstruction of judicial nominees by senators named Obama, Clinton, Schumer, Leahy, et al.

McCarthy left out Senate Minority Leader, Harry Reid, who expressly said, in 2005, that the Senate had no duty to vote on a President’s nominees to the federal courts:

Reid.Scalia.Vacancy

From Josh Blackman’s article, The Framers Made the Appointment Process Explicitly Political:

The monastic Supreme Court is formally isolated from the political process in all respects, but one — the appointment process. Long before they enter the marble palace, judicial nominees must run a political gauntlet that the Constitution itself has erected. The president has the duty to appoint officials — he “shall nominate . . . judges of the Supreme Court.” But the executive has this power only “by and with the Advice and Consent of the Senate.” Critically, the Senate is under no obligation to give the authority to the president.  This disjunction — the president shall nominate, but the Senate does not have to confirm — activates the very sort of structural bulwarks that the Framers hardwired into the Constitution. The Supreme Court’s unanimous 2014 decision in National Labor Relations Board v. Noel Canning reaffirmed this foundational lesson: When there is inter-branch disagreement that cannot be resolved through the political process, no nominee can be confirmed.

Indeed, Blackman’s article notes that the Supreme Court itself has ruled that the Senate is not even under a duty to “consider” (hold a hearing on and take a vote on) a President’s political nominees:

All nine justices forcefully rejected the assertion that the Senate has any duty to confirm a nominee, even if the Senate’s refusal inhibits the efficient operation of the government. … As legal scholar Adam J. White noted in a 2004 article, the Founding-era debates over the confirmation process do “not support an assertion that the constitutional provision for advice and consent contains an implicit obligation to act on the President’s nominations.” The Senate has the constitutional prerogative … to not vote at all.

From Ilya Somin:

The Constitution is indeed clear on this issue, but not in the way the president suggests. Article II, Section 2 of the Constitution states that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.” Notice that the Senate is not required to give its “advice and consent.” Rather, its consent is a prerequisite to enabling the president’s nominee to take up his or her office.

Article II, Section 2 does not lay out any specific procedure by which the Senate can refuse its consent. It does not indicate whether it must do so by taking a vote, or whether it can simply refuse to consider the president’s nominee at all. However, Article I, Section 5 states that “Each House may determine the rules of its proceedings.” That power includes the rules for considering judicial nominations, as well as all other Senate business. Thus, so long as the Senate has established rules that allow it to refuse to vote on a nominee, it can do so – just as it can refuse to vote on bills, treaties, or any other business that comes before it.

This interpretation of the text is consistent with years of practice. Both Democrats and Republicans have often blocked judicial nominations by filibustering them or otherwise preventing them from coming to a vote. … 

But despite the unassailable arguments from these serious legal scholars that the Senate has no “constitutional duty” to “consider” (hold a hearing and take a vote on) a Supreme Court nominee, virtually every single major newspaper in New Hampshire excoriated Senator Ayotte for shirking this nonexistent “duty.”  In other words, all these newspapers simply parroted the false Democrat meme:

From the Concord Monitor on February 17th:

Failure to act on a president’s nomination is, as Democrats argue, a dereliction of duty and a blow against democracy, which requires three co-equal branches of government. Voters should consider such a refusal to perform their sworn constitutional responsibility to advise and consent, not merely obstruct, a disqualification for future Senate office.

The Nashua Telegraph also on the 17th, in an editorial ironically titled “Rules are clear on court appointment”:

Within hours of Scalia’s death, Republicans were united in their view that Obama should leave the seat open and let his successor fill the spot on the court.

To rationalize their view that the president and Senate should abdicate their constitutional responsibility to fill the seat on the court, they used the “American people” as cover.

The Keene Sentinel also on the 17th (anyone else see a pattern here?) in an editorial titled, “The Senate would be abdicating its responsibility not to vote on a Supreme Court nominee”:

Conservatives who have railed at President Obama’s every action, calling him imperious and charging that he’s running roughshod over the Constitution, now seek to have the Senate completely abdicate its constitutional responsibility to consider any person nominated by Obama, without bothering to find out who that person might be and evaluating that person’s on her or his merits.

Seacoastonline, on the 18th:

… we find it appalling that New Hampshire U.S. Sen. Kelly Ayotte and many of her Republican colleagues, have put partisan politics ahead of the U.S. Constitution, by arguing that the Senate should refuse to hold hearings on the president’s nominee to fill the vacancy created by Justice Antonin Scalia’s death Saturday.

The debate over filling the Scalia vacancy on the Supreme Court shows that virtually every major New Hampshire newspaper is a Democrat Super-PAC.  The day after the New Hampshire Democrats’ website published the meme that Ayotte was shirking her “constitutional duty” these newspapers all ran editorials parroting that meme, despite the absence of any legal scholarship supporting that meme and despite the overwhelming legal scholarship showing that meme was totally false.

The biggest media Democrat Super-PAC in New Hampshire, WMUR, was part of this, shall we call it a vast left-wing conspiracy, as it aired an interview in which former Chief Justice of the New Hampshire Supreme Court John Broderick, a Democrat politician who practiced his Democrat politics from the bench throughout his tenure on the Supreme Court, recited the same false meme:

The Senate has an obligation under the Constitution to advise and consent. And that would mean you hold a hearing, … 

GOP Must Not Fall Into Trap of Holding Hearing on Obama’s Pick to Replace Scalia

Obama and the Democrats are using an incremental strategy to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia.

The GOP actually beat Obama and the Democrats to the punch when Senate Majority Leader McConnell released a statement that Scalia’s replacement should be filled by the next President and the next Senate:

“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.”

Obama and the Democrats quickly responded with the meme that the Senate has a “constitutional duty” to “consider” whomever Obama nominates to fill the vacancy.  The “constitutional duty” to “consider” means to hold a hearing and then a vote.  (This is pure balderdash, as I will discuss in a later post.)

Obama and the Democrats are desperate to have a hearing on the nominee because a hearing changes the debate from whether the 2016 election should decide what kind of judge should fill the Scalia vacancy, a debate that favors Republicans, to whether Obama’s nominee is “qualified.”  That’s the first step in their incremental strategy to fill the Scalia vacancy.

The nest step is that Obama plans to nominate an appeals court judge who was unanimously confirmed by the Senate and present this nominee as a “consensus choice,” whose prior confirmation establishes that he or she is “qualified” for the Supreme Court.  In response I have two words: Robert Bork.

Bork was unanimously confirmed by the Senate to the Court of Appeals in 1982, but the Senate rejected his nomination to the Supreme Court in 1987.  It was not for anything Bork did on the appeals court.  He served alongside Scalia on the appeals court and their voting records were virtually identical.  Scalia was unanimously confirmed by the Senate to the Supreme Court in 1986.

The reason that Bork was rejected is that it was widely suspected that he would flip the Court to a five-to-four majority to reverse Roe vs. Wade.

So it’s an altogether different ballgame when the nomination is for the Supreme Court.  An appeals court judge can be overturned by the Supreme Court.  A Supreme Court decision is, well, supreme.

It is extremely naive to think that the Senate Judiciary Committee will win the public relations battle against Obama’s nominee.  Recall that the Benghazi hearings revealed an email showing that Clinton knew that the attack on the consulate was a terrorist attack, yet despite that knowledge repeatedly falsely stated that the attack grew out of a protest of a youtube video.  If you don’t recall that, it may be because the media -with the exception of Fox- did not cover it.  Instead, the liberal media reported that Clinton’s performance was such a tour-de-force that it was her campaign’s best week.

The media would cover any Judiciary Committee hearing the same way.  “So-and-so held up under repeated attacks by Senator Cruz.”  “The Democrats used their time to show that so-and-so was not the extreme liberal claimed by the Republicans.”  “Nominee stands up to Republican grilling.”  “Nominee earns high praise.”  Etcetera, etcetera, etcetera.

No Obama nominee is going to testify that his or her agenda is to be an activist judge.  They pose as “moderates” in order to get confirmed, then once appointed pursue activist agendas.  There isn’t going to be any grand debate between originalism and activism at the hearing.  Rather, all that we would see is what we saw at the Sotomayor and Kagan hearings:  the nominee, added and abetted by the Democrats on the Judiciary Committee, the White House and the media, posing.  That’s the next step.

And once the hearing is over, the final step: the Democrats and the White House and the media will proclaim -over and over and over again- that the nominee has shown that he or she is a highly qualified, middle-of-the road, consensus judge who should be confirmed.  And then enough GOP senators will cave to approve the nomination.

And within a year both Citizens United (First Amendment) and Heller (Second Amendment) will be reversed.  And the transformation of America into just another European style socialist state that has been the goal of Obama and the Democrats will be practically irreversible.