“Jim Crow Era” Filibuster To Block Janice Rogers Brown

This is a WASHINGTON POST article but is behind a pay wall. Here it is, though… a must read Thiessen article!

Biden Blocked A Black Woman Justice
by, Marc Thiessen

President Joe Biden wants credit for nominating the first Black woman to the Supreme Court.

But here is the shameful irony: As a senator, Biden warned President George W. Bush that if he nominated the first Black woman to serve on the Supreme Court, he would filibuster and kill her nomination.

The story begins in 2003, when Bush nominated Judge Janice Rogers Brown to serve on the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit is considered the country’s second-most important court, and has produced more Supreme Court justices than any other federal court.

Brown was immediately hailed as a potential Supreme Court nominee. She was highly qualified, having served for seven years as an associate justice of the California Supreme Court — the first Black woman to do so.

She was the daughter and granddaughter of sharecroppers, and grew up in rural Alabama during the dark days of segregation, when her family refused to enter restaurants or theaters with separate entrances for Black customers.

She rose from poverty and put herself through college and UCLA law school as a working single mother. She was a self-made African American legal star. But she was an outspoken conservative — so Biden set out to destroy her.

Biden and his fellow Democrats filibustered her nomination, along with several other Bush circuit court nominees, all of whom had majority support in the Senate. Columnist Robert Novak called it “the first full-scale effort in American history to prevent a president from picking the federal judges he wants.”

Democrats argued that she was out of the legal mainstream, but Republicans responded that she had written more majority opinions than any other justice on the California Supreme Court — and she was reelected with 76% of the vote, the highest percentage of all the justices on the ballot.

When Democrats derailed her nomination, Bush renominated her in 2005. Brown eventually was confirmed by a vote of 56 to 43 — after Democrats released her and several other Bush nominees in exchange for Republican agreement not to eliminate the filibuster for judicial nominations.

Biden voted a second time against her nomination. He never explained why, if Brown was so radical, Democrats let her through but killed 10 other Bush nominees.

The following month, when Justice Sandra Day O’Connor announced her retirement, Brown was on Bush’s shortlist to replace her. She would have been the first Black woman ever nominated to serve as an associate justice of the Supreme Court.

But Biden appeared on CBS’s “Face the Nation” to warn that if Bush nominated Brown, she would face a filibuster. “I can assure you that would be a very, very, very difficult fight and she probably would be filibustered,” Biden said.

Asked by moderator John Roberts “Wasn’t she just confirmed?,” Biden replied that the Supreme Court is a “totally different ballgame” because “a circuit court judge is bound by stare decisis. They don’t get to make new law.”

What Biden threatened was unprecedented. There has never been a successful filibuster of a nominee for associate justice in the history of the republic. Biden wanted to make a Black woman the first in history to have her nomination killed by filibuster.

Bush eventually nominated Samuel A. Alito Jr.

Today, Biden calls the filibuster a “relic of the Jim Crow era.” But he threatened to use that relic as a tool to keep a Black woman who actually lived under Jim Crow off the highest court in the land.

The irony is that now he wants to get rid of the filibuster, and claim credit for putting the first Black woman on the court.

There were many conservatives on Bush’s shortlist whose legal philosophy Biden opposed. But Biden only promised to filibuster the one Black woman. Why? Perhaps a clue lies in another confirmation fight that Biden helped wage.

In 2001, Democrats blocked the nomination of Miguel Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. According to internal strategy memos obtained by The Wall Street Journal, they targeted Estrada at the request of liberal interest groups who said Estrada was “especially dangerous” because “he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.”

They did not want Republicans to put the first Hispanic on the Supreme Court. So, Biden and his fellow Democrats killed Estrada’s nomination — the first appeals court nominee in history to be filibustered successfully.

It paid off when President Barack Obama nominated Sonia Sotomayor as the first Hispanic justice.

Democrats’ commitment to diversity is a ruse. Biden was willing to destroy the careers of an accomplished Latino lawyer and a respected Black female judge, and stop Republicans from putting either on the Supreme Court.

For Democrats, it’s all about identity politics. Indeed, Biden might not have become president had he not made the pledge to nominate a Black woman. That promise helped secure the endorsement of Rep. James E. Clyburn, D-South Carolina — which won Biden the South Carolina primary and rescued his faltering campaign.

So, when Biden tries to bask in the glory of his historic nomination, remember Janice Rogers Brown — the Black woman who does not sit on the Supreme Court today because of Biden’s disgraceful obstruction.

Follow Marc A. Thiessen on Twitter, @marcthiessen.

Sen. Leahy Not Fit: Witness, Juror and Judge in Trump’s Trial

The reason I am posting this is for the visitor to watch Senator Leahy being almost completely led by his aid… the entire video can be watched at BREITBART without a moniker blocking the action… likewise, the below 2-short videos highlight the endcaps that are most worth watching. You will see as judge, he is not fit.

As an aside, Judge Roberts said he would not preside over the trial… BECAUSE he doesn’t have jurisdiction — because Trump is not President any longer. So Senator Leahy is presiding over the trial while also serving as a juror–and a witness, since he is a senator and was there on Jan. 6–meaning that a Democrat senator and political opponent of the accused, Trump, is serving as judge, jury, and witness in a trial (Ibid). A NEW YORK TIMES headline sums up this travesty of justice: Trifecta of Roles for Leahy: Witness, Juror and Judge in Trump’s Trial

A friend noted after watching the recommended parts,

  • “Seems like leading him to say things would be a violation of rules. Why isn’t that woman sitting up there?”

To which I responded,

  • “I think most of what they are doing is exactly that.”

GOP WAR ROOM:

Senator Mike Lee said that “statements were attributed to me” by the Democrat House impeachment managers and they “are not true and I asked that you strike them,” during the impeachment trial on 2/10/2021.

BLOOMBERG QUICK TAKE:

Wednesday’s session of the impeachment trial of former president Donald Trump has concluded, ending with an objection from Utah Republican Sen. Mike Lee. House Democrats have agreed to strike some of their impeachment prosecution comments after the objection.

[Watch his aid even tell him to gavel out of session]

 

 

Rand Paul’s Question Rejected… Again

Kentucky Senator Rand Paul’s whistleblower question blocked in Senate impeachment trial by Chief Justice John Roberts. (Watch that moment HERE)

LEGAL INSURRECTION adds some thoughts to this:

So do people know the whistleblower’s identification? If not then let Paul ask his question.

Chief Justice John Roberts once again rejected a question from Sen. Rand Paul (R-KY) since it supposedly names the impeachment whistleblowereven though supposedly NOBODY knows the identification of the whistleblower.

He asked: “Are you aware that House intelligence committee staffer Shawn Misko had a close relationship with Eric Ciaramella while at the National Security Council together and are you aware and how do you respond to reports that Ciaramella and Misko may have worked together to plot impeaching the President before there were formal house impeachment proceedings.”

POWERLINE continues with Rand Paul’s question rephrased (<< video at link):

  • I believe that Senator Ron Johnson rephrased the question Senator Paul submitted to Chief Justice Roberts as set forth in the adjacent post. Chief Justice Robert having declined to read the question, Senator Johnson gave it another go. The question alludes to the RCP columm by Paul Sperry that we also published last week in “Whistleblower overheard.” Not surprisingly, Chief House impeachment manager and House Intelligence Committee Chairman Adam Schiff declines to answer the question.

 

Race, Gender and Class Take Precedence Over Justice (SCOTUS)

Chief Justice John Roberts and justices Samuel Alito and Clarence Thomas dissented:

  • “Today, with the admirable intention of providing justice for one criminal defendant, the court not only pries open the door; it rules that respecting the privacy of the jury room, as our legal system has done for centuries, violates the constitution,” [….] “it is questionable whether our system of trial by jury can endure this attempt to perfect it.” ~ Samuel Alito

Here is the WALL STREET JOURNAL article Dennis was reading from:

For 250 years U.S. law has protected jury verdicts from being overturned due to juror misconduct or bias. A liberal Supreme Court majority has now carved out an exception for racial bias, and in an ill-defined way with no limiting principle that is likely to damage the jury system.

After a Colorado jury convicted a Mexican man of sexual harassment, two jurors signed affidavits that a retired police officer on the jury had expressed racial animus during deliberations. The juror was reported to have stated that “nine times out of 10 Mexican men were guilty of being aggressive toward women and young girls,” among other slurs. The defendant’s counsel sought to overturn the conviction based on racial animus but was denied by the trial judge.

The Sixth Amendment guarantees a trial by an impartial jury, and the legal system affords numerous protections against juror bias and misconduct. Jurors can be screened for bias prior to selection. The judge and counsel can discipline juror misconduct during the trial, and jurors may report on their peers before a verdict is rendered. Any single juror’s bias can also be policed by 11 others.

The no-impeachment rule rooted in English common law also shields verdicts from being challenged. As Justice Anthony Kennedy explained in the 5-3 majority opinion this week in Pena-Rodriguez v. Colorado, the rule “promotes full and vigorous discussion by jurors by providing considerable assurance that after being discharged they will not be summoned to recount their deliberations” or otherwise harassed. It also “gives stability and finality to verdicts.”

Yet Justice Kennedy joined the Court’s four liberals in Pena-Rodriguez to overturn that standard for accusations of racial bias. The Justice writes for the majority that racial bias is such “a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice.”

Pena-Rodriguez declares a new racial standard for overturning jury verdicts that was rejected by Colorado and has no constitutional basis. It also doesn’t establish a bright-line test of what constitutes unacceptable racial prejudice. Judges are apparently supposed to know it when they see it. “Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar,” Justice Kennedy concedes, but that ambiguous caveat won’t prevent endless complaints and appeals.

As Justice Samuel Alito muses in dissent, would a micro-aggression such as “this macho type” be permissible? How about positive racial bias? Take Justice Sonia Sotomayor’s famous comment that a wise Latina woman would “more often than not reach a better conclusion than a white male who hasn’t lived that life.” And what about religious prejudice or sexism that also receive equal protection under the Constitution?

“Although the Court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding,” writes Justice Alito. “Nothing in the text or history of the [Sixth] Amendment or in the inherent nature of the jury trial right suggests that the extent of the protection provided by the Amendment depends on the nature of a jury’s partiality or bias.”

Justice Kennedy counters that at least 16 jurisdictions have adopted a rule for racial-bias exceptions. But Congress explicitly rejected such an exception in 1975, and so have two-thirds of states. The Supreme Court had heretofore rejected exceptions to the no-impeachment rule.

The ruling is a step toward corrupting juries with political standards based on the progressive obsessions with race, gender and class. It also continues Justice Kennedy’s long march away from constitutionally neutral standards on race. “As this Court said some years ago,” Justice Alito concludes, “it is questionable whether our system of trial by jury can endure this attempt to perfect it.”

 

 

Again, Bills (taxes) Must Originate in the House, Obamacare Originated in the Senate

Not constitutional, ergo, not law — from a previous post:

c. Since this is a direct tax, via the Court, this has another Constitutional ground to lose on or for Congress to overturn on. That is this:

Article 1, Section 3, Paragraph 3 of the Constitution [Apportionment of Representatives; Direct Taxes]: Representatives and direct taxes shall be apportioned among the several states which may be included within this union…

Article 1, Section 7 of the Constitution, Paragraph 1 [Bills of Revenue Originate in House]: All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.

d. BECAUSE it is a tax, reconciliation can be used to repeal the law.

Now Breitbart

One of the big Democrat talking points about ObamaCare is to bleat that it’s “constitutional,” blessed by the Supreme Court, and is the “settled law of the land.” They never explain how this is supposed to intimidate the nominally free people of the Republican from changing or repealing it – presumably it is meant to be taken as the first law in history that must be obeyed without question, forever, more powerful and permanent than the Constitution itself

But it’s not true anyway. Andrew McCarthy at National Review reminds us that, contrary to Democrat rhetoric, ObamaCare was not held constitutional by the Supreme Court. Sorry, lefties, but it just wasn’t. The bill as written would have been struck down. Supreme Court Justice John Roberts rewrote the bill on the fly to make it constitutional.

One of the ideas we occasionally hear floated to make the ruling class suffer the full pain of the law they inflicted upon the rest of us is to pass a bill requiring the enforcement of ObamaCare precisely as it was passed, since it has never legally been amended. An orthodontist in Florida teamed up with Judicial Watch to file a lawsuit along these lines recently, with an eye to countering President Obama’s flagrantly illegal rescheduling of the employer mandate. If such a suit was successful, it should logically lead to the Supreme Court striking down ObamaCare, since it was not constitutional as passed by Congress and signed by the President.

But the Affordable Care Act should have died the moment it left the Supreme Court anyway. As McCarthy points out, the Roberts-rewritten law might have been (barely) held constitutional, at the cost of making Obama a shameless liar during all the years he claimed it wasn’t a tax… but that also made the ACA illegal, because it’s a tax bill, and those must originate in the House, while ObamaCare originated in the Senate.

…read more…

Now the National Review:

…We now know Obamacare was tax legislation. Consequently, it was undeniably a “bill for raising revenue,” for which the Constitution mandates compliance with the Origination Clause (Art. I, Sec. 7). The Clause requires that tax bills must originate in the House of Representatives. Obamacare did not.

[….]

…Obamacare originated in the Senate.

It was introduced in Congress in 2009 by Senate majority leader Harry Reid, who called it the “Senate health care bill” (a description still touted long afterwards on Reid’s website). Employing the chicanery that marked the legislation through and through, the Democrat-controlled Senate turned its 3,000-page mega-proposal into a Senate amendment. The Senate attached its amendment to a nondescript, uncontroversial House bill (the “Service Members Home Ownership Tax Act of 2009”) that had unanimously passed (416–0) in the lower chamber.

Thanks to the Supreme Court, it is now undeniable that Obamacare was tax legislation. It was also, by its own proclamation, a bill for raising revenue. Democrats maintained that the Senate proposal would reduce the federal budget deficit by $130 billion. More to the point, the bill contained 17 explicit “Revenue Provisions” — none of which was remotely related to the House bill to which the Senate proposal was attached.

Therefore, Obamacare is revenue-raising tax legislation, originated in the Senate in violation of the Constitution.

…read more…

If `Love` Is the Criteria, Then Why Not These? Sotomayor Asked the Same Question!

The same arguments that same-sex marriage advocates use here in the States were used in Canada to argue for polygamy. Using this same criteria, “love,” why couldn’t sisters be married? Brothers? Brothers and sisters? Three people? Doesn’t a number (one-man-and-one-man) seem an arbitrary thing to argue if it isn’t one-man-and-one-woman? You see, if you leave the wise counsel of all of human history, you end up with illiberal egalitarianism. Notice what’s missing? That’s because to say a child is better off with a mother-and-father is now a form of bigotry (http://youtu.be/CRvfnNLT_k8).

Charles Lane from the Washington Post Says Justice Roberts Is Playing Chess While Others Play Checkers (Updated with Hugh Hewitt’s Official Take)

Machiavellian Ruling?

Helped to increase possibility of Romney Win:

a. The Romney campaign raised 4.6 million dollars the first day;

b. Over 40,000 new donors for Mitt Romney the first day;

c. Helped to stir the base up like in 2010 when the Tea Party was energized by this very topic, Obama-Care tax, we took 700[plus] seats.

What a Romney win will mean:

a. With Romney in all he has to do is give the 50-states a waiver to undermine the law;

b. With the renewed interest by the electorate to get Obama/Obama-Care out by by putting in Republican Senators and Representatives, all we need is 50[+]1 in the Senate to throw it out;

c. Roberts took the power away from the Obama campaign running against it, thus, Roberts showered up the Romney campaign.

Shored up Supreme Court nominees:

a. With a good chance that two positions will open up on the Court for whomever is President next term, Roberts is thinking ahead and wants to ensure having more conservative judges on the bench;

b. Makes the Court look less partisan for years to come;

c. Roberts will not be called partisan for 30-years if he serves that long.

Obama-Care will be overturned… no worries [Roberts Knows This!]:

a. The HHS mandate will be coming down the pipeline… it will be overturned on this basis (this may demand one more conservative judge);

b. The “Exchanges” between states being an impossibility both Constitutionally (the majority opinion eviscerated this concept), and Republican governors [like Jindal for instance] have said they will not implement them.

c. Since this is a direct tax, via the Court, this has another Constitutional ground to lose on or for Congress to overturn on. That is this:

Article 1, Section 3, Paragraph 3 of the Constitution [Apportionment of Representatives; Direct Taxes]: Representatives and direct taxes shall be apportioned among the several states which may be included within this union…

Article 1, Section 7 of the Constitution, Paragraph 1 [Bills of Revenue Originate in House]: All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.

d. BECAUSE it is a tax, reconciliation can be used to repeal the law.

e. The Affordable Care Act made a one-word mistake in the 2800-page bill that [c]ould demolish the entire law.

Set-Up for a future ruling!

a. The ruling (with the previous one on the Endangered Species Act: National Home Builders Ass’n v. Defenders of Wildlife), undercuts the Federal Government’s power over the states considerably, Roberts and the other judges wrote of this in the majority opinion. With one more conservative judge on the panel, I think you would have one of the most offensive rulings ever (like the bad law in Dred Scott v. Sandford, Roe v Wade, and this one in the commerce clause found in Wickard v. Filburn) being possibly turned over with the next case to make it to the Court in regards to it.

This and more makes me wonder… because everyone that knows Roberts personally says he is really intelligent. And the fact that he changed his mind late in the game (switching sides) tells me that this all dawned on him and he switched sides then. So far from being an argument that Obama’s criticism of the Court changed his mind, many are saying this is a Marbury v. Madison moment.

Some GREAT[!] Audio from Todays Supreme Court Justices, Kennedy & Roberts (Updated with Sotomayor and Scalia)

Keep in mind that Kennedy is the “swing” vote, and it seems he is leaning towards the conservative side.

Justice Sotomayor, an Obama appointee, appeared skeptical of solicitor general Verrilli’s claims that the individual mandate is not based upon the idea that the government can force people into commerce and that there is no limit on its power to do so. I would be hopeful that she would apply the law/Constitution properly. She could have been trying to allow the Obama admin lawyer a forum to restate his case, better than when questioned by the other Justices. We will see.