Supreme Court makes big waves with little orders; Collins gets blame, Roberts gets credit – both mistakes

The Supreme Court has stirred controversy with two procedural orders.  They revealed much about the state of our political world.

In one case, the Court decided to suspend a Louisiana law that requires doctors performing abortions to be admitted to practice at a hospital.  The law could have the effect of eliminating all but one of the clinics and doctors providing abortions.

The factual question was whether three doctors could obtain hospital admission privileges.  The state promised to give them 45 days to try, deferring enforcement of the law.  It acknowledged that if only one doctors remained, that would not satisfactorily protect women's health.

In effect, the Court decision lengthened the 45-day period.  It did not decide on the law itself, though it will later.  Among the five-member Court majority were the four liberal justices and Chief Justice John Roberts.

Justice Brett Kavanaugh was among the four conservatives opposing the suspension, but was alone in providing a written explanation.  He took no position on the law, but said that the three doctors should continue performing abortions and make a “good faith effort” to gain hospital privileges in the 45 day window.

If they did not succeed, a stay suspending the law could then allow the Court to review the law itself.  In short, he said nothing about supporting the obvious effort to drastically limit abortions.

Two conclusions immediately emerged from the decision, both most likely wrong.  One was that Sen. Susan Collins had been fooled when she said Kavanaugh would respect precedent, presumably the Roe v. Wade decision allowing abortions.  The other was that Roberts was emerging as the Court' swing vote.

Abortion advocates would not trust Louisiana's assurances which Kavanaugh had accepted.  Because he was not suspicious, he was complicit.  That meant he opposed Roe.  Distrusting any statement from those you oppose is how politics works these days.

Collins took him at his word in his dissenting opinion.  The media reported that opponents of Kavanaugh's confirmation had “slammed” her with the obvious intent to weaken her reelection chances. 

As for Roberts, as much as we want a new swing vote, he showed his credentials for the title are limited.

In Alabama, a convicted criminal was slated for execution.  A Muslim, he asked for an imam to be present.  The state refused, saying only its Christian staff chaplain may attend.  Otherwise, it claimed, without proof, the event might be unsafe.  The state claimed he should have known the rules, though his request for them had been refused.

The Court of Appeals had suspended the execution so that it could hear arguments on both sides.  The Supreme Court overruled the lower court and allowed the execution to take place.  The five member majority included the five conservatives, including the Chief Justice. 

Justice Elena Kagan said the decision was a direct violation of the clause in the Constitution that prevents the government from favoring any single religion or religion itself.  She said the state's reason for its rule should have been examined in court.  After the decision, Alabama quickly banned any religious counselor from executions.

Roberts had fallen in line with the conservatives, not on procedure as was the case on abortions, but on a basic constitutional question.  That raised a question about the quality of his status as swing justice.

Both decisions could affect millions of people.  The Court owed people more than the short, procedural orders, providing little detail and judgment.  It left the explanation to the media, which could easily misinterpret the abortion order, making more out of it than justified and while ignoring the true meaning of the religion case.

As a result, people were misled or ill-informed.  That undermines democracy.  The Court deals with the law, but it also affects the people.  It might remember that.

A note.  This column during the week near Washington's Birthday traditionally is devoted to the exceptional man who embodied the American nation and was its first president.  Because last fall, a column was devoted to his words, relevant in light of the Pittsburgh massacre, this column does not focus on him.

But we have heard recently from our current president that his first two years in office were the greatest in history.  In his first two years, George Washington created the American executive branch of government, balancing conflicting views.  He was well aware that he was setting precedents that might last as long as the Republic.  And he displayed great modesty, even reticence, at times. 

These days, his exceptional accomplishments are worth remembering, especially in the White House.

Pundits speculate on presidential election like it's a sport

If you follow any major sport, you probably know about weekly power rankings. Teams are rated on their recent performance, and their standing may change from week to week. The ranking supposedly reveals the ultimate winner.

Power rankings have now come to the presidential campaign. Washington Post pundits plan to rank weekly all potential candidates, Democrats, Republicans and independents. But not Donald Trump. Perhaps the Post assumes that he has all the power he needs to get the GOP nomination.

The presidential campaign is well under way, starting barely after the latest elections. The pundits are hard at work, speculating on the latest news. The voters are likely to be confused.

The congressional races have also begun. Last week, Sen. Susan Collins' campaign announced her best fundraising quarter ever. It openly attributed the support, from all 50 states, to her vote in favor the appointment of Brett Kavanaugh to the Supreme Court.

Meanwhile, Kavanaugh's opponents have raised a war chest to support whatever candidate opposes Collins, the expected Republican standard bearer. Money in politics? Here is a case of money seeking the candidate, not the reverse. It seems clear that the campaign will be mainly about that one vote by Collins.

There might be as many as 20 Democratic hopefuls in the presidential race. Inevitably, this campaign crowd must be seen as reflecting the belief that Trump is vulnerable and almost any respectable Democrat can beat him. The problem is that's just what the Democrats thought in 2016, when the result did not support their optimism.

Only a few of the Democrats have a platform. The Post's power ranking focuses more on where candidates fit in their parties, based on their personality and where they hail from.

Are the Democrats inclined to select a reformer willing to upset tradition, as young voters supposedly want? Or will they prefer a candidate who appeals to the white, working class men who usually line up with the GOP? Is it the right moment for a woman to be elected, thanks in part to the growing involvement of women in the political process?

Whatever happens, it would be a mistake to conclude that the Democrats will end up so badly divided they cannot win. Unlike the GOP, the Democrats are accustomed to internal battles and the campaign losers often stick with the party's candidate.

On the GOP side, Trump seems to be having trouble finding his footing. He has always relied on the cheers of his base, the core group of supporters who stick with him no matter his policy choices. But other Republicans, especially in the business community, and even some of his core are now becoming less reliable.

The economy is strong. But if it slows, as forecast, will Trump still be able to take credit for a boom? The tax cut has produced only small benefits, but a large deficit, making it less popular than it was originally.

And he has stumbled. His Wall is not happening and he looks increasingly desperate. His rebuke of the government intelligence chiefs backfired, and he admitted that he had only followed their analysis in the media, when most presidents would have been briefed by them. The shutdown failed and left him looking unsympathetic to workers.

Moderate GOP office holders have been hinting they might run against him in party primaries. But they would need massive funding and enough support from reluctant Republicans to defeat Trump in early primaries. Achieving either seems unlikely unless more of his base washes out.

Of course, the Mueller report may contain enough damaging information about Trump's involvement with the Russians in the 2016 campaign that even some of his base deserts him. His continued coziness with Russia, while the diplomats and military openly worry, could make him more politically vulnerable.

If Trump weakens or drops out, watch for an army of GOP candidates. They would test whether the GOP has permanently abandoned moderate politics to become a party of the far right.

The political scene is too unsettled and the primaries are too many months away for television's talking heads to get much right.

With the campaign under way, it is worth remembering picking a president is serious business, not a sport to handicap. Speculation can swamp knowledge. The voter far from Washington may be treated more like a commodity than as a citizen.

Conclusion? Don't pay much attention to the pundits and don't rush to pick a candidate. Plenty of time remains for candidates to emerge, shine or simply disappear. This is not a sport.

Picking Supreme Court justices: the lost lesson

Here's a good story that should have had a sequel.

About 100 days after he suddenly found himself president of the United States, Harry S Truman had to fill his first vacancy on the Supreme Court. In 1945, the Court was composed of seven Democratic appointees and one Republican.

Himself a Democrat, Truman naturally wanted to reward a member of his own party. He was said to have considered several possibilities, and the Secretary of Labor claimed that Truman had promised him the slot.

The Senate had a Democratic majority, though many Democrats were southern conservatives, often closely aligned with the Republicans. Truman's advisors urged him to name a Republican, a move never before made by a Democratic president. He decided to follow their advice.

He finally settled on Sen. Harold H. Burton of Ohio. Burton had been a member of the Truman Commission, the watchdog body that fought wasteful military spending during World War II. Truman found him thoughtful and honest. Above all he supported the role of Congress in lawmaking and a limited role for the Court.

Burton, a former mayor of Cleveland was originally from Massachusetts and a Bowdoin College graduate. He was nominated and confirmed in a single day. The Democrats supported their president and the GOP supported a Republican. Above all, senators readily supported one of their own.

The new justice was no legal theorist, but he was an effective and respected jurist. Few would ever know that Chief Justice Earl Warren had allied himself with Burton, a long-time opponent of racial segregation. Together, they carefully forged the unanimous Court that ended school segregation and "separate, but equal."

Fast forward to 2016. The sudden death of Justice Antonin Scalia created a vacancy on the Court. President Obama sought to replace the conservative justice with a more moderate jurist. But the Senate was controlled by Republicans who wanted to replace Scalia with an exact copy.

Obama nominated a highly qualified judge, but Senate Majority Leader Mitch McConnell told him face to face, that he would block any Obama nominee. He expected the GOP would win the presidency, though a Republican could not take office for about a year. He intended to keep the seat vacant until then.

While nobody doubted the qualifications of Judge Merrick Garland, Obama's nominee, nobody could reasonably expect him to be confirmed. Obama was reluctant to retreat in the face of McConnell's obstinacy. The White House seemed frozen.

This scenario worried supporters of the Court's Roe v. Wade decision, which had affirmed that abortions are legal. With a new Scalia, the threat of the Court reversing that decision might remain a real possibility.

The problem was not about Obama refusing to back down. It was about his failure to try to outmaneuver McConnell. Obama was not Truman.

If Obama had followed Truman's action, he might have ended up with a new justice who was favorable to Roe v. Wade. How?

Obama might have appointed a Republican senator to the Court. Alaska Sen. Lisa Murkowski is rated as a moderate who supports Roe. Her appointment would place on the Court its only justice without an Ivy League law school degree, which could add to her appeal. And it would be a first for Alaska.

Would McConnell block consideration of her nomination? Senatorial courtesy plus party loyalty would have virtually required him to let her enter the confirmation process. She would have access to make her case with her colleagues at any time, a privilege that was denied to Garland.

Allowing her to move the Court would have been a major boost for the GOP, which faces declining support from women.

If Murkowski had gone to the Court, she would have left one less appointment for President Trump to pick off the list of conservatives given to him. Even if he appointed a conservative when the next vacancy occurred, Murkowski could have become the swing vote on the Court.

Obama would have produced change, as he had promised. Even in the unlikely case Murkowski rejected the appointment or was denied confirmation, Obama would have made a gesture to provide the kind of cooperation that voters have said they want.

In the 2016 election campaign, the question of the Supreme Court vacancy faded from view, becoming a non-issue. If Obama had sought to appoint a Republican woman to the Court, he may well have enhanced the chances for his own party in the presidential and congressional elections.

Lacking this move, Harold Burton remains the only Republican appointed to the Court by a Democratic president.

Federal government falters; Maine recovers

There's bad news and good news about the political understandings that make our system of government work.

The biggest piece of bad news has been the shutdown of much of the federal government because of a battle over President Trump's proposal to build the Wall.

While there's more than enough finger pointing about responsibility for the shutdown, there's too little recognition in Washington that a shutdown prevents the government from providing services on which people depend.  Officials are elected and taxes collected, but the government is held hostage to a policy war.

A government shutdown affects the economy and puts people out of work.

The 2019 shutdown tops the national record for closing the federal government.  Used by either the president or Congress, shutdowns were never part of the plan for the unique American political system.  By bringing it into play, federal leaders can disrupt an understanding that has existed since the beginning.

The problem is compounded by another departure from tradition.  Congress is supposed to pass the laws it considers necessary.  The president has the power to veto legislation, his rejection subject to being overridden by two-thirds of each of the two houses.

That process requires interaction between the will of Congress and the will of the president – two equal branches of government.  If the president vetoes a bill, it's dead unless the two sides negotiate and try again.  If the president's veto fails, the bill is enacted.

This time, the Senate has ignored that constitutional intent.  Republican Majority Leader Mitch McConnell, wielding the power to decide just what bills the Senate considers, prevented a bill passed by the House, controlled by Democrats, coming before the senators. 

He said the only bill he would permit is one Trump would sign.  In effect, Donald Trump was elected to replace the U.S. Senate by McConnell's single vote.  Aside from giving the Majority Leader too much power, his action violated the intent of the separation of powers.  He finally backed down.

Maine's GOP Sen. Susan Collins disagreed with McConnell, but by joining with other Republican senators to select him as Senate leader, she gave him his great power.

McConnell's error is even worse than it appears, because Trump would not stick consistently to a single proposal on border security.  He may favor deal-making, but what's the deal?

The president insists that a wall between the U.S. and Mexico is the key to solving illegal immigration.  He promised it as a candidate, and he tries to keep his promises, no matter how the situation changes.  That seems to be the reason that a record-breaking shutdown became acceptable to him.

The Democrats argue the Wall is a false solution, but there are other, more effective measures they would support.  Their willingness to negotiate on border security after the shutdown could not work unless Trump agreed.  Their proposal to end the shutdown and then talk is what McConnell long kept from the Senate.

The net result of the Wall shutdown is the failure, if not the outright loss, of key understandings about how the government should work.

The good news is that the normal functioning of government, after a breakdown in the way the system operated, is being restored in Maine.

Like many states, Maine requires the people to vote on major additions to the public debt.  As a result, the voters must approve bond issues.  They may also approve matters such as the expansion of the number of people covered by Medicaid.  The U.S. Supreme Court has confirmed that the people are the ultimate legislative body, able to displace state legislative action.

In Maine, the governor has the power to veto bills passed by the Legislature but not bills passed by the people, who are the sovereign and supposedly the governor's boss.  But former Gov. Paul LePage thought he had the power to block decisions made by popular vote just because he alone opposed them.

That made him a sore loser.  But he also violated the historic understanding that the governor's role in processing the results of popular votes is merely administrative, without any veto power.  He may have violated the state constitution as well.

Gov. Janet Mills brought back constitutional tradition by allowing Medicaid expansion and bond issues, adopted by strong popular majorities.  The understandings that make Maine government work were restored.

Mills' moves were the essence of true conservatism.  She maintained state government as its founders intended.  She reversed short-term political posturing that was damaging constitutional government.

We need more of that kind of government in Washington.

Chief Justice says judges aren't political. True or false?

Chief Justice John Roberts says federal judges are not political. They are nonpartisan umpires of disputes under the law.

Or, in fact, do federal judges create law for partisan reasons, when they should limit their judgments to simply following the law?

The answer is a firm “maybe.”

Conservatives want judges to uphold the existing law and even the thinking of the Constitution’s drafters. Liberals see the country as continually changing, meaning judges must reconsider legal norms.

Of course, federal judges are often selected by the president based on their view of the law, conservative or liberal. That may look like partisanship, though Roberts claims the results are not political.

But a recent federal court decision in Texas that the Affordable Care Act is unconstitutional came from a judge who reliably decides cases in line with GOP policy.

The Supreme Court had ruled the ACA was constitutional because it included a tax. The federal government has unlimited authority to tax, potentially making any tax law constitutional. The ACA taxed any person who did not get health insurance coverage despite the individual mandate to obtain coverage.

Last year, Congress had lowered that tax rate to zero. The widely held belief that the ACA’s individual mandate was eliminated is a major myth. There is now simply no penalty for ignoring it. The taxing authority remains in the law and the rate could be changed by Congress.

The Texas judge found that, without a tax being collected, there is no tax and the entire law is unconstitutional. He thought Congress had meant to repeal the ACA, but, while it cut the tax, it used a procedure that intentionally prevented outright repeal.

ACA supporters argued that the Texas judge had allowed his Republican, anti-ACA political views to guide his judicial reasoning. He had ignored parts of the law that contained other taxes and some which could easily stand on their own even if parts of the law were unconstitutional.

Texas federal courts are full of conservative Bush and Trump appointees. They usually can be relied upon to support opponents of Obama-era laws.

Of course, he could merely be incompetent, not political. With scores of federal judges whipped through the confirmation process by Senate Leader McConnell, some mistakes are inevitable. And some judges change for the worse once on the bench.

By contrast, in Maine, a new federal judge, appointed by President Trump, left no doubt that he could rise above partisanship. He faced a case that demonstrated the kind of work judges must do, leading losers to charge incorrectly that judges are making law.

Maine has ranked choice voting, which allows a voter to rank all candidates on the ballot in order of preference. If a voter’s favorite trails, his or her second choice vote then becomes a first choice vote for one of the top candidates. If you voted for one of the two front-runners, your vote remains the same.

Does this process violate the constitutional principle of one-person, one-vote? That is what the judge had to decide. His decision would determine if the incumbent GOP representative would lose the congressional seat.

Some people argue that voters who originally picked one of the top two candidates never gets to change their vote as candidates are eliminated. Voters for trailing candidates, who are dropped out, get another vote for one of the surviving candidates. That was Rep. Poliquin's view.

The other view is that each voter gets the same chance to vote for all the candidates on the ballot, so none gets more votes than another. If the voter chooses not to make all possible choices, that is the voter’s right but does not undermine one-person, one-vote.

Each side can argue, based on other court decisions and supposed voter or legislative intent, that their interpretation is correct. This kind of debate occurs in most court cases, even though the majority of matters have nothing to do with constitutional questions.

This voter-enacted law had no ready answer about which view is correct. That’s why we must have judges decide, and they must be independent of either side.

Here, the judge, a Republican appointee, ruled against the position of the Republican candidate, costing him the election. Did he make law? Or did he do the judge’s essential job of making an independent decision in an honest dispute?

Presidents may make appointments of judges who they hope will support their policies. But judges are not political players. Life terms are meant to ensure their independence. The record shows a mixed result.

Trump's failure to assume 'mantle' of national leader has major effect

Incoming Republican Sen. Mitt Romney of Utah, the former presidential candidate, has issued a sharp criticism of President Trump.

"A president should demonstrate the essential qualities of honesty and integrity," he wrote, "and elevate the national discourse with comity and mutual respect." Romney concluded that the "president has not risen to the mantle of the office."

Romney may be questioned for his shortcomings as presidential candidate or for taking on the president of his own party. But he also praised major actions of the first two years of the Trump presidency.

He hit on key concerns about Trump's presidency. The president frequently does not speak truthfully and repeats untruths even after correction, making them intentional lies. He does not treat others with respect.

He bolsters his supporters, but seems unwilling to reach out for compromises. How he can brutally attack and belittle Democratic leaders and expect them to make concessions to him, which he will surely claim as his victories over them, is hard to understand.

The issue behind Romney's complaint is far more significant than what kind of a president Trump is turning out to be. He and Sen. GOP Leader Mitch McConnell have raised deep doubts about the American political system.

The U.S. has been called "an experiment" as the first real national democracy in modern history. Its form of government, established by the Constitution, is unique.

It is a manual for the functioning of the federal government and of federalism itself. Office holders pledge to "preserve, protect and defend" the Constitution for good reason. It is new, fragile and subject to attack.

No group of people could devise a manual that would cover all possible concerns, present and future. Beyond the document itself, there must be a set of common understandings about how it would be applied in practice.

Admittedly, these understandings were those of a group of men, most formerly British, who shared a common view of how government would work. They recognized there would be partisan splits, but they believed they would take place within the limits of the Constitution and their common understandings.

They knew the Constitution would need to be amended to deal with new challenges or unresolved questions. Now it has become impossible to adopt almost any amendment for fear that, once the process is opened, radicals could use it to roll back longstanding guarantees of freedom.

They agreed that the president would make Supreme Court appointments with the "advice and consent" of the Senate. 

The understanding was that the Senate will either give its consent or refuse it. But, for President Obama's last nominee, McConnell allowed the Senate to do neither, violating that historic understanding.

The Constitution requires a simple majority vote on most matters. The original understanding was that honorable people would voluntarily end debate. When southern senators wanted to block votes on civil rights, they refused to stop talking. The Senate imposed a supermajority vote to end debate. It now covers all important bills.

Congress is supposed to be the top lawmaking body in the federal government. With members' highest priority being reelection, which leads them to avoid tough issues, Congress has shifted much of its constitutional responsibility to the executive.

Trump does not like the special Senate majority, which protects the minority party, because it prevents his Wall. Democrats regret all the legislative power they have given to Trump, including declaring a national emergency. Neither was a constitutional understanding.

The "mantle of the office" cited by Romney is part of this web of common understandings, essential to the success of the American system of government.

In the U.K., the queen or king is the head of the country and the prime minister is the head of the government. The royal is a symbolic leader for all people, while the prime minister is a political leader.

In the U.S., the president is both head of the country and head of government. As a political figure, the president is accepted as a partisan, the leader of his or her political party.

As head of the country, the president is expected to show that he or she represents the national interest and can separate partisanship and national leadership.

Trump's extreme attacks on Democrats, loyal Americans like him, and his attempt to politicize the armed forces are threats to common understandings and historic practices essential to our system of government.

Is Romney now the only Republican senator who sees these threats? Where is Susan Collins?

Trump's time in office is constitutionally limited, but the harm to common understandings may last.

Partisan posturing is no way to deal with Wall, shutdown EXTRA POST

When the president speaks on national television, the American people expect an explanation of an important action or an attempt to rally them in the face of a major threat. Usually, no response is made by a leader of the opposing party.

Only when the president lays out his program to Congress in the State of the Union address is there a partisan response.

This week, people had the unusual experience of President Trump arguing for one of the key elements of his electoral program and Speaker Pelosi and Senate Minority Leader Schumer opposing the proposal, building the Wall on the southern border.

Both sides engaged in Washington-style debate, important mostly to political actors there and to the national media. They engaged in the same old, insider blame game that completely ignores average people across the country. Instead, they jockeyed for position in the 2020 elections, but without 20-20 vision.

Trump used much the same anti-immigrant rhetoric that he first unveiled when he announced for president. His remarks repeated threats and events that were easily shown as untrue. Most important, he offered nothing new.

Pelosi and Schumer used much the same moralistic arguments against the Wall as they had been preaching for weeks. Most important, they offered nothing new.

Almost everybody shares real concern about immigration. The U.S. is a land built and enriched by immigrants. At the same time, there are reasonable worries about uncontrolled immigration of people who may be endangered in their home countries or seeking a better life. And we continue deferring action on the undocumented immigrants already in the country.

Trump has responded to legitimate issues and phony concerns, though he seems to think the Wall would solve all problems, while the Border Patrol, which supports him, thinks otherwise.

The Democrats have pounced on his making the Wall into his entire immigration policy and his refusal to end the government shutdown unless he gets it funded.

The American people outside the Washington Beltway have the right to believe the government is not listening to their desire for compromise and progress. The gap between posturing politicians and “us folks” grows wider.

Trump could have seized political control and public support if he had used his speech, not as a prelude to declaring a national emergency when there is none, but as the opening of a comprehensive immigration policy, including the Wall. He would then have been in a position to get his Wall while admitting it was not the full answer.

He might have laid out a policy involving both the Wall and other forms of border protection, helping Central American countries create conditions to remove the need to flee, and a plan leading to citizenship for immigrant children and long-term undocumented residents. Given the low expectations for his speech, that would have been stunning.

Trump would not only have kept his promise to his supporters for the Wall, but responded to a majority of Americans who favor a resolution of current immigration issues. He would not be trying to strike fear, but rather to offer a constructive way out.

Trump has gained a reputation for changing his objectives in the midst of a negotiation, a recipe for failure. A comprehensive proposal in the text of his well planned remarks could have fixed that.

He could also have agreed to end the shutdown if the Democrats would accept the basic outlines of his proposal and open negotiations.

What about the Democratic duo? Instead of limiting themselves to condemning the Trump policy, if he had not made such a proposal, they could have done so. Their tone should not have been relentless opposition, but offering a compromise almost sure to be popular. Instead of letting Trump set the tone of the debate, they could have risen above it.

In one key respect, both sides are missing the point. Wall or no Wall will not determine the outcome of the 2020 election. Voters want government to focus on pressing issues, not simply lurch from one election to the next. They don't like shutdowns as a political weapon no matter who is responsible.

One way to negotiate out of a stalemate is to “sweeten the pot.” If the debate is only about the Wall, nothing may happen about immigration or much else. Settling other immigration issues at the same time could make possible a deal on the Wall.

Both sides right now are remarkably short-sighted and focused more on their games than on the national interest. The missed opportunity of the national speeches can be revived.