#OYVEyDonaldTrump just Declared the ‘Court System’ a Threat to National Security #AmericaHangsItsHeadInShame

“Who will judge the judges?” Photo: Win McNamee/Getty Images

Federal judges get things wrong. If everyone in American politics can agree on anything, it’s that. Sure, Bernie Sanders resents judges for finding that corporations are people, while Louie Gohmert resents them for inviting God to rain hell on our modern-day Gomorrah — but both agree that judicial wisdom is not infallible.

Nonetheless, when Barack Obama revealed that he held this all-but-universal opinion, by criticizing the Citizens United decision in his 2010 State of the Union, conservatives were scandalized. And not entirely without reason: The quickest path to a constitutional crisis is a rift between the Executive branch and the Judicial, so we generally expect our president and Supreme Court justices to play nice.

Obama acknowledged this norm in his carefully worded rebuke.


“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections,” the president said. “And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.”

Obama prefaced his remarks with a nod to the legitimacy of the court’s power, and then called on legislators to pass reforms that might mitigate the substantive harms of the Citizens United ruling.

In his first run-in with the law, our new president has taken a different approach.

Donald Trump spent much of his presidential campaign promising to use executive power to discriminate against Muslims. Upon election, he promptly banned immigration from several Muslim-majority nations, via an executive order that was Breitbart-tested but not cabinet-agency-approved.

This led to chaos at airports, on-the-fly revisions to the government’s interpretation of its own order, and a bevy of legal rebukes.

Last week, judges in New York, Massachusetts, Virginia, and California stayed the order — or aspects of it — on a variety of legal grounds. Then, on Friday night, U.S. District Judge James Robart delivered the body blow.

Unlike other plaintiffs, the state of Washington did not challenge discrete provisions of the executive order, or merely the process by which it was implemented. Rather, the state argued that the order was in fundamental tensions with both federal law and the Constitution. Robart ruled that Washington’s argument was likely to succeed on the merits — and ordered a halt to nationwide enforcement of the travel ban.

In his response to the ruling, the president did not preface his displeasure with a hat-tip to the separation of powers.


It was more than a little disconcerting to see the president frame judicial independence as a threat to law and order, while questioning the legitimacy of a dissenting judge’s claim to legal authority. But, at least, Trump’s outrage was focused on a single judge and judicial opinion. Further, the president suggested that he would seek vindication through proper legal channels.

But hours later, Trump upped the ante — framing the existence of judicial review as a sign of national decline.

Still, superficially, Trump’s complaint was with an individual judge, not the Judicial branch, itself. But then the Ninth Circuit Court of Appeals rejected the White House’s request for an emergency stay of Robart’s decision — and the president made his contempt for the courts explicit.

Six years ago, the president expressing dismay over the consequences of a Supreme Court decision — while stipulating his respect for the ruling’s legitimacy — was treated as cause for concern.

Imagine if Obama had instructed the American people to blame the next financial crisis on “the court system” — since it had allowed bad campaign donations to come “pouring in.” There is no doubt that such a statement would have made for front-page news and talk of impeachment.

But we have already become so desensitized to our new president’s 140-character authoritarianism, the fact that Trump characterized the “court system” as a national-security threat did not qualify as headline news Monday morning.

We should not gloss over this. This was not merely an intemperate tweet. It was the president instructing the American people to view the next terrorist attack on U.S. soil as an indictment of the judiciary. And it isn’t just Trump himself who’s pushing this line. In its legal challenge to Robart’s ruling, the White House argues that the federal judge was in no position to rule on the propriety of the executive order, because he lacks access to classified intelligence.

This is an argument for allowing our fear of terrorism to overwhelm our commitment to the rule of law — a line of reasoning that poses a far greater threat to the American form of government and way of life than any closeted-jihadist refugee ever could.

#RIPUSA Congress Should "Pack" the Supreme Court

One of the many political myths to which Americans continue to cling is the idea that the Supreme Court is an "non-political" institution and that its traditions and institutional framework are sacrosanct.

The court has never been non-political, of course, and has always been composed of political appointees closely connected to elected officials in Washington.

Indeed, the truly political nature of the court is well documented. Its politics can take many forms. For an example of its role in political patronage, we need look no further than Earl Warren, a one-time candidate for president and governor of California, who was appointed to the court by Dwight Eisenhower. It is widely accepted that Warren’s appointment was payback for Warren’s non-opposition to Eisenhower’s nomination at the 1952 Republican convention. The proposition that Warren somehow transformed from politician to Deep Thinker after his appointment is unconvincing at best. Or we might point to the famous “switch in time that saved nine” in which Justice Owen Roberts completely reversed his legal position on the New Deal in response to political threats from the Franklin Roosevelt administration. Indeed, Supreme Court justices are politicians, who behave in the manner Public Choice theory tells us they should. They seek to preserve and expand their own power.

Similarly dubious is the idea that the court must be composed of nine judges and that the US Senate has an obligation to appoint new members when a vacancy occurs. It is even widely assumed that the US Constitution dictates the size and makeup of the Supreme Court. In truth, the Constitution is silent on this matter, the Court has not always been composed of nine judges, and there have not always been an odd number of justices. At times, the Court has functioned on a super-majority model.


Following the death of Antonin Scalia, though, many otherwise-well-informed people were absolutely convinced that the US Senate was acting contrary to the Constitution when Senate Republicans announced they had no intention of filling the vacancy until after the 2016 election.

Indeed, this puts Trump in the position of appointing potentially more than one Supreme Court justice during a single four-year term. He comes in with a vacancy on day one, and the three oldest members of the Court are all left-leaning judges — which means the complexion of the Court could be changed considerably over Trump's term.

While the political climate will no doubt result in a Scalia replacement being picked relatively soon, the Senate has no obligation to ever ratify anyone to fill the Scalia vacancy. The Senate is constitutionally free to refuse to confirm any new justices indefinitely, thus making a de facto change in which the Court consists of eight justices. The Congress overall is also free to pass a law formally reducing the size of the court. But it need not do so.
Undermine the Court by Making It Bigger

However, there is no reason why the Congress could not go in the opposite direction and appoint multiple new members to the Supreme Court. It certainly has the Constitutional authority to do so. As was the case with Franklin Roosevelt's so-called "court-packing" plan, enormous reforms to the Supreme Court require nothing more than a change in statute, or in come cases, Senate inaction.

This move would help to make it abundantly clear the fact that the Supreme Court is a political institution just as it was always intended to be. It would also be helpful in asserting Congressional supremacy over the Court. Apart from the Constitutional mandate that there be a Supreme Court — of indeterminate nature — it is totally a creature of Congressional regulation.

If Congress wishes it, it could fill the Scalia vacancy, and then add three or more seats in recognition of the approaching deaths and (possible) current senility of Justices Breyer (age 78) Kennedy (age 80), and Ginsburg (age 83).

As justification, Congress need only explain that the 3 new seats will allow for new justices to be ready and already trained on "day one" following the next death or resignation on the Court. Congress can elect to then not fill the Ginsburg vacancy (for example) and allow the court to slowly revert to nine judges.

But why be so conservative? Given that the Supreme Court is now more of a Supreme Legislature than a Supreme Court — issuing what are essentially Constitutional amendments with each new ruling — the court could quite reasonably be expanded to be more representative of the 320 million people the justices like to continually boss around.

Indeed, as the court has become vastly more powerful, it has become far less representative. In 1790, for example, there was one Supreme Court judge for every 600,000 Americans. Today, there is one Supreme Court judge for every 35 million Americans.

If one seeks a court that actually knows something about what's going on the United States, the very least the Congress could do is increase the size of the court to 50 justices with the intent of having one justice from each of the 50 states.

On the other hand, perhaps we're just wasting our time with details when what we reallyshould be doing is stripping the Court of everything but its Constitutional powers. After all, the US Constitution grants jurisdiction to the Supreme Court in only a small handful of cases. According to the text:


The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Constrained to its Constitutional powers, the Court would effectively have no power at all over anything that took place within the boundaries of a single state. Moreover, outside the Supreme Court, the federal court system is totally at the mercy of Congress since the Constitution stipulates that federal courts exist only when "Congress may from time to time ordain and establish" them.

In all of this, however, the important thing to keep in mind is that the Supreme Court does not demand our reverence, our awe, or our respect for its little traditions and institutions.

God Save America from from Donny T. Clinton's Shortlist for the Supreme Court released

God Save America from from Donny T.  Clinton's Shortlist for the Supreme Court released



Hillary Clinton's potential shortlist for the Supreme Court is coming into view.

Clinton has refused to name names when it comes to the court, saying only that Congress should confirm President Obama’s nominee, Merrick Garland.

Her general election opponent, Republican nominee Donald Trump, has taken a different tack, releasing a list of 11 possible nominees. That list, released in May, included several judges often found on conservative wish lists, reassuring groups on the right.

Still, while Clinton hasn’t followed Trump’s lead in releasing names, advocates say her most likely choices for a high court appointment are already apparent.

The Hill talked to three well-connected groups in Washington about Clinton's Supreme Court options should she win the White House. None would go on the record, citing the sensitivities surrounding the issue.

But there’s broad agreement about who Clinton would be most likely to consider, not only for the vacancy already on the court, but also the additional ones that could open up over the next four years if liberals like Justice Ruth Bader Ginsburg and Justice Anthony Kennedy were to retire.

Topping the list, insiders say, is Garland.

He’s an obvious choice, having already completed the background checks from the FBI and the American Bar Association to be a Supreme Court nominee; that process can take up to four months.

Garland already serves on the powerful D.C. appeals court, and personally knows some of the other members of the Supreme Court, including Chief Justice John Roberts.

And while Republicans have refused to consider Garland’s nomination this year, saying the court vacancy should be filled by the next president, many have spoken highly of his qualifications, giving him a good chance at being confirmed.

Other top contenders for a Clinton appointment would be Sri Srinivasan, a judge on the D.C. Circuit Court of Appeals and Jane Kelly, a judge on the Eighth Circuit Court of Appeals. The Obama White House reportedly considered both judges this year before the president nominated Garland.

Srinivasan would be the first Indian-American and Hindu to serve on the court, but his nomination could face resistance from the left due to his past work representing corporate clients.

While an attorney for O’Melveny & Myers, Srinivasan reportedly defended ExxonMobil and mining giant Rio Tinto against allegations of human rights abuses in Indonesia and Papua New Guinea.

Paul Watford, an African American judge on the 9th Circuit Court of Appeals is also being mentioned as a potential Clinton nominee, along with Jacqueline Nguyen, a Vietnamese-American judge on the same court.

In a blog post after Justice Antonin Scalia’s death in February, Tom Goldstein, the publisher of SCOTUSblog, called Watford the “most likely nominee.”

Not only was the Southern Californian recently vetted for his current position, Goldstein said the Senate confirmed him in 2012 by a vote of 61-34 — a filibuster-proof majority, though the balance of votes in the Senate will almost certainly change in 2017.

Insiders name Goodwin Liu, an Asian-American judge on the California Supreme Court as another possibility. Liu, whose nomination to the 9th Circuit Court of Appeals was blocked by Republicans in 2010, is a former UC Berkeley Law School professor who has a history of advocating for equal rights.

Mariano Florentino Cuéllar, of the same court is considered in the mix, along with his wife Lucy Koh, a judge on the U.S. District Court for the Northern District of California, who was recently nominated to the 9th Circuit Court of Appeals.

Koh is the first Asian American United States district court judge in the Northern District of California, and best-known for presiding over high-profile tech cases, including a patent feud between Apple and Samsung over design ideas for the iPhone and iPad.

Patricia Ann Millet is another D.C. Circuit court judge often mentioned by insiders. The former appellate lawyer, who worked for 11 years as an assistant in the Office of the Solicitor General, has argued 32 cases before the Supreme Court.

Rounding out the list of potential nominees are two names from Congress: Sens. Amy Klobuchar(D-Minn.) and Corey Booker (D-N.J.).

Booker has a law degree from Yale Law School, while Klobuchar is a former prosecutor.

Conservatives have made the Supreme Court as a rallying cry for the election, fearing Clinton would nominate the most liberal candidate she could find.

“It’s that simple, a Hillary Clinton Supreme Court means your right to own a firearm is gone,” Chris Cox, the executive director of the National Rifle Association’s Institute for Legislative Action, warned earlier this month.

Israel Versus US. No Public Conflict Versus Demonstrations and Outcry . Abortion in Zion.

 Israel Versus US.  No Public Conflict Versus Demonstrations and Outcry . Abortion in Zion.

DEMONSTRATORS CELEBRATE at the US Supreme Court in Washington on Monday after the justices struck down a Texas law designed to restrict abortion..

Abortion in Israel: Why is there no public conflict?

: US-Israel on abortion – why has it played out so differently in the 2 countries? After landmark US ruling, an exploration of the Jewish state’s policies.

With the US Supreme Court’s landmark ruling on Monday in favor of abortion rights in the ongoing culture war on the issue that will now be re-inflamed, it is worth revisiting the issue in Israel and why there is so little public conflict about it here.

First, let’s unpack what the US court decided.

The context is the US Supreme Court’s historic 1973 Roe v. Wade ruling and its 1992 Planned Parenthood v. Casey ruling, which collectively affirmed a woman’s right to an abortion in the first trimester and prohibited state laws that unduly burdened that right.

Since then, conservative US states have tried a variety of strategies to impose conditions on abortions or abortion centers that were framed as pro-women’s health, but were also intended to reduce access to abortion.

Texas had passed a 2013 law demanding that abortion clinics and their doctors meet certain strict medical standards regarding their ability to practice in other institutions and surgery that are not universally enforced. These standards would likely have eliminated more than 75 percent of Texas’s abortion centers, and more than 20 conservative states in the US had passed similar laws, laws that some lower US federal courts had affirmed.

The US Supreme Court’s 5-3 ruling said that the law was unconstitutional because such legislation must weigh whether the imposition on women’s right to an abortion outweighs the health benefit, with this law failing the test.

Commentators expect the ruling to lead to most of the other similar laws across the US to fall – meaning a massive victory for the abortion rights side of the debate.

Why is this issue never before Israel’s High Court of Justice? Why are there no loud culture- religious wars in Israel over the issue, especially when there are so many other similar wars between the haredim and the rest of the country?

The nuanced answer seems to be that Israel is both far more liberal on abortion policy in a way that satisfies secularists, and more conservative in a way that satisfies the ultra-Orthodox.

On the liberal end, between 96% and 98% of women who seek state financing for an abortion are approved. Just as crucially, Israel approves abortions as late as the 40th week of pregnancy.

This is a very high rate and a very late approval deadline relative to any Western country, and makes the US look medieval with its first trimester cutoff.
On the conservative end, there is no “right” to an abortion in Israel as there is in the US.

The Israeli High Court has never dived into the issue to announce such a right as the US Supreme Court did in Roe v. Wade, and the Knesset law that governs the issue makes the right conditional.

In order to legally have an abortion, women must apply to abortion committees and fit one of four categories. Suddenly the US sounds far more modern.

Except at a 96-98% approval rate, the committees are essentially a rubber stamp. People have figured out that if they do not really fit the four categories, they can lie and fit into the fourth one – claiming that having the baby will give them mental problems (which for many is probably less a lie than an exaggeration).

So the pendulum swings back to Israel being extremely liberal.

But why do the haredim tolerate this situation where it is so easy for women to get abortions? There are a few more nuances to toss into the mix.

First, when the haredim got the abortion committees established, they never envisioned that they would become rubber stamps, and considered them a moral victory by having blocked a “right” to an abortion.

Next, as high as the approval rate is, the committees’ very existence does heavily discourage abortions and push people off the radar. Some experts estimate that half of the abortions in Israel are done illegally and outside the abortion committee system.

Reasons women might go this path could be: They do not realize the committees are a rubber stamp; they do not want to lie and say they will have mental problems; the child is from an affair; or that the committees’ process sometimes delays the abortion for a few weeks before it reaches a decision.

Haredim may not like this either, but they tend to prefer solutions that are off the radar which they do not have to publicly be a part of.

Besides that, the haredim have their own secrets to deal with. While there are no numbers, there is a phenomena of haredi women who get pregnant outside of marriage and whose situations are covered-up to avoid shame personally and to the community.This comment is often met with cries of "incredulous can't be " outside of Israel  but it was exactly because of this that the Efrat Organisation was found. Unwanted pregnancies in the Orthodox Community almost all occur  in the age group of  18 to 21 during the time an increasing number of Orthodox Girls volunteer for Sherut Leumi National Service and live away from Home for 1 to 3 years. Changes in Orthodox "dating code "  result in the stand offish approach to the later changing dramatically especially among  the Benei Akiva, National Religious Community.    

So drawing attention to the issue could have internal downsides.

Finally, there is the group Efrat – Committee for the Rescue of Israel’s Babies, which boasts that it has convinced women to give birth to over 64,000 children who might otherwise have been aborted since 1977.

In other words, between the committees as a gatekeeper/ deterrent and Efrat as a more positive incentivizing force, the haredim feel they are having a substantial impact on the issue.

From time to time, secularists bemoan that the abortion committees exist and that so many women get pushed into having illegal abortions that cost more and are less safe.

And maybe someday the committees will be abolished and a new war with the haredim will begin.

In the meantime, Israel’s odd and imperfect system does seem to provoke both sides of the debate less than is the case in the US. There, the latest Supreme Court ruling probably promises more a change of tactics by conservatives to block abortions than it does an end to the war.

Just for the record , all abortions performed in Israel in a clinic  but mostly one of the hospitals are completely covered by the National Health Sytem and are completely free.