Don’t Make Gorsuch into a Purity Test for Democrats

Protest against Gorsuch appointment

I normally agree with much of what Think Progress writes, but not in one of its latest pieces on how Senate Democrats stand on Gorsuch appointment. It’s interpretation of their stand is obvious from subheadings of “Team Spine”, “Team ¯\_(ツ)_/¯”, and “Team Trump”.

I am not happy with a Gorsuch appointment because of his strong beliefs against the Chevron Defense. This legal standard has allowed federal agencies to survive challenges to laws typically related to the environment and endangered species. He’s also a conservative judge when we had a chance to appoint a moderate who would actually make decisions based on the law, not ideology.

At the same time, Gorsuch is a much better option than some of the judges Trump was considering. And these latter judges may be up for consideration in the next few years if another Justice retires or dies. Gorsuch has demonstrated a willingness to buck conservatives in decisions if he interprets the law in a way that’s independent of their reasoning.

If I were a Democratic Senator, I wouldn’t vote for Gorsuch, but I wouldn’t filibuster his appointment, either.

By not voting for Gorsuch, I’m signaling that I believe the seat he’ll feel is a stolen seat. I’d want him to know that this “stolen seat” legacy will follow him throughout his years, and his decisions. I’d want him to think about this legacy, especially in light of his professed love of the law. I’d want him to remember that Merrick Garland is highly qualified, more experienced, and was lawfully appointed by the President of the United States.

However, by not filibustering him, I am acknowledging that he is a better option than what we could face from Trump. It’s a long two years until the Senate race when we can hopefully take back the Senate.  The Senate Republicans will destroy the SCOTUS filibuster rule if Democrats filibuster Gorsuch. Guaranteed.

Gorsuch will still be judge, but we’ll have lost the ability to force in-depth, stringent confirmation hearings for future appointees; hearings that may cause some Senate Republicans to question whether what’s being said in these hearings is worth the possible hit in their upcoming re-election bid. Because there’s a whole lot of Republicans coming up for re-election along with the Trump administration in 2020.

With the filibuster in place, Senate leaders are going to be more willing to allow for lengthy, robust questioning during the committee hearings, in hopes of appeasing those who might be thinking of filibustering the appointment. Without the threat of filibuster, why should they waste time when they know the control the votes to just vote the person in?

A longer confirmation process may expose information that not only is game changing for Democrats but could be game changing for some Republicans. Republicans who might actually join the Democrats…especially if they’re coming up for re-election.

That’s my take. Others, including many Democratic Senators, have different takes. Regardless of how each Senator handles the Gorsuch appointment, one thing I’m adamant about: I’m not turning this into a purity test for Democrats.

Purity tests, inspired by Sanders and sledgehammered by Jill Stein, helped us lose the election and put Trump into the Presidency. Trump’s Presidency has already hurt people. Trump’s Presidency has already killed people.

That Garland isn’t a Supreme Court Judge is the Republicans’ fault. That Gorsuch and not Garland is the current choice is Trump’s fault. Trump, his cabinet, and the Republican-controlled Congress are, and will remain, my only targets. My entire focus is to limit the damage this Congress and President can do, and to kick them all out in the next three federal elections. To me, nothing else matters.

Too much is at stake to play purity games.

Photo courtesy of Elvert Barnes CC BY-SA 2.0



Can Trump Create the Terminator Rule?

Donald Trump at rally

Rather than a press conference or interview, Trump put out a video seemingly to assure Americans that we don’t have to spend our days and nights in absolute terror because he’s in charge. Flip to the end: he didn’t succeed.

All Trump did was create confusion. Reading the transcript doesn’t provide more clarity.

There is much in the short Trump video to cause one sleepless nights, but the Trump promise that really grabbed me is his promise of a rule to kill rules:

On regulation, I will formulate a rule which says that for every one new regulation, two old regulations must be eliminated, it’s so important.

In effect, he’s proposing a Terminator Rule.

Leaving aside the soundness of just tossing rules and regulations aside, can Trump as President create a Terminator Rule?

Continue reading “Can Trump Create the Terminator Rule?”

Writing at Crooks and Liars

Bird in a tree

I have been writing some pieces at Crooks and Liars, primarily to extend my audience reach. My poor little weblog just doesn’t have the oomph it once had—probably because I write on such an odd mix of topics.

About my pieces at Crooks and Liars…

I’m a Clinton supporter, but even if I weren’t, I’d be unhappy at the obvious attempt to turn her use of a personal email server into the next Apocalypse. That the hysteria about her use of a personal server is manufactured is obvious. The problem is compounded by a media that has done a poor job of covering the story, aided and abetted by the GOP. Sadly, their efforts have also been helped by Bernie Sanders and his supporters. Yes, Bernie says he doesn’t want to get into the Clinton email server, but he always manages to insert an aside about “how serious this situation is” in some form or another.

He’s been in DC for decades, he knows this ‘scandal’ is engineered. Why can’t he just say so, and then go on to the issues?

I’m also unhappy about the continued abuse of the FOIA by groups like Judicial Watch and the Competitive Enterprise Institute. So it was natural for me to follow the FOIA lawsuits associated with the Clinton emails, especially when I discovered one was being presided over by Judge Emmet Sullivan—not my favorite federal judge.

Judicial Watch, CEI, and others like them make most of their income trolling through public records. They make sweeping and broad FOIA requests to agencies already maxed to the limit with trying to support open records requests. Then, when the agencies don’t respond in a fairly short time, or respond in the way they want (and they’re seldom happy with the results of a search), they file a lawsuit.

What most people don’t know, is those lawsuits cost the American taxpayer money. Judicial Watch got close to a million dollars in legal fees with one lawsuit, $330,000 in another, and that’s just a start. I suspect all of Judicial Watch’s efforts have cost taxpayers millions, if not tens of millions of dollars.

The agencies do make good faith efforts to find records, such as the State Department made a good faith effort to find Clinton emails. But State also has to respond to an average of 20,000 or so FOIA requests in a year, with a budget that’s been decreased 15% by the Republican-dominated Congress.

That Clinton’s emails weren’t found is more a result of confusion about what’s stored than not. From all of the emails I’ve looked at, she either responded to someone with a State email address, or forwarded the email to someone with a State email address. Everyone seemed to assume that all emails in a State email account were automatically saved, and searchable by FOIA. Of course, from the recent OIG report, we know this isn’t true. Does that make State negligent and Clinton criminal?

Of course not.

When Clinton did give her backup of the emails to State, they put everything online. Everything. No one individual ever working for any government agency has ever had this much exposure of their emails.

State had had to hire 44 more people, just to handle FOIA requests, primarily related to Clinton.

Despite that, Judge Sullivan and Judge Lamberth, another judge who demonstrates some of the same characteristics as Sullivan, are allowing Judicial Watch to do discovery in their FOIA lawsuits. It’s absurd. FOIA is administrative law. If the Judge decides that the agencies didn’t do enough to fulfill a request, they can sanction the agency, and order it to pay legal fees. But discovery?

And the direction of the discovery in the Sullivan case is disturbing. State offered to bring in  personnel responsible for FOIA requests to be deposed, but no, Judicial Watch wanted people that Clinton had on her staff, such as Cheryl Mills. These are people that had, at most, a remote connection to anything to do with the emails, but oh, they know a lot about Clinton. Judicial Watch wants to depose Bryan Pagliano, the person who set up her server, but he’s demonstrated since the beginning of this fiasco he wants nothing to do with it, and now that’s caused even more issues.

We’ve already seen Judicial Watch blast through the narrow confines Sullivan set for discovery. They do so with impunity, because they know Sullivan, like I know Sullivan: once you trigger Sullivan the Crusader, say good-bye to Sullivan, the thoughtful and balanced jurist.

All combined, I’m going to continue to write about the FOIA lawsuits. Unless Crooks and Liars tells me enough already with the FOIA lawsuits and depositions, I’m going to continue covering them at the publication, but may start duplicating them here, for those of my regular readers who might be interested.

My most recent piece for Crooks and Liars is not on FOIA lawsuits, but was a direct response to  recent interviews Susan Sarandon did with MSNBC and Young Turks (I originally saw the interview in Salon). In a piece at The Hill, we read:

Sarandon, who supports Bernie Sanders for president, said Trump’s ideas are too implausible to be dangerous.

“This is what we’re fed — ‘he’s so dangerous, he’s so dangerous,’ ” she said. “Seriously, I’m not worried about a wall being built and Mexico paying for it.

“He’s not going to get rid of every Muslim living in this country. Has he made it the norm to be racist and vent these kinds of things? Yes. But seriously, I don’t know what his policies are.”

She basically dismisses all the appalling statements Trump has made, as if they’re inconsequential because everyone knows they won’t happen. This is the exact same rhetoric we’ve started to see from the GOP this week: oh, don’t worry, Trump can’t do any of that stuff, so you can elect him President. Congress will control him.

Sarandon then accuses Hillary Clinton of being more dangerous. Trump wants to ban Muslims, build a wall, threatens a federal judge, seems to see the Presidential role as a personal perk, has disdain for Constitutional separation of powers, wants to play patty cake with the leader of North Korea, is bellicose about China, Japan, Mexico, NATO, and every single one of our allies…and Clinton is more dangerous!?

Sarandon also used the opportunity to chastise the media for not covering Clinton’s upcoming indictment, which, according to her is a certain thing:

“Nobody’s even talking about this indictment,” she told MSNBC. “What happens with that, besides the trust issue of catching her in so many lies?”

“Well, there has been no indictment,” Chris Jansing responded.

“No, but there’s going to be,” responded Sarandon. “I mean, it’s inevitable.”

I answer her “it’s inevitable” at C & L, but a short summary: what a crock.

In my opinion, if Sanders doesn’t get the Democratic nomination, Sarandon wants Trump to win.  She once slipped and said she thought it would shake things up, but then disclaimed the statement. But I truly believe she thinks this. And she’s encouraging other Bernie supporters to think the same.

“Well, you know, some people feel Donald Trump will bring the revolution immediately,” Sarandon told Chris about why she’d vote for Trump. “If he gets in, then things will really explode. The status quo is not working. I think it’s dangerous to think that we can continue the way we are … to think you can’t do something huge to turn that around, because the country is not in good shape if you’re in the middle class.”

My piece may seem over the top, but it’s relatively restrained considering what I really wanted to write.

My Crooks and Liars pieces:

I’m still writing here and my other sites. Still writing about tech. Still writing about all the other stuff I write about.