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Blood liberals

Liberals want blood. Joe Biden is sticking with bipartisanship. – POLITICO

So it’s not surprising that Biden skipped over progressive wish list items like court packing, something he said more than a year ago would cause Democrats to “rue that day.” While some Democrats want him to embrace and advocate court reforms more broadly, one official said privately he saw the speech as designed to address the moment, rather than moments that still might come.

With a steady lead in national and battleground-state polls, the former vice president has also refused to entertain every idea or respond in real time to every pressure point the Trump campaign tries to apply. Biden outright rejected calls to release a list of potential Supreme Court nominees, arguing doing so could sway their decisions and expose them to unrelenting political attacks. (There’s some recent precedent for this: He never confirmed a list, but many of Biden’s vice-presidential contenders came under intense scrutiny, sometimes privately from each other.)

A creature of the Senate for more than three decades, Biden has long argued that once Trump is out of the way some old norms will be restored and the two parties might be able to collaborate. But before Sunday, he’d never tested his own ability to persuade — especially his optimism, despite evidence it’s unwarranted — as a presidential nominee in such an explicit way.

“Please, follow your conscience,” Biden urged the small group of Republican senators still weighing whether to act on a nominee under circumstances being driven by Trump and Senate Majority Leader Mitch McConnell. “Don’t go there. Uphold your constitutional duty, your conscience, let the people speak.

“We can’t keep rewriting history, scrambling norms, ignoring our cherished system of checks and balances.”

Biden’s middle-road approach has so far worked for him electorally. Voters seem intrigued by noble notions of bipartisanship more than they do the onerous compromise it requires.

Biden saved his toughest talk for Trump and the Senate leader, though he also called out Lindsey Graham, the Judiciary Committee chair. For Trump, Biden contended, it’s all a game, a play to “gin up emotions and anger.” And with Trump, McConnell is trying to, jam through the nomination as “an exercise in raw political power.”

“I don’t believe the people of this nation will stand for it,” Biden said, turning to the hypocrisy of the GOP’s quest.

Biden noted that McConnell and other Republicans argued the opposite position when former President Barack Obama nominated Merrick Garland to replace the late Justice Antonin Scalia in 2016.

McConnell, meantime, secured the support of Sen. Lamar Alexander, who is on his way out and had been viewed as a potential swing vote. So far, only a pair of Republican senators have pledged to oppose a confirmation vote before Election Day: Susan Collins of Maine and Lisa Murkowski of Alaska.

Increasingly, Biden’s speech is looking like it was aimed at not a group of three or four, but an audience as small as one: Sen. Mitt Romney. If Romney were to oppose McConnell’s push for a quick vote, the majority leader would have no votes to spare — and Vice President Mike Pence would have to step in to break the tie.

Asked about the overtures to Republicans from the National Constitution Center in Philadelphia, Republican strategist Scott Jennings shot back, “lol.”

“If his view of politics is that because Republicans were mean to Obama, they must now be mean to Trump, a president of their own party, grow up,” Jennings said, pointing to Biden and Senate Democratic leader Chuck Schumer’s calls for confirmation hearings for Garland in 2016.

“The constitution gives the Senate a big, independent hand in this deal and conservatives are pretty happy that Mitch McConnell knows how to use it,” Jennings added. “Biden would be better off worrying about the radicals in his party promising to expand and pack the court and impeach the president to stall this out, if he’s worried about norms and fairness.”

If those proposals do worry Biden, he’s trying to direct attention elsewhere. An aide said Biden is closely coordinating with Schumer and House Speaker Nancy Pelosi. They described them as unified in the belief that the Supreme Court fight underscores the importance of the election, particularly around health care during the pandemic, with the Trump administration trying to undermine the Affordable Care Act in the courts.

On ABC’s “This Week” Sunday, Pelosi argued that Trump has sped up the court timeline to rush a nominee in place for a Nov. 10 hearing on Obamacare. “He doesn’t want to crush the [coronavirus]” she said, “he wants to crush the Affordable Care Act.”

However, Pelosi wouldn’t rule out the possibility of launching impeachment proceedings to block the Senate from confirming Trump’s pick, contending Sunday that Democrats possess “arrows in our quiver” to gum up the process. A day earlier, Schumer delivered a similar message.

“Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year,” Schumer said during a Democratic Caucus call Saturday, warning of possible payback if Republicans fill the seat before January.

Biden said he won’t weigh in on the possibility of the Senate confirming a successor to Ginsburg on the eve of the election — or in the lame-duck session this fall should Trump lose. Even going there would concede that Democrats have already lost, he said.

“I’m not going to assume failure at this point,” he said. “I believe the voices of the American people should be heard.”

If Biden’s appeal to conscience and reason again came off as quaint or out of touch with the moment, no one can dispute it’s worked for him so far.

“It was an old-fashioned appeal to decency,” said Jim Manley, who spent 21 years working in the Senate, a dozen with the late Ted Kennedy and six with former Majority Leader Harry Reid. “He acknowledged the hyper-partisanship out there, but he wanted to cool things down a little bit before it gets really ugly.”

Manley added: “What [Biden] said is largely in sync, for better or for worse, with how he’s operated for months.”

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Aligning liberals

Aligning with liberals on DACA and LGBTQ rights, Chief Justice John Roberts asserts his independence – USA TODAY

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The Trump administration wanted to dismantled the program protecting so-called “Dreamers,” but the Supreme Court decided against it.

Wochit

WASHINGTON – The winners at the Supreme Court this week were the nation’s LGBTQ community and undocumented immigrants. The losers were conservatives, led by President Donald Trump.

And the man most responsible for the unexpected turn of events was the leader of the supposedly conservative court – a label that is coming under a little re-examination.

John Roberts, the chief justice of the United States, was in the majority in both cases, along with all four of the court’s liberal justices. In delivering the one-two punch to the president and his base, Roberts served notice that he can be either side’s punching bag.

More: Supreme Court ruling upholds DACA program for young, undocumented immigrants

In 2010, he voted with conservatives in Citizens United v. FEC to allow unlimited independent spending by corporations in elections. Liberals are still seething.

Two years later, he voted with liberals to uphold President Barack Obama’s Affordable Care Act, which he again saved in 2015. Conservatives have never forgotten.

But while conservatives have more to appreciate in Roberts’ overall voting record, he has not been as reliable as they had hoped when he was confirmed as chief justice in 2005, promising to be like an umpire calling balls and strikes. The last 12 months have been perhaps the most obvious case in point.

More: Trump blasts DACA decision

Last June, the chief justice sided with liberals in striking down the Trump administration’s effort to include a question on citizenship in the 2020 census.

“The sole stated reason seems to have been contrived,” he said of Commerce Secretary Wilbur Ross’ decision. “What was provided here was more of a distraction.”

More: Supreme Court blocks 2020 census citizenship question for now, handing Trump administration a major defeat

In April, he and Associate Justice Brett Kavanaugh joined the liberal justices in jettisoning a case that gun-rights groups had pursued in order to bolster the Second Amendment. Earlier this month, his court turned away a bevy of other challenges to states’ gun restrictions.

LGBTQ victory: Supreme Court grants federal job protections to gay, lesbian, transgender workers

Then this week, Roberts sided with Associate Justice Neil Gorsuch and the liberals in ruling that a federal law banning sex discrimination in the workplace applies to sexual orientation and gender identity. That was followed by Thursday’s opinion, which he wrote, saving Obama’s Deferred Action for Childhood Arrivals program for undocumented immigrants brought to the United States as children.

‘We won’: DACA recipients overwhelmed by surprise Supreme Court victory over Trump

The Department of Homeland Security, Roberts said, “failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.”

‘Playing games’

Conservatives in and out of Congress were apoplectic.

“If Justice Roberts wants to be a politician, he should resign and run for office,” Sen. Tom Cotton, R-Ark., tweeted.

“The most disappointing week at SCOTUS in years,” tweeted Sen. Josh Hawley, R-Mo., who once served Roberts as a law clerk at the high court.

“Judging is not a game. It’s not supposed to be a game,” Sen. Ted Cruz, R-Texas, intoned on the Senate floor. “But sadly, over recent years more and more, Chief Justice Roberts has been playing games with the court to achieve the policy outcomes he desires.”

After 15 years at the court’s helm, however, the 65-year-old Roberts is accustomed to the criticism. 

“When you live in a politically polarized environment, people tend to see everything in those terms,” he told about 2,000 people at Temple Emanu-el in Manhattan last September. “That’s not how we at the court function.”

To label Roberts a closet liberal, on the other hand, would be a colossal mistake. 

CLOSE

The Supreme Court ruled LGBTQ workers cannot be fired under Title VII of the 1964 Civil Rights Act. Trump appointee Neil Gorsuch wrote the decision.

USA TODAY

In 2013, he wrote the 5-4 decision striking down the key section of the Voting Rights Act, casting aside federal oversight of racial discrimination in elections. Five years later, he wrote the 5-4 decision upholding the final version of Trump’s travel ban against several majority-Muslim nations. Last year, he wrote the 5-4 ruling that gave state legislatures unfettered freedom to draw partisan election districts

More: Supreme Court says federal courts cannot strike down partisan gerrymandering

“He is quite consistent,” said former U.S. solicitor general Theodore Olson, a conservative who nevertheless argued on behalf of DACA recipients in the case decided Thursday. “He is very much a rule-of-law individual, and someone who cares a great deal about the process by which legal decisions are being made.”

In both the census case and the DACA case, Roberts insisted that the Administrative Procedure Act be followed. For him, that meant federal agencies must be able to explain the reasons for their actions.

“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”

‘Without fear or favor’

Only the nation’s 17th chief justice, Roberts is driven like his predecessors by a desire to maintain the court’s legitimacy in the eyes of the public.

Translation: too many 5-4 decisions based on ideology – which for the past decade would mean five justices named by Republican presidents besting four chosen by Democrats – will make the court seem like just another political branch of government.

Roberts is aware, no doubt, that the court is the only branch viewed favorably by a majority of Americans. A Marquette Law School poll in October found 57% of those surveyed trusted the Supreme Court the most, compared to 22% for Congress and 21% for the president. He wants to keep it that way.

Thus it was that during Trump’s impeachment trial in the Senate, the chief justice presided even-handedly. When it came time to chastise those arguing for or against the president, he chastised both sides

More:John Roberts drops ‘pettifogging’ bomb while reprimanding both sides in impeachment trial

When Trump criticized an “Obama judge” in 2018 over an immigration ruling, Roberts issued a rare rebuke. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said. 

But earlier this year, he gave Senate Minority Leader Chuck Schumer, D-N.Y., the same treatment. After Schumer threatened Gorsuch and Kavanaugh if they vote to limit abortion rights, Roberts said such statements “are not only inappropriate, they are dangerous.”

More: Roberts scolds Schumer for ‘threatening statements’ against Gorsuch, Kavanaugh

Despite his tangles with the executive and legislative branches, Roberts told his New York City audience last fall that he is not influenced by criticisms from the president or Senate Democrats.

“It does not affect how we do our work. We will continue to decide cases according to the Constitution and laws without fear or favor,” he said. “That’s necessary to avoid the politicization of the court.”

As for the critics, Olson, who has known and worked with Roberts over four decades, summarized an old Spanish proverb:

“It’s one thing to speak of bulls,” he said. “It’s another thing to be in the bullring.”

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