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Hillary's Court

Rich Galen

Thursday June 28, 2018

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  • I was going to write this column about the Janus decision - the one dealing with non-members having to pay dues to a public union.

  • More about that later, but right now it's all about Justice Anthony Kennedy retiring.

  • I turned to MSNBC to watch Chris Matthews. He was so distraught he vented his fury by speaking so fast and so furiously that the speakers on the TV in my office couldn't keep up and began issuing wisps of smoke.

  • Senate Republican Leader Mitch McConnell (R-KY) made it clear there would be no sitting around waiting to see what happens in the mid-term elections this year. As we've discussed before, when picking (or confirming) a Supreme Court Justice is a theoretical discussion, that's one thing. But, in 2016 there was an empty seat - literally.

  • The Court was short a member throughout the election year due to the sudden death of Justice Antonin Scalia in February. He had been a reliable conservative vote.

  • Mitch McConnell refused to take up the nomination of Barack Obama's pick to fill the vacancy, Judge Merrick Garland.

  • Obama sent the Garland's nomination to the Senate in March of 2016 - plenty of time to hold full hearings and a vote. McConnell made it clear from the beginning there would be no such hearings and no such vote until after the Presidential election that Fall.

  • McConnell is making it equally clear he will move quickly to hold hearings and a vote on whomever the nominee is for the Kennedy seat before the midterm elections in November.

  • What happened, of course, is that Donald Trump won. Hillary Clinton could have won. She should have won and had she won, she would have picked someone far more liberal than Merrick Garland. The Republican-controlled Senate would have beat him up, but in the end Democrats would have claimed - legitimately - that filling Scalia's empty seat was a central theme in the election and the people had spoken.

  • Trump got to pick and not Hillary. He picked Neil Gorsuch who seamlessly slid into Scalia's seat. Kennedy's replacement will not be a one-for-one swap like Gorsuch was for Scalia.

  • Kennedy - broadly - was conservative on economic matters but often showed, as CBS' Jan Crawford put it:
    "a strong libertarian streak, and he was the swing vote on the court, casting the deciding vote on the same-sex marriage decision, affirmative action, and Citizens United, among others . . . He refused to overturn Roe v. Wade, and he also constrained the bolder conservatives on the court, pulling them back a little bit. He would just never say 'never' on those social issues."

  • As I might have mentioned 1,297 times, I took three hours of Con Law at Marietta College, Marietta, Ohio 45750 and so I am deeply steeped in this stuff.

  • I actually read the decision (5-4) that said public employees who choose not to join the union that represents his or her organization cannot be forced to pay what is known as an "agency fee." That is some proportion of the amount that dues-paying members have deducted and paid to the union to cover the representational activities of the union (which benefits all employes) but not the political activities of the union (which generally benefits Democrats in the union).

  • Unions have argued that without the agency fee, non-members get a free ride because they benefit from the fine work the union does in negotiating pay and benefits.

  • Justice Samuel Alito wrote the opinion and at one point wrote:
    [Mark Janus] "argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage."

  • If Hillary Clinton had won the 2016 election and changed nature of the Court from 5-4 (usually) conservative to 5-4 (always) liberal it would have been seen by most reporters, commentators, and other Democrats as the natural order of things.

  • Shifting the Court from 5-4 (usually) conservative to 5-4 (always) conservative - not nearly as dramatic a change - has got those same observers running around railing against the gods.

  • Better they should rail against Hillary. The new Court will be her fault.

  • Hillary's Court.

  • On the Secret Decoder Ring page today: Links to the Kennedy retirement and to the Janus case.

    The Mullfoto is of a retail store window on Connecticut Avenue.

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