Supreme Court – Page 11 – immigrationcourtside.com

Law360: U.S. Solicitor General — Plum Or Lemon?

Andrew Strickler at Law 360 suggests that what was once Washington’s “best legal job” might now be a “career ender” rather than a “career enhancer.” Still, probably a far cry from being the Commissioner of the “Legacy Immigration and Naturalization Service,” sometimes described as “the worst Presidential appointment in Government.”

Those of you who subscribe to Law 360 (I don’t, so all I read was the “teaser”) can read the full article here:

https://www.law360.com/articles/891376?utm_source=rss&utm_medium=rss&utm_campaign=articles_search

PWS

02/16/17

Morning Joe: “Stephen Miller’s weekend performance: That was horrendous and an embarrassment!” — Other Than That, He Loves The Guy!

https://www.washingtonpost.com/news/the-fix/wp/2017/02/13/joe-scarborough-is-trying-to-make-trump-turn-on-stephen-miller/?utm_term=.8c119ea36330

Callum Borchers Wirtes in “The Fix” in today’s Washington Post:

“Joe Scarborough is trying to use whatever influence he has over Donald Trump to change the president’s mind about Stephen Miller. It hasn’t worked so far.

The MSNBC host previously blamed Miller for mishandling the rollout of the travel ban and on Monday resumed his campaign against Trump’s senior policy adviser, who made a series of breathtakingly forceful statements on the Sunday political talk shows, including:

“Our opponents, the media and the whole world will soon see, as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.”
“Sean Spicer, as always, is a hundred percent correct.”
“It is a fact, and you will not deny it, that there are massive numbers of noncitizens in this country who are registered to vote.”

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The video clips on this one (see link) are truly amazing. Miller is the “Perfect Storm” of arrogance, ignorance, and intolerance all wrapped into a package of smart-ass, off-putting demeanor, lack of gravitas, and robotic delivery. Hopefully, they never let this guy into a courtroom. Or, perhaps they should . . . .

Come to think of it, I’d love to see him go “toe to toe” with Judge Richard Posner of the Seventh Circuit. Nothing Judge P loves better than being told “who’s in charge.” And, as for the “I’m from the White House come to tell you about your authority, you robed boob” tone, let’s just say it wouldn’t be pretty. On the other hand, couldn’t happen to a more deserving guy.

PWS

02/13/17

The Hill: N. Rappaport Predicts That Trump Will Have Slam Dunk Win If “Travel Ban” Case Gets To Supremes!

http://thehill.com/blogs/pundits-blog/immigration/319212-if-immigration-ban-goes-to-supreme-court-trump-is-is-shoo-in

“Two states challenged President Donald Trump’s executive order, Protecting the Nation from Foreign Terrorist Entry into the United States, in a U.S. District Court. The District Court preliminarily ruled in their favor and temporarily enjoined enforcement of the order.

The government appealed to the U.S. Court of Appeals for the Ninth Circuit and filed a motion for an emergency stay to reinstate the order while its appeal from the District Court’s decision proceeds.
The court denied the government’s motion because it was not convinced that the government is likely to prevail on the states’ due process claim when the case is adjudicated on its merits. The court reserved consideration, however, on the states’ religious discrimination claim until the merits of the appeal have been fully briefed.

I have found no merit in the States arguments in support of either of those claims.”

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Read Nolan’s complete article at the link which gives his reasons for finding both the Due Process and Religious Discrimination Claims under the Constitution without merit. Additionally, Nolan wrote an earlier article in The Hill on February 8, 2017, which I inadvertently missed, expanding upon his views of the nature of Presidential authority in this area:

http://thehill.com/blogs/pundits-blog/immigration/318540-exactly-how-much-immigration-authority-does-trump-have-well

I doubt that this case will reach the Supremes in its current posture for four reasons: 1) the Court generally does not review cases at the TRO stage; 2) with only eight Justices and having split evenly on the last major challenge to Executive Power (involving the Obama Administrations so-called DAPA program) I doubt the Court wants to take this on right now; 3) at the TRO stage, the record is very sparse and the Court often looks through the record for some non-Constitutional basis to avoid sweeping rulings; 4) the Court has complete discretion as to whether to grant review in this situation and does not have to provide any reasons for denying review.

As to the merits, I doubt that the EO as currently drafted can pass constitutional muster. For example, as noted by the 9th Circuit panel, a returning lawful permanent resident alien is entitled to full due process under Supreme Court rulings. Whatever that might mean in the section 212(f) context, it has to involve, at a minimum, a hearing before a quasi- judicial official with some type of Article III judicial review. To the extent that Nolan suggests that the President himself can make such determinations or delegate them to non-quasi-judicial officials I disagree.

Also, someone coming to the U.S. with a positive overseas refugee determination would clearly be entitled to a fundamentally fair forum in which to make claims for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Indeed, anyone arriving in the United States has such a right.

I recognize the Sierra Leonian example cited by Nolan in his 02/08/17 article, and apparently that case was affirmed by the BIA and the 2d Circuit in unpublished decisions. However, it seems to me that under the CAT, a full due process hearing is required before returning individuals to a country where they might be tortured, even where that country has given “diplomatic assurances” that the individual will not be tortured. See Khouzam v. Attorney General, 549 F.3d 235 (3d Cir. 2008). I also doubt that withholding of removal, which can be granted to someone arriving at a land border after an order of removal has been entered, really is an “entry” under the INA.

These are just the most glaring examples of the lack of thought, judgement, and legal analysis that went into this ill-advised Executive Order. Haste makes waste. Bad cases make bad law, etc.

I’m inclined to believe, however, that it is likely that a carefully drafted and properly vetted Executive Order which applies only to individuals overseas who have never been admitted to the U.S., and which provides at least some type of “facially legitimate” factual basis to support it (and I don’t mean the idea that prior Congressional and Executive actions on the entirely different issue of whether an individual who was not from one of these countries, but who had visited one of these countries, could come in under a waiver of any visa vetting at all — “visa waiver”) would likely be upheld by the Court.

But, that’s probably not going to happen under this Administration. Indeed, President Trump is making the strongest possible case that our doctrine of separation of powers and the continued existence of our very constitutional republic will require, if anything, an even higher degree of judicial scrutiny of almost all Executive actions. A President who surrounds himself with such obviously unqualified individuals as Steve Bannon, Stephen Miller, and Mike Flynn shows just why the President’s judgement is not to be trusted — on this or almost anything else.

There is a reason why this issue hasn’t come up before in our history. It’s called wise and prudent Executive judgement. And, it’s sorely lacking in this Administration.

PWS

02/13/17

BREAKING: President Trump Nominates 10th Circuit Judge Neil Gorsuch To Supremes — Read My Short Article “Judge Gorsuch Understands — Why It’s High Time For Chevron ‘Judicial Task Avoidance’ To Go”

http://www.huffingtonpost.com/entry/neil-gorsuch-supreme-court_us_5890c0e8e4b0522c7d3d592a?ua16n5hws8p6xswcdi&

HuffPost writes:

“Against that backdrop, questions about the court’s independence and role as a check on the executive branch are sure to dominate Gorsuch’s confirmation hearing, which will find Democrats on the offensive and under increasing pressure to block or deny the nomination outright ― much like Republicans obstructed the nomination of Merrick Garland, the highly respected appeals court judge President Barack Obama chose to fill the Supreme Court vacancy.

If confirmed, Gorsuch, 49, would bring to the bench a conservative record that will be forever measured against that of Scalia, a towering firebrand of legal conservatism whose death last year forced Trump to issue not one but two lists of potential nominees he’d choose if elected. The lists ― largely assembled with the help of conservative brain trusts ― helped assuage supporters’ fears that Trump might not nominate judges who are conservative enough.

Conservatives need not worry. Gorsuch is an intellectual rising star ― a well-spoken and eloquent writer who enraptures Republican and Libertarian lawyers and law students who come to see him at conferences organized by the Federalist Society, a group that helped Trump put together his Supreme Court wish list.

. . . .

“One key concurring [sic] opinion that earned Gorsuch high praise from conservative commentators was in an immigration case decided last year in which Gorsuch staked out a strong position against the administrative state ― and the way the Supreme Court has made it easier for agencies to interpret laws that judges are better suited to interpret.

“That’s a problem for the judiciary,” Gorsuch wrote in Gutierrez-Brizuela v. Lynch. “And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”

Administrative law isn’t exactly an area activists will rally around, but the high court hears a number of cases in which agencies are front and center ― whether the controversy is about transgender rights, health care, the environment or immigration. In that regard, Gorsuch could be skeptical of how the Trump administration ― and future administrations ― reads the law as it exists on the books.” [emphasis added]

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Judge Gorsuch Understands — Why It’s High Time For Chevron “Judicial Task Avoidance” To Go

by Paul Wickham Schmidt

I haven’t studied Judge Gorsuch’s opinions enough to make any definitive judgement. But, I really enjoyed his opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). He “gets it” about the current problems of “deferring to administrative courts like the BIA and the U.S. Immigration Court which are subject to interference and pressure from the Executive, which “owns” them, to implement certain pro-government policies at the expense of fairness and due process for the individual.

Contrary to the HuffPost report above, Judge Gorsuch wrote the unanimous opinion of the court, not a “concurring” opinion. In it, he exposed the illogic of the Supreme Court’s so-called “Chevron doctrine.”

Chevron is a masterful piece of of Article III “judicial task avoidance” by the Supreme Court. It requires Federal Courts to “defer” to “captive” Executive Branch administrative judges, like the BIA, on important questions of law. It also allows life-tenured Article III judges to avoid deciding difficult or potentially controversial issues.

In other words, as recognized by Judge Gorsuch, Chevron provides “cover” for Article III judges to avoid their sole constitutional responsibility of independently resolving legal questions. Judge Gorsuch and his colleagues found that Chevron did not apply in the particular circumstance before them. The BIA had ignored both common sense and due process in trying to reach a result favorable to the Government. The 10th Circuit reversed the BIA (for the third time in the same case).

Whatever the merits or demerits of the rest of his jurisprudence, I am encouraged that Judge Gorsuch recognizes the critical role of an independent Article III judiciary. He is also “on to” the problems of over-relying on administrative judges, like the BIA and U.S. Immigration Judges, who work for the Executive and therefore can be subject to Executive rules and pressures that can, and sometimes do, unfairly skew results against individuals seeking justice in administrative courts.

Consequently, Judge Gorsuch should resist attempts by the Trump Administration to short-cut due process in the Immigration Courts and, hopefully, will encourage his colleagues to look closely to insure that individuals are being treated fairly in accordance with the Due Process Clause of the Constitution. If at some point Chevron and it’s even more pernicious progeny known as “Brand X” — which incredibly encourages administrative courts to “overrule” Article III courts on questions of law — go down the drain, the country and the cause of justice will be well-served. And, Article III judges will be required to once again fully earn the salaries to which their life-tenure entitles them.

Read Judge Gorsuch’s full opinion in Gutierrez-Brizuela v. Lynch below.

http://www.ca10.uscourts.gov/opinions/14/14-9585.pd

PWS

01/31/17

From “The Week:” Strange Bedfellows — If “Sanctuary Cities” & Migrants’ Advocates Defeat President Trump’s Policies In Court, They Might Owe A Huge Debt To Conservative Judges, Like The Late Justice Antonin Scalia!

http://theweek.com/articles/674498/how-conservative-judges-unintentionally-sabotaged-president-trumps-immigration-crackdown

Self-described “free-market progressive libertarian” Shikha Dalmia writes in The Week:

“But there’s another big cost that will hamstring this sanctuary city crackdown: If he can’t command local cooperation by threatening to cut funds, then President Trump also can’t de facto deputize local law enforcement agents. So he will have to cough up large sums of federal money to triple the size of the federal deportation force that would be required to eject millions of additional people.

And that will also mean bad optics, because without cooperative local authorities, President Trump will not be able to order ICE agents to whisk away all of these folks quietly in the dead of the night, shielded from media cameras. Instead, he’ll have to start raiding schools, neighborhoods, and workplaces, which will make for terrible publicity.

Whether Trump will go that far remains to be seen. But thanks primarily to the conservative justices on the Supreme Court, it’ll be very hard for him to do so. And that gives undocumented workers far more of a chance than if they had to depend only on the good intentions of local liberal politicians.

The irony is that these immigrants would be in much bigger trouble if Justice Sonia Sotomayor, along with her liberal colleague Ruth Bader Ginsburg, had prevailed in the ObamaCare ruling, as many liberals had hoped at the time. They were completely on board with ObamaCare’s efforts to use federal funds to strong-arm states.

So what’s the lesson? That standing up for bedrock checks and balances is a far better protector of vulnerable minorities than do-gooding liberal politics.”

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I’ve written before that the Trump Administration might not get the anticipated “free pass” to bash migrants that they apparently anticipate from Republican appointees on the U.S. Courts of Appeals and a conservative majority Supreme Court. Leaving aside “hot button” or “litmus test” issues like abortion, doctrinal conservatives often have great Constitutional reservations about the unbridled use of Executive Power. Indeed, doctrinal conservatism at some point comes close to libertarianism, and libertarianism has some things in common with liberalism.

Thus, at some point in my career, I found myself sitting at a Cato Institute Seminar and nodding in agreement when none other than Grover Norquist described his essentially “free market” approach to migration and border enforcement issues.

In the end, the fact that independent Article III judges, conservative, liberal, middle of the roaders, Republicans, and Democrats, freed of political control, will deliberatively decide what the law requires could turn out to be a bigger problem for the Trump Administration than they had anticipated.

PWS

01/27/17

Uniting America, Trump Style — I Never Found Much Common Ground With George Will (Except, Sometimes, On Baseball) — But, I Woke Up The Morning After To Find We Were “Brothers!”

https://www.washingtonpost.com/blogs/post-partisan/wp/2017/01/20/a-most-dreadful-inaugural-address/?utm_term=.36d0d9ef923f

George Will writes in the op-ed page of today’s Washington Post:

“A most dreadful inaugural address
Trump’s inaugural address in three minutes

Play Video2:59

On Jan. 20, 2017, President Trump took the oath of office, pledging in his inaugural address to embark on a strategy of “America first.” Here are key moments from that speech. (Sarah Parnass/The Washington Post)

Twenty minutes into his presidency, Donald Trump, who is always claiming to have made, or to be about to make, astonishing history, had done so. Living down to expectations, he had delivered the most dreadful inaugural address in history.

Kellyanne Conway, Trump’s White House counselor, had promised that the speech would be “elegant.” This is not the adjective that came to mind as he described “American carnage.” That was a phrase the likes of which has never hitherto been spoken at an inauguration.

Oblivious to the moment and the setting, the always remarkable Trump proved that something dystopian can be strangely exhilarating: In what should have been a civic liturgy serving national unity and confidence, he vindicated his severest critics by serving up reheated campaign rhetoric about “rusted out factories scattered like tombstones across the landscape” and an education system producing students “deprived of all knowledge.” Yes, all.
But cheer up, because the carnage will vanish if we “follow two simple rules: Buy American and hire American.” “Simple” is the right word.

Because in 1981 the inauguration ceremony for a cheerful man from the American West was moved from the Capitol’s East Portico to its West Front, Trump stood facing west, down the Mall with its stately monuments celebrating some of those who made America great — Washington, Jefferson, Lincoln. Looking out toward where the fields of the republic roll on, Trump, a Gatsby-for-our-time, said: “What truly matters is not which party controls our government but whether our government is controlled by the people.” Well.

“A dependence on the people,” James Madison wrote, “is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” He meant the checks and balances of our constitutional architecture. They are necessary because, as Madison anticipated and as the nation was reminded on Friday, “Enlightened statesmen will not always be at the helm.”

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Right on, George, you “nailed” it this time!

And, he was by no means the only one. Perhaps predictably, the “headliner” on the lead Washington Post Editorial was: “In his inaugural address, Trump leaves America’s better angels behind.” Wow, how “presidential” does it get?

https://www.washingtonpost.com/opinions/in-his-inaugural-address-trump-leaves-americas-better-angels-behind/2017/01/20/d0f06378-df40-11e6-ad42-f3375f271c9c_story.html?utm_term=.a2e4249340c

Even the Wall Street Journal, by no means a shill for progressive liberalism, had to remark on President Trump’s complete failure to acknowledge the Constitutional limits on his power or to recognize that he will need to work with another Constitutional Branch of Government, the U.S. Congress (and, probably not just the Republicans there) to get things accomplished. And, in the spirit of the “new unity,” I acknowledge that the Wall Street Journal has always had a very clear understanding of the essential contributions of immigrants, regardless of status upon arrival, to America’s economic, social, and political success. Although I often disagree with its stances, I find that the Journal’s overall optimism about America and our future stands in stark contrast to the dark, sinister caricature of America set forth by President Trump yesterday.

Here is the link to the WSJ editorial:

http://www.wsj.com/articles/trumps-populist-manifesto-1484957386

Remarkably, President Trump appears to view himself as not just the representative of the American people (which, as President, he is) but also the very embodiment of the American people. That’s a very odd assertion for a leader who came into power while losing the popular vote by 2.8 million. Such appeals to narrow, totally self-interested nationalism are not new for world leaders past and present; however, they are seldom heard from leaders of true republican democracies. Does President Trump really understand how unbridled nationalism caused two disastrous world wars along with genocides and mass political exterminations during the past century?

Even more disturbing, President Trump’s definition of the “American people” seems inappropriately narrow: it excludes not only the majority of American voters who favored his opponent, but also doesn’t appear to fully acknowledge the existence of many Americans who can’t vote, such as children and, in particular, immigrants, regardless of status, whose interests, according to the U.S. Supreme Court, are entitled, along with those of other non-voters, to fair representation by our elected officials all the way up to our President. That’s why the Supreme Court upheld apportionment by total population, not just the population of U.S. citizens or registered voters. For example, the large number of electoral votes that President Trump picked up in Texas owes, in no small measure, to the large number of immigrants, legal and undocumented, who have fueled Texas’s overall population surge at the expense of other states in the East and Midwest with dwindling populations.

I try to remain optimistic. I approach the news each day with the hope, however slim, that I will discover some evidence that our President understands the real America out there and his responsibilities to represent and inspire all Americans, not just the minority who happen to agree with him. (I also heard and read enough “anecdotal” interviews with Trump voters after the election to know that some of them don’t necessarily share his dark and exclusive vision of America; they just want some change and hope that as a successful businessman President Trump will bring them and their communities at least some of the same material success that he has accumulated over a lifetime.)

But, as one of my “around 70” friends said to me recently, “Schmidt, at our ages we are what we are; what you see is pretty much what you get.” And, President Trump has been around even longer than we have. That’s something that might not bode well for the real America out there. We’ll just have to hope for the best, for all Americans.

Celebrate the really great America, every day!

Due process forever!

PWS

01/21/17

USG Bid To Max Criminal Deportation Law May Be On The Rocks Before The Supremes!

http://www.latimes.com/politics/la-na-supreme-court-deport-burglars-20170117-story.html

David G. Savage writes in the L.A. Times:

“The law in this area is not entirely clear. Beginning in 1988, Congress ordered deportation for noncitizens who are convicted of an “aggravated felony,” and it cited specific examples such as murder and rape. Later the law was expanded to include a general category of “crimes of violence.” This was defined to include offenses that involve a use of physical force or a “substantial risk” that force would be used.

Judges have been divided as to what crimes call for deportation. Looming over Tuesday’s argument was an opinion written two years ago by the late Justice Antonin Scalia. He spoke for an 8-to-1 majority in striking down part of a federal law known as the Armed Career Criminal Act. It called for extra years in prison for people convicted of more than one violent felony.

In that case, the extra prison term was triggered by the defendant’s possession of a shotgun. In frustration, Scalia and his colleagues said the law was unconstitutionally vague because they could not decide whether gun possession is itself evidence of a violent crime.

“You could say the exact same thing about burglary,” Justice Elena Kagan said Tuesday. A midday burglary of a home could result in violence, she said, but perhaps not if it were an empty garage or an abandoned house. “So it seems like we’re replicating the same kind of confusion,” she said.

Justice Stephen G. Breyer said judges have no way to decide which crimes typically or usually involve violence. “We’re just left guessing,” he said, suggesting a better approach would be “look at what the person did.”

But Deputy Solicitor Gen. Edwin Kneedler said a home burglary poses a risk of violence. And he said the court should defer to the government on matters of immigration. The law, he said, calls for a “broad delegation” of authority to executive officials.

This is the argument government lawyers made in defense of President Obama’s use of executive authority to try to shield millions of immigrants from deportation. It is also the argument that would call for upholding an aggressive deportation policy if pursued by the Trump administration.”

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Interesting juxtaposition here! The key opinion relied on by the immigrant is an 8-1 decision in Johnson v. United States, 135 S.Ct. 2551 (2015), written by conservative judicial icon Justice Antonin Scalia in which he ripped apart on constitutional vagueness grounds a provision of the Armed Career Criminal Act that is virtually identical to the deportation statute.

The Obama Administration reacted by vigorously reasserting in the lower courts and the Immigration Courts its right to ignore Justice Scalia’s reasoning in the civil deportation context and continue to deport individuals convicted of residential burglary.

But, liberal judicial icon Judge Stephen Reinhardt and one of his colleagues on the Ninth Court of Appeals seized on Scalia’s opinion and applied it to the immigration law to block such deportations. The Seventh Circuit followed suit, but the Fifth Circuit did not, thereby setting up a “circuit split” — something that often convinces the Supreme Court to exercise its discretionary authority to intervene by granting a “writ of certiorari.”

The case is Lynch v. Dimaya, No. 15-1498 which, as pointed out by David Savage, will soon morph into Sessions v. Dimaya. Stay tuned for the results!

Did you know that: The Government’s lawyer in Dimaya, career Deputy Solicitor General Edwin Kneedler, a friend and an outstanding public servant, has argued more than 125 U.S. Supreme Court cases during his distinguished Government career, more than any other living lawyer!

Wow! Most lawyers would feel lucky and privileged to argue a single case before the Supreme Court. I know I sure would. Just think of the hours of preparation spent in preparing to argue well over 100 cases!

When I was Deputy General Counsel and Acting General Counsel of the Legacy INS, I used to help the Solicitor General’s Office prepare for oral arguments in immigration cases. So, I know how intensive the preparation process is.

At least once, I was asked to sit with the Deputy SG arguing the case at counsel table in the Court. That was as close as I ever got to appearing before the Court.

I remember one case that I observed — I can’t remember if I was at counsel table or in the audience — was the immigration classic INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) establishing the generous “well-founded fear = reasonable likelihood” standard for asylum, which I ended up having to apply thousands of times as a trial and appellate judge in the Immigration Courts. That day, however, we were on the “losing” side of the argument, having presented the case for a more stringent standard. Nevertheless, I think the Court got it completely right.

The “winning” lawyer before the Court that day was a young immigration attorney from San Francisco, Dana Marks Keener, now known as Judge Dana Leigh Marks of the San Francisco Immigration Court and the President of the National Association of Immigration Judges. Since then, of course, Dana and I have become judicial colleagues and great friends. I often refer to her as “the founding mother of modern U.S. asylum law.”

Small world.

PWS

01/18/17

Are We On The Verge Of A “Winner Take All” Supreme Court? Will Senate Control Be Required For Future Presidents To Appoint New Justices?

https://www.bloomberg.com/view/articles/2017-01-05/the-incredible-shrinking-supreme-court

Noah Feldman, columnist and Harvard Law Professor, writes in BloombergView:

“If the incredible shrinking Supreme Court sounds unimaginable, that should count as a reason to expect the Senate Republicans to break the filibuster. But an eight-justice court seemed pretty unimaginable when Justice Scalia died last February — and it’s become a reality, at least for the moment.

Even if the filibuster is overcome, there already seems to have been long-term change in the way Supreme Court seats are filled. If the Democrats had a majority in the Senate today, it seems entirely possible that they would be saying they’d refuse to vote on Trump’s nominee for the next four years. Some version of winner-take-all confirmation politics may already be with us.”

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After reading Professor Feldman’s article, seems to me that a very plausible scenario is that if the Democrats try to block a Trump nominee, the Republicans will retaliate by extending the “nuclear option ” to Supreme Court appointments, thereby allowing Trump nominees to get through the confirmation process with a “bare majority” vote of 51. The Republicans now have 52 votes in the Senate.

Thereafter, it’s hard to imagine circumstances under which a President whose party is in the Senate minority will be able to fill any Supreme Court vacancies. Additionally, the minority party (of course, Democrats at present) will lack “leverage” to force a President to appoint so-called “mainstream” candidates. As long as all, or almost all, of the Senators in the majority party are willing to support the candidate, he or she will be confirmed, no matter how “extreme ” his or her views might be considered by the minority.

This would 1) make the Supreme Court an even bigger issue in Presidential and Senatorial elections than it is now (and it’s big right now); and 2) lead to a more polarized Supreme Court, since the only limit on a President would be his or her ability to “sell” the nominee to his own party.

Finally, I don’t see any reason why this development would stop at the Supreme Court. Why wouldn’t the Senate majority party block a President from the opposing party from appointing Federal Circuit Court and even U.S. District Judges, hoping to be able to “run the table” and fill huge numbers of vacancies if they can win back the Presidency?

PWS

01/07/17

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