For whom Cecil Bell tolls: On impeaching Kennedy, Ginsburg, Breyer, Sotomayor and Kagan

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Good day Austin:

Once upon a time, Rip Van Winkle went for a ramble in the Catskill Mountains, encountered some little men bowling, took a few nips from their keg and fell into a deep sleep. When he awoke on what he took to be the next morning, he returned to town to learn that 20 years had passed. His children were grown. His bossy wife was, much to relief, dead. And, much to his surprise, George Washington and not George III now ruled supreme, within, of course, constitutional limits.

I just took barely more than a week’s vacation. While I was away, the Confederate flag, at least for the powers that be, even in the South Carolina – that very citadel of Confederate nostalgia – had lost its charm. And, in the same blink of an eye, the right to same-sex marriage became the law of the land, thanks to the U.S. Supreme Court, which also, along the way, affirmed Obamacare’s legitimacy.

(Meanwhile, my children are a week older – my daughter did change her hair color – and my wife, thank God, is better than ever.)

I knew that that would not be the end of it. I knew that this kind of breathtakingly swift social change – even if those who find the disaffection from the Confederate flag and the legitimizing of gay affection long overdue – cannot possibly happen without some significant resistance and backlash.

So it is that NASCAR fans this weekend largely ignored the entreaties of the sport’s authorities to stop displaying the Confederate flag at events, even offering the inducement that if you  surrendered your rebel flag you would, in return, receive the flag of the Republic for which it stands – a perversely ill-designed strategy for soothing the psyche of Lynyrd Skynyrd-Americans.

And I anticipate that we may be on the cusp of a retro outcropping of billboards dotting the Southern landscape, as they did more than half a century ago, urging the impeachment not just of a chief justice, as in the case of Earl Warren, but of the five justices who concurred in the majority opinion in Obergefell v. Hodges.

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It may present a design challenge. cramming even just the last names of Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, on the new impeachment billboards. So, particularly under the current circumstances, I would suggest they forgo the flags, as they appeared on this billboard, like many, sponsored by the John Birch Society, which was a moving force behind the effort to impeach Warren.

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A later effort to impeach Justice William O. Douglas, by a more mainstream figure – House Minority leader and future President Gerald Ford – also went nowhere.

But, if a new effort to impeach members of the Supreme Court gains any traction, I think it is safe to say the movement was born Monday in Magnolia at a press conference at the Landmark Building at which Rep. Cecil Bell, the Republican representative from Magnolia, called for the impeachment of the five justices who ruled in favor of gay marriage.

Here it is:

And yes, this Cecil Bell, who is about to step into the annals of history, is the same Cecil Bell that Texas Monthly put on its “Ten Worst” legislators list.

Well, back at you Texas Monthly.

Here is their explanation of putting Bell on their Worst List.

Cecil Bell Jr. has become known around the Capitol for two things: wearing a cowboy hat and—in his second session at least—filing bills to prevent gay marriage in Texas. We’d love to see more of those hats on the floor; they bring much-needed flair to the House. But we’d love to see less of his legislation.

We don’t begrudge Bell his honest opposition to gay marriage, but filing four bills on the subject amounts to swatting at a fly with a sledgehammer. The fate of gay marriage lies with the U.S. Supreme Court. Everything else is just noise. Bell contended throughout the session that he was protecting Texas’s sovereignty. But rudimentary civics tells us that a state law can’t nullify a Supreme Court ruling; Bell’s bill would have merely delayed gay marriage in Texas for a short time at most.

exas State Rep. Cecil Bell, Jr, center, gets some helpful hands from fellow legislators as he prepares to cut a 10-year anniversary wedding cake to celebrate the same-sex marriage ban. Faith and Family Day, put on by Texas Values and Texas Right to Life supporters, was held in the Texas Capitol Auditorium Tuesday afternoon February 24, 2015 as a celebration of the state's 10-year-old ban on same-sex marriage. They celebrated with a wedding cake and speeches to a crowd that included members of Texas Values, Concerned Women for America, and Texas Right to Life, along with state legislations from both chambers. RALPH BARRERA/ AMERICAN-STATESMAN

Texas State Rep. Cecil Bell, Jr, center, gets some helpful hands from fellow legislators as he prepares to cut a 10-year anniversary wedding cake to celebrate the same-sex marriage ban.
RALPH BARRERA/ AMERICAN-STATESMAN

Late in the session, with a midnight deadline looming, one of his bills, which would have forbidden local governments to issue marriage licenses to same-sex couples, was buried on the calendar. The bill was going nowhere and Bell knew it: Democrats had stalled debate to prevent it from coming to the floor. Faced with this scenario, legislators often pull down the offending measure, so other legislation can pass. Bell refused that gentlemanly act, and many bills perished. Pressing divisive, unnecessary bills that waste time and clog the calendar is never in style, no matter how much we like your hat.

Cecil Bell. The worst?

I was a bit surprised also because he was only tied for 10th worst on Equality Texas’ list  of Ten Worst House Members on LGBT issues.

If Cecil Bell wanted to use this session to become a nation-wide figure of derision and an embarrassment to the entire state of Texas then he accomplished his goal. If that’s not what he wanted then the quick succession of four (four!) anti-marriage bills attempting to do everything from taking away the salaries of county clerks who comply with marriage court rulings, to giving the Secretary of State the ability to shut down county marriage license offices to requiring the Attorney General to keep a list of Texans married to someone of the same gender (huh?) accomplished it anyway. We get it Cecil, you really don’t like the freedom to marry – everyone’s convinced – you can stop now.

I understand that “worst” is very subjective, and that it is not intended to merely record the names of the dumbest, laziest, most corrupt or ineffectual.

As for Texas Monthly’s rationale:

We don’t begrudge Bell his honest opposition to gay marriage, but filing four bills on the subject amounts to swatting at a fly with a sledgehammer.

C’mon.

If they don’t begrudge him his honest opposition to gay marriage, they do begrudge him acting on it. And the fly here, love it or hate it, is one of the most monumental social changes of recorded history. It’s a huge deal.

Bell’s crime is that they view him as on the wrong side of history, and being unwilling to accept that.

What they seemed to be saying is that Bell was among the worst because he persisted in a lost cause, an affront to both  “rudimentary civics” and “gentlemanly” behavior.

Well, by that definition, every damn legislator who supported secession would have made Texas Monthly’s 1861 worst list.

Cecil Bell called for the impeachment of five Supreme Court justices on Monday.

Cecil Bell called for the impeachment of five Supreme Court justices on Monday.

As to rudimentary civics, Bell says Texas Monthly’s notion of Founding Fathers 101 is not nearly rudimentary enough, and that the impeachment  of Supreme Court justices is not only explicitly written into the Constitution as a remedy for actions like those taken by the majority in the same-sex marriage case, but actually called for by the current Chief Justice of the U.S. Supreme Court in his dissent in the case.

Here is what Bell told me Monday night.

I am listening to my congressman (U.S. Rep. Kevin Brady, R-The Woodlands) saying there is nothing you can  do but accept our Supreme Court’s edict. That’s not what our Founding Father’s said. I find it really interesting that we find ourselves in this position where the  elected officials we have are out of step with the Founding Fathers

 That’s the problem that is frustrating all of us. We have a very strong delegation (in Washington), but we need citizens to understand that the Constitution  wasn’t written so that the federal government would always have the same feel.

We have the ability as citizens to accomplish politically  that which our forefathers (fought for) at egregious cost –  it cost them their lives, their fortunes and all of that so we might have …  the constitutional ability to  address the challenges that we see today in a political manner. They did not have that ability in their time.

We need our elected officials to stand between us and what is, according to the chief justice, an unlawful and without constitutional support effort that is being evidence by the Supreme Court. And that’s the chief justice making that argument and not me, and I’m certainly willing to add my name to that and my voice to that. But the ability  to provide a level of scrutiny that can only be found in having the chief justice call into question the court in its entirety, that’s a pretty powerful thing.

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I asked if any other public figure so far has called for the impeachment of the justices because of the marriage ruling.

Bell said:

You know I have I not heard anyone else talk of that, and I’m not sure. But my suspicion is the reason why is there are concerns that opens the slots (for President Obama to pick five new, younger justices).

But I will tell you, and I have heard when you listen to people talk, that there’s not a belief you can do that. But it has occurred before, Not only can it be done but it has been done before. In 1805, Samuel Chase  was impeached. Now the Senate did not try (and convict) him, so therefore he was not removed from office, but he lived forever under the cloud of being impeached. He lived the rest of his life under the cloud of having been impeached.

For those interested in the particulars of the Chase case, read what follows from the U.S. Senate website. Others, skip ahead.

Samuel Chase had served on the Supreme Court since 1796. A staunch Federalist with a volcanic personality, Chase showed no willingness to tone down his bitter partisan rhetoric after Jeffersonian Republicans gained control of Congress in 1801. Representative John Randolph of Virginia, at the urging of President Thomas Jefferson, orchestrated impeachment proceedings against Chase, declaring he would wipe the floor with the obnoxious justice. The House voted to impeach Chase on March 12, 1804, accusing Chase of  refusing to dismiss biased jurors and of excluding or limiting defense witnesses in two politically sensitive cases. The trial managers (members of the House of Representatives) hoped to prove that Chase had “behaved in an arbitrary, oppressive, and unjust way by announcing his legal interpretation on the law of treason before defense counsel had been heard.” Highlighting the political nature of this case, the final article of impeachment accused the justice of continually promoting his political agenda on the bench, thereby “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan.”

On November 30, 1804, the Senate appointed a committee to “prepare and report proper rules of proceedings” for the impeachment trial. When they took up the case against the Federalist justice in January 1805, the Senate consisted of 25 Jeffersonian Republicans and nine Federalists. Chase appeared before the members on January 4, 1805, to answer the charges. He declared that he was being tried for his political convictions rather than for any real crime or misdemeanor and requested a one-month postponement to prepare a defense. The Senate agreed and the trial began in earnest on February 4.

Chase’s defense team, which included several of the nation’s most eminent attorneys, convinced several wavering senators that Chase’s conduct did not warrant his removal from office. With at least six Jeffersonian Republicans joining the nine Federalists who voted not guilty on each article, the Senate on March 1, 1805, acquitted Samuel Chase on all counts. A majority voted guilty on three of the eight articles, but on each article the vote fell far short of the two-thirds required for conviction. The Senate thereby effectively insulated the judiciary from further congressional attacks based on disapproval of judges’ opinions. Chase resumed his duties at the bench, where he remained until his death in 1811.

Sounds OK, but obviously the mass impeachment of a majority of the court would be a way bigger deal, and would definitely boost ratings on both Fox and MSNBC.

 

Of the reaction, to date, of state officials to the court’s ruling, Bell said:

I think we certainly have seen the AG step up. We need to rally around those people who do stand up. We need to lend our voices across the state and across the nation . We need to add our voices so that those folks who are willing to stand between us and whatever may be coming at us – and we can pretty clearly see what that is –  let’s add our voice so that they know that they can take the steps necessary to state our position, to keep our society intact, and … challenge the lack of legality, and challenge the lack of constitutionality.

We need to add our voices for state officials who are standing in the gap, so they can stand as firmly in the gap as we  would expect them to and, in my opinion, go so far as to say, “Not in Texas,” and bolster those individuals so that they have the strength of numbers to offset the efforts by the pollsters to define the landscape.

Of impeachment, Bell said.

That’s the what the Founding Fathers put in place to make sure that if we reached a day like this day, we had some recourse. I’m saying, let’s use that political recourse.

Bell said the marriage case was not the only grounds for impeachment, but it was the most compelling because, in his view, the chief justice’s dissent articulates the grounds for impeachment (By contrast, the Warren Court’s decision in Brown, a precipitating factor for impeachment efforts, was unanimous.)

The reason that I mention the marriage case with the impeachment is it puts it outside  the case of me being viewed as the interpreter of whether or not it is bad behavior and it literally looks at the chief justice’s definition  to best assert that.

I think it’s not limited to that, but the fact that the dissent of those justices, and particularly the chief justice, was so forward – it’s more than just a scathing dissent – it is a call for the public to recognize that the court is impotent in its ability to enforce this edict. He said that. Why are we acting as if it were potent?

From Roberts’ dissent:

With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

From Bell:

(Roberts) says that court acts without the support of law. That is lawless conduct. That it acts without the support of constitutional authority. That is misconduct. 

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More from Roberts, in which, he essentially points out that culturally, folks like Cecil Bell have no representation on the court:

Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in East and West-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

From Bell:

Some of the other justices described it as following the disappearing trail of legalistic marble jarble, just tomfoolery and foolishness and even Kennedy says it doesn’t look to law, it doesn’t look to constitutionality, it looks to individualism and love and while those may be meritorious in and of themselves, that they are not what the Supreme Court justice is supposed to consider.

From Scalia’s dissent:

As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’” couples in same-sex marriages.”

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Bell said that while the “the attorney’s interpretation,” is that, “the Supreme court is the final authority and that whatever their edicts are is the law of the land,” the Founding Fathers were not all lawyers. There were business people and farmers and ranchers (though they might not have used the term) like himself, who understood that beyond the final legal appeal, there was built into the system, a further political appeal.

We’re not without the ability to take action and I don’t know why it is that  we are at a time when the media, and many of our elected officials tell us that we have no recourse. I think that’s a total lack of leadership. It’s a willingness to take the easy political trail or to appease the political correctness of the day.

Those folks who want to change (the law to allow gay marriage) work hard and speak out and are constantly energized to act.

It is we, as a majority, who don’t tend to react until we lose something.

The majority spends a tremendous amount of time asleep, a sleeping giant.

 Right now we are awakened and looking for guidance or leadership.

By establishing a PACT for the Constitutional Restoration of State Sovereignty Monday, Bell said,We’re trying to provide that leadership.”

The gay marriage ruling, and what to do about it, is certain to play a big role in the Republican Party’s presidential nominating contest.

While the candidates have uniformly condemned the decision, Texas Sen. Ted Cruz has gone further, describing the Obamacare and gay marriage decisions on Sean Hannity’s show on Fox as  “some of the darkest 24 hours in our nation’s history.”

Here is Cruz, on TheBlaze with Glenn Beck.

About four minutes in he talks about how, “We are seeing a propaganda effort from mainstream media and from Hollywood” on behalf of gay marriage.

“Forty states  – four zero – have passed either  laws or constitutional amendments protecting traditional marriage,” Cruz said. “When it goes to the ballot box, the people vote very differently from what the Hollywood advocates claim the American people want.”

“So this notion that gets repeated every day on the mainstream media is baloney,” Cruz said. “If it were true that the American people wanted this, there would be no need for a court case because they could win at the ballot box.  They haven’t been winning at the ballot box. They are doing this because they can’t win at the ballot box.”

Writing in National Review, Cruz argued:

This week, we have twice seen Supreme Court justices violating their judicial oaths. Yesterday, the justices rewrote Obamacare, yet again, in order to force this failed law on the American people. Today, the Court doubled down with a 5–4 opinion that undermines not just the definition of marriage, but the very foundations of our representative form of government. Both decisions were judicial activism, plain and simple. Both were lawless.

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Sadly, the political reaction from the leaders of my party is all too predictable. They will pretend to be incensed, and then plan to do absolutely nothing. That is unacceptable. On the substantive front, I have already introduced a constitutional amendment to preserve the authority of elected state legislatures to define marriage as the union of one man and one woman, and also legislation stripping the federal courts of jurisdiction over legal assaults on marriage.

Cruz did not call for impeachment of the offending justices, but did call for amending the Constitution to require that the justices face periodic retention elections.

In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.

Bell’s Monday press conference was preceded by rumors that he might be announcing plans to challenge Joe Straus for speaker in 2015.

He told me, “that is a question for a different day, not this day.”

But, he’s not ruling it out.

“It is not sound for any member to limit what their abilities are,” he said.

As for being on Texas Monthly’s Worst List, Bell had this to say:

It didn’t shock me, but it is interesting that standing on principles and for issues as important as our, well the basis of our society and our traditional values, gets you on the worst list.

It certainly hasn’t caused me not to sleep good at night, but you always would prefer not to be on it.

There are different things that people might put you on the worst list for, but I try to be a good legislator with vision and even-handed in my dealing with my colleagues and I will continue to do that.

Did he buy a copy of Texas Monthly to read it?

I have not read it but my wife told me what it said.

She said, “You gonna buy Texas Monthly.” I said, “I’m not going to contribute to them.”

I don’t read it every month but I do usually buy one around that time because you’re close to those folks on the floor so it’s interesting to see how they view the conduct of those individuals … you kind of related to them on a first-name basis.

My comment to (my wife) was, “I would rather make the Worst List for standing on principle and for Texas and Texans than being on the Best List because I had none.” She just kind of nodded. She gets really upset on stuff like that.”

Any other family reaction?

Oh, my mother – “What did you do?” I said, “Mama, I did exactly what you told me to do.”

She wasn’t too mad. She just called me and said, “How in the world?” And I said, “Well, let me tell you.”

I also mentioned to Bell that, despite writing how much they liked his hat, Texas Monthly used an unflattering photo illustration of a hatless Bell to accompany his Worst write-up.

It’s like the picture you use when you’re campaigning against someone and you want to put them in a bad light – that’s the one with the drool on it.

That one did me no favors.

But he wasn’t too bothered by it.

When you get elected to the Legislature, he said, “that’s the world you agree to live in.”

A not particularly good photo I took of Bell when I first laid eyes on him signing in as a freshman legislator in 2013.

A not particularly good photo I took of Bell when I first laid eyes on him signing in as a freshman legislator in 2013.

 

 

 

 

 

 

 

 

 

 

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