Schumer's Antics Hurt the Senate and Aren't Really About the Merits on Kavanuagh

The argument du jour for Democrats seems to be that Judge Brett Kavanaugh made some sort of deal with President Trump so Trump can’t be indicted. As Senate Democrat Minority Leader Chuck Schumer stated:

Senate Minority Leader Charles E. Schumer (D-N.Y.) said at a news conference Tuesday that Trump “chose the candidate who he thought would best protect him from the Mueller investigation.”

The Washington Post concluded this was false and stated so in pretty strong terms:

But Kavanaugh’s articles from 1998 and 2009 are no smoking-gun evidence that he would vote to dismiss an indictment against Trump, should one ever be filed.

Although he clearly believes it’s a bad idea to indict a sitting president, Kavanaugh never states his view whether the Constitution allows it. In fact, he says Congress should pass legislation to ensure the president is immune from civil and criminal proceedings while in office. As Feldman writes, Kavanaugh’s 2009 article can be read as a signal that he might uphold a presidential indictment unless Congress changes the law. 

We don’t mean to split hairs by analyzing whether Kavanaugh believes something “can’t” or “shouldn’t” happen, but in the legal arena, this distinction matters. Kavanaugh’s stated views on this question don’t go as far as Fallon, Maloney and Ocasio-Cortez claimed. Their tweets merit Two Pinocchios, although we considered giving Three. To say Kavanaugh is Trump’s “get-out-of-jail free card” is an extreme distortion of what he’s written.

There is some question as to Senator Schumer’s motive for this and other similar antics.  Schumer may not even care about defeating the nomination of Kavanaugh but may be making this and other ridiculous claims to delay his confirmation.  As the Wall Street Journal Editorial Board points out.

Minority Leader Chuck Schumer has already said he will “oppose Judge Kavanaugh’s nomination with everything I have.” Nice to know he’s given it such careful thought. But Mr. Schumer knows defeating the judge is a long shot, especially after Maine Senator Susan Collins made encouraging comments Tuesday about Judge Kavanaugh’s lower-court opinion on ObamaCare and his statement in 2006 that Roe v. Wade is a binding precedent.

In any case, what Mr. Schumer cares about more than defeating Donald Trump’s nominee is to be the next Majority Leader. Toward that end he wants to help his 10 incumbent Senators running in November to navigate between a political base that demands opposition to all things Trump and broader state electorates that might come to think that Judge Kavanaugh is an excellent nominee.

Minority Leader Chuck Schumer has already said he will “oppose Judge Kavanaugh’s nomination with everything I have.” Nice to know he’s given it such careful">The best way to do that is to postpone a confirmation vote beyond Nov. 6. That way Joe Donnelly in Indiana, Heidi Heitkamp in North Dakota and Joe Manchin in West Virginia wouldn’t have to take a politically difficult vote before Election Day.

Minority Leader Chuck Schumer has already said he will “oppose Judge Kavanaugh’s nomination with everything I have.” Nice to know he’s given it such careful">They and other Democrats like Claire McCaskill in Missouri risk infuriating Democratic activists if they vote for a nominee who will be described day after day on MSNBC and CNN as a threat to every right they have. On the other hand, the Senators might motivate Trump voters to turn out against them if they oppose Judge Kavanaugh. So Mr. Schumer’s main priority is delay, and delay some more.

Minority Leader Chuck Schumer has already said he will “oppose Judge Kavanaugh’s nomination with everything I have.” Nice to know he’s given it such careful consideration. The motive for Schumer’s attacks is to delay, not about defeating Kavanaugh. They are about politics and damaging the “world’s greatest deliberative body.” Ironically, Senators of his own party may pay the price.

RNLA to Host Florida Election Law CLE Training Amidst Key State Races

Maybe never in American history has the integrity of the electoral process and upholding the rule of law been more important than in 2018. Just in the past few months there has been significant evidence of voter fraud and allegations of corruption plaguing high level polling officials.

On June 28th, the Republican National Lawyers Association will be hosting an election law CLE presentation in Kissimmee, Florida. A major goal of the RNLA event will be to restore the high standard of honesty, integrity, and transparency in American elections. Panelists at the event will include some of the most respected and high-profile attorneys and officials in the state of Florida. Topics for the esteemed panelists will range from legal ethics, First Amendment issues on college campuses, and election law in general.

In addition to the electoral related discussion, the RNLA’s CLE presentation at the ‘Sunshine Summit’ will break down two key races in the state. First, the two major candidates for the Republican nominee for Attorney General will be speaking and sharing their vision for the position that is the most powerful attorney in the state. Speaking first will be Judge Ashley Moody who will then be followed by Representative Frank White. Judge Moody was the youngest judge in the history of Florida when she was appointed to the Circuit Court at the age of 31 in 2006. Representative White is an attorney who has represented the 2nd district in the state house since 2016.

The presentation will also include Jessica Furst Johnson hosting a discussion breaking down the key senate race in the Sunshine State. Governor Rick Scott looks to build on the success he has had as governor and unseat incumbent Democrat Senator Bill Nelson. Not only will attendees hear about the candidates and the races, they will also learn how they can get involved.  The event will take place at the Gaylord Palms Resort in Kissimmee, Florida starting at 10 am on Thursday, June 28. For more information on the event, visit the RNLA event page or RSVP here.

Election Administration Issues for Key 2018 Primary Elections

Eight states voted on Tuesday in their primary elections, and at least two of them had significant problems in voting. In the South Dakota primaries, a Republican voter was told by an election supervisor to use an incorrect ballot.

Wrong place, wrong ballot. Voters contacted KELOLAND News about receiving the wrong ballots on election day. That includes Mark Millage, who lives in Sioux Falls. 

On their ballot, Republican voters in district nine got to choose between state senate candidates Lora Hubbel and Wayne H. Steinhauer. When Millage went to vote, polling place workers gave him a District 9 ballot. The problem is he is a District 11 voter. 

He says he told the polling place supervisor, who called county auditor Bob Litz's office. Millage, the former news director for KELOLAND News, says they told him to use the wrong ballot anyway.

Incorrect ballots were not the only problem for South Dakota’s Tuesday Primaries as a computer glitch in Sioux Falls led to chaos at a number of polling locations.

More than half the voting sites, 16 in all, extended the closing time on Tuesday’s election day to accommodate a late start to ballot-casting thanks to a computer problem: The county-issued Dell Computers that navigated the new e-poll book service were not connecting to the secure hot spots provided by a separate router for each device. 

Julie Pearson, Pennington County auditor, said she had no idea of how many voters were turned away at polling places, but the clunky equipment failure dogged many precincts. The laptops started up, but the election software connecting officials to the Secretary of State's voter registration. 

There was no paper back-up on hand, and without voter registration lists, poll workers couldn’t verify a voter’s identification and protect the integrity of the election process.

In California, voting issues were also rampant Tuesday as over 100,000 voters were left off voting rosters in Los Angeles County.

Los Angeles County Registrar-Recorder Dean Logan told CBS Los Angeles voters whose names did not appear on the roster at their polling place would be given provisional ballots, after a printing issue affected the voter rolls of more than one in four precincts. A total of 118,522 names were omitted.

Another controversy in California dealt with questions of impropriety as the Dianne Feinstein Elementary School in San Francisco was used as a polling location for the California Senate Primary which featured Senator Dianne Feinstein.

These problems show the importance of poll watchers and lawyer observers to ensure open, fair and honest elections. Not just to stop vote fraud.

Is the ACLU Looking to Politicize Local DA Races in 2018?

The American Civil Liberties Union (ACLU) is focusing on district attorney races this year:

The ACLU is among a variety of organizations working to elect prosecutors willing to jumpstart a laundry list of criminal justice reforms, including an overhaul of the pretrial bail bond system. It received a $50 million grant from Soros’ Open Society Foundations in 2014. . . . 

The group hasn’t determined which local races will be targeted, but it will focus on contests in big cities with large jail populations that feed the state prison system, said Taylor Pendergrass, senior campaign strategist for the ACLU’s Campaign for Smart Justice. More than 1,000 local prosecutors are up for election in November, according to the group. . . . 

As the article points out, many on both the right and the left, Republicans and Democrats, are calling for criminal justice reform, but there is a great deal of debate over the proper changes, the economic considerations, and what the practical effects of any legal changes will be.  Many law enforcement organizations warn that ill-considered changes could drastically increase crime rates and decrease public safety.  The number and murkiness of the considerations in this area make it important that a vibrant public debate is held over law enforcement and criminal justice issues and that the people's elected legislators collectively make the hard decisions about policy matters.   

The Color of Change Political Action Committee, which has also received Soros funding, is urging black voters to support Democratic candidate Elizabeth Frizell for Dallas County District Attorney in Texas. A former state district judge, Frizell has called for special prosecutors to investigate shootings by police. She also supports replacing cash bail bonds with a pretrial release system based on factors such as the type of offense, the facts of the case and the defendants’ likelihood to re-offend and return to court. . . .

With great discretion about whether to charge and how severely to punish defendants, district attorneys hold immense power over the way justice is dispensed, advocates for similar reforms agree. . . .

While prosecutors exercise immense discretion as an important facet of our adversarial system, we have seen all too often how politically motivated prosecutors will selectively enforce the law to serve their progressive political goals, not to serve the greater public interest.  Unfortunately with the ACLU's track record in selectively supporting free speech rights (anarchists - yes, religious groups - no), we are not optimistic that the candidates supported by the ACLU will be ones who will use their discretion with respect for the rule of law instead of using it to politicize justice on the local level.  And when justice is politicized, it is the most vulnerable of our citizens who suffer the greatest consequences.

Dissecting the Pennsylvania Supreme Court's Redistricting Order

Yesterday, the Supreme Court of Pennsylvania handed down a per curiam order regarding a recent redistricting lawsuit that worked its way up through the Pennsylvania Courts: League of Women Voters of PA v. Pennsylvania.

At issue, the congressional district boundaries drawn after the 2010 census. The ruling fell along roughly partisan lines, with 4 justices ruling its congressional map was unconstitutional with another justice concurring in part (the unconstitutionality) and dissenting in part (the remedy put forth by the majority). Meanwhile, the two remaining justices dissented to the order in its entirety (see below).

The crux of the order declared:

[This] Court finds as a matter of law that the Congressional Redistricting Act of 2011 clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania, and, on that sole basis, we hereby strike it as unconstitutional. Accordingly, its further use in elections for Pennsylvania seats in the United States House of Representatives, commencing with the upcoming May 15, 2018 primary, is hereby enjoined. . . .

The Court's order continues by detailing how a new map will be redrawn in time for Pennsylvania's 2018 Primary, which is less than four months away. The order allows the Republican-majority Pennsylvania General Assembly to redraw the congressional districts within the Commonwealth, but they must submit their proposal by February 9, 2018, which must be approved by the Democratic Governor Tom Wolf--just 19 days. If the Governor and the Pennsylvania General Assembly fail to come to an agreement--which is possible, if not entirely likely--the Supreme Court of Pennsylvania will redraw the congressional districts for Pennsylvania.

The Court ended its order by issuing an exemption for Pennsylvania's 18th Congressional District, which is in the midst of a special congressional election, scheduled for March 13th. However, every other district is subject to be redrawn. The Court stated a full opinion is forthcoming.

Chief Justice Saylor offered a salient dissent:

Consistent with my previous vote disfavoring the assumption of extraordinary jurisdiction, I agree with the Commonwealth Court’s original position that it would have been appropriate to stay this matter pending anticipated guidance from the Supreme Court of the United States in Gill v. Whitford [citations omitted]. Indeed, the Supreme Court has stayed a series of recent federal court directives to state legislatures in cases lodging partisan gerrymandering challenges pending its review, most recently, as of last week [Rucho v. Common Cause] [citations omitted]. I hold the view that restraint is appropriate, particularly in light of the timing of the present challenge to a congressional redistricting plan that was enacted in 2011 and the proximity of the impending 2018 election cycle [citations omitted]. . . The crafting of congressional district boundaries is quintessentially a political endeavor assigned to state legislatures by the United States Constitution. See U.S. CONST. art. I, §4. . . .

Justice Mundy expanded on Chief Justice Saylor's dissent by stating:

I join Chief Justice Saylor’s dissenting statement in full. I write separately to express my concern with the vagueness of the Court’s order. Despite its pronouncement that the 2011 map clearly, plainly, and palpably violates the Pennsylvania Constitution, the Court fails to identify the specific provision it so violates. This vagueness by the Court is problematic because the parties raise several state constitutional claims, including the Speech Clause, the Free Association Clause, the Elections Clause, and the Equal Protection Clause, each of which has a different mode of analysis [citiations omitted].

The Court’s order fails to give essential guidance to the General Assembly and the Governor, or this Court on how to create a constitutional, non-gerrymandered map. I am also troubled by the order striking down the 2011 Congressional map on the eve of our midterm elections, as well as the remedy proposed by the Court. In my view, the implication that this Court may undertake the task of drawing a congressional map on its own raises a serious federal constitutional concern. See U.S. CONST. art. I, § 4, cl. 1 (stating, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[]”) (emphasis added) [remaining citations omitted].

Both dissents highlight U.S. Consitution issues, which the Supreme Court of Pennsylvania's per curiam order attempted to carefully avoid. 

Meanwhile, Pennsylvania GOP leaders from the Pennsylvania General Assembly announced that they will seek a stay from the Supreme Court of the United States.  In a joint statement, GOP leaders declared: “It is clear that with this ruling the Court is attempting to bypass the Constitution and the legislative process and legislate themselves, directly from the bench.” GOP leaders hope the U.S. Supreme Court will intervene as they did in North Carolina.

We will keep everyone posted on this story and informed of likely developments over the next couple weeks.