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Wednesday, April 05, 2017

The Framers Didn't Think "Advise and Consent" re Confirmations Needed a Supermajority

I'm reading a book about the American presidents and how they rate when judged by constitutional standards. It wasn't long before I needed to refresh my recollection of Article II of the U.S. Constitution, which establishes the executive branch. In reviewing it, I noticed some pretty solid evidence that the Framers of that Constitution would not have thought a super-majority of the Senate -- such as a 60-vote threshold -- necessary for confirmation of presidential nominations.

Section 2 of Article II  is one long sentence. The first clause (or whatever the appropriate grammatical term), up to the first semicolon, gives the president "the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . ." Note the "two thirds." That's a supermajority. Any time more than a majority is required in a vote, you have a supermajority.

Next comes the power to appoint various officers: "and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law . . . ." Same "Advice and Consent" language -- but no two thirds threshold. No supermajority. Evidently the Framers thought Treaties so important that the super-majority safeguard was necessary, but weren't as concerned about presidential appointments.

So the Democrats were well within the constitutional comfort zone when they amended Senate rules to drop the 60-vote requirement for cutting off debate on almost all presidential nominations. (The first version of that rule, by the way, dates from 1917 -- not from the Framers' era. For some background on Senate debate, filibusters, and the cloture rule, follow this link.) And the Republicans will, likewise, be doing no violence to the constitutional framework if (or, per most expectations, when) they eliminate the last vestige of that requirement in order to allow confirmation of Judge Gorsuch to the U.S. Supreme Court.

Monday, March 13, 2017

A terrible bill in the Arkansas General Assembly

Many years ago, a trial lawyer pulled me into an appeal -- and I ended up something of an expert in an area of the law I'd hardly known existed.

Many, perhaps most, parents don't know that in most states, at least under some circumstances (such as a parent's being widowed, separated, divorced, or unmarried), a parent's decision that a particular grandparent (or sometimes, great-grandparent) should not be allowed to supervise and/or transport and/or care for and/or spend time with a child may be challenged in court. Such a decision is usually reached after years of painful experience -- and not every parent is well equipped, personally or financially, to defend that position in an extended legal proceeding. In June 2000, the U.S. Supreme Court held that at least, trial courts must start out presuming that a fit custodial parent's decision to limit or deny nonparent visitation is in the child's best interest, and giving that decision special weight. Some state supreme courts, including that of Arkansas, have gone further, holding that only if the decision is likely to harm the child may the court override it. Arkansas's current statute governing grandparent and great-grandparent visitation accords with these rulings. But now, a bill has sped through the Arkansas House and will soon be heard in an Arkansas Senate committee that would flout this precedent and make it extremely difficult for Arkansas parents to fend off visitation they believe to be unwise.

HB 1773 would place the burden of proof on many parents seeking to limit or deny grandparent or great-grandparent visitation (specifically, single, divorced, or separated parents -- or married parents, if a judge considers that their decisions lack a "justifiable purpose"). Not only that, but the bill is so drafted that a parent would not satisfy his or her burden simply by proving that the petitioner seeks visitation that would not be in the child's best interest. The parent would ALSO have to prove that the petitioner does not have a “significant and viable” relationship with the child. Under this standard, visitation that is clearly not in the child’s best interest – for example, overnight or out-of-state visits with a sensitive toddler, or visitation with an asthmatic child in the petitioner’s smoke-filled home – may, and perhaps must, still be granted. Similarly, the parent must prove that the petitioner doesn’t have the capacity to give the child love, affection, and guidance – even if the parent has already proved that the petitioner is unwilling to cooperate with the parent, and that the parent’s decision is unlikely to distress or harm the child. As I've already mentioned, HB 1773 would also allow grandparents and great-grandparents to sue married parents peacefully raising their children, with no prior involvement in the judicial system, so long as they were able to convince a judge that the parents’ constitutionally protected decision to limit or deny visitation did not have a “justifiable purpose.” This judicial second-guessing has the potential to drag many families into the prolonged purgatory of family law litigation.

Nonparent visitation cases can be every bit as ugly, financially devastating, emotionally disruptive, and prolonged as divorce and post-divorce litigation. The resources that should go toward the child’s education, enrichment, and future are instead spent on legal fees. The ultimate victims, deprived of not only these resources but of the parents’ time and attention, and caught in an emotional cross-fire that may endure for many years: the children whose best interests are supposed to be the motive for the melee. Visitation orders also reduce the time the children can spend with other extended family members whose relationship to the parents is more harmonious. It is for these reasons that the family law bar in Indiana, despite the obvious financial incentive to back such litigation, has consistently opposed bills with effects similar to HB 1773 -- though those bills did not go as far as HB 1773 in contradicting constitutional requirements.

If anyone reading this post lives in Arkansas or has acquaintances who do, I hope you will bring this bill to their attention -- and soon. The Arkansas Senate Judiciary Committee will be hearing this bill any day now -- and if it passes out of committee, it will go to the Senate floor within two days. The committee's members' contact information may be found at this link.