He opens by saying that he supported the nomination of Justice Sotomayor but opposed the nomination of Justice Kagan - thus, I suppose, "proving" that he's fair (one for, one against, see? FAIR AND BALANCED!).
Except that when you look even at the pieces he published (one in at philly.com, the other at the P-G), you'll see how he's changing his own rules to find a way to obstruct.
When he supported the nomination of Justice Sotomayor he wrote:
When John Roberts and Samuel Alito were nominated to the Supreme Court, Republicans argued that they should be confirmed based on their impeccable qualifications and mainstream jurisprudence. Now, Democrats are in power, and the same standard should apply.So even though they'd disagree on her rulings he'd vote for her because she was qualified.
After listening to much of Sonia Sotomayor's testimony to the Senate Judiciary Committee and carefully examining her 17-year record as a federal appellate judge, I have come to two conclusions. First, her record is somewhat left of center, and I would likely disagree with many of her rulings if she were a Supreme Court Justice. Second, she is an extremely capable and qualified jurist.
If I were a U.S. senator, I would vote for her confirmation, because objective qualifications should matter more than ideology in the judicial confirmation process. [Emphasis added.]
And even with is non-support of the Kagan nomination, he undercuts his current and ongoing obstructionism. Take a look:
Last year, I supported President Obama's nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. In an op-ed, I noted that while I knew I would likely disagree with many of Justice Sotomayor's decisions, she was nonetheless worthy of support because objective qualifications should matter more than ideology in the judicial confirmation process.Wait. Pat Toomey wrote that?
I stand by that position and maintain that a president's selection should not be thoughtlessly vetoed or filibustered by the Senate based on the nominee's presumed ideology. Rather, the Senate should only deny a nominee if he or she holds positions outside the judicial mainstream or is otherwise hostile to basic constitutional principles. [Emphasis added.]
Yep.
But let's remain on his opposition to Kagan for a second. As I wrote at the time, he got a number of very important facts just plain wrong. For example he mislead the public when he wrote that:
- She wouldn't rule out the use of federal power to force citizens to eat their veggies all in the name of the Constitution's "Commerce Clause" (in fact she said that noneconomic activity - like eating - was beyond congressional authority given to it by the Commerce Clause).
- She argued for the congressional authority to ban political pamphlets (when in fact, she was arguing that a corporation must use a PAC not any general funds to fund any political speech).
- She circumvented federal law by denying military recruiters equal access to students at Harvard (when in fact she was following the federal law in regards to any recruiter who discriminated).
First he said this:
Under our Constitution's system of checks and balances, federal courts play an essential role in limiting executive abuses of power.Then after a few paragraphs regarding the EPA, he wrote:
I also raised with Judge Garland his approach to terrorist detainee cases. He authored an opinion that resulted in the release of 17 Guantanamo Bay prisoners who were part of a group of violent Islamist extremists the State Department had designated as terrorists.It took a while but I found the conveniently-unnamed-by-Toomey opinion written by Merrick Garland. It was almost as if he didn't want anyone to see the facts of the case. But I could be wrong.
They were captured after fleeing an Afghanistan training camp funded by al Qaeda and the Taliban. Judge Garland overruled a military tribunal's unanimous finding that these detainees were enemy combatants.
He second-guessed the military finding, contrary to federal statute. And his conclusion left the military with the choice of either jeopardizing the safety of intelligence informants or releasing enemy combatants.
As a result of Garland's decision, the detainees were ordered released into the United States. Fortunately, another panel of judges on the D.C. Circuit halted this, and the detainees were instead released into other countries.
In our discussion, Judge Garland again did not allay my concerns.
In an era in which terrorists are actively using every weapon at their disposal to kill innocent Americans, we cannot afford to appoint a Supreme Court justice who fails to understand these dangers.
Here's the opening paragraph of that opinion:
A Combatant Status Review Tribunal has decided that petitioner Huzaifa Parhat, a detainee at the United States Naval Base at Guantanamo Bay, Cuba, is an “enemy combatant.” This is the first case in which this court has considered the merits of a petition to review such a decision under the Detainee Treatment Act of 2005. The Act grants this court jurisdiction to “determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.” We conclude that the Tribunal’s decision in Parhat’s case was not valid. [Emphasis added.]Wait. Didn't Pat say that "contrary to federal statute"?? And isn't that completely wrong?
Let's move on to the second paragraph of the opinion:
Parhat is an ethnic Uighur, who fled his home in the People’s Republic of China in opposition to the policies of the Chinese government. It is undisputed that he is not a member of al Qaida or the Taliban, and that he has never participated in any hostile action against the United States or its allies. The Tribunal’s determination that Parhat is an enemy combatant is based on its finding that he is “affiliated” with a Uighur independence group, and the further finding that the group was “associated” with al Qaida and the Taliban. The Tribunal’s findings regarding the Uighur group rest, in key respects, on statements in classified State and Defense Department documents that provide no information regarding the sources of the reporting upon which the statements are based, and otherwise lack sufficient indicia of the statements’ reliability. Parhat contends, with support of his own, that the Chinese government is the source of several of the key statements. [Emphasis added.]Wait. Didn't Pat say that Garland failed to understand the dangers of terrorists who will use "every weapon at their disposal to kill innocent Americans"? But didn't Garland write that Parhat is not Taliban or al Qaida and never participated in any terrorist act against the US or it's allies?
Isn't that a Y-U-U-GE lie of omission by Pat Toomey?
And now the third paragraph of Garland's opinion. The third paragraph:
Parhat’s principal argument on this appeal is that the record before his Combatant Status Review Tribunal is insufficient to support the conclusion that he is an enemy combatant, even under the Defense Department’s own definition of that term. We agree. To survive review under the Detainee Treatment Act, a Tribunal’s determination of a detainee’s status must be based on evidence that both the Tribunal and the court can assess for reliability. Because the evidence the government submitted to Parhat’s Tribunal did not permit the Tribunal to make the necessary assessment, and because the record on review does not permit this court to do so, we cannot find that the government’s designation of Parhat as an enemy combatant is supported by a “preponderance of the evidence” and “was consistent with the standards and procedures” established by the Secretary of Defense, as required by the Act.Not a terrorist. Not a member of al Qaida or the taliban and yet dumped into Gitmo solely on the authority of the unitary executive.
What was it that Pat Toomey said about the courts being a balance to any abuses to the power of the executive branch?
How many times has Pat Toomey mislead us? I've stopped counting.
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