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The Rule of Law is at Stake. That’s All.

I’ve had it.  Certain Democrats have perverted legal questions into political ones one time too many.

Years ago, a PAC associated with Senator Mark Warner had these ads running on the gay marriage issue – petition the Fourth Circuit to uphold gay marriage.  Totally inappropriate and bordering on contempt of court.

Now it’s gone too far!  Here is a recent tweet this morning from a Democrat running for Congress right here in Virginia (Fifth District):

9h9 hours ago

The Trump administration is pushing to lift Virginia’s uranium mining ban. In a friend of the court brief, the administration said the ban encroaches on the Atomic Energy Act of 1954. Nonsense. This demonstrates Trump’s lack of respect for states’ rights and Virginians’ health.

NO, Ms. Cockburn, with all due respect, your position is nonsense.

The issue of whether the Virginia uranium mining ban violates the federal Atomic Energy Act of 1954 is a LEGAL one, not a political one – I agree with Ms. Cockburn’s sentiment but admit there is a libertarian answer that there should not be any ban on mining on private property (with appropriate regulation of course) including uranium.  However, there is also the issue of radiation and tailings that could damage the water table.  My right to wave my arm extends to the zone near enough to your nose to be a threat.

I have not studied the question but would make the observation that four Justices of the Supreme Court (at least) felt there was enough merit (or enough need to decide the case regardless of merit) to take the case in the first place.  That is fairly rare.  Most cases are denied.  And the United States Government has taken the position the state law is invalid – it is superseded by federal law.  That is fairly uncommon.  The Constitution and all federal laws lawfully enacted are the supreme law of the land.  I doubt the Solicitor General’s office will take a political approach but rather a legal analysis.  The President had little or nothing to do with this.

I respect that analysis:  There is a decent chance that the Virginia law will be overturned.

Now Congress can authorize a law similar to the Virginia law but probably will not.

Another example:  Certain Democrats are also using the legal issue of the existence of the remainder of the Affordable Care Act (Obamacare) to fight the Judge Brett Kavanaugh nominee to the Supreme Court.  Here’s one example:

“Democrats believe the No. 1 issue in America is health care, and the ability of people to get good health care at prices they can afford,” said Senate Minority Leader Chuck Schumer, D-N.Y.

The Kavanaugh nomination, he added, “would put a dagger” through the heart of that belief.

I think it is clever but inappropriate to treat a SCOTUS nomination as if he or she is a politician voting on the wisdom of legislation, not its constitutionality.  Either the Obamacare provisions are a tax or not.

It may be ironic that the Supreme Court, who has been accused of “activism”, e.g. legislating from the bench, is now an issue as if a justice’s vote is a political manner.  Now the nomination process is being perverted into pure politics.

If the Supreme Court decisions become purely politics, there are no more Constitutional rights or protections.  Freedom of speech.  Right to bear arms.  Rights of criminal suspects.  Search and seizure.  Jury trial.  And many others.  It’ll all depend on justices selected like politicians.  Even their beloved Roe v. Wade could fall.

So what we must do – both sides – is take a step to restore the rule of law.  Stop conflating legal and political issues.  A news conference ought to do it, Ms. Cockburn.  It’s only the rule of law and the Constitutional Republic established in 1789 that are at stake.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

8 Responses to “The Rule of Law is at Stake. That’s All.”

  1. R. Stanton Scott

    Whether or not Virginia’s uranium mining ban violates the Atomic Energy Act of 1954 is certainly a legal question. But the decision to file a friend of the court brief arguing that it does is a political one. A Democratic administration would likely have chosen not to. Cockburn is right to point this out.

    And Schumer is right to point out that a conservative Supreme Court is more likely to strike down existing or future progressive legislation. For all their talk about “legislating from the bench,” it’s conservatives like Mitch McConnell and anti-abortion activists who have most recently politicized the Supreme Court. If the right in fact only wants “qualified judges” on the SCOTUS, Merrick Garland would have a seat.

    Conservatives understand that majorities of Americans favor progressive policies like protecting the environment and access to health care. They know Americans by and large also oppose conservative ones like tax cuts for the wealthy and restricting the right of women to reproductive health care. And they know all too well that they can win at the polls only by rigging the system through voter suppression or gerrymandering. So they pack the courts with conservatives to protect their anti-democratic efforts to choose their voters. But they also know that this won’t work forever, so they also need to pack the courts to block progressive legislation when their hold on power finally ends.

    In the end, the Supreme Court is no less a political branch of government than Congress or the Executive – it’s just the one designed to protect minority groups and the system itself from attack by the popularly elected Congress and President. Indeed, the Court routinely answers core political questions about the scope of legislative and executive power, and conservatives appeal to this branch as often as liberals when they think Congress or States have exceeded their authority. If the right didn’t believe this, they would not work so hard to pack the court system with judges that agree with them on the issues.

    • Sandy Sanders

      Thank you R. Stanton Scott for a thoughtful response. I agree that politics and ideology have come to consume SCOTUS decisions since the 60s. I disagree that the response of the US was political. Yes the AG appoints the Solicitor General and by extension the President but if you are looking for a relatively politics free agency in the Federal Government it is the Solicitor’s office. So I respect their work.

      My beef here is treating the legal position of the Solicitor’s office as the position of President Trump. That is inappropriate.

      Now, as to Judge Merrick Garland, I did not want him to fill Scalia’s seat. I understand there was some precedent for what the GOP Senate did. However, they should have given Judge Garland a hearing; and I explained at this blog that the reason the GOP leaders did not was there was enough squishy Republicans that would have voted for Garland that he would have been narrowly confirmed.
      Search for “Garland” for my posts on this.

      I think both sides have “packed” the courts with ideologues. I am greatly concerned that the politicization of the courts will result in fewer rights not more.

      Thanks for coming by and come by again. You are especially welcome here.


      • R. Stanton Scott

        Let me just say that when the Solicitor General refused to defend DOMA on the grounds that he thought it unconstitutional, you blamed Obama. not the apolitical SG office. Based on your argument in that post, Trump’s SG could have refused to join the attack on Virginia’s power to regulate uranium mining if he believed in states’ rights while allowing a federal judge to write a FOTC brief at the invitation of the court. Because Trump did not do this, I think Cockburn’s claim that Trump does not respect Virginia’s rights has merit.

        More generally, I’ll just point out that since Barack Obama won the Presidency in 2008, Republicans have steadily changed the shared understandings with regard to selection of judges for both lower courts and the SCOTUS. To be sure, Democrats ended the filibuster for confirmation of lower court judges and deserve some blame, but the GOP did so for SCOTUS picks, and Grassley has ignored the blue slip process for lower court nominees.

        I’m no fan of the filibuster, but this rule and the blue slip norm allowed Senate minorities to influence Presidents when they nominated judges – knowing that a Senate minority could block nominees, Presidents had to confer with Senate leaders before selecting a nominee. In my mind, this is what Madison meant by “advise and consent.” Had the opposing party controlled the Senate, the most recent six SCOTUS nominees would likely have been much more moderate and apolitical – this includes Thomas, Alito, Roberts, Ginsburg, Kagan, and Sotomayor. I think we can all agree that this would have been a good thing.

        Reagan ignored Senate Democrats and nominated Robert Bork. Conservatives point to Bork’s treatment as the beginning of the politicization of the Court, and this is arguably true. But Reagan carries as much blame as his opponents, since he chose an extremist judge after Democrats warned him.

        Democrats of course had to do this once they heard from constituents that supporters would not accept their approval of a nominee who had followed Nixon’s order to fire Archibald Cox and whose opinions on privacy rights and other issues placed him to the extreme right of American jurisprudence.

        Personally, I blame Evangelical Christianity’s political shift from defending segregation to attacking abortion for the growing politicization of the judiciary. They wanted state laws restricting reproductive choice and needed judges that would uphold them. In the end, this is why they support Trump despite his clear personal dismissal of Christian beliefs and the Gospels. He will give them justices that will overturn Roe v Wade. It’s really that simple.

        Wish I could think of a way out of this. But our arguments over existential issues have driven us to tribalism. Some of these hinge on religion – those who believe that abortion is murder or homosexuality offends God will do anything to stop it. Others not so much – but you’ll also do anything to prevent gun control if you believe liberty depends on weak regulation of gun ownership.

        Anyway, thanks for the welcome and for listening to what must come across to you as a liberal rant. I crossposted this at Foggy Bottom Line so it appears under your comment there. And yes, please drop by my place again.

        • Sandy Sanders

          Another thought-provoking posting. I saw the comment about DOMA and wonder if I had spoken out on this or was that a royal “you” so to speak. Here is the posting:

          I think the days of bipartisan SCOTUS confirmations are over. it is too bad. In the day of Cardozo or Frankfurter, the candidate did not even appear before the Senate.

          Now about the evangelicals – I am an evangelical – I prefer to say follower of Christ. I think there is a very thin line to draw – yes believers should be in politics and public affairs BUT I am afraid the activist churches have made some seekers feel unwelcome. There may have been a deeper principle behind the support of segregated schools but I can assure many believers DID NOT support segregation. Abortion is the willful taking of a human life and it needs to be legal only in rare circumstances (Safe, legal and rare but not exactly how Hillary Clinton meant it) and it irritates me that the SCOTUS decided that it is protected by the Constitution.

          Roe v. Wade does not have to be overruled to be made meaningless. And substantive due process has been a bugbear since the late 1800s. Justice Scalia hated it. Maybe I’ll write a post on it.

          Bearing arms is explicitly protected (unlike abortion) in the Constitution and it is protected NOT for self-defense but the defense of liberty.

          I do not think Bork was an extremist but was painted as such.

          I have mixed feelings about the SCOTUS; even the liberals are not very reliable on criminal procedure issues such as Miranda. I also disagreed with the union dues case. It’s tough to have a firm philosophy of jurisprudence and protect decisions such as Brown v. BOD; the history of the 14th Amendment gave Thurgood Marshall a zero to zero tie. Might have been better to say: Separate was never equal especially when no blacks were deciding what was equal and in light of positive (in the sense of written-out) laws enforcing Jim Crow. Overusing precedent ought to be seldom done and only when absolutely necessary.

          I do not regard you as a liberal ranter; I think a careful and fair reading of my materials shows I take different and provocative positions:

          – pro athletes in the Olympics are Sports Imperialism
          – secession is legal but foolish in almost every situation.
          – Virginia needs a statewide public defender system

          To name just a few items.

          Come back again.


          • R. Stanton Scott

            Thanks. I’m enjoying the dialogue.

            Yes, SCOTUS is now a political branch and I don’t think we can fix this as long as the Conservative side won’t budge on the existential issues I mentioned above. Abortion is the classic example, and I think Clinton would agree with me that we can all but eliminate it by helping women manage their reproductive health so they don’t need them. Religious objections to birth control and morning-after medications, however, make it look a lot like they have more interest in controlling female sexuality than protecting human life. That few abortion opponents believe women should be prosecuted for having them supports this view.

            Conservatives typically resist compromise on guns as well. I agree the Constitution protects the right to bear arms, but only in a militia context. Stevens’ Heller dissent lays out clearly, but I would add that the men who wrote the Constitution considered broader language based on existing state constitutions but rejected it. And Madison included the Second Amendment to settle Southern fears that Congress would end slavery by eliminating the state militias – which served as slave patrols in states like Virginia and South Carolina.

            Yes, I agree that you sometimes take more nuanced positions than many conservatives. And for the record, I’m right there with you on allowing professional athletes to participate in the Olympics.

            Again, thanks for the discussion.

  2. Corey Fauconier

    I understand now that the Courts are supposed to make decisions on the laws and not bend to the political climate of now. It is truly unfortunate that lay people do not understand this basic but fundamental rule.

    I wholeheartedly agree with you Sandy, the freedoms which make this America are under attack.


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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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