Is Amy Coney Barrett an 'Orginalist' Like Her Mentor, Antonin Scalia Was Supposed to Be?

Senate Confirmation Hearings for Amy Coney Barrett, October 13, 2020

I recently completed the book, The Quartet, by Joseph J. Ellis. It is a very readable description of the parts George Washington, Alexander Hamilton, John Jay, and James Madison, among others, played in orchestrating the creation of a nation, from a loose confederation of states whose occupants retained their suspicions and outright antipathy towards centralized control. After all, they’d just fought and died to wrest control from what they considered an overbearing a sovereign in the person of George III of Great Britain.

Ellis writes that, James Madison, in a long letter to Thomas Jefferson, “described the hybrid creature that the Constitution had created as part confederation and part nation.” Unfortunately or fortunately, depending on one’s political leaning, no one knew where the demarcation on state versus national sovereignty lay. Ellis goes on to write,

“In the long run — and this was Madison’s most creative insight — the multiple ambiguities embedded in the Constitution made it an inherently 'living' document. For it was designed not to offer clear answers to the sovereignty question (or, for that matter, to the scope of executive or judicial authority) but instead to provide a political arena in which arguments about those contested issues could continue in a deliberative fashion. The Constitution was intended less to resolve arguments than to make argument itself the solution.” Ellis goes on, “For judicial devotees of 'originalism' or 'original intent,' this should be a disarming insight, since it made the Constitution the foundation for an ever-shifting political dialogue that, like history itself, was an argument without end. Madison’s 'original intention' was to make all 'original intentions' infinitely negotiable in the future.”

I would like very much for Amy Coney Barrett to be asked a cogent question about her position on “originalism.” I doubt she would answer the question, however, even if she had a position on it. Her mentor, the late Antonin Scalia, was considered an originalist, but his rulings reflected rather a more pragmatic view of what stance would get him where he already wanted to go (see Richald L. Hasen’s new book on Scalia).

Barrett will be confirmed by the Senate, likely on a party-line vote. She will exercise an out-sized influence on future SCOTUS decisions by virtue of the Court's 6 - 3 conservative majority and the fact that other conservative judges can count on her unwavering support for a 1788-era interpretation of the Constitution.

An Open Letter to Christine Flowers

Regarding: "Swallowing My Pride and Standing Up for Life and Voting for Trump"

You claim you, “cannot put Hillary Clinton in a position to shape the Supreme Court,” and offered your apologia by essentially admitting that you’re unable to refrain from bigotry, and unable to accept that women have as much right to their body as the NRA has to its guns.

You lament that everything piled up for you; same sex marriage, individuals becoming what sex they come to accept they are, and the bearded lady peeing next to you in the “Ladies’ Room.”

The straw that broke your backtrack on voting for Donald Trump was the Supreme Court overturning Texas’s HB2, “Close the Clinics” abortion law. HB2 was a blatant attempt to shutdown access to abortion and it succeeded. In the two years the law has been in effect, abortion clinics have gone from 41 to some 18 operating clinics. If SCOTUS had let the law stand, it is likely that only 9 or even fewer clinics would be available to Texas’s roughly 5 million reproductive age women.

 HB2 has resulted in women seeking the procedure to wait longer, pay more, leave their county (well over a third of women live in counties without abortion clinics) and drive long distances to over crowded clinics. This after having to navigate Texas’s already onerous requirements to be granted “permission” for an abortion. These requirements include state-directed “counseling,” an ultrasound, and description of the fetus by the provider, among other things.

Second-trimester abortions have become more common because of the need to meet these requirements and to wait for an appointment. And according to Texas law, an abortion may be performed at or after 20 weeks post-fertilization only if the woman’s life is endangered, her physical health is severely compromised or the pregnancy is “medically futile.”

All of these procedural impediments, which you term, “inconveniences,” are not only a denial of women’s rights under the Constitution, they are an attack on the authority of the Supreme Court in granting these rights to women under Roe vs Wade.

You, Ms Flowers, are clearly more interested in espousing your anti-abortion agenda than protecting the integrity of our constitutional system. I can forgive you for that — abortion is antithetical to your faith. What I can not forgive you is using your opposition to abortion as a reason to vote for a man whose many grievous faults include his advocacy of torture and extrajudicial killing, his demeaning of and intolerance for ethnic and religious minorities, and a misogyny so ingrained that he spontaneously refers to women in the most degrading terms. Putting such a man in a position to “shape the Supreme Court,” let alone lead this great nation, is unthinkable.

McCutcheon v. Federal Election Commission

The FEC loses 5 to 4, and so does government of the people, by the people, and for the people.

Justice Breyer, summarized dissent for himself and Justices Ruth Bader Ginsburg, Sotomayor, and Elena Kagan.

“Today the Court overrules Buckley and strikes down a similar ceiling [on overall contributions] as unconstitutional,” Breyer says. “The Court substitutes for the current two-year overall contribution ceiling of $123,000, the number infinity.”

“If the Court in Citizens United opened a door, today’s decision may well open a floodgate,” he says.
“Taken together with Citizens United, today’s holding, we fear, eviscerates our nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to support.”
Quid pro quo corruption is not the only danger, Breyer says. “The appearance of corruption accompanying multi-million dollar contributions can make matters worse. The public may come to believe that its efforts to communicate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether.”

“We believe,” Breyer concludes, “that today’s decision substitutes judges’ understandings of how the political process works for the understanding of Congress, fails to recognize the difference between influence resting upon public opinion and influence bought by money alone, overturns key precedent, creates serious loophole in the law, and undermines, perhaps devastates, what remains of campaign finance reform.”

“With respect, we dissent,” he adds.


And so do we, but without the qualifier.

Shining City Upon a Hill

If we are to be a shining city upon a hill, it will be because of our ceaseless pursuit of the constitutional ideal of human dignity.  For the political and legal ideals that form the foundation of much that is best in American institutions – ideals jealously preserved and guarded throughout our history – still form the vital force in creative political thought and activity within the nation today.  As we adapt our institutions to the ever-changing conditions of national and international life, those ideals of human dignity – liberty and justice for all individuals – will continue to inspire and guide us because they are entrenched in our Constitution.  The Constitution with its Bill of Rights thus has a bright future, as well as a glorious past, for its spirit is inherent in the aspirations of our people.

___________________________________________

William J. Brennan, Jr. (1906-1997), Associate Justice of the Supreme Court of the United States.
This is the concluding paragraph of article originally delivered as a speech at Georgetown University in Washington, D.C. on October 12, 1985.

"Oh, what a novel idea, read the decision"

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Who is Sheldon Adelson and Why Should You Care?

If the United States of America goes to war with Iran, or becomes embroiled in a war with Iran started by Israel, a man named Sheldon Adelson will have played a significant role in making it happen.

Sheldon Adelson built the world's most expensive hotel-casino, the Marina Bay Sands. With its indoor canal, opulent art, dazzling casino, outdoor plaza, convention centre, theatre, crystal pavilion, lotus flower-shaped museum, and 150-meter long infinity pool at the top of the complex 55 stories up, the Marina Bay Sands is the world’s most expensive paean to indulgence.

Adelson is the Chief Executive Officer of the Las Vegas Sands Corporation, which owns and operates the Venetian and Palazzo hotel-casinos in Las Vegas, the Sands Casino-Resort Bethlehem, in Bethlehem, Pennsylvania, several properties in Macao, including the Macao Sands, and the Mariana Bay Sands in Singapore. Adelson has been listed as anywhere from the 3rd richest to the 16th richest man in America and has been called the “world’s richest Jew” by the Jewish Virtual Library, and at times, by himself.

Adelson’s American success story makes the Horatio Alger fictional success story look meager by comparison. Whereas Alger’s “Ragged Dick” made the climb from poverty to middle-class success through hard work and grit, Adelson worked harder, smarter, and some have claimed fraudulently (he was sued by his adopted sons in 1997 over the COMDEX deal), to rise from abject poverty to astronomical wealth. As his wealth has increased, so has his involvement in and influence over American and world foreign policy. And with the 2010 US Supreme Court Citizen’s United decision, Adelson’s money has become a dominant factor in American and Israeli politics, as well as a factor in China’s exploding capitalism.

Shelley Berkley, who once worked for Adelson, and is now a Democratic congresswoman for Nevada, said, “I have unique personal knowledge of how Mr. Adelson seeks to dominate politics and public policy through the raw power of money.

Most Americans who are paying any attention at all to Republican campaigns for their party's presidential nominee know by now that Sheldon Adelson is to Newt Gingrich as Newt Gingrich is to Tiffany's.

Federal records show that since 1999, Adelson and his wife have made disclosed political contributions of $21.6 million, and 82 percent of it has been for the benefit of Gingrich. Gingrich told NBC News in January 2012 that Adelson, "Knows I'm very pro-Israel, and that's the central value of his life."

The bond between Adelson and Gingrich goes back to the 1990s, when Gingrich was speaker of the House. Adelson wanted Congress to require that the U.S. Embassy in Israel be moved to Jerusalem. Gingrich not only spearheaded the effort; he's campaigning on it now."As president, on my first day in office, I will issue an executive order directing the U.S. Embassy in Israel to be moved to Jerusalem as provided for in the legislation I introduced in Congress in 1995," Gingrich said in a December speech in Beverly Hills, California.

But the key thing to know about Sheldon Adelson is that he is an ultra-conservative, right-wing supporter of all things Israel. Talk to Action (TTA) reports that the Institute for Policy Studies' Right Web has said that Adelson "is an important financial backer of right-wing `pro-Israel' groups in the United States and elsewhere in the world, as well as a prominent supporter of key Likud Party officials," prominently, Netanyahu.

According to The Daily Beast's Aram Roston, Adelson is "a staunch supporter of groups such as the Zionist Organization of America and other such groups, which believe Palestinians have no valid claims. Adelson sponsored a seminar in 2008 provocatively titled the `Islamic Jihad in America: What You Need to Know about Radical Muslim Infiltration of American Culture, Finance, Education, and Life,'" and in November of last year, "Adelson appeared on the stage of the Zionist Organization of America to present ... Glenn Beck with a `Defender of Israel' Award.

Adelson supports a number of ultra-conservative Jewish lobbying groups; groups who are now pushing for "retaliation" against Iran for that nation's refusal to back down on their pursuit of nuclear capabilities that may include nuclear weapons development. These are the same groups that promoted war with Iraq, and managed to seed the Bush Administration with men like Douglas Feith, Richard Perle, Paul Wolfowitz, and David Wurmser. Their mission was described in a policy paper -- A Clean Break: A New Strategy for Securing the Realm -- authored primarily by Wurmser, that advocated pre-emptive strikes against Iran and Syria, the removal of Saddam Hussein from power, and the abandonment of traditional "land for peace" negotiations with Palestinians.

It isn't much of stretch to say that Sheldon Adelson is responsible as much as anyone for Benjamin Netanyahu regaining the office of Prime Minister of Israel.

In his speech to the American Israel Public Affairs Committee (AIPAC) in Washington DC on March 6, 2012, Netanyahu made it clear that he is perfectly comfortable with and capable of attacking Iran, with or without Washington’s approval. He said, “We are determined to prevent Iran from developing nuclear weapons; we leave all options on the table; and containment is definitely not an option.

Netanyahu went on to say, “The Jewish state will not allow those who seek our destruction to possess the means to achieve that goal. A nuclear armed Iran must be stopped.”

In case anyone had any doubts that Netanyahu was ready to go it alone, he elaborated, saying that, “Israel has waited patiently for the international community to resolve this issue. We've waited for diplomacy to work. We've waited for sanctions to work. None of us can afford to wait much longer.”

Sheldon Adelson

Every American Should Occupy the Hell Out of Wall Street!

Listen. The bastards screwed us. I'm not kidding. It's a disgrace. They are not just unethical -- we expect that by now, don't we? They are crooks. If you don't understand that these bankers and brokers are crooks, you haven't been doing your due diligence -- shame on you. Furthermore, if you believe that the various government and private regulatory agencies charged with oversight and enforcement of our financial institutions are actually doing their job, unimpeded by the influence of revolving doors or money, then I have a bridge to sell you.

Look, corporate capitalism is, on the whole, amoral. Corporations and their CEOs aren't in business to "... form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, or promote the general welfare," especially not to promote the general welfare (consider tobacco companies). Corporations are in business to make a profit. As long as they do this more or less honestly, good for them. I mean, caveat emptor, to some extent, right?

But when corporations (which, despite what five members of the Supreme Court tell us, are not people) and their executive officers (who are people) lie, cheat, and steal, we object, don't we? I do. All those people in the Occupy Wall Street (OWS) movement do (and good for them).

Every American should occupy the hell out of Wall Street any way we can. I've written about Goldman Sachs' approach to the idea of an "honest broker" elsewhere, so I'll go on to describe a personal experience with my former broker. I closed my Merrill Lynch account, and I wrote a rather lengthy letter to Merrill's regional director of "wealth management" and detailed the many and varied egregious Merrill activities that led me to my decision. Here's my letter.

March 6, 2009

James P. Hughes

Managing Director, Greater Northwest

1201 Pacific Ave.

Wells Fargo Plaza

Tacoma, WA 98402

SUBJECT: CLIENT SATISFACTION SURVEY

Dear Mr. Hughes;

In your letter of November 12, 2008, your requested that I complete subject survey. Forgive me for taking so long to respond. Developments in Merrill Lynch’s fortunes and conditions in global markets as a whole demanded my attention. Merrill Lynch has been in the news a lot, and the news hasn’t been good.

Today’s news on your firm is that one Merrill trader, Alexis Stenfors, apparently gambled away more than $120 million in the currency markets. Others seemingly lost hundreds of millions on tricky credit derivatives. And it has come to light that Merrill Lynch hemorrhaged $13.8 billion during the final three months of 2008 alone.

Bank of America's shareholders did not learn of the gaping hole until after they approved the merger of the two companies on December 5, 2008. Nor was the extent of the loss fully known when Merrill paid out $3.6 billion in bonuses, which were based on estimates of the firm's performance as of December 8, 2008. Thomas Montag, who headed up Merrill's markets operations, was alone paid a bonus of $39M. When the problems at Merrill became clear, Bank of America was forced to seek a second, multibillion-dollar rescue from Washington. 

Before he was forced to resign in January of this year, ex Merrill CEO John Thain, brought in to right the Merrill ship, spent over $1.2M to redecorate his office, while it was coming to light that the firm had actually lost some $27 billion in 2008. Thain accelerated approximately $4B in bonus payments to employees at Merrill just prior to the close of the deal with Bank of America.

Merrill’s true loses appear to have been concealed from Bank of America. BoA, subject to its own lack of due diligence, lowered its dividend after buying Merrill, its stock subsequently dropped from 45 to 5, and Moody’s lowered BoA’s rating. After the BoA takeover, Peter Krause left Merrill and received a $25M “golden parachute” after just 3 months with the company.

In late 2007, Merrill’s CEO, Stanley O’Neal, who was largely responsible for “reinventing” Merrill to be the aggressive, high risk-taking company it became, was forced to resign after the firm suffered its biggest loss in its history (up to that time). O’Neal left with a $160M severance package.

Because I was concerned by what I was reading recently about Merrill Lynch, I did some background research on the firm and found many other examples of Merrill’s lack of values-based leadership. For example:

In January 2007, Merrill Lynch analyst Stanislav Shpigelman was sentenced to 37 months in jail for his part in an insider-trading scheme, following on the heels of ML broker Peter Bacanovic in another, highly publicized insider-trading scandal involving Martha Stewart.

In 2002, the New York State Attorney General’s Office accused Merrill Lynch, and its analyst, Henry Blodget of regularly issuing false or misleading recommendations about Internet-based stocks in an effort to increase the firm’s underwriting business. Merrill Lynch settled the allegations with a $100 million fine.

One of your firm’s most egregious actions was in aiding the massive Enron fraud by creating the false appearance of profits and cash flow. For example, Merrill Lynch purchased Nigerian barges from Enron on the last day of 1999 only because Enron secretly promised to buy the barges back within six months, guaranteeing Merrill Lynch a profit of more than 20%. As a result of this fraud, Merrill Lynch ultimately paid $80 million to settle with the SEC.

In an eerie preview of today, Merrill Lynch lost $377M trading mortgage-backed securities as far back as 1986, helping bankrupt Orange County, California, which sued Merrill.

Merrill Lynch has been fined by the Commodities Futures Trading Commission, and charged by the SEC with overcharging its mutual fund clients.

Mr. Hughes, the positive feelings I have for my financial advisor are, I’m afraid, overwhelmed by the negative feelings I’ve developed for Merrill Lynch. That’s why, after having had a relationship with Merrill Lynch for over 25 years, I am leaving your firm, and why I am not completing the subject client survey.

Sincerely,

and etc., etc.

Does it surprise you to learn that I never heard back from Mr. Hughes? No? My you are cynical.

Voting their Conscience

Just nine Republicans joined majority Democrats and the Senate's two independents to support Sonia Sotomayor's confirmation Thursday as the nation's first Hispanic Supreme Court justice. They included the Senate's few GOP moderates and its lone Hispanic Republican, retiring Sen. Mel Martinez of Florida, as well as conservative Sens. Lindsey Graham of South Carolina and Lamar Alexander of Tennessee, the party's third-ranking leader.

The National Rifle Association, which hadn't weighed in on Supreme Court nominations past, strongly opposed her and threatened to downgrade its ratings of any senator who voted to confirm Sotomayor. Republicans who were initially considered possible supporters later announced their opposition, citing gun rights as a key reason.

Of the GOP senators standing for re-election next year, all 12 voted against Sotomayor.

Of the seven GOPers likely to retire between now and '10, four -- Sens. Kit Bond (R-MO), Judd Gregg (NH), Mel Martínez (FL) and George Voinovich (OH) -- voted yes. Retiring Sens. Sam Brownback (R-KS), Jim Bunning (R-KY) and Kay Bailey Hutchison voted no. Brownback and Hutchison intend to run for GOV in their respective states.