Newspaper column: Trump is reshaping the federal judiciary — for the better

Thanks, Harry, because you exercised the “nuclear option” in 2013, ending the requirement that judges had to be confirmed by at least 60 senators instead of a simple majority, President Donald Trump has secured the appointments of about twice as many federal judges as each of his three predecessors — and most of them have been conservatives sworn to protect the fundamental liberties spelled out in the Constitution.

Of the 50 circuit court judges nominated by Trump and confirmed by the Senate, only 17 managed to garner the previously mandated 60 Senate votes. Among those was former Nevada Solicitor General Lawrence VanDyke, who was confirmed by a vote of 51-44 with both of Nevada’s Democratic senators choosing politics over principles and voting “nay.”

In November 2013, then-Democratic Senate Majority Leader Harry Reid of Nevada exercised the nuclear option, calling for changing the Senate rules by a simple majority vote. It passed, 52-48 with three Democrats voting against changing the rules.

President Barack Obama praised the action saying Republicans were blocking his nominees based on politics alone, not on the merits of the nominee, according to a Politico account at the time.

Then-Republican Senate Minority Leader Mitch McConnell of Kentucky tried to recess the Senate for the day to block the vote. “The solution to this problem is an election,” he said. “The solution to this problem is at the ballot box. We look forward to having a great election on 2014.”

Republicans regained the majority in the Senate in 2014. In 2017, now-Majority Leader McConnell further changed the rules to allow confirmation of Supreme Court justices by a simple majority. Neil Gorsuch was confirmed by a 54-45 vote, and Brett Kavanaugh by 50-48.

In addition, the Senate has confirmed 133 of Trump’s federal district court nominees. While most of those garnered more than 60 recorded votes, many were confirmed by a voice vote.

In an editorial praising the caliber of the Trump judicial nominees, The Wall Street Journal noted, “The Trump-McConnell judiciary may be Harry’s finest achievement.”

The editorial noted that when Trump took office, Democratic appointees made up a majority on nine of the 13 circuit courts. Trump’s 2019 appointments flipped the majorities in the 2nd, 3rd and 11th Circuit Courts, meaning seven circuits now have a majority of Republican appointees.

In addition, the longtime uber-liberal 9th Circuit Court of Appeals, to which VanDyke was appointed, now consists of 16 Democratic appointees and 13 Republican appointees. “Expect fewer headlines featuring nationwide injunctions out of San Francisco,” the editorial opined.

The Journal editorial predicts, “The new wave of conservative judges is more likely to protect such core liberties as religious freedom, political speech and assembly, gun and property rights. Many will also be more alert to violations of the Constitution’s separation of powers, including regulatory abuses. Yet there are varying opinions on criminal law, executive authority, and the scope of judicial restraint, among other issues.”

Reid is nothing if not consistent. In a recent op-ed in The Salt Lake Tribune, Reid complained, “Senate Republicans have hijacked our Supreme Court. They stole a seat that should have been filled by President Obama in 2016 and they rushed to confirm Brett Kavanaugh last year despite ample evidence that he lied to Congress. The result is the Supreme Court is now a ticking time bomb, set to blow up any meaningful progressive reforms for decades to come.”

He concedes his own role in the outcome, saying, “Changing the rules to confirm Obama’s highly qualified judges was the right and necessary thing to do. If we had not done it, Donald Trump would have inherited more judicial vacancies than he already did, and then even more of his right-wing ideologues would be on the bench today eviscerating rights Americans have long held dear.”

Like the Second Amendment right to gun ownership? Or the First Amendment rights of free speech and exercise of religion? The rights delineated in the Fourth, Fifth and Sixth amendments?

A recent Washington Examiner editorial also notes what Reid has unintentionally wrought and concludes, “During his run for the presidency, Trump regularly and energetically promised to make a priority of putting well-credentialed conservatives of excellent character and scholarship on the federal bench. It is a promise he has kept, much to his credit and for the country’s greater good.”

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper editorial suggests ‘fitting memorial’ for Reid

Yucca Mountain (AP file photo)

Yucca Mountain (AP file photo)

The editorialists at the Washington Examiner have come up with a fitting way to honor the three decades of service in the U.S. Senate by Nevada’s Harry Reid.

They note that Reid, with an assist from the Obama administration, has defied, circumvented and defeated the law as passed by Congress that would turn Yucca Mountain into a nuclear waste repository — or suppository, as Chic Hecht called it. The 1987 law has been less than affectionately referred to as the Screw Nevada Act.

The editorial notes that utility companies with nuclear reactors have paid $21 billion to the Energy Department for the purpose of disposing of their waste, but Energy has failed to act.

“Its failure, due to political sabotage, is both dangerous and expensive,” the opinion piece relates. “The Yucca Mountain repository, in a deserted, uninhabitable section of Nevada, was supposed to begin taking in nuclear waste on New Year’s Day 1998, so that the material would not have to be stored in communities across the nation. Nineteen years and countless scientific studies later, Yucca is just a $15 billion hole in the ground, thanks mostly to ferocious opposition from the retiring Senate Democratic leader, Harry Reid.”

It is estimated that by 2020  taxpayers could be on the hook for $50 billion in damages to the utility companies on top of the construction costs at Yucca Mountain.

The newspaper suggests Energy Department secretary nominee Rick Perry, former governor of Texas, has the persistence and drive to make the repository a reality, and “a fitting memorial for one of America’s most memorable legislative leaders. Taxpayers deserve no less than to see the Harry Reid Nuclear Waste Repository at Yucca Mountain become a reality, at long last.”

Cover of Jim Day book.

Cover of Jim Day book.

As originally envisioned, Yucca Mountain’s U-shaped shaft would have been filled with 70,000 metric tons of spent nuclear fuel rods, each covered by titanium and palladium drip shields to protect them from water seeping through the mountain. After 100 to 300 years the hole was to be sealed and pictographic warning signs erected. The material would still be hazardous for thousands of years.

All the news that fits

That Washington Post story on the front page of today’s Las Vegas newspaper about an Iranian scientist being executed was trimmed before getting to a rather politically interesting aspect.

What you did not read in the local paper was that the scientist, Shahram Amiri, had been mentioned in an email on Hillary Clinton’s server and that email was made public this past year. The section left on the cutting room floor, the last two paragraphs, reads:

Amiri appeared to be mentioned in emails released last year by Clinton as part of investigations into her use of a private server while she was secretary of state. An email forwarded to Clinton on July 5, 2010 — nine days before Amiri returned to Tehran — apparently refers to Amiri’s case.

“We have a diplomatic, ‘psychological’ issue, not a legal one. Our friend has to be given a way out,” wrote Richard Morningstar, who was then a State Department special envoy for Eurasian energy affairs. “We should recognize his concerns and frame it in terms of a misunderstanding with no malevolent intent and that we will make sure there is no recurrence.”

Apparently being a “friend” of the United States is a capital offense in Iran.

The Guardian story was more to the point:

The release of Clinton’s emails last year by the State Department appeared to have been damning for Amiri. A number of emails sent to the then secretary of state appeared to support claims that he was a defector. “Our friend has to be given a way out. We should recognise his concerns and frame it in terms of a misunderstanding with no malevolent intent and that we will make sure there is no recurrence. Our person won’t be able to do anything anyway. If he has to leave, so be it,” wrote one senior official to Clinton, according to CNN.

“Following the reported revelations in the Clinton emails, Amiri was executed for spying,” said Dina Esfandiary, MacArthur fellow at the centre for science and security studies at King’s College London. “In the Iranian judiciary’s mind, it’s a necessary signal to the US that Iran is aware of their activities in Iran and that this is what is done to those who help the enemy. It’s a textbook spying case.”

Republican Sen. Tom Cotton accused Clinton of being reckless with such information, according to a Washington Examiner story:

Hillary Clinton recklessly discussed, in emails hosted on her private server, an Iranian nuclear scientist who was executed by Iran for treason, Sen. Tom Cotton, R-Ark., said Sunday.

“I’m not going to comment on what he may or may not have done for the United States government, but in the emails that were on Hillary Clinton’s private server, there were conversations among her senior advisors about this gentleman,” he said on “Face the Nation.” Cotton was speaking about Shahram Amiri, who gave information to the U.S. about Iran’s nuclear program.

The senator said this lapse proves she is not capable of keeping the country safe.

“That goes to show just how reckless and careless her decision was to put that kind of highly classified information on a private server. And I think her judgment is not suited to keep this country safe,” he said.

But you’ll not read that in the local paper.

Shahram Amiri speaks to journalists after returning to Tehran in July 2010. (Reuters photo)

EPA moving forward with Clean Water Plan in states that did not successfully sue

What moxie.

The Environmental Protection Agency on Friday announced that it is implementing its Clean Water Plan even though a federal judge in North Dakota on Thursday enjoined it from doing so. The EPA said it will enforce its new rule in all the states except those 13 that are a party to the suit. Nevada is a party.

U.S. District Court of North Dakota Chief Judge Ralph Erickson ordered a temporary injunction, saying:

In exercising its power to grant a preliminary injunction, the court must balance the harms to the parties to the litigation while “pay[ing] particular regard for the public consequences.” For the court to grant an injunction, the moving party must establish that the entry of the relief would serve public interest.

On balance, the harms favor the States. The risk of irreparable harm to the States is both imminent and likely. More importantly delaying the Rule will cause the Agencies no appreciable harm. Delaying implementation to allow a full and final resolution on the merits is in the best interests of the public.

The court acknowledges that implementation of the Rule will provide a benefit to an important public interest, both in providing some protection to the waters of the United States and because it would provide increased certainty as to what constitutes jurisdictional waters as some people will be categorically removed from the definition of waters of the United States (for example owners of an intermittent wetland 4,001 feet away from an established tributary). The benefit of that increased certainty would extend to a finite and relatively small percentage of the public. A far broader segment of the public would benefit from the preliminary injunction because it would ensure that federal agencies do not extend their power beyond the express delegation from Congress. A balancing of the harms and analysis of the public interest reveals that the risk of harm to the States is great and the burden on the Agencies is slight. On the whole, the greater public interest favors issuance of the preliminary injunction.

The judge did not say his ruling applied only to those state’s that were involved in the case before. He also questioned the scientific validity of the agency’s so-called scientific basis and called it arbitrary.

He complained of being hampered by a lack of full documentation from EPA, but said what records he did have access to revealed “a process that is inexplicable, arbitrary, and devoid of a reasoned process.”

Tennessee farm that would be affected by EPA rule.

“The Rule asserts jurisdiction over waters that are remote and intermittent waters,” the judge wrote. “No evidence actually points to how these intermittent and remote wetlands have any nexus to a navigable-in-fact water. The standard of arbitrary and capricious is met because the Agencies have failed to establish a ‘rational connection between the facts found’ and the Rule as it will be promulgated.”

In all 30 states have sued to block the rule, also known as the Waters of the U.S., but have lost in other jurisdictions.

“Today’s preliminary injunction, as requested by Nevada and other states, reasserts the principle that the EPA cannot issue lawless mandates,” said Nevada Attorney General Adam Laxalt on Thursday. “This important order, at a minimum, delays implementation of an unwise, unjustifiable and burdensome rule, and protects Nevada’s landowners, farmers and developers from job losses and increased energy prices, until the final rule can be comprehensively fought in court. I will continue to defend our jobs and families from overreach by the federal government.”

In addition to Nevada, the case out of North Dakota included Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, North Dakota, South Dakota and Wyoming,

The House has passed a bill to block the water rule, and a Senate committee has passed a bill that would force the EPA to rewrite it. The president has vowed to veto any such bill.

WOTUS Order

Jobs for jihadists but not for American workers

Obama today vetoed the Canada-to-Texas Keystone XL pipeline, sending it back to Congress where it is unlikely enough Democrats can be persuaded to override.

“The presidential power to veto legislation is one I take seriously. But I also take seriously my responsibility to the American people. And because this act of Congress conflicts with established executive branch procedures and cuts short thorough consideration of issues that could bear on our national interest — including our security, safety, and environment — it has earned my veto,” Obama said in his veto message to Congress.

The veto came even though the State Department has found no significant environmental impact and estimated the project would create 42,100 jobs during two years of construction and 35 full-time jobs there after.

This rejection comes on the heels of Obama’s administration saying the root cause of Islamic (actually, they did not use the word Islamic) terrorism is the lack of jobs.

I guess we now know his priorities.

Route of Keystone XL oil pipeline

Harry schedules vote to repeal free speech portion of First Amendment

The U.S. Senate slipped out of D.C. on Friday just as Senate Majority Leader Harry Reid scheduled a vote on a constitutional amendment that would repeal the free speech section of the First Amendment. The vote on S.J. Res. 19 will take place at 6 p.m. EDT on Sept. 8.

The amendment now reads:

Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.

Somewhere along the way someone fixed one of the glaring flaws in the amendment.

Previously, the amendment said: “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” After it was pointed out that the amendment, by omission, appeared to grant the states the power to abridge freedom of the press, Section 3 was written to also bar states from abridging freedom of the press.

Of course, the amendment still would prohibit free speech by corporations or organization — unless they buy a press. How hard would that be?

The amendment is an attempt to undo the 2010 Supreme Court ruling in Citizens United that held the federal government may not restrict unions or corporations from spending money on elections.

“This partisan effort to weaken the First Amendment is the clearest proof yet of how out of touch the Democrat majority has become from the needs and concerns of ordinary Americans and how ill-equipped they are to lead in these challenging times,” Senate Minority Leader Mitch McConnell, R-Ky., was quoted as saying by The Hill after the vote was scheduled. “Washington Democrats have forgotten that the First Amendment is meant to empower the people, not the government.”

But Reid said in May:

“I urge my colleagues to support this constitutional amendment – to rally behind our democracy. I understand what we Senate Democrats are proposing is no small thing – amending our Constitution is not something we take lightly. But the flood of special interest money into our American democracy is one of the greatest threats our system of government has ever faced. Let’s keep our elections from becoming speculative ventures for the wealthy and put a stop to the hostile takeover of our democratic system by a couple of billionaire oil barons. It is time that we revive our constituents’ faith in the electoral system, and let them know that their voices are being heard.”

Hopefully, the amendment is little more than a political ploy by Reid and his ilk who are trying to suck up to their constituents who hate anyone else spending their own money on their own ideas and politics. The amendment, to become a part of the Constitution, would have to be passed by two-thirds of both the Senate and the House and be ratified by three quarters of the states.

In addition to being a senseless and futile gesture, such an amendment would require a huge bureaucracy to enforce, but, of course, this bureaucracy would be even handed like the IRS and efficient like the VA and responsive like the BLM.

Reid pot calls Koch kettle black

In one of his rants on the floor of the Senate in which he accused the Koch brothers of trying to buy the country, Harry Reid also accused them of violating federal law by bribing foreign officials.

“These are the same brothers whose company, according to a Bloomberg investigation, paid bribes and kickbacks to win contracts in Africa, India and the Middle East,” Reid said, calling the brothers “unAmerican.”

The Kochs’ attorney quickly replied that the allegations in the Bloomberg article have been debunked and there have been no charges filed, according to The Hill.

Now, the Washington Examiner reveals that Harry has taken more than half a million dollars over the past four years from companies under investigation for possible violations of the  Foreign Corrupt Practices Act.

Using campaign records and a blog about probes under the Foreign Corrupt Practices Act, the newspaper put together this graphic:

The first figure is the total amount for that company’s associates, the second figure is the amount given by individuals at the company, and the third figure is the amount given by the company PACs.