Wall Street Journal Publishes President Obama’s Plea for a Senate Hearing and Vote on Nomination of Merrick Garland to U.S. Supreme Court

On July 17 the Wall Street Journal, which usually is opposed to President Obama, published President Obama’s plea for a U.S. Senate hearing and vote on the President’s nomination of Judge Merrick Garland to fill the vacancy on the U.S. Supreme Court.[1] Here is what the President wrote.

“For more than 40 years, there has been an average of just over two months between a president’s nominating someone to the Supreme Court and that person’s receiving a hearing in Congress. It has now been more than four months since I nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit—and Congress left town for a seven-week recess without giving him a hearing, let alone an up-or-down vote.”

“This is much more serious than your typical case of Washington dysfunction. And if we allow it to continue, the consequences of congressional inaction could weaken our most important institutions, erode public trust and undermine our democracy.”

“Every Supreme Court nominee since 1875 who hasn’t withdrawn from the process has received a hearing or a vote. Even when the nominee was controversial. Even when the Senate and the White House were held by different parties.”

“But Chief Judge Garland isn’t controversial. He has more federal judicial experience than any Supreme Court nominee in our history. He is widely respected by people of both political parties as a man of experience, integrity and unimpeachable qualifications. The partisan decision of Senate Republicans to deny a hearing to a judge who has served his country with honor and dignity is not just an insult to a good man—it is an unprecedented escalation of the stakes. It threatens the very process by which we nominate judges, regardless of who our next president is. And it should concern every American who cares about the rule of law and upholding the institutions that make our democracy work.”

“Here’s why. Historically, when a president nominates a Supreme Court justice—regardless of when in the presidential term this occurs—the Senate is obligated to act. Senators are free to vote their conscience. But they vote. That’s their job.”

“If Republicans in the Senate refuse even to consider a nominee in the hopes of running out the clock until they can elect a president from their own party, so that he can nominate his own justice to the Supreme Court, then they will effectively nullify the ability of any president from the opposing party to make an appointment to the nation’s highest court. They would reduce the very functioning of the judicial branch of the government to another political leverage point.”

“We cannot allow the judicial confirmation process to descend into an endless cycle of political retaliation. There would be no path to fill a vacancy for the highest court in the land. The process would stall. Court backlogs would grow. An entire branch of government would be unable to fulfill its constitutional role. And some of the most important questions of our time would go unanswered.”

“This is troubling for two reasons. First, a functioning judiciary—at every level—is essential to the business of the nation. For example, last month, a deadlocked Supreme Court was unable to reach a decision on several major issues, leaving the law itself in limbo. Across the country, judicial vacancies are leaving some lower courts so overwhelmed they can barely make it through their dockets. Twenty-nine judicial emergencies have been declared by lower courts across the country. This has real implications for jurisprudence, real financial costs to the judicial system and real consequences in the lives of people awaiting the outcomes of those cases.”

“Second, treating the Supreme Court like a political football makes the American people more cynical about democracy. When the Supreme Court becomes a proxy for political parties, public confidence in the notion of an impartial, independent judiciary breaks down. And the resulting lack of trust can undermine the rule of law.”

“So here’s an idea. Democrats and Republicans in the Senate could agree to give Chief Judge Garland a hearing when they return from their extended recess, while also committing to give every future qualified Supreme Court nominee a hearing and a vote within an established time frame. It’s a good idea that my predecessor, President George W. Bush, suggested during his time in office. This reasonable proposal would prevent the confirmation process from breaking down beyond repair, and help restore good faith between the two parties.”

“In my travels around the world as president, I have seen how hard democracy is—how it takes more than a proclamation or even an election. Democracies depend on the institutions we build, the rules upon which the nation is founded, and the traditions, customs and habits of heart that guide our behavior and ensure that political differences never override the founding ideals that bind us. And it is on us—all of us—to preserve and protect them.”

“Now we need Congress to act. We need senators to demonstrate that, once again, America has the capacity to rise above disagreements and maintain a fidelity to the values that, for 240 years, have made this extraordinary experiment a success. That’s what the American people deserve—and it’s what makes ours the greatest country the world has ever known.”

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[1] President Obama, Merrick Garland Deserves a Vote—For Democracy’s Sake, W.S.J. (July 17, 2016).

Bills To End U.S. Embargo of Cuba Introduced in House of Representatives

Two bills to end the U.S. embargo of Cuba have been filed in the House of Representatives, but so far nothing in the Senate. [1] This post will examine the status of those two bills and the positions on the embargo of Minnesota’s U.S. Senators and Representatives

 The Current Bills To End the Embargo

 On January 15th three Minnesota Congressmen—Keith Ellison, Collin Peterson and Rick Nolan, all Democrats—announced that they are co-sponsoring a bill to end the U.S. embargo of Cuba (H.R. 403) that was introduced on January 16th by Representative Charles Rangel (Dem., NY).[1] Titled “To lift the trade embargo on Cuba, and for other purposes,” neither its text nor its summary is currently available on the Library of Congress’ website for pending legislation. [2]

This bill along with another bill to the same effect (H.R. 274 by Congressman Bobby Rush (Dem., IL)) have been assigned for consideration to the following seven House committees, whose membership is listed in the hyperlinked websites:

  • Agriculture, whose members include Collin Peterson (the Ranking-Member), a co-author of the Rangel bill; Tom Emmer (Rep., MN); and Rodney Davis (Rep., IL), who earlier this month spoke in favor of ending the embargo at the launch of the U.S. Agricultural Coalition for Cuba.
  • Energy and Commerce, whose members include Bobby Rush (Dem., IL), the author of one of the bills to end the embargo, and Peter Welch (Dem., VT), who just visited Cuba with the group led by Senator Patrick Leahy (Dem., VT).
  • Financial Services, whose members include Representative Keith Ellison, a co-author of the Rangel bill to end the embargo (Dem., MN);
  • Foreign Affairs, whose members include Tom Emmer (Rep., MN) and Ileana Ros-Leltinen (Rep., FL), a vocal Cuban-American opponent of reconciliation;
  • Judiciary;
  • Oversight and Government Reform, one of whose members is the previously mentioned Peter Welch (Dem., VT); and
  • Ways and Means, whose members include Erik Paulson (Rep., MN) and the previously mentioned Peter Welch.

Those interested In repealing the embargo should examine the lists of the committees’ members and deciding whether and how to contact them to urge support for the Rangel bill (H.R. 403).

Minnesota Representatives and Senators’ Positions on the Embargo

One of the co-sponsors of H.R. 403, Congressman Keith Ellison, is on the Financial Services Committee, which has jurisdiction over some of the issues raised by H.R. 403. As co-chair of the House Progressive Caucus, on December 17th (the day of the announcement of normalization between the two countries) Ellison released a statement congratulating President Obama for the normalization of our relations with Cuba. It stated, “Congress must lift the trade embargo and normalize travel between our two nations, which are only 90 miles apart.” He repeated those sentiments on January 11th at Minneapolis’ Westminster Presbyterian Church’s celebratory concert with Cuban-American jazz pianist, Nachito Herrera.

Also on December 17th Representative Rick Nolan, another co-sponsor of H.R. 403, issued a statement lauding “President Obama’s decision to re-establish diplomatic relations with Cuba” and to obtain the release of Alan Gross from a Cuban prison. This was “a monumental step forward for both nations, allowing us to resume exports and trade, create more good paying jobs in the United States and move forward in our relationships with the entire Western Hemisphere.” This was “especially good news for farmers in Minnesota and around the nation, as well as for our manufacturing and high technology industries that will soon enjoy access to new markets in a nation that hungers for U.S. products and services.”

More recently the other Minnesota co-sponsor of the bill, Representative Collin Peterson, said the current restrictions against U.S. trade with Cuba “don’t do anything but give business to our competitors.” However, he added, “The question is what are the Republicans [in the House and Senate] going to allow to happen. They could well bottle these bills up.” Peterson, as mentioned, is the Ranking-Member on the Agriculture Committee, which has jurisdiction over some of the issues raised by H.R. 403.

Another Minnesota Democratic Representative, Betty McCollum, also is supportive of ending the embargo. On December 17th, she congratulated President Obama “for his efforts to normalize diplomatic relations with Cuba and to begin easing the trade restrictions between our countries. . . .[and] for his efforts to secure the release of USAID worker Alan Gross from prison in Cuba.” She added, “I will continue to work to end the trade embargo between our two countries as I have done since I came to Congress in 2001.  Ending the embargo and normalizing trade relations is good for Minnesota businesses and good for the people of Cuba.”

The other Minnesota Democratic Congressman, Tim Walz, has nothing about Cuba on his website, but in a December 18th interview by a Mankato, Minnesota television station he said he was cautiously optimistic about the White House’s changing policy toward Cuba. He said expanding trade is a good idea, but the U.S. needs to be cautious. “I think there needs to be accountability for what this regime has done,” he said, “and I’m glad this is Congress’ role to be involved, of looking at how this evolves, but I do think it’s an important step. As I’ve said, the status quo has been that way since before I was born, and it’s time to re–look at how we do business.”

Minnesota’s three Republican Congressmen—Erik Paulsen, John Kline and Tom Emmer—do not have any statements about Cuba on their websites

Congressman Erik Paulsen is a member of the Ways and Means Committee, which has jurisdiction over some of the issues raised by H.R. 403. In addition, on October 8, 2009, as a guest blogger on a Heritage Foundation website Paulsen made comments that could reflect his attitude on ending the embargo. He said, “There is another approach to stimulating the economy – a proven method to increase prosperity, grow our economy and create jobs: expansion of free trade. . . . We must make international markets more available to our exporters to help them grow. . . . In my own district, there are countless businesses, small and large, that benefit from free trade. . . . Unfortunately, there are consumers and markets across the globe that still cannot be accessed by American sellers because of high tariffs, quotas and other barriers to international trade. It’s time to knock down those barriers. . . . I have long advocated for increased trade and strong global relationships between the U.S. and nations abroad. I’ve visited India, China and several nations in Africa and the Middle East. In every country, free trade is essential for their own growth and prosperity, as well as the growth and vitality of the United States.”

I have not found anything by or about Congressman John Kline indicating his views on U.S. relations with Cuba, in general, or on ending the embargo, in particular. I especially solicit comments by anyone with more knowledge about his positions on these issues.

Minnesota’s newest Congressman and now in his very first Session, Tom Emmer, as mentioned is on the House Foreign Affairs and Agriculture Committees, each of which has jurisdiction over issues raised by H.R. 403. Moreover, his new website‘s page on “Foreign Affairs” states, “Regions such as Latin America, Africa and Asia present us with emerging opportunities to increase trade and diplomatic relations.” Maybe this is a hopeful sign for his favoring ending the embargo. Emmer also is on the Agriculture Committee, which has jurisdiction over some of the issues raised by H.R. 403.

Minnesota’s Senators

One of Minnesota’s Senators, Amy Klobuchar, favors ending the embargo and is willing to offer a bill to do just that, but wants to wait until after the Senate confirms the President’s future nomination of an ambassador to Cuba. She said, “Sometimes the best defense is a good offense. And part of that is legislation to remove the embargo. Some of this can be done by tying it to changes we want [Cuba] to make on human rights and other things. The timing is the question. We want this to be bipartisan.” In addition, as mentioned in a prior post, she was a speaker in favor of ending the embargo at the January 8th launch of the United States Agricultural Coalition for Cuba.

A prior post about Cuba’s perspective on this week’s diplomatic meetings in Havana suggests that there will not be a formal re-establishment of diplomatic relations, including appointments of ambassadors, until after the U.S. repeals its embargo of the island. Therefore, Senator Klobuchar may have to abandon her strategy of postponing Senate consideration of the embargo until after the Senate confirms the nomination of an ambassador to Cuba.

Our other Senator, Democrat Al Franken, does not have anything about Cuba on his website, but he has supported legislation calling for the normalizing of relationships with Cuba and is a co-sponsor of the Freedom to Travel to Cuba Act.

Conclusion

Robert Muse, a Washington, D.C. international trade lawyer with substantial experience in U.S. laws relating to Cuba, recently told Minnesota’s StarTribune that “a majority of members of Congress do not support the embargo, but will not do so publicly until Cuban-American legislators come out against the embargo.” Nevertheless, he opined, “There is zero possibility of the embargo being lifted [in 2015].”[3]

This, however, is only one opinion albeit from someone with extensive experience of dealing with Congress on Cuba issues. It merely accentuates the need for citizens to increase their advocacy of ending the embargo.

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[1] To determine whether any other bills to end the embargo have been introduced in this Session of Congress, just go to the THOMAS legislative service provided by the Library of Congress [http://thomas.loc.gov/home/thomas.php] and enter “Cuba” in the search box; that will retrieve all introduced bills that mention “Cuba.”

[2] H.R. 403 has 14 other co-sponsors from California, New York, Colorado, District of Columbia, Georgia, Illinois, Michigan, Mississippi, Missouri, Pennsylvania, Tennessee and Texas.

[3] Before the announcement of normalization, Muse wrote an article about the various actions the president could take regarding Cuba without prior congressional authorization.

 

Legal and Political Issues Regarding U.S. Rescinding Designation of Cuba as a “State Sponsor of Terrorism”

Under the December 17th U.S.-Cuba agreements, the U.S. is obligated to review whether the U.S. should rescind its designation of Cuba as a “State Sponsor of Terrorism” under U.S. law. This review is to be completed with a report to the President within six months (or by June 17, 2015). The President already has instructed Secretary of State John Kerry to “immediately launch” that review.

 Commentary by the Department of State

Secretary of State            John Kerry
Secretary of State John Kerry
Assist. Sec. State Roberta Jacobson
Assist. Sec. State    Roberta Jacobson

The same day Secretary of State Kerry announced that he already “had asked my team to initiate a review of Cuba’s designation as a State Sponsor of Terrorism.”

The next day, December 18th, Assistant Secretary of State, Bureau of Western Hemisphere Affairs, Roberta S. Jacobson, held a press briefing on the many issues raised by the U.S.-Cuba rapproachment. She said the Bureau had “begun already – the process that we need to do under the law on the question of the state sponsor of terrorism listing, which has been in place since 1982.”

The Assistant Secretary added, “we’re not going to prejudge the outcome of the process we’ve just undertaken. . . . We’re going to undertake this review. We’re going to take it where the facts lead us on this. . . . At the end of that process, were Cuba to be removed from the list, there are a series of things that get taken off, some forms of sanction that get taken off. Although in Cuba’s case, I will say there are some overlapping . . . of things that may have been part of the state sponsor of terrorism list, and it may subsequently have been part of the Libertad Act or other legislation that deals with Cuba.”

In addition, she said,“[T]he law is fairly specific. . . . We have to review the record of Cuba over the last six months and ensure that they have not been participants or supported acts of international terrorism over the last six months. We have to look at whether they have renounced the use of terrorism. We have to look at their ratification of international instruments against terrorism. . . . I would have to look and check to see if there are other things that are in the law. . . . We then have to send any report that has conclusions on those subjects [to the President for his approval and transmittal] to the Congress, where it has to remain for 45 days. It’s an informing of Congress, not a request for approval or denial. It’s just an informing.”

Another point on the legislative process for the hypothetical recommended termination of such a designation was made at the November 17th daily press briefing. The Departmental spokesperson said, “The relevant statutes also provide that . . . within 45 days after the receipt of the report from the President [deciding for rescission], the Congress would need to enact a joint resolution on the matter prohibiting this in order for it not to happen.” However, this statement is incomplete and, therefore, erroneous, as discussed below.  While joint resolutions like bills have to be passed by both houses of Congress, they then have to be submitted to the president for signature or veto. In this hypothetical situation, any such joint resolution would be vetoed by the president.

The Merits of Past Designations of Cuba as a “State Sponsor

This blog already has concluded that such designation is absurd, ridiculous, stupid and cowardly for 2009, 2010, 2011, 2011 (supplement), 2012,  2013, and 2013 (supplement). I believe that any rational person would come to the same conclusion as has the New York Times Editorial Board this October and December.

That, however, is not the end of the story.

Statute Regulating Rescission of a “State Sponsor” Designation

As Assistant Secretary Jacobson alluded to, under provisions of Section 6 (j) (4) of the Export Administration Act (50 U.S.C. § 2405(j)(4)) the following two alternative restrictions are imposed on any Administration’s rescission of any such designation.

First, the President may rescind such a designation by submitting, before the rescission takes effect, a report to Congress certifying that “(i) there has been a fundamental change in the leadership and policies of the government of the country concerned; [and] (ii) that government is not supporting acts of international terrorism; and (iii) that government has provided assurances that it will not support acts of international terrorism in the future.” This is not relevant for Cuba because there has not been “a fundamental change of leadership” in Cuba.

Second, and alternatively, the President may rescind such a designation by submitting to Congress, at least 45 days in advance, “a report justifying the rescission and certifying that (i) the government concerned has not provided any support for international terrorism during the preceding six-month period; and (ii) the government concerned has provided assurances that it will not support acts of international terrorism in the future.” Assistant Secretary Jacobson’s comments confirm that this is the relevant option for the Administration, and a future post will summarize concessions in the U.S.’ purported justifications for its prior designations that instead support the conclusion that Cuba ¨has provided assurances that it will not support acts of  international terrorism in the future.¨

Such a report to Congress is merely an “informing” function, as the Assistant Secretary mentioned. But if Congress disagrees with the President’s decision to remove a country from the list, it could seek to block the rescission through a bill or a joint resolution.

Given the Republicans control of both houses of the Senate (54 of 100 with 44 Democrats and 2 Independents) and the House (247 to 188 Democrats) in the 114th Congress (2015-2017) and the belligerent opposition of some Republicans like Senator Marco Rubio to the new U.S.-Cuba path to reconciliation, such a legislative attempt to block the removal, in my opinion, can be expected.

But any such attempt, by bill or joint resolution, has to be submitted to the president for approval or veto. Obama presumably would veto any such measure, thereby requiring under Article I, Section 7 of the Constitution each house of Congress to obtain a two-thirds vote to override the veto. The Republicans by themselves will not have enough votes to override. If the Republicans had total party unity in such an effort, they would need 13 Democratic Senators and 43 Democratic Representatives to join them to overturn such a presidential veto. I think it unlikely they could obtain those extra votes. Let us hope they are not able to obtain such a super majority. We should lobby the Democratic Senators and Representatives (and some Republicans, like Senator Flake of Arizona) not to do so.

Conclusion

Stay tuned for future developments on the issue of rescinding the U.S. designation of Cuba as a “State Sponsor of Terrorism.” Be ready to lobby senators and representatives to resist any efforts to countermand any rescission.

U.S. Senate Democrats Unwisely Re-elect Harry Reid as Leader

Senator Harry Reid
Senator Harry Reid

Today, November 13th, the Senate Democrats re-elected Senator Harry Reid as their leader, now Minority Leader, for the next Session of Congress starting in January. [1]

Although the voting was by secret ballot, it was not unanimous. At least four of the Senators rejecting Reid have been identified: Claire McCaskill of Missouri, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and Mary Landrieu of Louisiana. McCaskill said, “When you have an election like this, common sense says we need to change things. The voice was very loud and unmistakable. To me that means changing leadership, and it was just that simple.” Heitkamp added, “This was a change election. I think that we needed to demonstrate that we heard the American public.”

Over the last several months, these four were part of a group of about 10 more junior Democratic senators have begun more openly registering their dissatisfaction with Mr. Reid’s approach. Others include Senator Angus King of Maine and Senator Jon Tester of Montana.

The leadership votes went ahead after several in the caucus asked for a delay to give them an opportunity to consider others for the leadership posts.

Senator Reid apparently responded to these negative views of his leadership by appointing Senator Elizabeth Warren of Massachusetts as the Caucus’ Strategic Policy Advisor, Senator Amy Klobuchar of Minnesota to chair a caucus committee that handles outreach to outside allies and activists and Senator Tester as Chair of the Democratic Senatorial Campaign Committee.

As a Democrat, I think the re-election of Reid is a horribly unwise. I have cringed every time Reid appears on television as the voice of the Senate Democrats. He comes across as tired, old, cranky, dull, weak and unpersuasive. When he appears on television with the Republican leader, Senator Mitch McConnell, soon to be the Majority Leader, the personal animosity between the two often is apparent. The Democrats and the country do not want to see a continuation of this outworn drama.

Senator Amy Klobuchar
Senator Amy Klobuchar

As a Minnesotan, I believe our Senator Amy Klobuchar would be an excellent new Minority Leader. She would be a fresh face, younger (age 54) and female in sharp contrast to McConnell. She also has a record of being able to get along with Republicans in the Chamber. In the final debate this year for Minnesota’s other U.S. Senate seat, the unsuccessful Republican candidate, Mike McFadden, frequently praised Klobuchar and said “I’m here to say Amy Klobuchar sets the bar for work ethic and authenticity.”

Scott Lehigh, a Boston Globe columnist, said the 74-year old Reid “should announce that when this session of Congress ends, [he] will relinquish [his] role as leader of [the] . . . Democratic [caucus].” Reid is a “tired face, stale voice, entrenched presence in Washington. . . . After a certain period, congressional leaders’ caricatured images get so ingrained that they become electoral liabilities for their parties.” (Lehigh makes the same argument about why Nancy Pelosi should not be the Democratic leader of the House in the new Congress, but that is an argument for another day.)

Another columnist in the Wall Street Journal, Gerald Seib, posed a similar question, “Where are the [Democrat] party’s fresh young leaders?” But he assumed that Reid would be the new Minority Leader, and instead mentioned Senator Elizabeth Warren as a potential national leader of the party along with “highly capable younger Democrat [Senators]:” Mark Warner, . . . a 59-year-old moderate from a key swing state, as is Colorado’s 49-year-old Michael Bennet. New York Sen. Kirsten Gillibrand, 47, is a rising star.”

I have no quarrel with any of these prominent Democratic Senators, and any of them would change the public persona of the Senate Democrats, but I point out that they have less experience in the Senate than Senator Klobuchar’s eight years: Warner (six years), Gillibrand (six years), Bennet (four years) and Warren (two years).

Here is a personal plea to Senator Reid. Wake up. Give someone else the opportunity to lead. Do not be a liability to your party. Stand down.

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[1] This account of the re-election of Senator Reid is based upon articles in the New York Times, Washington Post, Wall Street Journal and Politico.