Tag Archives: SCOTUS

President Trump Sets a High Bar for Governor Sununu

President Trump has announced that on Thursday of next week he will name his pick to replace the late Antonin Scalia on the United States Supreme Court.

It appears that Trump has narrowed his choice to two or three finalists:

“I’ll be making my decision this week, we’ll be announcing next week,” Trump said, after meeting Tuesday with Senate leaders from both parties to discuss the vacancy. “We’ll pick a truly great Supreme Court justice.”

This, as sources close to the selection process tell Fox News the list of possible candidates is now down to three names, all of them federal appeals court judges: Judge William Pryor in Alabama, Judge Neil Gorsuch in Colorado, and Judge Thomas Hardiman in Pennsylvania.

All three of these judges are legal superstars.  For example, from Jonathan Adler at the Volokh Conspiracy:

All three of the reported finalists are highly qualified, conservative justices. All would make for strong Supreme Court justices, … 

Any of these choices would set a high bar for Chris Sununu when his turn comes in July of this year and October of next year to nominate justices to the New Hampshire Supreme Court.  Sununu’s nominations will be a large part of determining his legacy.

Sununu is at a significant disadvantage when compared to Trump, however, when it comes to picking conservative justices.

First, let’s clarify that a judicial conservative is a completely different animal from a judicial liberal and from a political conservative.  A  judicial liberal is a judge who whenever possible will reach a liberal political result.  Essentially, the judicial liberal decides what the “right result” is and then strives to find some plausible way to reason backwards to that result.

A political conservative describes someone’s political leanings, not his or her philosophy of judging.  For example, Justice Scalia, while very politically conservative, reached liberal results in many cases.  For example, ruling that burning the American flag was constitutionally protected free speech.  What made Scalia a judicial conservative was his philosophy of judging – an originalist when it came to interpreting the constitution (giving constitutional provisions the public meaning they had at the time of their adoption) and a textualist when it came to interpreting statutes (discerning legislative intent from the words of the statute, not from extra-textual sources like “legislative history”).

The three judges on Trump’s short-list are all appeals court judges with extensive paper-trails, including judicial opinions, articles and lectures.  These paper-trails allow Trump’s team to determine the judicial philosophy, and the reasoning and writing abilities of the judges.

In contrast, Sununu doesn’t have a similar “bench” from which to draw.  New Hampshire does not have an intermediate appellate court.  Rather, appeals are directly from the trial courts to the State supreme court.  The majority of the work of a trial court judge tells us very little about the judge’s judicial philosophy and whether the judge is otherwise qualified for the supreme court.  Thus, if Sununu wants to tap an lower court judge to fill the upcoming vacancies, he will not have the benefit of the paper trail that Trump has had in filling the Scalia seat.

Moreover, with the exception of two years, 2003-2004, the Democrats have held the corner office and have been appointing judges for the past twenty years.  The three judges on Trump’s short-list, in contrast, were all appointed by President George W. Bush.  It’s safe to say that the Democrat Governors who preceded Sununu were not looking to appoint judicial conservatives to the bench.

So Sununu is going to have to look outside the bench if he wants to put judicial conservatives on the New Hampshire Supreme Court.  It is imperative that he understand that a political conservative is not necessarily a judicial conservative.  And that a nominee who does not present himself or herself as a judicial conservative, i.e. an originalist and a textualist, and is able to explain why it is important that a judge be a judicial conservative will, once exposed to the rarified air in Concord, begin moving to the left.

The ideal candidate would be someone with a paper trail.  So Sununu will not have to wonder if the candidate is just talking the talk to get nominated, but will not walk the walk if confirmed.

No more Souters.

The Most Effective Argument That Trump Can Make Against #NeverTrump

It’s either me or Hillary is not a very effective argument for Donald Trump to use against #NeverTrump.  They already know that, yet they believe that Hillary Clinton is the lesser of two evils because Clinton would leave conservatism to fight another today as opposed to co-opted.

Without getting into the argument whether conservatism is better or worse in the long run with a Clinton presidency versus a Trump presidency, let’s agree that Trump has to give #NeverTrump a better reason to hold their noses and vote for him than otherwise you get Hillary

What Trump should do is say that his first act as President will be to nominate Ted Cruz to the Scalia seat. Continue reading The Most Effective Argument That Trump Can Make Against #NeverTrump

Does Speaker Jasper Have a Secret Plan to Establish a State Obamacare Exchange?

The United States Supreme Court (SCOTUS) hears arguments on Wednesday (March 4) in King v. Burwell, a case that will decide whether it is legal for the Obama administration to allow Obamacare tax credits in States that did not set up state exchanges, but instead opted for federal exchanges.  I previously post about the case here, here and here.

From a previous post:

Both the individual mandate and the employer mandate are triggered by the availability of subsidies. In the case of an individual, when the cost of health insurance exceeds eight percent of income he or she cannot be fined (or taxed, if you prefer) for not purchasing health insurance. The employer mandate also is triggered by the availability of subsidies. In States where there are no subsidies, employers cannot be fined for not offering its full-time employees “suitable” insurance.

The actual language of Obamacare authorizes subsidies only for health insurance purchased on an exchange “established by the State under section 1311.” If the Supreme Court says this language means what it says, that’s a big problem for Obamacare because there are only sixteen Obamacare exchanges “established by the State.” The remaining States, including New Hampshire, opted against setting up Obamacare exchanges. Obamacare, in these thirty-four States, is purchased through exchanges established by the federal government. Without subsidies there can be no individual mandate or employer mandate in these thirty-four States, and with no individual mandate or employer mandate in these thirty-four States there can be no Obamacare.

In a previous post, I also wondered about what the New Hampshire Legislature would do in response to a ruling by SCOTUS that Obamacare subsidies are not available in States like New Hampshire:

New Hampshire is neither a federal exchange state nor a state exchange state. It is a partnership state, one of “seven ‘partnership’ states —Arkansas, Iowa, Illinois, Michigan, West Virginia, Delaware and New Hampshire — that regulate health plans and handle consumer outreach while relying on the HealthCare.gov enrollment portal.”

According to the Washington Post, the partnership states:

seem to be the likeliest candidates to establish a state-run marketplace if the Supreme Court rules against the Obama administration.

“They’re already most of the way there,” said Georgetown’s Giovannelli.

So what will Senate President Morse and House Speaker Jasper do if, as expected, the United States Supreme Court rules that Obamacare subsidies are not legal in States (like New Hampshire) that have not established state exchanges?

The New Hampshire Attorney General, on behalf of the State of New Hampshire, has joined a brief supporting the Obama administration.  Here’s a link to a post on National Review Online regarding the amicus briefs (55 in all), which will allow you to access the brief joined by Mr. Foster.

I think it is highly likely that Mr. Foster has directly or  indirectly been in communication with Speaker Jasper and Senate President Morse about what to do in response to a SCOTUS decision ruling that Obamacare subsidies are only available in States with state exchanges.  If such a discussion or discussions have taken place, which I consider likely, then I am sure that the discussion included setting up a state exchange in New Hampshire.

My sense and fear is that Speaker Jasper, who is no small government conservative, would be receptive to such a plan.