My US Supreme Court plan

In a comment to this post on my refraining from watching the Amy Coney Barrett hearings, I promised my thoughts on the future of the United States Supreme Court, so here is my attempt to weigh in on a very fraught civics topic. Please note: This is my personal opinion as a citizen. I am not a lawyer or someone with a degree in public policy. This is my brainstorming on the basis of common sense, fairness, and trying to codify what had previously been expected to accord with good governance and ethics.

In the design of the Constitution, the judicial branch is co-equal with the legislative branch (Congress) and the executive branch (president and executive agencies). Its function is to interpret the Constitution and laws. In recent years, the courts have been politicized. The impartiality of their judgements is called into question by the machinations of the politics around their appointment by the president and confirmations by the Senate.

The process as written in the Constitution is that the president nominates individuals for open seats on the various federal courts with the Senate’s advice and consent. Since Mitch McConnell has been Republican majority leader of the Senate, he has failed in his Constitutional duty to give Senate hearings and votes to nominees made by Democratic president Barack Obama, most (in)famously in the case of Supreme Court nominee Merrick Garland but of dozens of nominees to lower federal courts, as well. During the Trump presidency, McConnell has busily filled those seats with Trump’s very conservative nominees, even when those people have been rated “not qualified” by the American Bar Association.

This is an unfair practice but not technically illegal because there are not specific statutes on how the Senate gives advice and consent. My plan begins with codifying what had previously been expected, timely consideration of a president’s court nominees. I propose that all nominees to the federal bench have their Senate hearings begun within sixty days of their nomination and a confirmation vote by the full Senate for those who are advanced by the Judiciary Committee taken within ninety days. The exception would be for a vacancy to the Supreme Court in a presidential election year. A vacancy that occurs on July first or later would be held open for the winner of the presidential election that November.

My sense of fairness also calls for some remedy to the McConnell machinations that have skewed the federal courts to having more Republican appointees than there should have been. If Biden is elected, I think he should be able to make two immediate nominations to the Supreme Court, one for the seat that should have been considered for Merrick Garland because Antonin Scalia’s death was prior to July first in 2016 and one for the seat that will presumably be filled by Trump after the death of Ruth Bader Ginsburg in September. This basically applies the principle that would be codified in the new law. I envision these two seats as temporary. Going forward, Supreme Court openings would be filled by Democratic (or independent) presidents as usual; Republican (or another conservative party that might arise out of the current maelstrom) presidents would forfeit the next two openings that occur during their presidencies, gradually reducing the Supreme Court back to nine justices.

A similar remedy might be able to be applied to the other federal courts, looking at seats that McConnell blocked from being filled by President Obama as a basis.

This is not a perfect solution, as it will not restore the balance and integrity that the courts would have had without these abuses of power, but it would at least give a legal structure to prevent a repeat in the future and some measure of accountability to the parties that acted unfairly.

Another court reform that is being discussed is to put a term length on what are now lifetime appointments. I have mixed feelings about this. I like the concept of lifetime appointments because it removes any thoughts of a justice deciding in a certain way in order to influence their re-appointment for an additional term. On the other hand, it bothers me that there are justices who were rated as “not qualified” or who have been credibly accused of sexual harassment or lying under oath who will serve for a lifetime on the federal bench. If a term of service is imposed, it should be long, on the order of eighteen or twenty years. I would leave the option available for the president to re-nominate a justice for Senate confirmation. As much as I might like to apply a time limit retroactively, I don’t think this is a good idea. For better in some cases and worse in others, those approved as lifetime appointments should be able to remain in those positions.

For the record, there has been much talk about the Democrats, if they control Congress and the presidency, “packing the Court” meaning adding seats permanently to the Supreme Court. This term is meant pejoratively. I think the Democrats will definitely pursue court reform which is needed to prevent what Aaron Blake of the Washington Post has termed “court-stacking” – the Republican gamesmanship that has resulted in the current skewing of the courts toward justices nominated by Republican presidents.

The idea of temporarily adding seats and exacting a penalty against future Republican/conservative presidents is something that I dreamed up on my own, not something that I have seen proposed elsewhere, proving once again that you can never tell what might be top of JC’s Mind.

By the way, in tangentially related Senate procedure, I propose that the filibuster return to its traditional role as a tool to convince other senators to support one’s position. If a senator wishes to filibuster a nomination or piece of legislation, they may take the floor to talk about the issue as long as they wish. When they finish, debate ends and the measure is brought to the floor for a vote. In a body that already gives outsized influence to states with small populations, forty-one of one hundred senators should not have the ability to permanently block what the majority of senators wants to enact.

Failing the Constitution

I woke up this morning thinking about the United States Constitution, specifically about the Preamble, which I can recite from memory. (Thanks, Schoolhouse Rock.)

The Preamble sets out the goals of our democratic republic. It famously begins, We the People of the United States. This means everyone is part of this enterprise, regardless of age, gender, race, ethnicity, religion, or political views. It was part of the wisdom of the Founders to frame this document in such an expansive way, even though, at the time, only free men, who were overwhelmingly white, could vote. Much of the history of the United States has been about expanding our understanding of who “we the people” are, a process that continues to this day.

in Order to form a more perfect Union – We the People are, at this moment, moving away from a more perfect Union. I take this Constitutional call seriously and am sad and frightened about the current state of affairs, which is causing so many divides in our country. There are millions of people who are embroiled in an “us versus them” mentality over religion, political party, race. gender, ethnicity, and/or viewpoint on a particular issue. There are millions of people who can’t have a civil discussion of an issue without petty name-calling and dismissiveness of the other’s viewpoint. That moves us away from “a more perfect Union”.

establish Justice – Our Constitution creates an entire co-equal branch dedicated to this goal. Sadly, the independence of the judiciary is under threat, most obviously this week by the executive branch interfering in the sentencing of a friend of the president’s who was tried and found guilty by a jury on all seven counts with which he was charged. The Attorney General, who is appointed by the president and confirmed by the Senate, is supposed to be the chief law officer for We the People; as such, most attornies-general have observed independence from the executive branch. AG Barr is not doing that. Chillingly, he has also ordered that no investigation into political campaigns can occur without him personally giving permission. This mean that the Federal Bureau of Investigation cannot follow leads, collect evidence, question witnesses, or take any action unless Barr authorizes it. He could order investigations of Democratic candidates while blocking those of Republican candidates. Given that twelve Russian operatives are under indictment for election interference to help Donald Trump and hurt Hillary Clinton in the 2016 presidential election, this raises the specter of similar efforts by Russians or other foreign actors not being investigated at all, as long as they benefit the current administration and other Republican candidates.

Meanwhile, the Senate has been interfering with the judicial branch, too. Senate Majority Leader Mitch McConnell would not bring President Obama’s federal court nominees to the Senate for confirmation. Not only did Merrick Garland not get a vote to join the Supreme Court but also dozens of nominees to lower courts were denied votes. McConnell has spent a lot of the Senate’s time pushing through the current administration’s judicial nominees, even those rated as “not qualified” by the American Bar Association. Traditionally in the Senate, sixty of one hundred votes would have been needed to bring these to the floor, but that rule has been suspended, so even the not-qualified candidates receive lifetime appointments to the courts with only fifty votes.

insure domestic Tranquility – Our domestic life is anything but tranquil. The incivility noted in the “more perfect Union” section too often devolves into verbal abuse and threats to personal safety. There have been threats of violence, even death, to journalists, public officeholders, diplomats, members of the military, and people who either question the administration or come forward to give truthful testimony.  Even ordinary folks can be threatened over simple things like video games or expressing their opinion about books or topics of public interest.

Too many people are hurt or killed by violent acts, especially those involving firearms. Mass shootings and police shootings get the most media coverage, but every day people are shot by someone they know or are victims of accidental shootings. The majority of gun deaths in the United States are suicides. These are not marks of domestic tranquility.

Millions of people don’t have access to sufficient food, safe shelter, medical care, and other necessities of a dignified life. Most of them are employed, but not earning a living wage. Millions of people are suffering from addictions. Millions of people are exploited because of their gender, immigration status, age, or other factors that make them fearful to seek help. Millions of people face discrimination because of their race, gender, age, ethnicity, or beliefs. None of these things are tranquil for those suffering through them or for those who sympathize with them.

provide for the common defence – The United States military is the most powerful institution in the world. It should be used to defend the United States and our allies from aggression. Often, the presence of US military is enough to deter countries from attacking their neighbors. I am appalled by the way this administration has pulled back support for our allies, such as South Korea, Ukraine, NATO, and the Kurds. These actions make both the US and our allies less defended and less safe. The treatment of the Kurds is especially troubling. The Kurds did the bulk of the work in taking back land controlled by ISIS; the US withdrawal that the president declared after talking with the autocratic leader of Turkey left the Kurds with no protection from the Turks and the Russians who have taken over the Kurdish towns and driven the residents into exile. Meanwhile, ISIS, continues as a terrorist organization, which is a continuing threat to the US and our allies.

promote the general welfare – This is the phrase from the Preamble that I quote most often. The Constitution is calling us to care for one another. This is also sometimes called in our modern American English working for the common good. This is one of the purposes of our government, but too often government acts in the interests of those individuals, families, businesses, and organizations that are wealthy. This tiny fraction receives a lot of benefits that ordinary folks don’t. Case in point: the tax reform that gave permanent tax cuts to businesses and large tax cuts to the wealthy, while giving some short-term tax relief to some non-wealthy people and higher taxes to others.

Too often our elected officials ignore promoting the general welfare, instead focusing on their campaign donors, businesses in their district or state, and wealthy folks rather than what is good for the general population, both in their district/state and throughout the country. Votes are cast not in the interest of the whole populace but with an eye to what the voters in their party’s primary wants.  Even worse, some officeholders feel that they only represent people of their party or those that voted for them. That is not the framework laid out by the Constitution. We the People expect our government officials to cooperate in passing, executing, and adjudicating laws that promote the general welfare and protect our rights, not to block a proposal because it originated in the other party or was passed by the other house of Congress. Examples of this are the hundreds of (mostly bipartisan) House-passed bills this session that Leader McConnell has blocked in the Senate and the comprehensive immigration reform passed by a bipartisan majority in the Senate in 2013 but not brought up for a vote in the House because it would have passed without a majority of the Republican members voting in favor.

and secure the Blessings of Liberty to ourselves and our posterity – While I feel fortunate to have these blessings, so many others do not. They face discrimination, poverty, abuse, hunger and other problems every day. I mourn the country and world we are leaving to the younger generations and those to come. We are leaving them with division and peril, with our world damaged so much that some of the ecological systems will not be able to recover fully even over centuries. Recognizing this, many young people have taken action to demand change. The Sunrise movement works on issues of climate change and environmental degradation. After a mass shooting at their school, the students of Parkland High mobilized young people across the country to demand protection from gun violence. It is incumbent on all of us to support our younger generations, already part of We the People, and future generations who one day will be.

do ordain and establish this Constitution for the United States of America. – We the People established our government. It belongs to all of us, not just to a few of us. We need to hold government accountable for the purposes for which we established it. We need Congress to take responsibility for passing laws that are fair to everyone. We need them to exercise their Constitutional duty to declare war when necessary, rather than ceding that power to the commander-in-chief or military leaders. We need everyone to realize that Article II does not give presidents the power to do whatever they want. They are subject to Congressional oversight and judicial proceedings. The courts have to realize that they exist to interpret the Constitution and laws, not write them.

It is troubling that a large percentage of people in this country today tell pollsters that they believe Congress and the courts should get out of the president’s way so that he can do what he wants quickly. This is incredibly dangerous to our democratic republic. We the People must be informed on what the Constitution dictates and hold officeholders and other public servants to it. Those who commit serious breaches of the Constitution should resign. If they don’t, they should be removed by legal means or, at the very least, not re-elected or re-appointed.

I have not been silent on these issues but, given the troubling events of the last few weeks, I felt the need to write this lengthy post to be among those sounding the alarm that our country is in danger. Like me, most of us do not have a large megaphone to broadcast our voices far and wide, but if enough of us speak up in defense of our Constitution, our government will hear the voices of We the People.

Review: Just Mercy

Knowing that a film is portraying real people and the situations they face immediately increases its impact for me. Just Mercy is based on a book by lawyer and social justice activist Bryan Stevenson, who, after graduating from Harvard Law School moved to Alabama to offer legal defense to those who could not afford representation and to those wrongly convicted.

One of his early cases involved Walter “Johnny D” McMillian, movingly portrayed by Jamie Foxx, who was on death row for a murder that he did not commit. Having just arrived in Alabama, Bryan Stevenson, played earnestly by Michael B. Jordan, delves into the case and finds ample evidence that shows Johnny D could not have murdered the 18-year-old young woman. It also quickly becomes apparent that race was a huge factor in McMillian’s conviction. The victim was white and McMillian is black.

It also quickly becomes apparent that Attorney Stevenson, who is also black, will encounter racial obstacles in his professional life and harassment by law enforcement officers and the legal establishment, but he continues to do all he can to seek justice for his clients, their families, and their community.

I have long been opposed to the death penalty. I remember writing an essay against it when I was still in grammar school. While my opposition centered around the moral belief that killing a person is wrong and the Constitutional grounds that the death penalty constitutes “cruel and unusual punishment,” this film illustrates some of the other reasons to oppose the death penalty, such as systemic racism in the legal system, incompetent defense attorneys, and lack of recognition and treatment of mental illness.  There is also the horrible possibility of executing an innocent person.

One of the most moving things about the film for me was the support that the men on death row gave one another. Even though they couldn’t often see each other because the walls between them were solid, they would shout to each other to exchange information and offer words of comfort. They would use the bars at the front of the cell and a metal cup to let another man know they are thinking about him.

The film is rated PG-13 and would be too emotionally difficult for children. There are sequences that I found emotionally difficult, especially the one execution that is shown. While the execution itself is not shown on screen, the lead-up to it is heartbreaking.

I always stay to watch the credits of films. Even if you usually do not, you will want to stay through the first part of the credits which gives updates on the people that we meet during the film. It is a final reminder that we are dealing with the lives of real people, what happened to them, and the implications of those events that continue into our present and future as a country.

A note from Joanne:  This is the fifth(!) film I have seen this month. I have never been to a theater so many times in a two week-period. Those of you who are new to Top of JC’s Mind should know that this is not usually a movie review blog. You just happened to catch me at a time when movies are swirling in my mind.
*****
Join us for Linda’s Just Jot It January! Find out more here:  https://lindaghill.com/2020/01/14/daily-prompt-jusjojan-the-14th-2020/

a lament

While I have been concentrating on family issues these last few months – and watching less news on television as the now-two-year-old ABC is more often alert in the evenings – there is always the undercurrent of disturbing news around me.

One of the worst of these issues is the inhumane treatment of asylum seekers, refugees, and immigrants by the Trump administration. Under U.S. and international law, people have the right to cross the border to ask for asylum. The administration has set up barriers to this, including restrictions at ports of entry, that have resulted in desperate attempts to cross rivers and/or deserts that have caused deaths.

Those who do manage to cross the border have been detained for long periods in overcrowded facilities without access to proper food, clothing, shelter, sanitation, communication, and legal aid. The most scandalous part of this has been the continuing separation of children from adult family members, resulting in thousands of so-called “unaccompanied minors”, some who are still infants and toddlers, who are only unaccompanied because they have been taken away from family members who brought them to the US and aren’t able to contact them or other adult family members already in the country. As if that weren’t bad enough, these children are being kept for extended periods of time in horrible conditions without proper care. This is in flagrant disregard of court orders, international law, and human decency.

These sorts of things are not supposed to happen under the rule of law and, if they do, the attorney general, as head of the justice department, should take legal action to ensure that these abuses stop and never happen again. However, this is not happening. Some judges have issued court orders, but they can’t make the Department of Homeland Security carry them out. Meanwhile, the president is holding rallies touting his tough stance at our southern border.

It’s all sickening.

I don’t know how this will end. I am hoping for the sake of the people being held that something will work to free them and care for them, now rather than later. My fear is that this disregard for our laws and for basic human rights will persist until there is a new president and cabinet. That will take much too long, though, with more suffering, deaths, and trauma inflicted on thousands and thousands of people in the meantime. It’s possible that the US could be sanctioned by the United Nations or an international court, but I doubt that would have any greater effect than the court orders of US judges.

There is no good way to end this post, other than to thank all the lawyers, social service agencies, faith communities, and local governments who are doing all they can to care for those being detained, for those who are released with no means to care for themselves or to travel, for those who are sick or hungry or thirsty, and for those who are frightened and confused and separated from their families while surrounded by people who do not speak their language. May their example of love, compassion, and human decency move those who are in power to change their ways.

Update:  I wrote this yesterday evening and woke up to see this post being shared on Facebook. It is very disturbing information about one of the for-profit companies running detention centers using US tax dollars; it lists sources.

more unsettled

Last week, I wrote about how unsettled I was, for both personal and societal reasons.

It’s worse now, particularly on the political front.

With the Manafort verdict and the Cohen guilty pleas and the immunity deals for Pecker and  Weisselberg, the possible legal jeopardy for the Trump family and businesses has increased. The president has tweeted multiple threats against the Justice Department and especially against Attorney General Jeff Sessions. There has been public discussion about the possible issuing of presidential pardons, but those only apply to federal charges and it is likely that the state of New York will bring more tax and financial charges against the Trump Foundation, businesses, and family members. Meanwhile, the Mueller investigation on Russian election and political interference continues and no one knows when the next indictment or plea deal will be announced.

It makes my head spin.

Although I was a preteen at the time, I remember this same unsettled feeling during the final stage of the Watergate scandal before Nixon resigned. Despite the public revelation of evidence of corruption and coverup, many of Nixon’s supporters among the electorate were adamantly against his impeachment or resignation; it took the intercession of Republican Congressional leaders to convince Nixon to resign rather than put the country through impeachment of the president and subsequent Senate trial.

I have no idea how our current predicament will resolve. I pray that it will be just and peaceful and lead to healing and reconciliation in the country, but I fear that it will not.

Senator John McCain died yesterday, leaving a long and distinguished record of public service, as a Navy officer, including five and a half years as a prisoner of war, a member of the House of Representatives, a Senator for over thirty years, and a presidential nominee. Tributes to him, his courage, and his service are pouring in from across the country from people across the political spectrum. It saddens me that part of the obituaries and coverage is dedicated to Donald Trump’s personal animus against and disparagement of Senator McCain.  Given that history, DT’s current condolences ring hollow.

May John rest in peace and may his legacy live on in his family, friends, and colleagues.

indictment of Russian military officers

I am appalled at DT siding with Putin against the very real evidence of crimes against the American people around the 2016 election by members of the Russian military.

The indictment is detailed and, of course, the grand jury, ordinary United States citizens doing their civic duty, saw the evidence behind the counts listed.

Russia will not extradite the officers to stand trial, so the trial will need to be held in absentia.

All members of Congress should speak up and support the Justice Department and courts as this process moves forward. They should also pass legislation to secure the 2018 and future elections.

They must also denounce the president for taking the side of Putin and Russia against the United States. I can barely believe the depths to which DT has sunk, as he denigrates our long-time allies while praising authoritarian leaders.

The Congressional oath of office begins, “I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic…” I call on all members of Congress to fulfill their oath and protect our democracy.

parents and children

Daughter E and granddaughter ABC have been back with us for a month. ABC is currently snoozing in her grandpa’s arms. While we are sad that her daddy is so far away right now, we know it is necessary so that E can get a spousal visa to join him next year when the three of them will be together full-time at last.

ABC just reached thirteen months of age and is going through one of those time periods when she is especially attached to her mommy and very suspicious of strangers. Observing that and knowing how important it is for her to be surrounded by love and stability makes the ongoing crisis of the current US border policy all the more appalling. It is unconscionable that the current administration has taken children away from their parents or guardians and then lost track of them.

While the courts have ordered that families be reunited soon, the government has asked for more time. Meanwhile, the damage to these children’s health continues, as well as the heartbreak of their parents and of millions of Americans who cannot belief that such cruelty has been done in our name.

Many people have come forward to assist the children and their family members, giving money, legal services, transportation, housing, and other assistance to reunite the children with their loved ones as quickly as possible. Unfortunately, we cannot undo the trauma these families have experienced.

marriage, family, and immigration

Millions and millions of people watched press coverage of the recent wedding of Prince Harry and Meghan Markle. Meghan, a United States citizen by birth, is now the Duchess of Sussex.

I am very happy for them as they begin their married life in the United Kingdom, but I am sad that British immigration law makes it so much more difficult for other non-citizen spouses to join their British counterparts. The complex immigration laws of the United Kingdom and the United States, both currently in flux under their current governments, are conspiring to keep ABC, my dual-citizen granddaughter, from being with both her parents for the majority of her first two years. She is always very excited to video-visit with her daddy when she is in residence with us and her mom here in the States, but it is, of course, not the same as being there in person.

Still, at least they can see each other and have access to a process that will enable them to be together long-term, unlike the families seeking asylum in the United States who are being subjected to new procedures by the Trump administration. Children as young as one year are being separated from their parent(s) and put into foster care. Unconscionably, some of the parents are being charged with human trafficking of their own children.  Such treatment of asylum seekers is both immoral and illegal under international law. I’m hoping that legal challenges filed on behalf of these families will find justice among federal judges, even though it is the Justice Department in Washington that has implemented these new draconian policies.

Update June 1:  This post gives more information and ways to speak out in defense of children and parents.

public vs private

Given that I am on a breaking news theme today, I am re-blogging my post about US marriage rights and separation of church and state. The clerk I allude to in this post has just been jailed for continuing to fail to provide marriage licenses to legally eligible couples, despite being ordered to do so by the federal courts.

Top of JC's Mind

I heard a radio story today about a Kentucky county clerk who is in court for failing to issue marriage licenses to same-sex couples, citing a religious exemption because her personal religious belief is that same-sex marriage is prohibited.

Her belief is protected by the US Constitution. The recent Supreme Court decision made abundantly clear that no religion or religious officiants would ever be required to preside over a wedding which violated their religious beliefs.

However, in the public sphere, marriage between two consenting adults, regardless of gender, is legal. So, in dealing with the public, the law is the determining factor. The religious belief of a clerk, justice of the peace, or judge should not be allowed to interfere with a lawful action by a member of the public. If it does, it violates the establishment clause which says that the state is not allowed to establish an official…

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