Houston Chronicle. Feb. 19, 2016.
Criminal justice reform: Cornyn is attempting to effect change, but obstructionists get in the way
Unlike U.S. Sen. Ted Cruz, who has pretty much abandoned any constructive involvement in issues unrelated to his years-long presidential quest, his senior colleague and fellow Republican continues to attend to the people's work.
One of the more obvious recent examples is U.S. Sen. John Cornyn's sustained effort to persuade fellow Republicans that criminal justice reform is in the interest of the nation. He's a key sponsor of bipartisan legislation that would give judges discretion to hand down lesser sentences than federal mandatory minimums, eliminate mandatory life sentences for three-time, non-violent drug offenders and create programs to help prisoners re-enter society successfully. His bill also would reduce the prison population in a nation with the highest incarceration rate in the world.
In essence, Cornyn's legislation would save taxpayers money, create a safer, more just society and help rebuild lives.
Such would be the result if Cornyn can persuade hardliners in his party in this, an election year, that they won't be branded as soft on crime if they agree to legislation that would represent one of the rare bipartisan efforts in this Congress. A Cornyn spokesman said the senator is working to adjust the bill with the express goal of getting it done this year. Although the bill made it out of the Senate Judiciary Committee last fall, the conservative Texas senator is probably facing an uphill battle.
"I am hopeful, but I don't think it's critical we do it this year," the senator said in an interview with the Associated Press a few weeks ago. "I have been involved in a lot of fights around here that have taken us years to get things done. And ultimately the question is, can you get it done at some point."
Cornyn's challenge involves a reluctant Senate Majority Leader Mitch McConnell, R-Ky., and intense opposition from — guess who — the junior senator from Texas, one of four GOP senators who labeled the bill "dangerous for America." The fear-mongering four argue that passage of the bill would turn loose dangerous felons into society and threaten to undo historic reductions in the crime rate. They warned of another Willie Horton, the Massachusetts inmate during the 1980s who raped a woman while on a weekend furlough.
A senior Republican aide told Politico recently that Cornyn and his cohorts have changed the bill to directly address concerns expressed by Cruz, U.S. Sen. Tom Cotton of Arkansas and others. Despite the modifications, McConnell still hasn't said whether he'll bring the bill up this year.
Cornyn's model is a hard-right state, which should have offered some reassurance to the hardliners. The senator — who also happens to be a former district judge, member of the Texas Supreme Court and Texas attorney general — maintains that criminal-justice reform in Texas reduced crime and saved taxpayers more than $2 billion. "Successful reforms in Texas and other states have taught us that it's not enough to be tough on crime, we have to be smart on crime, too," he said late last year — before opponents undercut his efforts.
As Craig DeRoche of the Prison Fellowship points out, from 2009 to 2014, crime rates dropped 16 percent in the 10 states that had the largest reductions in imprisonment rates, a larger decline than in the states that continued to build more prisons. Numerous other studies report similar findings.
Cornyn's chief co-sponsor is a Democrat, U.S. Sen. Sheldon Whitehouse of Rhode Island, another fact that no doubt discomfits his hard-right friends. Twenty-eight senators from both parties signed on. The bill also has the support of such disparate groups as the ultraconservative Koch brothers and the Center for American Progress, a liberal advocacy group, as well as the American Civil Liberties Union and the tea-party group FreedomWorks.
We're pleased that Cornyn remains hopeful and that he continues to work on efforts to mollify critics of the bill. Otherwise, supporters will have to rely on relative modest reforms President Obama can implement through executive action. We hope they don't have to resurrect the old cry from long-ago, long-suffering Brooklyn Dodgers fans. "Wait'll next year," they used to say. With this Congress, it's a handy slogan to have around.
The Dallas Morning News. Feb. 23, 2016.
Senate Republicans' flat-out refusal to meet with Supreme Court nominee is scandalous
In a letter Tuesday, Republicans on the Senate Judiciary Committee have declared in one voice they will hold no hearings on any nominee by President Barack Obama to succeed the late Supreme Court Justice Antonin Scalia.
It's a scandalous decision, unnecessary and without reasonable grounds. We were especially disappointed to see that the usually wiser Sen. John Cornyn was among those signing the letter. Sen. Ted Cruz also signed.
None dispute that 11 months is plenty of time for a nominee to be vetted, scrutinized and finally either approved or rejected. A typical nomination takes three or four months to complete.
That election-year vacancies are rare in our history provides little guidance for what to do when they occur. Justices have been confirmed, and some have been defeated, in such years. But these senators say that we live in special times. The nation is divided. The future of the court hangs in the balance. They say that the people should be given a vote on who will sit on the court.
These are specious arguments. And evidence that some Democrats have made similar arguments in the past, in similar but not identical circumstances, is merely proof that both parties are capable of profound mistakes.
In Tuesday's letter, the senators shrouded their promise to reject, sight unseen, any nominee put forth in a see-through shroud of constitutional fealty. "Because our decision is based on constitutional principle and born of a necessity to protect the will of the American people, this committee will not hold hearings" on any nominee until next year, said the letter.
There is no principle on display, constitutional or otherwise. No one denies that the Senate, led by a Republican majority, has the right to reject a nominee. Yes, that right should be exercised with discretion; presidents are entitled to deference in judicial nominations. But deference isn't blind support. Any senator who feels strongly that Obama's choice — once he makes it — is bad for the country would be entitled, perhaps even compelled, to vote no.
All can see that Obama's choice, whoever it is, will face an exceedingly high bar to confirmation. The election is near, and Republicans do hold sway.
But the letter's pious reference to giving the American people a say in the future of the court is mere distraction. Voters have already had their choice, many times — twice electing the current president by easy margins and, most recently, putting Republicans in charge of what is supposed to be the world's most august deliberative body.
But instead of exercising that right, and shouldering the responsibility that comes with it, these senators have instead refused to do what any ordinary citizen would conclude their job requires: To sit in judgment, and in inquiry, on the merits of any nominee put forth by a president to serve on the Supreme Court.
San Antonio Express-News. Feb. 22, 2016.
Presidential nomination deserves vote
Overtly partisan tussles over Supreme Court nominations reached their nadir after President Ronald Reagan nominated Robert Bork in 1987. Civil rights and other groups mobilized a campaign that eventually helped deny Bork confirmation.
Democrats might rue the day. Another nomination battle looms, and the Bork battle created a template, though confirmation of Anthony Kennedy, perceived as more moderate, followed in 1988. Yes, that was indeed an election year.
Presidents nearly always have sought to put their policy imprints on the high court. And the Senate, in its advice-and-consent role, has legally pushed back. Each party has argued, when their person is in the White House, that the president should have wide leeway in the nominee — if the candidate is qualified.
That's absolutely correct no matter who is president.
Nominations exciting partisan passions have followed nonetheless — Clarence Thomas' nomination in 1991 by President George H.W. Bush, for instance. Sonia Sotomayor, nominated by President Barack Obama, was confirmed on a largely party-line vote in 2009 after a 10-week battle. The vote was 68-31.
But here's what's different following the recent death of Justice Antonin Scalia in West Texas. Opponents are not just saying that the president should nominate someone more in keeping with their version of American preference, they are saying the president shouldn't nominate at all.
That is fundamentally wrong — constitutionally, ethically and as a matter of the public good.
What's most unsettling here is that not only are partisan critics contending the president shouldn't nominate, they are suggesting that they will not allow any to move forward. The next president will take office in January.
Apparently on the same page as presidential candidate Donald "Delay, Delay, Delay" Trump is Majority Leader Mitch McConnell, R-Ky. He has vowed to block consideration of any Obama nominee. Other GOP senators are lining up behind him. He backed McConnell at one point, but it's hard to pin down where the chairman of the Senate Judiciary Committee, Sen. Charles Grassley, R-Iowa, falls, as he has said he hasn't ruled out hearings on an Obama nomination.
The nominee and the president are entitled to a committee vote. There remains plenty of time in the president's term to get this accomplished. Justice Ruth Bader Ginsburg was nominated in June 1993 and confirmed by that August.
Regrettably, Texas' junior senator, Ted Cruz, a member of the Judiciary Committee, has joined the chorus for blocking the nomination, promising a filibuster. Cruz is also running for president. But, frankly, we're having some trouble finding a lot of daylight between what Cruz says and what Texas Sen. John Cornyn, the No. 2 Senate Republican who also sits on Judiciary, has said.
He told KSKY radio station in Dallas last week that, he, too, believes that the next president should make the nomination, and that the Judiciary Committee chairman and the majority leader would be within the Senate's advice-and-consent rights to deny a nomination hearing or a floor vote.
This is disappointing. Lack of opposition in the absence of a nominee would be, well, judicious. There is no objective reason a nominee should be denied a hearing and a vote. Both are precisely what the American public deserves — as quickly as possible. And it is what the Constitution demands. With major cases pending, the Supreme Court needs a full bench, though a deadlocked court might suit some interests.
Here's what the Constitution says: The president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . Judges of the Supreme Court."
This says that the president shall do this — not may. And nothing in there says the president must not nominate in a final year of office.
A nation divided, so let the people decide in the presidential election? A divided nation re-elected the president in 2012 — for a full four-year term, with no expectation that he would be just a place holder in year four.
Qualifications and merit should carry the most weight in this and all other nominations. And the president should take care not to nominate a lightning rod merely to energize the Democratic base in this election year.
But qualifications and merit cannot be properly weighed if the Senate refuses to act. If the Senate does this, it will be in furtherance of division, not because of it. If Republicans, for valid reasons, oppose a nominee, they should vote "no." But the president must nominate and the Senate should have that vote.
The (McAllen) Monitor. Feb. 21, 2016.
Aerial RGV surveillance of border is necessary
The recent decision by the Department of Homeland Security to reduce by nearly 50 percent the manpower for aerial surveillance of border patrol operations here does not seem to be prudent, nor has it been well explained.
Cutting the hours of National Guard men and women who fly above and offer vital air support to our Border Patrol and law enforcement troops on the ground could put our agents in danger. Certainly those in planes and helicopters have a unique advantage to see remote areas and to warn agents below of where nefarious activities might be occurring, as U.S. Rep. Henry Cuellar, D-Laredo, told us.
"Aerial support is not a fence; it's not a wall. It's actually pretty good because in areas where the Border Patrol can't be, like the rural areas, you can send helicopters or planes and they can look and see if they see suspicious activity. So it helps men and women," Cuellar said during an interview at his Mission office last week.
In a rare spirit of bi-partisanship, Cuellar and Gov. Greg Abbott earlier this month jointly authored a letter to Homeland Security Secretary Jeh Johnson complaining about the reduction in staff hours, writing: "Any decrease in aerial observation is not only imprudent, but contradicts the very mission of border security enforcement."
The controversy centers around Johnson's department deciding to only request 3,850 hours of aerial manpower for Operation Phalanx for fiscal year 2016. That is roughly $20 million or half the funding available to the Department of Defense for this operation through the 2016 Omnibus Appropriation bill, Cuellar's office told us.
"We gave them the funding. What they did with it, I don't know," said Cuellar who sits on the House Appropriations Subcommittee on Homeland Security.
Ironically, according to the letter, the state had actually requested more aerial surveillance this year, yet instead ended up with nearly 50 percent less. "We believe DHS should request more surveillance and security resources, not fewer. Moreover, Texas requested additional aerial observation resources in a September 30, 2015, letter that went unanswered by your department. The fact that DHS now appears to be taking the opposite approach is unsettling," they wrote.
We agree. We have been on ride-alongs with Border Patrol agents and have witnessed first-hand how they depend on those in the air to help direct them. And with the National Guard lacking the authority to make arrests, using them as aerial support seems a good use of their skills, taxpayer funds and enhances the safety of agents.
Cuellar and Abbott requested metrics detailing exactly how these cuts will affect patrol plans and to show it "would be sufficient to support this important border security operation." They said that since 2005 Texas has committed nearly $1.7 billion toward border security initiatives and they expect the federal government to also do its part.
Cuellar said Johnson has not responded to his letter but a staffer from Johnson's office met with Cuellar and said they are "restructuring" operations, but offered no further explanation.
Fighting between Texas and the federal government over funding border operations is nothing new and has grown over the years as more undocumented immigrants began crossing through the state, including a surge of unaccompanied minors that began in the summer of 2014.
Anti-immigration fervor has also been heightened during this presidential election year with several Republican candidates, including Donald Trump, vowing to build a wall to keep immigrants from crossing into our Southwest border. In response, the Obama administration has issued a set of mandates for deportation of criminals and high-risk immigrants and has vowed to send back those who came after Jan. 1, 2014.
"Our borders are not open to illegal migration," Johnson wrote in a Feb. 2 news release.
Nor do we believe it should be. We support the mission of the Border Patrol and law enforcement agents who are here and taxed with this mission. And we believe their safety should not be compromised and if there is a change in border operations, we believe it should be thoroughly explained to our congressman and governor and our local leaders and it should be made clear to all how new plans will ensure the security of our citizens and safety of those who work on the border.
Austin American-Statesman. Feb. 20, 2016.
Walk carefully toward new 'religious freedom' laws
Lt. Gov. Dan Patrick has directed the Texas Senate State Affairs Committee to recommend ways the Legislature can further protect Texans' "sincerely held religious beliefs" when lawmakers next convene in January 2017. With that charge in hand, the committee met last week to hear arguments for and against measures that would expand as well as shield religious freedoms.
Federal and state laws — the congressional Religious Freedom Restoration Act of 1993 and the Texas Religious Freedom Restoration Act, passed in 1999 — already protect the religious rights guaranteed by the First Amendment, and do so without throwing off balance the equally important need to protect competing rights to avoid faith-based discrimination. The legislative journey Patrick wants lawmakers to take next year is an unnecessary one. But since he and his allies appear determined to take it, we urge them to tread the path carefully.
To protect one Texan's religious liberty is potentially to allow another Texan's religious discrimination. Conservative Christians, angered by court rulings and nondiscrimination municipal ordinances, and motivated by last year's Supreme Court decision legalizing gay marriage, want the government to exempt them from following certain laws that protect gay, bisexual and transgender Texans from discrimination. Such laws violate their religious beliefs, they say.
"Religious freedom" legislation could include laws protecting businesses from having to serve or sell to same-sex couples, allowing faith-based adoption agencies to refuse to place children with same-sex couples, exempting religious groups from prohibitions against discrimination in hiring and housing, and allowing public officials and employees to refuse to comply with the Supreme Court's gay marriage ruling. Whether state lawmakers pass these measures piecemeal — Republican state Sen. Joan Huffman of Houston, chairwoman of the State Affairs Committee, appeared to support this approach during her panel's hearing last week — or wrap them in a comprehensive measure, they would risk allowing discrimination cloaked and protected by personal religious beliefs.
What is good for one group of religious believers must be good for all religious believers. Religious liberty for conservative Christians must also mean religious liberty for all Christians, Hindus, Jews, Muslims, Rastafarians and Wiccans — the list goes on. Nor should protecting the religious liberties of some Texans violate the liberties of those Texans who want to live free of religion. This equal applicability of the law is fundamental.
Religious conservatives emphasize the phrase "sincerely held religious beliefs" to try to draw some vague distinction between religious liberty and government-sanctioned discrimination. The demand to be exempted from certain laws — to allow businesses, as Republican state Sen. Craig Estes of Wichita Falls put it, to "choose who to do business with" — is fraught with legal and constitutional dangers. Those who support measures expanding religious liberties underscore that the exemptions they seek are only for laws related to sexual orientation or same-sex marriage. But the logical extension of their arguments opens the door to other forms of discrimination.
At last week's committee hearing, Democratic state Sen. Rodney Ellis heard in their arguments echoes of similar arguments once used to justify racial discrimination. How would you get around allowing public officials to opt out of doing their jobs when it comes to same-sex couples, Ellis asked, but not couples of different races?
It's a good question. We await a good answer.
To allow businesses, individuals and organizations to ignore laws that they say their religious beliefs don't allow them to follow is to invite chaos. They are arguing for the right to let their religious views dictate what the law allows them to do. This not only is contrary to the First Amendment, but it also goes far beyond its guaranteed protections and renders the Constitution a matter of personal choice.
It seems inevitable that lawsuits will follow whatever the Legislature does. Business leaders fear the state could suffer an economic backlash if lawmakers embrace faith-based discrimination.
A delicate balance protects religious freedom and prevents religious discrimination. The call for legislation protecting religious liberty cannot be a call to discriminate.