Could Bill Clinton or George W. Bush be President Again?

Yes.  Both are still eligible for office (as are George H.W. Bush and Jimmy Carter, each of whom only served one term).

The relevant section of the 22nd Amendment reads:

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

The key word is "elected" and the key phrase is "elected to the office of the President." No person shall be elected for President more than twice.  The text says nothing about whether a former two-term-elected President can serve as President.   Words matter.  If Congress had intended that no former President could serve more than two terms, the writers could have said that.  Or they could have said that no person shall be President for more than eight years.  That would have been clear enough.  Bill Clinton could be elected as VP and George W. Bush to Speaker of the House (or Secretary of ____, etc.). Both could then become President legitimately via lines of succession though neither could be elected again once he served out his term.

Obama: Wrong Again

As a Constitutional lawyer, Obama is either lying or once again being mendacious, but the Puffy Host won't call him on it of course.

On NPR yesterday I heard him say more or less what is reported here, that according to the Constitution the Senate "is to consider that nomination and either they disapprove of that nominee or that nominee is elevated to the Supreme Court" [my emphasis].

Not true at all. There's no such duty, constitutional or otherwise. There's no mention at all in Article II. Section 2 that the Senate is to do this, so the President is wrong on a second count in his "amusement" of strict constructionists:

"I'm amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there," Obama said.
"The Constitution is pretty clear about what is supposed to happen now," Obama, a former constitutional law professor, told a news conference at the close of a two-day meeting with leaders from Southeast Asia.

Implied is that what he is saying is correct even on strict constructionist grounds (rather than on "living breathing" grounds where whatever a living Democrat says that it says or means is true).  Article II. Section 2 is vague other than to say "by and with advice and consent" from the Senate. But no rules are laid down for how this should be done--nothing about giving an up or down vote--and each House can determine its own procedural rules. So the President is wrong--probably lying--and the Senate is within its Constitutional right to (e.g.) filibuster.

The Importance of Scalia

Here are two excellent articles on Scalia and what his death means, by Ross Douthat and Rod Dreher.  Between the both of them, they summarize pretty well my thoughts and feelings (especially Dreher).

I would only add that Scalia's death reminds me of what James Boswell said of Johnson in his "Life of Samuel Johnson":
“He has made a chasm, which not only nothing can fill, but which nothing has a tendency to fill up. Johnson is dead. Let us go to the next best — there is nobody; no man can be said to put you in mind of Johnson.”  

Excerpts below, but both are worth reading in full.

Dreher:

We know we’re losing, and that we are going to lose. But there was something heroic in knowing that the wiser man was standing there in the arena telling his colleagues on the Court, and indeed the entire nation, exactly what they were doing. The cause may have been lost — and on this, Scalia had this Court’s number from virtually the beginning — but with Scalia on the Court, we marched into exile with our heads held high, knowing that the stronger army won, but not the better one.

In an emotional sense, for me, Scalia functioned as a kind of keystone holding up the crumbling arc of the Republic. I know: he lost these morally significant cases having to do with the dignity of life and the meaning of marriage, even though he did not fight them on moral grounds, but on legal, democratic ones. And yes, I know that Scalia was himself no kind of unifying figure that keeps the entire structure from falling down, as a keystone does. What I’m trying to convey is what it feels like to experience his loss from the point of view of a religious and social conservative. As I said, there was something of a restraining force about him — maybe by the power of his prose and his intellect, and the strength of his conviction. 

Douthat:

Antonin Scalia, dead unexpectedly this weekend at 79, was not the most politically powerful justice during his three decades on the Supreme Court. That distinction belonged to the court’s two swing votes, Sandra Day O’Connor and then Anthony M. Kennedy, respectively the philosopher queen and king of our fraying republican order.

Unlike them, Scalia did not have the opportunity to write all his preferences into the law of the land. For every victory he won, there was a sharp defeat; for every important majority opinion a stinging, quotable dissent. And on the issues he cared the most about – abortion, above all – his defeats were famous and his dissents often not just eloquent but anguished.

 But in every other respect, he was the most important Supreme Court justice of his era.

Humorous Story About Scalia

...as told by Ted Cruz.

Justice Scalia’s clerks, like the justice himself, tended to have an edge. They were wickedly smart, engaging and had no problem wielding sharp elbows when warranted. Scalia himself had a mischievous sense of humor. One famous Scalia story—there are many—occurred during the 1980s, when Reagan was president and considering appointments to the court. Everyone knew that two of the stars on the conservative side, and thus possible nominees, were Robert Bork and Scalia, both on the D.C. Circuit. So one day Scalia was walking in a parking garage at the appellate court when two U.S. marshals stopped him. “Sorry, sir,” one of them said. “We’re holding this elevator for the attorney general of the United States.”

Scalia pushed past them, entered the elevator, and pressed a button. As the doors closed, Scalia shouted out, “You tell Ed Meese that Bob Bork doesn’t wait for anyone!” 

And, as it happens, Scalia was nominated to the court by President Reagan in 1986.

RIP Scalia

A great mind and one of my heroes is dead.  I read every book he published and numerous of his opinions.  Of all public officials he is the one I will miss the most.

Hillary on Supreme Court Nominees

Here is the transcript of an NPR interview of Hillary Clinton I happened upon last week.  She was asked about whether--like Bernie--she would require a litmus test  for Supreme Court nominees and more generally what she would be looking for [my emphasis in bold below].

Well, I believe strongly that we need Supreme Court justices who truly understand the impact of their decisions, and I think some of the recent decisions — Citizens United being one, voting rights being others, the extension of more and more rights to corporations vis-a-vis real people — I think has created some unintended consequences. So I would want somebody who understands when you blow open the door and say money is speech and you have a, in my view, somewhat misguided hope that all of the money that would then be pouring into our political system would be disclosed in real time — which, of course, it is not and in some instances never is — that you would have someone who has ... experience as a lawyer, as a judge in the real world who would say, hey wait a minute, that really undermines and corrupts our political system.

[Ari Shapiro]: "So is that "yes" to a Citizens United litmus test ... ?"

[Clinton again] Absolutely, but it's broader than that. It's not just Citizens United, Ari. Let's take voting rights. I was in the Senate when we voted 98 to nothing to reauthorize the Voting Rights Act. President George W. Bush signed it. And we did that because there was substantial evidence that a lot of the discrimination that, unfortunately, was part of our voting system that we addressed with the Voting Rights Act in the '60s was still a problem in some parts of our country.
The folks who didn't agree with that appealed it, took a challenge to it to the Supreme Court, and the Supreme Court really gutted the Voting Rights Act. And their argument, again, in my view, was fundamentally naive.
And that's the best I can say about it, which was, "You know, we really don't need all of this now. Everybody can kind of stand up for themselves." And look at what has happened. We have had a rash of efforts in states to try to suppress and undermine the vote.
So, I'm looking for people who understand the way the real world works, our political system when it comes to money, like Citizens United; our voting rights system; our economics system where, if you keep enhancing the powers of corporation vis-a-vis unions, vis-a-vis, you know, individuals, you're not going to have the kind of balanced economy that produced the middle class.

Notice that conspicuous by its absence is any mention at all that Hillary will be looking for someone skilled at interpreting the Constitution. I have long said that the left has no love for the Constitution and that only the right is concerned that it be interpreted.  It is the sentiment of old, dead, white men which, when properly interpreted, sometimes put the brakes on "progress."  The Democratic nominees will have a litmus test, alright, for the one job justices are there to do: vote.

Ted Cruz's Interview On Law

Excellent interview of Ted Cruz by Princeton's Robert George.  Among other things they discuss the Obergefell decision.  I haven't seen this sort of high level, engaging interview with any other candidate.  It's an hour long but well worth it.

Lincoln was absolutely right. I agree with President Lincoln and courts do not make law. That is not what a court does. The court interprets the law, applies the law, but courts don’t make law. And, you know, this is an area of really striking divide in this presidential election. One candidate, Hillary Clinton, agrees with the court and embraces gay “marriage” and is happy that unelected judges had purported to tear down the marriage laws of all fifty states. On the Republican side, they’re quite a few Republicans who, when the gay “marriage” decision came down, they described it as the settled law of the land. It’s final; we must accept it, move on and surrender.

Those are almost word for word Barack Obama’s talking points and I think they are profoundly wrong. I think the decision was fundamentally illegitimate. It was lawless. It was not based on the Constitution. I agree very much with Justice Scalia, who wrote a powerful dissent saying, this decision is a fundamental threat to our democracy. It is five unelected judges declaring themselves the rulers of three hundred and twenty million Americans. And indeed, Justice Scalia, in the penultimate paragraph of his dissent, predicts, harkening back to President Lincoln defying Dred Scott, that state and local officials will refuse to obey this lawless decision. It is remarkable to see a Supreme Court justice saying that would be the consequence of this.

Interview of Justice Samuel Alito

Another good interview by Bill Kristol.  The first third of the interview centers around Alito's law school days, the second third focuses on his time in the Third Circuit and the nuts and bolts of Supreme Court work, and the last third discusses some Supreme Court cases, including the notorious Obergefell decision. 

"We are at sea."

Judge Posner on Homosexual "Marriage"

This is posted at lawyer and philosophy of law professor, Keith Burgess-Jackson's blog:

Richard A. Posner on Homosexual "Marriage"

A decision by the Supreme Court holding that the Constitution entitles people to marry others of the same sex would be far more radical than any of the decisions cited by Eskridge. Its moorings in text, precedent, public policy, and public opinion would be too tenuous to rally even minimum public support. It would be an unprecedented example of judicial immodesty. That well-worn epithet "usurpative" would finally fit.

(Richard A. Posner, "Should There Be Homosexual Marriage? And If So, Who Should Decide?," review of The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment, by William N. Eskridge Jr, Michigan Law Review 95 [May 1997]: 1578-87, at 1585)

Note from KBJ: By 2014, Posner had changed his mind. I wonder what changed in 17 years. The text of the Constitution certainly didn't change

Scalia's Blunder

Having read numerous opinions and all of his books (even the one on practical advise to lawyers in how to present a case), I have tremendous respect for Antonin Scalia.  However, I have never understood how he came to the conclusion that he did in the religious freedom case over the use of peyote by an American Indian in Employment Division v. Smith.  Perhaps I will never know.  No explanation seems consistent with his general practice.  One might think that as a conservative he would rule against the use of peyote; but anyone who has followed his rulings knows that his judicial philosophy quite often determines a ruling at odds with what a conventional conservative might be thought to prefer.  The case is baffling.

Michael Paulsen, though, explains why it was such a bad decision:

Antonin Scalia is one of the most brilliant, principled, sound, and thoughtful jurists ever to sit on the Supreme Court. But twenty-five years ago today, his legal skills utterly failed him.

Read his lucid critique here.

(Friendly to Religion) Atheist KBJ on Denying Dignity in Denying Same-Sex Marriage

Keith Burgess-Jackson:

From Today's New York Times

To the Editor:

Re “Justices’ Opinions Collide on Right to Gay Marriage” (front page, April 29):

In June 2013, a reporter from The New York Times interviewed my partner and me. He asked me how I felt after both the United States v. Windsor decision, invalidating the Defense of Marriage Act, and the overturning of Proposition 8. I responded, “Today is the first day I feel like a real citizen in my country.” The Times made it the Quotation of the Day and included a photo of both my partner, who is now my wife, and me in an article about West Coast same-sex couples.

After hearing the arguments before the Supreme Court, I would like to rescind that quote. Several justices reinforced the notion that I am not a full citizen. Of course, they have all the power. I just have my life, which I try to live with dignity, love and understanding.

KATHLEEN M. SULLIVAN

Los Angeles

Note from KBJ: It's sad that this woman's feeling of dignity depends on approval, by the state, of her relationship. What low self-esteem she has! Also, it's absurd to think that, unless she is allowed to marry someone of the same sex, she is being denied the status of "full citizen." Is a pedophile not a full citizen because he or she can't marry a child? Are polygamists not full citizens because they are not allowed to marry one another? I have yet to see, after all this time, a convincing argument (or even a plausible argument) in favor of homosexual "marriage." What I see are tendentious claims, question-begging arguments, abusive epithets ("homophobe"! "bigot"!) and uses of manipulative rhetoric (such as the term "marriage equality"). Everybody has the same legal right: to marry someone of the opposite sex. Nobody has a right, legally or morally, to participate in an institution that was not designed for him or her.

TB: I would add that in the Supreme Courts' oral arguments, the argument was raised about dignity by those arguing in favor of a Constitutional right to same-sex "marriage."

Perhaps I'll have more to say about this article tomorrow if I get the chance.

Highlights From the Oral Arguments Over Same-Sex "Marriage"

Ryan T. Anderson:

Tuesday’s oral arguments at the Supreme Court were excellent. There were so many good points made about what marriage is and why redefining marriage would cause harms.

This serious consideration of the harms of marriage redefinition stands in stark contrast to outrageous lower court rulings that had declared no rational basis to state marriage laws defining marriage as it always had been in America: a union of husband and wife.

Most importantly, it was clear that the nine Supreme Court justices do not have any greater insight on ideal marriage policy than do ordinary American citizens. The Constitution itself is silent about it. So the justices should uphold the authority of citizens and their elected representatives to make marriage policy in the states.

Here are some of the best portions of Tuesday's arguments.

What Is Marriage?

What is Marriage?

From yesterday's oral arguments before the Supreme Court...

Solicitor General, Donald Verrilli, as amicus curiae, arguing that there is a Constitutional right to same-sex marriage in the 14th Amendment on behalf of the Obama administration:

JUSTICE ALITO:  What do you think ­­­­ are the essential elements of marriage as it exists today?   

GENERAL VERRILLI:  Well, I think the essential elements of marriage are the ones that are ­­that­­ the, the obligations of mutual support and responsibility and the benefits surrounding marriage that State law provides to ensure that there is an enduring bond, that enduring bond that continues over time and lasts, hopefully, till death do us part, through the end of life.  And that,­­ and with and­,­ and, certainly, childrearing is bound up in that.

It is really difficult to make sense of this definition among all the stuttering (and coughing which didn't make the transcript), but here is a go at it:

Marriage is an enduring bond that continues over time and lasts, hopefully, till death.  And childrearing is (somehow) bound up in that.

So on that definition, if my wife and my brothers' wives were (God-forbid) to die, and we brothers were to choose to rear our children together, and we do so until we die, we would be married.  After all, we have an enduring bond that lasts until death and child-rearing is certainly bound up in that.  Bonus: I don't even have to make a till-death-do-us-part promise of fidelity; but it would be nice (maybe) if the bond continued until death (or maybe not.)

Notice that there is no mention that the bond be between two people.  That's not odd, for why should marriage be between two people rather than three or four (especially if they are sterile and have no children)?  Why hate on polyandrous marriages?  But a little later he summarizes his view of marriage with the following, again in response to Justice Alito:

JUSTICE ALITO:  As far as the, ­ the benefits that Federal law confers on married people, such as in Windsor, the effect on estate taxes, what would be the reason for treating [unmarried siblings who have lived together for 25 years and a same-sex couple who has lived together for 25 years and then gets married due to a change in law] differently?

 GENERAL VERRILLI: Well, ­ I, ­­ I'm not  entirely sure there would be, but, of course, marriage  is something more fundamental than that.  It is an enduring bond between two people.

Ah.  So marriage is an enduring bond between two people.  That is why the unmarried siblings should be treated differently.  [?]
And so I couldn't be married to both of my brothers.  But why couldn't I be married to one of them?  In fact, if I do have an enduring bond then I am married to one of them, it would seem according to this definition--that is, according to Verrilli, the definition of marriage which the Constitution has always recognized implicitly entails that. (Which brother I wonder?) Don't you tell me, hater, that we don't have an enduring bond!

Cue Justice Kennedy's infamously enigmatic statement in Casey v. Planned Parenthood:

At the heart of liberty is to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.

There's a Constitutional right to everything imaginable if you just look hard enough.

Initial Thoughts on the Supreme Court's Oral Arguments Today

Today I listened to the oral arguments over whether there is a Constitutional right to gay marriage which has gone undiscovered until this year.  I know that it is difficult to predict the way justices will vote, but simply on the basis of the questions the justices were asking and the softballs they were throwing, it would seem that the vote will come down to Kennedy and my hunch is that he will "discover" a right to gay-marriage in the 14th Amendment.  Of course, anyone who is even a mild originalist would laugh out of the building the claim that there is a right to gay-marriage in the Constitution.  Perhaps Kennedy will come to his senses, but from other decisions, he seems to be a populist with a love of the limelight who wants to be on the "right side of history" with the cool kids.

I plan to say more about the oral argument in the next couple days if I can get around to it. 

Michigan Civil Rights Initiative and the Supreme Court

Which amendment would you prefer regarding institutions funded by tax dollars:

1. Any public college or university, community college, or school district SHALL NOT discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

or

2. Any public college or university, community college, or school district CAN discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

Hopefully you chose the first, if so, then you chose the Michigan amendment that the Supreme Court just upheld in a 6-2 vote as not violating the Constitution.  Sotomayor and Ginsburg were the only two opposed to civil rights and apparently the only two who can't read the Constitution.  Justice Breyer, in a rare fit of common sense, was able to see the light of day.

Among other things, it's a victory for black self-esteem.  At least in Michigan, when blacks graduate from college they'll know that liberals won't be able to pat themselves on the back and take the credit for it.