Tuesday, September 22, 2020

WSJ Opinion: Suddenly, the Supreme Court Dominates the Election

Breaking Judicial Norms: A History

A Democratic Senate pattern, from Bork to the filibuster rule.

Sept. 20, 2020 6:10 pm ET

WSJ Opinion: Suddenly, the Supreme Court Dominates the Election

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Senate Minority Leader Chuck Schumer is widely reported to have told his Democratic colleagues on Saturday that “nothing is off the table for next year” if Republicans confirm a Supreme Court nominee in this Congress. He means this as a threat that Democrats will break the filibuster and pack the Court with more Justices in 2021 if they take control of the Senate in November’s election. So what else is new? Democrats have a long history of breaking procedural norms on judges. While packing the Court would be their most radical decision to date, it would fit their escalating pattern. Let’s review the modern historical lowlights to see which party has really been the political norm-breaker:

• The Bork assault. When Ronald Reagan selected Robert Bork in 1987, the judge was among the most qualified ever nominated. No less than Joe Biden had previously said he might have to vote to confirm him. Then Ted Kennedy issued his demagogic assault from the Senate floor, complete with lies about women “forced into back-alley abortions” and blacks who would have to “sit at segregated lunch counters.” Democrats and the press then unleashed an unprecedented political assault.

Previous nominees who had failed in the Senate were suspected of corruption (Abe Fortas) or thought unqualified (Harrold Carswell). Bork was defeated because of distortions about his jurisprudence. This began the modern era of hyper-politicized judicial nominations, though for the Supreme Court it has largely been a one-way partisan street.

No Democratic nominee has been borked, to use the name that became a verb. Even Justice Sonia

Sotomayor, whose left-wing legal views were obvious upon her nomination, received a respectful GOP hearing and was confirmed 68-31 with nine GOP votes. Justice Ruth Bader Ginsburg was confirmed 96-3, Stephen Breyer 87-9, and Elena Kagan 63-37.

Democrats, meanwhile, have escalated to character assassination. Clarence Thomas was unfairly smeared on the eve of a Senate vote and barely confirmed. Democrats accused Samuel Alito of racism and sexism for belonging decades earlier to an obscure Princeton alumni group.

Democrats promoted the uncorroborated claims of women accusers against Brett Kavanaugh from his high school and college years. Sen. Sheldon Whitehouse undertook a deep dive into Justice Kavanaugh’s high-school yearbook. This treatment has become the real Democratic Party “norm.”

• Filibustering appellate nominees. It’s mostly forgotten now, but in George W. Bush’s first term Senate Democrats pioneered the use of the filibuster to block nominees to the circuit courts. That was also unprecedented.

Miguel Estrada was left hanging for 28 months before he withdrew, though he had support from 55 Senators. A 2001 Judiciary Committee memo to Sen. Dick Durbin was candid in urging opposition to Mr. Estrada because “he is Latino” and couldn’t be allowed to reach the D.C. Circuit Court of Appeals lest he later become a candidate for the Supreme Court.

Democrats also filibustered or otherwise blocked appellate nominees Priscilla Owen, Janice Rogers Brown, Charles Pickering Sr., Henry Saad, Carolyn Kuhl, William Pryor, David McKeague, Richard Griffin and William Myers, among others.

This violation of norms was stopped only after the GOP regained the majority and threatened to change Senate rules. A handful of Senators in both parties then negotiated a deal to vote for nominees except in “extraordinary circumstances.” Republicans did not unilaterally break the filibuster for judicial nominees.

• Breaking the filibuster for appellate nominees. That norm-breaker was executed by Democrats in 2013, led by then Majority Leader Harry Reid with the enthusiastic support of Barack Obama. Democrats rewrote Senate rules in mid-Congress, on a party-line vote, to add three seats to the D.C. Circuit. The goal was to stack that court with liberals who would rubber stamp Mr. Obama’s “pen” and “phone” regulatory diktats.

Those liberals have done that numerous times, while sometimes blocking President Trump’s deregulatory rule-makings. But the political cost has been high, as we warned at the time. Harry Reid’s precedent allowed GOP leader Mitch McConnell to do the same when Democrats tried to filibuster Neil Gorsuch. The GOP majority can now confirm Mr. Trump’s next nominee with 51 votes.

***

Urged on by the progressive media, Democrats are now vowing that they’ll break the 60-vote legislative filibuster rule to add two, or even four, new Justices to the Supreme Court next year for a total of 11 or 13. But they have already been saying this for months. Barack Obama gave the green light when he used John Lewis’s funeral to call the filibuster a “Jim Crow relic.” Never mind that as a Senator he endorsed a filibuster of Mr. Alito. Mr. Whitehouse and four colleagues explicitly threatened in an amicus brief that the Court would be “restructured” if Justices rule the wrong way.

Republicans could surrender and not confirm a nominee, and Senate Democrats would still break the filibuster. Court packing would then become a sword hanging over the Justices if they rule contrary to the policy views of the Senate left. Leader Schumer won’t resist because he is quaking at the prospect of a primary challenge from Rep. Alexandria Ocasio-Cortez in 2022.

Contrast this Democratic record, and now this court-packing threat, with the GOP record. In 2016 Mitch McConnell and his colleagues refused to confirm Merrick Garland and said the voters should decide the issue in the election. Mr. Schumer had previously vowed the same standard in the final years of George W. Bush. Mr. McConnell essentially made a political bet by putting judicial philosophy and the Supreme Court at the center of the 2016 campaign.

Judges were also on the Senate ballot in 2018 after the Kavanaugh ugliness. The GOP gained two net seats. The use of their elected Senate power now to confirm a nominee would be a wholly legitimate use of their constitutional authority. They should not be cowed by Democratic threats from confirming a nominee. Democrats have shown they will do what they want with Senate power no matter what Republicans do now.

What Republicans should do is let the voters know about the Democratic filibuster and court-packing plans, and make them a campaign issue. Democratic Senators and candidates should have to declare themselves not merely on Mr. Trump’s nominee but on the filibuster and court-packing that Mr. Schumer has now told the country will be on the table.

Appeared in the September 21, 2020, print edition.

Classic Grind: The one where Mario meant to shoot the puck precisely where he did

By Dejan Kovacevic

Each Saturday during the ongoing apocalypse, I’ll revisit an older column that ran on this site, accompanied by a handful of current observations about it at the bottom.

This one ran in the Post-Gazette on Feb. 18, 2003:

If not for one timely error by the Penguins, Mario Lemieux might not have found himself wide open with the puck on his stick, cradling a golden chance to decide the game in overtime.

"We were all messed up," defenseman Joel Bouchard said after the 4-3 victory against the Edmonton Oilers last night at Mellon Arena. "All of us were on the wrong side."

But it still turned out just right for a team that desperately needs every bit of fortune it can find.

Mario Lemieux celebrates his OT goal with Ville Nieminen, Feb. 18, 2003. - AP

The Penguins were awarded a power play 53 seconds into the extra period, center Randy Robitaille drawing a tripping minor by Oilers defenseman Alexei Semenov. Because of the overtime rules, it was four-on-three, meaning plenty of open ice, but no one could have anticipated how much open ice Lemieux was about to receive. Not even Lemieux.

When the Penguins gained the Edmonton blue line, Lemieux and Bouchard crisscrossed awkwardly, leaving Bouchard with the puck on the left side and Lemieux on the right, exactly the opposite of the plan.

"I looked at Mario, and he looked back at me," Bouchard said. "We got inverted, but I could tell right away that he just wanted all of us to stay where we were."

The Penguins stayed put, but so did Edmonton's penalty-killers, and that hurt the Oilers. Center Marty Reasoner was the lone forward, and he continued to follow his assignment of favoring the right side, where Lemieux was supposed to be.

"I think they got mixed up for a second," Lemieux said. "They thought I was going to be on the other side to set up, and they kind of sat back a little too much."

Bouchard sent the puck to the right boards, where Lemieux and left winger Rico Fata nearly collided. Fata caught the pass but instantly dished to Lemieux.

"That was a hot potato for me," Fata said. "I just wanted to give it to Mario, get out of his way and go to the net."

Lemieux took Fata's pass and stopped above the right circle, the clock seemingly freezing with him. He looked at his teammates, took one stride forward, put his head down and unleashed a powerful slap shot that zipped between Fata's legs and landed inside the far post behind Edmonton goaltender Tommy Salo at 1:35.

"Perfect shot," Fata said.

"Unbelievable placement," Bouchard said.

Those who were on the bench at the time shared in the praise.

"You give a normal guy that much time and space, maybe someone else would crumble and just dump it into the corner or something," left winger Steve McKenna said. "Not that guy. We all knew where it was going."

The opposition chimed in, too.

"He hammered it," Oilers coach Craig MacTavish said. "Pulverized the thing."

Lemieux laughed when asked if he spotted an opening behind Salo.

"I saw short side and went far side," he said, failing to stifle a grin. "No, I saw the far side. I got lucky."

Lemieux's overtime goal was the 11th of his career, and he ranks third among active NHL players in that category. But it was his first since Feb. 21, 2001, in a 3-2 home victory against the Florida Panthers, which explains his jubilant celebration with teammates in the moments after scoring.

"Yeah, it's been a long time," Lemieux said. "To get that feeling back, to still be able to do it. ... It was nice when it went in."

Bouchard felt as much relief as joy.

"I'm just glad it all worked out," he said. "Whatever it takes to get the puck on Mario's stick in that situation, that's fine."

____________________

As promised, a few remarks:

• I've got a very specific reason for choosing this piece from my days on the NHL beat at the Post-Gazette, and it's got not all that much to do with the goal itself.

Let's start here: Mario's got a spectacular, dry sense of humor.

When this OT started, I left my seat in the Mellon Arena press box to go stand in one of the two steep, exposed stairwells to either side. This way, I'd have a better view, a better feel if the Penguins would score. So I was pretty much overhead, not all that far from Lemieux's own perspective at the right point when those lousy Oilers thought it'd be smart to offer him an acre of ice from which to pick his spot on poor Salo.

And that, of course, is what he did. He spotted the space inside the far post and, as MacTavish elegantly put it, he 'hammered' it, 'pulverized' it.

Which made no sense to me. Even as someone who'd marveled at all of Mario's career. I mean, he'd played a fair amount of point on the power play but, as described in the piece above, that was almost always on the left side. And yet, he glides forward, sizes up Salo, sees something, and blasts it by him like he's Al MacInnis.

Sorry, that made no sense to me.

Wait, here comes the other part where I sound stupid: So I hurry down to the locker room afterward, interview all the people you see up there -- with a focus on Bouchard to explain why they'd switched points -- then waited with the usual group for 66. At which point I ask maybe the dumbest single question of my career: "Did you see something far side?"

To which Mario jabs back with what you see above: "I saw short side and went far side," before pausing, grinning and finishing, "No, I saw the far side. I got lucky."

Ow.

I was still fairly new to the beat and, damn, I wanted to die in that moment. To just drop dead.

We get back upstairs, Dave Molinari and I, and I finally summon the courage to ask Dave what had just happened down there. And Dave, who'd covered nearly every game Mario had ever played, came back bluntly as ever: "I think he got tired a long time ago of being asked if he meant to do what he just did."

Oh.

Double-ow.

Two powerful lessons were learned by the young reporter on that night:

1. Never doubt Mario.

He was the best at absolutely everything, and there wasn't anything on the ice he couldn't do.

2. Never doubt greatness.

Across the board, across all sports, I'd always presume after that event that a truly great player was eminently capable of whatever I'd just witnessed. And I applied this beyond just the Pittsburgh teams or the obvious candidates like Sidney Crosby, Evgeni Malkin, Ben Roethlisberger, Andrew McCutchen and so forth. I applied it to the other guys, as well. So when Rob Gronkowski steamrollered the Steelers, despite Sean Davis blanketing him, Gronk was the one who'd get my benefit of the doubt. When the Penguins lost their three-peat chance against the Capitals in 2018, I saw it far more from the perspective of a terrific Washington team that wound up finally winning it all. When the Pirates' 2014 wild-card team was wiped away by Madison Bumgarner, I was more moved by his performance than that of the home team. Because he really was that great.

• Yeah, I tried to find a video of this goal. Couldn't. Anywhere. If you turn one up, give a shout in comments, and I'll try to add it.

• UPDATE: Longtime reader Clint Novak found it:

https://player.vimeo.com/video/431349374?background=1

Thanks, my man!

• There really wasn't much room there. A defenseman who'd spent his whole career shooting from that spot, you'd expect to be able to nail it. Not a forward.

Sorry, there I go again.

• What makes Mario the greatest player who ever lived is precisely what's above: He could do almost everything better than most everyone. Big, fast, supremely skilled, vision without parallel, and a comparable drive to prove all of that. In hockey terms, he had uncommon grace and elegance on his skates for a big man, Wayne Gretzky's vision and passing, and a finishing touch to match. Gretzky had only the middle of those three.

Viktor Tikhonov, the legendary coach of the old Soviet teams, labeled Mario 'the greatest goal-scorer I've ever seen,' and it seemed to jar people at the time. This was in 1987 after Mario and Gretzky took down the Soviets in the historic Canada Cup final in Hamilton, Ontario, with 66 scoring the winners in the final two games, both on assists from 99. Most of us had thought of Mario as a passer first, maybe because it seemed unfair that he'd also come equipped with the same ability to finish.

No one's ever been better at this sport.

• Man, my remarks about the piece are longer than the piece itself!

Back to wishing for actual hockey soon!