- Associated Press - Tuesday, February 16, 2016

San Antonio Express-News. Feb. 14, 2016.

Scalia left lasting legacy of influence

A defender of the Constitution and democracy, Justice Antonin Scalia redefined legal interpretation and inspired a generation of conservative lawyers and leaders that will continue to shape this country.

His vivid writing, razor sharp wit, outspoken demeanor and adherence to a strict original interpretation of the Constitution made him something of a rock star for the Supreme Court. Scalia died at a West Texas ranch resort Saturday, as first reported by this paper. He was 79.

Scalia joined the Supreme Court in 1986, a time when the Constitution was more likely to be interpreted as a living document. Scalia, though, argued the Constitution should be interpreted as the framers originally intended. His thunderous dissents were legendary, but over time, he became the centerpiece to a conservative majority. One that vastly changed the scope of the Voting Rights Act, deregulated political campaigns, and, perhaps most significantly, expanded gun rights.

The latter reflected Scalia’s significant influence. The 2008 case, District of Columbia v. Heller, ushered in a new interpretation of the Second Amendment, expanding the right to bear arms to an individual’s right to own handguns for self-protection.

It was hardly surprising, but still jolting, that minutes after Scalia’s death became known, the political world began jostling over whether President Barack Obama should nominate a Supreme Court justice during the last year of his term. It’s a question fraught with political calculus for this year’s presidential election, highlighting the importance of the Supreme Court.

But the stance to delay a nomination for the next president ignores the Constitution. Article II makes it clear the president has the power to nominate Supreme Court justices, which must be approved by the Senate. Delaying when Obama has nearly a year left in his term is nonsensical. Obama was elected to office - a decision made by the American voters. There is a vacancy during his term. He should nominate someone, and that person should be considered on judicial merits, not political calculus. Anything less would leave the court in paralysis.

Before the politics of the day overwhelm our collective consciousness, some reflection on this legal giant is merited. Scalia loved opera and wine.

He was incredibly close with Justice Ruth Bader Ginsburg, with whom he agreed on almost nothing. He had nine children and 28 grandchildren.

In so many ways, he was larger than life. His influence over American legal and political thinking will endure.


Houston Chronicle. Feb. 16, 2016.

Replacing Scalia: Whether Reagan or Obama, Supreme Court nominations are the president’s to make

When Justice Antonin Scalia passed away last week, he was the closest a man can come to being a jurisprudence rock star. He was the foremost advocate of the originalist theory of interpreting the U.S. Constitution, and through his sharp tongue, eminent quotability and uncompromising views, Scalia earned the love of his fans in the Federalist Society and respect throughout the legal field. Liberals had less admiration for a man who often relied on insults to argue that gay marriage was an existential threat to humanity and actual innocence was no roadblock to prison.

As a scholar and personality, Scalia is irreplaceable. But soon enough President Barack Obama will nominate a replacement and the Senate has a duty to provide its advice and consent. This means an up-or-down vote.

This doesn’t mean, however, Republicans have to roll over on any Obama choice. The Senate has sent U.S. Supreme Court nominees packing under Presidents Ronald Reagan, Richard Nixon and Lyndon Johnson. Harriet Miers stepped down from her nomination under President George W. Bush due to criticism of her limited legal career.

Each one of those moments was a mix of earnest critique and partisan gamesmanship, but the focus was kept on the candidates themselves.

That’s not what Republicans are doing today. U.S. Sen. Mitch McConnell, the Republican majority leader, has said that the Senate will block any consideration of a replacement for Scalia’s seat until there’s a new president. For those counting, Obama had 342 days left when Scalia passed away, and no modern Supreme Court confirmation process has lasted longer than 125 days.

McConnell’s stance removes that curtain of political niceties and reveals the naked truth: Republicans would rather see a vacant court seat than any Obama pick.

Playing politics with presidential nominees is nothing new. Democrats and Republicans have gone tit-for-tat on lower court nominations dating back decades. But by blocking any candidate, the Republican leader of the Senate has escalated partisan gridlock to the highest levels of government.

It’s no surprise that Texas’ Sen. Ted Cruz has promised to filibuster Obama’s eventual nominee, whoever that may be. We encourage his senior colleague, Sen. John Cornyn, to remember what longtime conservative columnist James Kilpatrick wrote when liberals opposed President Reagan’s picks for the court.

“They should have elected Mondale. But they didn’t.”

There will be plenty of opportunities for the next Republican presidents to make their own appointments. But for now, the nation elected Obama.


The Dallas Morning News. Feb. 16, 2016.

McConnell’s promise to reject Obama’s nominee sight unseen is bad politics and terrible judgment

For as long as there’s been a Supreme Court, it’s been the job of the president - and only the president - to put forward a candidate to fill any vacancy on its bench. For just as long, it has been the Senate’s job to decide whether to seat that person.

The president nominates. The Senate deliberates.

Comes now an argument from Senate Republicans that the stakes are too high for such precedent to hold. Senate Majority Leader Mitch McConnell insists President Barack Obama not nominate anyone to succeed Justice Antonin Scalia. That can wait till next spring, after a new president is sworn in and has time to consider his choices.

To back up this argument, McConnell has promised to reject any nominee sight unseen. No matter who they are.

To begin with, this is chancy politics. Senate Republicans should use their current leverage to push Obama to make a more centrist choice for the seat. McConnell’s path surrenders that leverage and renders the seat just another spoil for whichever party wins in November.

Sens. Ted Cruz and Marco Rubio immediately signed on to McConnell’s plan. Jeb Bush and Gov. John Kasich urged a more reasoned course, and from Donald Trump came this sage exhortation: “Delay, delay, delay.”

Yes, it’s uncommon for vacancies to occur in an election year. But when they have, no president of either party has sat on his responsibility and refused to nominate a successor. Nor has the Senate ever simply refused to even consider a nomination with so many months to go before the next election. (Plenty of senators of both parties have taken obstructionist stances before, and they will again. We think that’s a mistake. But what’s different here is McConnell’s promise to not even hold hearings or a vote. In a 2007 speech, Sen. Charles Schumer, D-New York, urged the Senate to vote down any future George W. Bush nominees, for example, though even there he wasn’t suggesting Bush refrain from putting forth a nominee, should an opening occur, or that the Senate refuse to hold hearings or a vote.)

Eleven months before the 1988 election, Ronald Reagan nominated Anthony Kennedy. Fresh off blocking Robert Bork, Democrats were conciliatory. Three months later, Kennedy was confirmed 97-0.

This page has long argued that presidents have wide latitude in choosing Supreme Court justices. We’ve also urged the Senate to scrub the candidates for signs of ideological extremism or inadequate preparation, which can be legitimate grounds for rejection.

When fate gave President George W. Bush back-to-back vacancies to fill, we lauded his choice of John Roberts for chief justice, citing both his qualifications and his reassurance that he’s no extremist. We had reservations about Samuel Alito, but his Senate hearings persuaded us he was well within the conservative mainstream. We urged his confirmation.

McConnell is right about the stakes. The nation is sharply divided. This choice could determine the court’s leanings for years. As a result, Senate Republicans should insist Scalia’s replacement not be a “legal extremist” or fall outside the mainstream.

But unless he changes his mind about a blanket rejection, McConnell has forfeited that opportunity.

The far wiser, and only responsible, course is for Senators to hold their hearings, study Obama’s choice and then all members, liberal or conservative, cast a vote they can defend.


Waco Tribune-Herald. Feb. 16, 2016.

Judicial giant Antonin Scalia stressed US Constitution, but are we truly worthy of the document?

If death was to come for intellectually vibrant, colorful U.S. Supreme Court Justice Antonin Scalia, 79, Texas’ Big Bend country was perhaps the most appropriate of locales. Anyone who has spent time in this rugged land knows the people who live there are conservative but in ways that are as consistent day in and day out as traditional tea-party conservatism is not. One can see this quality in Scalia opinions that, for instance, protected the rights of criminal defendants - something that irked at least some “conservatives.”

Scalia’s most famous opinion broadening Second Amendment rights to most citizens - a decision championed by gun-rights advocates - was accompanied by his sometimes overlooked caveat that government also has the right to limit or regulate those gun rights. Incidentally, the power to regulate gun ownership is not just encapsulated in Scalia’s District of Columbia v. Heller opinion but in Texas law.

But Scalia’s reputation as the most influential American jurist of the past three decades rests on his firm belief in the U.S. Constitution. He vehemently stressed the importance of courts regularly consulting that founding document. He warned against drawing meanings from passages that the Framers clearly never intended. In fact, Scalia’s legacy may well be that he prompted more progressive jurists to rigorously justify their own subsequent opinions through bedrock constitutional principles.

Republican Senate Majority Leader Mitch McConnell’s opening salvo before Scalia’s body was even cold that his successor should be picked by President Obama’s own successor a year from now was crass, inappropriate and contrary to the very constitutional tenets Scalia spent his life championing. Article II, Section II of the Constitution says the president “shall” nominate judges to the Supreme Court. It says nothing about that power being abridged because a president is in his last full year in office.

U.S. Sen. Ted Cruz said in Saturday’s debate that tradition for 80 years has precluded a Supreme Court judge from being confirmed in the final year of a president’s time in office. But like so much Cruz says, this isn’t true. A Supreme Court nominee put forward by no less than President Reagan was confirmed in 1988 - the last full year of Reagan’s considerable eight years in office. To deny Obama the same consideration would demonstrate the hypocrisy of Republicans who pretend to respect the Constitution.

That said, we would hope that the president recognizes the intense political divide that exists by selecting as his nominee a moderate acceptable to reasonable people in both parties such as D.C. Circuit Judge Sri Srinivasan, approved by the Senate unanimously in 2013 and labeled even by Sen. Cruz a longtime friend. To pick a liberal jurist at this perilous juncture in our history would only further inflame our badly polarized nation. We don’t need that.


Austin American-Statesman. Feb. 10, 2016.

What should replace the STAAR test?

For many Texans, the state’s current standardized test - the STAAR - represents everything that is wrong with public education. The annual assessments for grades 3 through 12 have been blamed for everything from killing teacher innovation in the classroom to creating unnecessary stress for students while failing to produce more prepared graduates.

So, State Board of Education Chairwoman Donna Bahorich is correct to restart the state’s conversation with a series of public forums to help shape what the next phase of accountability testing should look like. Bahorich is gathering public input for the Texas Commission on Next Generation Assessments and Accountability, created by the Texas Legislature last session to help determine the state’s next steps in school accountability.

As reported by the American-Statesman, the ideas from advocates and parents are wide-ranging, including winnowing down state standards that drive the current test, removing the requirement that students pass to graduate, the addition of online testing, and replacing high school student’s end-of-course exams with the ACT or SAT.

But before choosing a new testing regime, educators, policymakers, business leaders and parents need to figure out what exactly the state is testing for. After all, inappropriate use of a single test is what got public education into this accountability mess in the first place.

Seriously, what do we really want the test to tell us?

Are we checking to make sure that an individual student makes progress so they will be ready to enter the workforce or college upon graduation? Are we trying to make sure that parents know which schools are meeting state standards? Are we looking to weed out teachers who do not cover the state’s required curriculum? Are we double-checking that students have mastered specific skills and are getting early intervention if they are not?

Each of those scenarios requires a different kind of test. The inability to agree on a single measure has led to the proliferation of testing, consuming the academic calendar. And when you look at the charge to the new commission in House Bill 2804, it is clear that it has been tasked with accountability’s version of the kitchen sink.

That’s not to say that ideas such as substituting the ACT for end-of-year high school tests should be dismissed out of hand. There’s a lot to like about using a single, shorter test to determine college or career readiness - which in the end is what colleges and employers really care about. However, end-of-year tests measure mastery - did the student learn specific material and skills that should have been taught by the teacher? - and not readiness.

So using the ACT or a test like it as a replacement test for accountability - which has recently been allowed by the latest federal education standards - would make plans created by districts like Austin’s to use test scores as part of teacher evaluations inappropriate. The broader testing criteria makes it even harder than it already is to attribute a student’s success to a single teacher. It is also an inadequate diagnostic tool to determine what specific skills a student might need to bone up on to improve performance.

The ACT or SAT may be more familiar than the current array of alphabet-soup test names; however, even the old standbys have their critics. Income and parental education are huge predictors of how a student will perform, which throws into question whether the assessments measure a family’s financial resources or a student’s ability to perform.

And lastly, switching to the ACT readiness standard will do little to immediately relieve the sinking sense that Texas students are underachieving. In 2015, only 41 percent of Texas graduates took the test. Of those students, 59 percent met the English readiness benchmark and less than 45 percent passed the reading, math or science thresholds.

The prediction is that if we expanded the test to include all students - even those who are not college-bound - the passing rates would be much, much lower.



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