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Saturday, March 12, 2016


The new nullification

by Tom Sullivan

George Cruikshank illustration from "Oliver Twist," 1911 edition

The M.O. of the extremist Republican Party: find the lines, cross them, dare people to push them back. Courts have. So now the GOP is going after the courts.

The new nullification expands on the Bush Doctrine of preemptive war. Republicans now claim the right to preemptively void any legal decisions they might not like. Rejecting President Obama's yet-unnamed pick for the U.S. Supreme Court, for example. On Thursday, Sen. Lindsey Graham, R-S.C., warned Judicial Committee colleagues that they were redrawing the lines and setting a precedent, a new normal that will cut both ways.

Senate Republicans have stonewalled Obama's other judicial appointments. Republicans have refused to hold confirmation votes on presidential nominees to federal agencies they would like abolished. Former Arkansas governor Mike Huckabee wants states to be able to effectively nullify Supreme Court rulings he doesn't like. Republican Gov. Greg Abbott of Texas proposes amendments to the U.S. Constitution that would allow two-thirds of the states to override a U.S. Supreme Court decision or a federal law or regulation they don't like. As Iowa's 2014 Republican nominee for U.S. Senate, Joni Ernst told the Iowa Faith & Freedom Coalition that Congress should not pass any laws “that the states would consider nullifying.” Don't even think about it.

What's not the matter with Kansas?

Gov. Sam Brownback's Kansas is considering a bill to use impeachment to pressure state Supreme Court justices into toeing whatever new lines the GOP-controlled legislature draws:

A bill declaring that Kansas Supreme Court justices can be impeached for meddling too much in the state Legislature's business cleared its first big hurdle toward passage Thursday.

The Republican-dominated Senate Judiciary Committee approved the bill on a voice vote, sending it to the full chamber for debate. It's the latest in a series of measures from GOP conservatives in recent years that have put Kansas at the center of a national effort to remake state courts.

The bill supplements a provision of the state constitution that says Supreme Court justices can be impeached and removed from office for treason, bribery or "other high crimes and misdemeanors." The bill outlines a list of misconduct covered by the latter phrase, including attempting "to usurp the power" of the Legislature or executive branch of state government.
Other new grounds for impeachment in the version passed in committee include "attempting to subvert fundamental laws and introduce arbitrary power" and "exhibiting wanton or reckless judicial conduct." In the vernacular: Nice robe you got there. Be a shame if anything happened to it.

Republicans are miffed that the Supreme Court insists that, however intent they are on slashing taxes and budgets in their T-party tantrum, the state's constitution requires them to fund public education, not starve it like Oliver Twist. Clearly a socialist court:
Four of Kansas' seven Supreme Court justices were appointed by Democratic Gov. Kathleen Sebelius, who served from 2003 to 2009, and two by her predecessor, Bill Graves, a moderate Republican. Only one was appointed by Brownback.

Replacing the justices through elections is difficult in Kansas because they don't run in contested races. Instead, they face a "retention election" every six years, remaining in office unless more than 50 percent of voters vote against them. No justice has ever been voted out.

Conservative groups are expected to mount a major effort to vote out four of the Supreme Court justices on the ballot this fall. But critical lawmakers also hope to make impeachment a tool.

Currently, the state constitution allows impeachment only for treason, bribery or other high crimes and misdemeanors. No public official has been impeached since 1934.
Charlie Pierce observes:
The experiment in Kansas is nearly complete. Government has been refashioned to work splendidly for the wealthy and connected, and not at all for the people who need it most, who then develop within their hearts and minds contempt for it at the ballot box, and contempt that perpetuates itself with every new atrocity, which has been the plan all along. As we point out often here at the shebeen, the problem with lab rats is that most of them die.
Changing the rules

As a corollary to ignoring the rules, the GOP has decided if it cannot win under existing rules, then more favorable rules must be written. One gets the impression the extremist Republican Party does not really like the idea of democracy if it cannot pre-select winners and losers, however it may oppose that when the topic is business. Requiring identity cards to vote and erecting other barricades to voting comes from the same frustration that they and their ideas are not well-liked. Heaven forfend Republicans should have to moderate their positions to appeal to a saner electorate (although Donald Trump puts a yooge question mark on that).

It bears repeating:
In nonpartisan judicial elections in 2014, North Carolina Democrats also took three out of three contested Supreme Court races and won two out of three contested Appeals Court races. And those, in a sweep election where the GOP should have won it all. Republicans in the North Carolina legislature responded in 2015 by changing the way North Carolina elects judges.
Earlier this month, a three-judge Superior Court panel struck down that new law as unconstitutional under North Carolina law. The state has appealed to the North Carolina Supreme Court, naturally.

What North Carolina Republicans legislated after their 2014 judicial losses was a switch to "retention elections," the same system that has not worked for Republicans in Kansas.