Who will President Obama nominate to replace Justice Antonin Scalia

February 16, 2016

Despite a constitutional mandate to do so, senate majority leader Mitch McConnell has decreed that the Republicans will not conduct any hearings to consider whether to approve anyone whom President Obama might nominate to replace recently deceased Justice Antonin Scalia.

So much for the importance of his oath to uphold the Constitution and the laws of the United States.

President Obama has announced that he will nominate someone in “due time.” Speculation abounds.

The identity of the person he nominates is less clear than the strategy he uses to select his nominee. Not only must he select someone above reproach, he must select someone who has recently been approved by the senate to serve in a judicial or law enforcement position. The nominee must be so above reproach and non-controversial as to cast shame onto anyone who opposes him or her. That would be shame of the sort that would result in the senator’s loss in a November reelection bid. Given the right candidate, the democrats could regain control of the Senate.

One such candidate is Judge Sri Srinivasan, whom the senate unanimously confirmed by a vote of 97-0 in May 2013 to serve on the United States Court of Appeals for the D.C. Circuit. In addition to serving as a judge on the United States District Court for the District of Columbia, he served as a deputy solicitor general in DOJ’s Office of the Solicitor General. As a south asian minority (born in India) with a JD and an MBA from Stanford, his credentials are difficult to beat.

Another difficult to beat contender is Attorney General Loretta Lynch, whom the Senate recently confirmed. Tom Goldstein, who runs the influential SCOTUSblog, believes she will be the nominee. NBC News reports,

But tapping Lynch to fill the seat of Scalia, who died suddenly Saturday, poses a perception problem for Republicans because her “history as a career prosecutor makes it very difficult to paint her as excessively liberal,” Goldstein wrote.

Lynch would be the first black woman ever nominated to the nation’s highest court — and the GOP would have a political problem during an election year if the Republicans refused to even consider her nomination, Goldstein wrote.

“I think the administration would relish the prospect of Republicans either refusing to give Lynch a vote or seeming to treat her unfairly in the confirmation process,” Goldstein wrote. “Either eventuality would motivate both black and women voters.”

Stay tuned as President Obama’s choice may turn out to be the most important and consequential decision he makes during his presidency. It really is that important. In addition to losing control of the senate, a republican refusal to consider her could cost the republicans the fall election.

With Justice Scalia dead we have to elect a democrat in November

February 14, 2016

Ironically, United States Supreme Court Justice Antonin Scalia, 79, died yesterday of natural causes after spending the day hunting quail at a resort ranch in west Texas. Generally regarded as the most conservative member of the court, his death eliminates the one-vote conservative majority. This means the justices will likely tie 4-4 on many issues until Justice Scalia is replaced. From the New York Times,

The court faces a crowded docket of politically charged cases that are certain to resonate in the presidential campaign on issues such as immigration, abortion, affirmative action, climate change, labor unions and Obama’s health care law. Decisions were expected in late spring and early summer on whether the president could shield up to 5 million immigrants living in the United States illegally from deportation.

The immediate impact of Scalia death means that the justices will now be divided 4-4 in many of those cases. If there is a tie vote, then the lower court opinion remains in place.

A Senate looking at a limited legislative agenda in an election year now faces one of the most consequential decisions for the venerable body. Not only will voters choose the next president, majority control of the Senate is at stake in November, with Republicans clinging to control and concerned about the fate of some half dozen GOP senators running for re-election in states that Obama won.

What is supposed to happen: President Obama will nominate a successor. The Senate Judiciary Committee will hold a confirmation hearing. If it approves the nomination, the full senate will vote on the nomination. If approved by a majority, the nomination will be confirmed and the new justice will be sworn in. The appointment is for life, or until such time as the justice decides to retire.

What is going to happen: Senate Majority Leader Mitch McConnell has already announced that the Republican controlled Senate will not hold hearings to consider President Obama’s nominee. He hopes that a Republican will be elected in November.

What this means for the country: We damn well better elect a democrat as our next president.

SCOTUS upholds voter-passed law prohibiting affirmative action in university admissions

April 22, 2014

Tuesday, April 22, 2014

Good morning:

The United States Supreme Court issued an opinion today by a vote of 6-2 upholding a voter-passed constitutional provision in Michigan that prohibits colleges and universities from using affirmative action policies in deciding whether to admit applicants to enroll in their academic degree programs.

The decision reverses an en banc decision by the Sixth Circuit Court of Appeals. An en banc decision is a decision by the entire circuit court, as opposed to a three-judge panel.

Justice Anthony Kennedy wrote the majority opinion. He held that the sixth circuit did not have the authority to overrule Michigan voters. He said,

This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.

Justices Roberts and Alito joined his opinion.

Justice Scalia, joined by Justice Thomas, concurred in the result, but added that parties who claim that a law denies equal protection must show that the law has a discriminatory purpose in order to prevail. He concluded that the constitutional provision was legitimate since it did not have discriminatory purpose.

I rarely agree with Justice Scalia and this is yet another decision with which I disagree. Affirmative action laws were enacted to create opportunities for minorities to acquire the necessary education, skills and experience to overcome discrimination and compete for employment on equal footing with others.

I do not see how he can say with a straight face that the constitutional provision passed by voters prohibiting affirmative action in admissions to state colleges and universities has no discriminatory purpose.

Affirmative action programs were enacted to give meaning to the Equal Protection Clause of the 14th Amendment. Racism is real and only a racist or racist enabler would deny it. Racist voters, who would deny minorities the opportunities for improvement accorded by affirmative action laws because of the color of their skin, establish the discriminatory purpose.

Justice Sonia Sotomayor dissented, joined by Justice Ruth Bader Ginsburg. She read her decision aloud in court this morning noting that the majority decision is a blow to “historically marginalized groups, which rely on the federal courts to protect their constitutional rights.” She warned that, “Without checks, democratically approved legislation can oppress minority groups.”

Justice Stephen Breyer, who usually votes with justices Sotomayor, Ginsberg, and Kagan, deserted them this time. He did not see a problem with allowing voters to decide whether to adopt race-based admissions policies.

Justice Kagan recused herself from participating in this case.

The name of the case is Schuette v. Coalition to Defend Affirmative Action, U.S. Supreme Court, 12-682.

Read the 6th circuit’s en banc decision that struck down the voter passed constitutional provision that the SCOTUS shamelessly upheld today.

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Unplug Marlise Munoz from corpse support immediately

January 16, 2014

Thursday, January 16, 2014

Good afternoon:

I cannot stop pondering the ethical dilemma created by doctors keeping Marlise Munoz’s decomposing corpse on a ventilator so that the fetus in her womb can reach full term and be birthed into this world.

Since the beginning of our species approximately 200,000 years ago, pregnant women have died and will continue to die. That reality is not going to change, although the percentage of pregnant women who die probably will decline over time. Until relatively recently, the fetus perished with the mother, unless someone removed it with forceps or cut it out of the dead or dying mother’s body and it had developed sufficiently to survive on its own.

Our technology has created an ethical dilemma.

We used to define death as the cessation of a beating heart. We declared a person dead, if they had no pulse and we could not restart their heart.

If we could restart their heart, we could keep them “alive” pursuant to that definition, even if they did not regain consciousness, such as might be the case with someone in a coma.

We have changed our definition of death because our technology has rendered it obsolete.

We have intravenous lines to provide plasma and feeding tubes to provide nourishment.

Liquid waste can be removed with catheters.

Nurses and their aides can clean-up solid waste and re-position a patient to prevent bed sores and skin ulcers.

Ventilators can oxygenate the blood and eliminate carbon dioxide from it by inflating and deflating the lungs with air and a beating heart will circulate the oxygenated blood.

We can do all of these things to keep someone alive, pursuant to that definition, even if they never regain consciousness.

However, in what sense is a person alive, if he or she is unconscious and brain dead, an irreversible condition in which there is no detectable brain activity and no possibility of regaining consciousness?

Rene Descartes answered the question in his Principles of Philosophy, published in 1644:

Cogito ergo sum: I think, therefore, I am.

We have redefined death as the cessation of brain activity. Indeed, without the assistance of a ventilator, a brain-dead person’s heart would soon stop beating and they would be declared dead pursuant to the old definition. For that reason, doctors have decided that it’s unethical to keep a brain-dead body on a ventilator. Expressed another way, it’s unethical to keep a corpse attached to life support equipment.

The ethical question is whether we should make an exception to that rule when a pregnant woman dies?

I propose two simple rules:

(1) Always disconnect a corpse from life support equipment; and

(2) Remove the fetus from the corpse, if it is reasonably capable of surviving outside the womb, given the state of medical technology. (I am thinking of premature births and hospital nurseries)

I would disconnect Marlise Munoz from life support immediately and I would not remove the fetus from her womb because it is not reasonably capable of surviving outside the womb, given the state of medical technology.

Marlise Munoz is a corpse, not a person.

A corpse cannot be a patient.

Her unborn child is a fetus, not a person, it has no cognizable right to life, and it certainly cannot viably survive outside the womb. See Roe v. Wade, 410 U.S. 113 (1973).

The Texas statute upon which the hospital relies in refusing to disconnect her suffers from the same infirmity as the Texas statute criminalizing abortion that the United States Supreme Court struck down in Roe v. Wade because it prohibits the hospital from disconnecting any pregnant woman from life saving equipment, regardless of the viability of the fetus to survive on its own outside the womb. The statute also impermissibly requires a doctor to violate an ethical rule of the medical profession, which is much better suited to establish its own ethical rules than the Texas Legislature, which has no business criminalizing ethical medical conduct.

Since Marlise Munoz is brain dead, we can infer that the fetus was deprived of oxygenated blood for at least 6 minutes. I don’t know how that might have affected a 14-week old fetus. Just because its heart is beating normally, however, does not mean it’s okay and it certainly cannot viably survive outside the womb, a principle concern in Roe v. Wade.

This ghoulish situation reminds me of horror plots such as Mary Shelley’s Frankenstein, George Romero’s Night of the Living Dead, Ira Levin’s Rosemary’s Baby, Stephen King’s Pet Cemetery and their various progeny.

Our technology has outdistanced our wisdom.

A baby coming into existence by feeding on its mother’s corpse makes me shudder with revulsion.

Some things are not meant to be.


This is our 855th post in 26 months. We work hard to support our readers with informative and well written articles on a variety of subjects, some legal and some not.

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SCOTUS to hear arguments today regarding president’s power to appoint during Senate recess

January 13, 2014

Monday, January 13, 2014

Good morning:

The SCOTUS will be hearing arguments today regarding the president’s power to appoint people, whose appointments are normally subject to the consent of the Senate, when the Senate is not in session.

Article 2, Section 2 of the Constitution provides:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Senate Republicans precipitated this battle by abusing the filibuster power to block appointments to vacancies on the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CPFB) and by scheduling pro forma or brief meet-and-greet-see-you-next-time-ha-ha “sessions” to further frustrate and prevent the president from appointing people to positions in his government while the Senate is in recess.

PBS summarizes what is at stake:

Senate Republicans’ refusal to allow votes for nominees to the National Labor Relations Board and the new Consumer Financial Protection Bureau led the president to make the temporary, or recess, appointments in January 2012.

Three federal appeals courts have said Obama overstepped his authority because the Senate was not in recess when he acted. The Supreme Court case involves a dispute between a Washington state bottling company and a local Teamsters union in which the NLRB sided with the union. The U.S. Circuit Court of Appeals for the District of Columbia overturned the board’s ruling, and hundreds more NLRB rulings could be voided if the Supreme Court upholds the appeals court decision.

More broadly, if the justices ratify the lower court ruling, it would make it nearly impossible for a president to use the recess power. Under such a ruling, presidential nominees could be blocked indefinitely when the president’s party does not control the Senate.

Three federal appeals courts have upheld recess appointments in previous administrations.

By a simple majority vote recently, the Democrats voted to change the Senate rules to limit the ability of the minority party to block most presidential nominees, spurred by GOP efforts to block three Obama appeals court nominees.

Yet the issue still remains for non-judicial appointments.

What do you think.


This is our 849th post in 26 months.

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