Fire Hydrant of Freedom
Politics, Religion, Science, Culture and Humanities => Politics & Religion => Topic started by: Crafty_Dog on October 19, 2006, 05:32:38 AM
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AT LAW
Sending a Message
Congress to courts: Get out of the war on terror.
BY JOHN YOO
Thursday, October 19, 2006 12:01 a.m. EDT
During the bitter controversy over the military commission bill, which President Bush signed into law on Tuesday, most of the press and the professional punditry missed the big story. In the struggle for power between the three branches of government, it is not the presidency that "won." Instead, it is the judiciary that lost.
The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3.
Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts.
Until the Supreme Court began trying to make war policy, the writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis). Even after hostilities ended, the justices turned away lawsuits by enemy prisoners seeking to challenge their detention. In Johnson v. Eisentrager, the court held that it would not hear habeas claims brought by alien enemy prisoners held outside the U.S., and refused to interpret the Geneva Conventions to give new rights in civilian court against the government. In the case of Gen. Tomoyuki Yamashita, the court refrained from reviewing the operations of military commissions.
In Hamdan, the court moved to sweep aside decades of law and practice so as to forge a grand new role for the courts to open their doors to enemy war prisoners. Led by John Paul Stevens and abetted by Anthony Kennedy, the majority ignored or creatively misread the court's World War II precedents. The approach catered to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations, rather than hewing to wise but boring precedents.
Thoughtful critics point out that because the enemy fights covertly, the risk of detaining the innocent is greater. But so is the risk of releasing the dangerous. That's why enemy combatants who fight out of uniform, such as wartime spies, have always been considered illegals under the law of war, not entitled to the same protections given to soldiers on the battlefield or ordinary POWs. Disguised suicide- bombers in an age of WMD proliferation and virulent America-hatred are more immediately dangerous than the furtive information-carriers of our Cold War past. We now know that more than a dozen detainees released from Guantanamo have rejoined the jihad. The real question is how much time, energy and money should be diverted from winning the fight toward establishing multiple layers of review for terrorists. Until Hamdan, nothing in the law of war ever suggested that enemy status was anything but a military judgment.
While there may be different ways to strike a balance, this is a decision for the president and Congress, not the courts. The Constitution gives Congress the authority to determine the jurisdiction of federal courts in peacetime, and also declares that habeas corpus can be suspended "in Cases of Rebellion or Invasion" when "the public Safety may require it." Congress's power is even greater when it is correcting the justices' errors. Courts are ill-equipped to decide whether vast resources should be devoted to reviewing military detentions. Or whether military personnel's time should be consumed traveling back to the U.S. for detainee hearings. Or whether we risk revealing information in these hearings that might compromise the intelligence sources and methods that may allow us to win the war.
This time, Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court's habeas powers in wartime because it disagreed with its decisions.
The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.
All this went overlooked during the fight over the bill by the media, which focused on Sens. McCain, Graham and Warner's opposition to the administration's proposals for the use of classified evidence at terrorist trials and permissible interrogation methods. In its eagerness to magnify an intra-GOP squabble, the media mostly ignored the substance of the bill, which gave current and future administrations, whether Democrat or Republican, the powers needed to win this war.
Mr. Yoo, professor of law at Berkeley and visiting scholar at the American Enterprise Institute, served in the Bush Justice Department from 2001-03. He is the author of "War By Other Means" (Grove/Atlantic 2006).
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Fielding Subpoenas
Bush recruits an expert on Presidential power.
Tuesday, January 9, 2007 12:01 a.m. EST
For a President said to be irrelevant, George W. Bush has certainly managed to hire a big name to be his next chief White House counsel. In recruiting Fred Fielding, Chief of Staff Josh Bolten has donned some necessary armor for the subpoena assault that is sure to come from Democrats in Congress.
Mr. Fielding replaces Harriet Miers, a Texan and personal friend of the President. Ms. Miers was an ill-fated nominee for the Supreme Court, but she served Mr. Bush well both on judicial selection and preserving Presidential powers. Both of those areas are likely to get fiercer as Democrats look to bloody the White House in the run-up to 2008.
It's hard to imagine a more experienced choice than Mr. Fielding on the subject of executive power. As deputy White House counsel from 1972 to 1974, he witnessed the modern low tide of Presidential authority as Richard Nixon was besieged by Watergate. And as Ronald Reagan's counsel from 1981 to 1986, he had to cope with a Democratic House that unleashed special prosecutors on the executive branch.
The "independent counsel" law has happily expired, but this Congress will be looking to assert itself in particular on war powers. Mr. Fielding understands the importance of fighting off such poaching--for the sake of Mr. Bush and the Office of the Presidency. This ought to mean recommending that Mr. Bush veto any weakening of last year's law on military tribunals, as well as resisting any further delegation of executive power to the judiciary for approving warrantless wiretaps of al Qaeda.
The question of responding to the avalanche of subpoenas will be more politically delicate. Congress has every right to conduct oversight of the executive branch, and the White House will be obliged to supply numerous documents. However, the principle of executive privilege is vital to Presidential decision-making, and preserving the privacy of that deliberative process will be one of Mr. Fielding's primary tasks.
Another duty will be offering Mr. Bush advice on judicial selection. The conventional Beltway wisdom is that Senate Democrats will block all but liberal nominees to the appellate courts, and that might be right. But the judges issue proved to be a good one for Republicans in both the 2002 and 2004 campaigns, and the White House shouldn't shrink from appointing capable members of the Federalist Society simply because they might not be confirmed.
This is an issue that deserves to be framed for 2008--all the more so if Mr. Bush gets another Supreme Court nomination. Democrats may want to block any Bush nominee, but they won't find it politically painless to do so if the President selects nominees as capable and conservative as Chief Justice John Roberts and Justice Samuel Alito.
Amid all the Washington talk of "bipartisanship," the reality of our current political division means inevitable conflict. It's good to see Mr. Bush recruiting some experienced generals for the battles ahead.
WSJ editorial
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This author was Supreme Court analyst for the Jim Lehrer News Hour and for the Chicago Tribune, now of ABC news. Today she writes at opinionjournal.com about my favorite justice on the court:
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The Truth About Clarence Thomas
He's an independent voice, not a Scalia lackey.
BY JAN CRAWFORD GREENBURG
Sunday, January 28, 2007 12:01 a.m. EST
Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive--and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.
That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.
Much of the documentary evidence for this comes from the papers of Justice Harry Blackmun, who recorded the justices' votes and took detailed notes explaining their views. I came across vivid proof while reading the papers as part of my research for a book about how the Rehnquist Court--a court with seven justices appointed by Republican presidents--evolved into an ideological and legal disappointment for conservatives.
Justice Thomas's first term was especially interesting. He replaced legendary liberal icon Thurgood Marshall, and joined the court just a year after David Souter took William Brennan's seat. There appeared to be a solid conservative majority, with the court poised to finally dismember the liberal legacy of the Warren Court. But that year it instead lurched inexplicably to the left--even putting Roe v. Wade on more solid ground.
Justice Thomas's first year on the job brought to life the adage that a new justice makes a new court. His entry didn't merely change the vote of the liberal justice he replaced. It turned the chessboard around entirely, rearranging ideological alliances. Justice Thomas acted as a catalyst in different ways, shoring up conservative positions in some cases and spurring others--the moderate Justice Sandra Day O'Connor, in particular--to realign themselves into new voting blocs.
Consider a criminal case argued during Justice Thomas's first week. It concerned a thief's effort to get out of a Louisiana mental institution and the state's desire to keep him there. Eight justices voted to side with the thief. Justice Thomas dissented, arguing that although it "may make eminent sense as a policy matter" to let the criminal out of the mental institution, nothing in the Constitution required "the states to conform to the policy preferences of federal judges."
After he sent his dissenting opinion to the other justices, as is custom, Justices Rehnquist, Scalia and Kennedy changed their votes. The case ended up 5-4.
Justice Thomas's dissents persuaded Justice Scalia to change his mind several times that year. Even in Hudson v. McMillan, the case that prompted the New York Times to infamously label Justice Thomas the "youngest, cruelest justice," he was again, initially, the lone dissenter. Justice Scalia changed his vote after he read Justice Thomas's dissent, which said a prison inmate beaten by guards had several options for redress--but not under the Eighth Amendment's prohibition of "cruel and unusual punishment."
From the beginning, Justice Thomas was an independent voice. His brutal confirmation hearings only enforced his autonomy, making him impervious to criticism from the media and liberal law professors. He'd told his story, and no one listened. From then on, he did not care what they said about him.
Clarence Thomas, for example, is the only justice who rarely asks questions at oral arguments. One reason is that he thinks his colleagues talk too much from the bench, and he prefers to let the lawyers explain their case with fewer interruptions. But his silence is sometimes interpreted as a lack of interest, and friends have begged him to ask a few questions to dispel those suggestions. He refuses to do it. "They have no credibility," he says of critics. "I am free to live up to my oath."
But the forcefulness and clarity of Justice Thomas's views, coupled with wrongheaded depictions of him doing Justice Scalia's bidding, created an internal dynamic that caused the court to make an unexpected turn in his first year. Justice O'Connor--who sought ideological balance--moved to the left. With the addition of Chief Justice John Roberts and Associate Justice Samuel Alito, the court now is poised to finally fulfill the hopes of the conservative movement. As George W. Bush told his legal advisers early in his presidency, he wanted justices in "the mold of Thomas and Scalia." Interestingly, on President Bush's marquee, Justice Thomas got top billing.
Ms. Crawford Greenburg, legal correspondent for ABC News, is the author of "Supreme Conflict: The Inside Story for Control of the United States Supreme Court" (Penguin Press, 2007).
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Crafty made the following comment as part of a preface to an editorial on a current homeland security proposal:
"... but a President who chose and stands by an Attorney General who doesn't belive that habeas corpus is a Constitutional right has credibility problems of his own too."
Crafty, can you expand on what you meant. I searched and found what you are likely referring to - the following exchange between Gonzales and Sen. Specter in a committee meeting this January:
Gonzales: There is no express grant of habeas in the Constitution. There's a prohibition against taking it away. ...
Specter: Wait a minute. Wait a minute. The Constitution says you can't take it away except in cases of rebellion or invasion. Doesn't that mean you have the right of habeas corpus unless there's an invasion or rebellion?
Gonzales: I meant by that comment, the Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right to habeas. Doesn't say that. It simply says the right of habeas corpus shall not be suspended except...
Specter: You may be treading on your interdiction and violating common sense, Mr. Attorney General.
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I'm not an attorney, but wondered if Gonzales was making a correct technical point while creating a public relations blunder, or is there a real difference in views here.
In the US Constitution under the heading of 'Limits on Congress' I see the only reference: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
To the untrained eye, it would seem that a) the right of habeus, to not be detained long without charges filed, is presumed in the constitution, b) the limit placed is on Congress and not on the Commander in Chief in wartime, and c) the context of the threat of terrorism against public safety at this moment in time might persuasively be argued to comprise a "Rebellion or Invasion".
Presuming a right by reading the limits placed on it in the constitution didn't cut it in the (faulty) Kelo decision allowing taking of private property to give/sell to other private concerns. I think it was the Justice Thomas dissent that pointed out the irony and tragedy that they couldn't have even entered or searched without permission or a warrant and they couldn't have gotten a warrant without probable cause, yet the majority ruled that they could take title and demolish it. I wouldn't want to bet my life on presumed rights under activist judges.
Look forward to reading the thoughts of others on this.
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Bottom line, al qaeda has no habeas corpus rights, or coverage under the laws of war, being illegal combatants.
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Doug:
You are right.
GM:
You too.
:-D
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GONZALES WANTS ARBITRARY POWER TO BLOCK GUN PURCHASES; SAF SAYS HE SHOULD RESIGN
BELLEVUE, WA – Attorney General Alberto Gonzales’ troubling support of legislation that would allow him and future attorneys general the arbitrary power to block firearms purchases without due process is cause for him to step down as the nation’s highest ranking law enforcement officer, the Second Amendment Foundation said today.
The bill, S. 1237, was introduced last week at the Justice Department’s request by Sen. Frank Lautenberg (D-NJ), one of the most extreme anti-gunners in Congress. Called the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2007,” this legislation would give the Attorney General discretionary authority to deny the purchase of a firearm or the issuance of a firearm license or permit because of some vague suspicion that an American citizen may be up to no good.
“This bill,” said SAF founder Alan Gottlieb, “raises serious concerns about how someone becomes a ‘suspected terrorist.’ Nobody has explained how one gets their name on such a list, and worse, nobody knows how to get one’s name off such a list.
“The process by which someone may appeal the Attorney General’s arbitrary denial seems weak at best,” Gottlieb suggested, “and there is a greater concern. When did we decide as a nation that it is a good idea to give a cabinet member the power to deny someone’s constitutional right simply on suspicion, without a trial or anything approaching due process?
“We’re not surprised that General Gonzales has found an agreeable sponsor in Frank Lautenberg,” Gottlieb observed. “The senator from New Jersey has never seen a restrictive gun control scheme he did not immediately embrace, and S. 1237 is loaded with red flags. It would allow an appointed bureaucrat the authority to suspend or cancel someone’s Second Amendment right without even being charged with a crime.
“Attorney General Gonzales has no business asking for that kind of power over any tenet in the Bill of Rights,” Gottlieb said. “He took an oath to uphold the Constitution, not trample it. Perhaps it is time for him to go.”
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Thanks for posting. The act is called:"Denying Firearms and Explosives to Dangerous Terrorists Act of 2007". - I'll keep an open mind to arguments otherwise, but my first reaction is that denying firearms and explosives to dangerous terrorists is a good idea (obviously), that the word "arbitrary" would mean the denial could be done without revealing sources and methods, and that the criteria would not require legal threshholds such as preponderance of the evidence, that would also require disclosure. The Attorney General hopefully has good motives, and some oversight: congress, the President and the next election. I think I'm as big a liberty fanatic as anyone, but I recognize that a serious enemy wants to cause serious carnage here.
Like the FISA/surveillance issue, in the best case a tragedy is averted. In the worst case an innocent person has accidental contact or communication with an offshoot or a contact of an alleged terrorist organization and might find that communications looked at or in this case that someone from Washington is blocking their ability to buy a firearm or or to buy expolsives. I strongly support the "shall issue" wording of concealed carry permit laws, but see this an exception, as you should have with a felon, a psycho or 'an arbitrary block' signed by the Attorney General of the United states. I don't don't see that as the end of second amendment rights.
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A friend of mine owns a quarry of very hard rock that is broken form the ground with explosives. He was questioned after the Oklahoma City bombing about whether anyone had ever approached him for explosives. Post 9/11 and in the context of suicide bombers that can't be deterred with death penalty or any other law enforcement after the fact, I would hope that preventive policies are in place and from my point of view that their hands are not tied.
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Meanwhile, here in the west suburbs of Minneapolis I received from law enforcement today a registered letter threatening serious legal consequences against me because my tenant has a vehicle in his private driveway with a sticker that is no longer current. I guess I'd rather have them hunting terrorists.
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BY JAMES TARANTO
Tuesday, June 12, 2007 3:24 p.m. EDT
WSJ
Unpack Your Adjectives
From a New York Times editorial today:
. . . grandiose . . . threatening . . . treacherous . . . dire . . . disastrous . . . powerful . . . relevant . . . strong . . . odious . . .
They left out "foggy" and "soggy." The subject is Al-Marri v. Wright, in which the Fourth U.S. Circuit Court of Appeals held yesterday that the U.S. lacks the authority to detain as an enemy combatant one Ali Saleh Kahlah al-Marri, a Qatari national and U.S. resident alien who was captured in Peoria, Ill., and found to be "engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism."
The U.S. Supreme Court has previously held that U.S. citizens can be held as enemy combatants, including one--Abdullah al-Muhajir, né Jose Padilla--who had been captured in the U.S. What distinguishes al-Marri's case, according to Judge Diana Motz, is this:
Al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world.
To Motz and Judge Roger Gregory, both Clinton nominees, that makes him a civilian. Judge Henry Hudson dissented:
Although al-Marri was not personally engaged in armed conflict with U.S. forces, he is the type of stealth warrior used by al Qaeda to perpetrate terrorist acts against the United States. . . . There is little doubt from the evidence that al-Marri was present in the United States to aid and further the hostile and subversive activities of the organization responsible for the terrorist attacks that occurred on September 11, 2001.
This makes clear the perversity of the court's reasoning. By its logic, alien terrorists are entitled to all the constitutional rights of civilians provided that they manage to stay out of Afghanistan and do their planning in America. The 9/11 terrorists, had they been caught, would have enjoyed more rights under this scheme than some low-level Taliban foot soldier.
So-called civil liberties advocates who are cheering this ruling ought to take a moment to ponder its possible consequences. The Constitution gives the president the power to suspend habeas corpus in the event of rebellion or invasion, as President Lincoln did in 1862. President Bush is not about to suspend the writ.
But let's say that two years from now America suffers another terrorist attack on the scale of 9/11, carried out by people who, like Al-Marri, did their planning within America and never set foot on a conventional battlefield. In the face of such an "invasion," does anyone doubt that, say, a President Hillary Clinton would suspend habeas corpus in a New York minute?
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Comments?
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Al Qaeda's American Harbor
A bad decision likely to be overturned.
WSJ
Thursday, June 14, 2007 12:01 a.m. EDT
On Monday, the Fourth Circuit Court of Appeals ruled that al Qaeda agent Ali Saleh Kahlah al-Marri can't be detained as an enemy combatant. The press corps is reporting--no, shouting, cheering, doing somersaults--that this is further proof that Bush Administration detainee policies are doomed to legal oblivion.
Well, here's a wager: This decision is the outlier and will be overturned on appeal, while most of the Administration's legal antiterror architecture will survive past January 20, 2009. Any takers?
There's no doubt that the 2-1 Fourth Circuit ruling in Al-Marri v. Wright is remarkable and dangerous in its sweeping judicial claims. Judges Diane Motz and Roger Gregory, both Bill Clinton nominees, ruled that a person like al-Marri does not qualify as an enemy combatant, because the U.S. cannot be "at war" with a private group like al Qaeda.
For the "enemy combatant" moniker to apply, the court said, a terrorist must have set foot in the soil "alongside" the forces of an enemy state--i.e., Iraq or Afghanistan. This is odd in itself, since by definition al Qaeda is a transnational organization. In some respects this makes it more of a security threat because there is no government the U.S. can hold responsible for its actions.
By such fancy footwork, the judges also get around the fact that their decision contradicts existing precedent in both their own circuit and the Supreme Court. In Hamdi v. Rumsfeld, the Supreme Court ruled that an American captured on a battlefield in Afghanistan could be designated an enemy combatant. Ditto Fourth Circuit precedent, which strengthened Hamdi with its ruling in the case of Jose Padilla, the U.S. citizen who was arrested at O'Hare airport with plans to detonate a dirty bomb.
Judges Motz and Gregory duck these precedents by ruling that al-Marri belongs in a different category, having never taken up arms on a foreign battlefield. He was merely trying to kill us here at home. Al-Marri came to the U.S. on a student visa as part of an al Qaeda "sleeper cell," looking for new opportunities to disrupt the U.S. financial system after September 11. Working for 9/11 honcho Khalid Sheikh Mohammed, he posed as a student at Bradley University while plotting. He was arrested for credit card fraud, and as his case worked through the court system, evidence of his al Qaeda affiliation built and he was transferred to a military brig in South Carolina.
There are few defined battlefields in the war on terror. So for new homegrown terrorist recruits, the Fourth Circuit decision is great news: If you join al Qaeda today, and get your training outside a wartime-environment, any violent acts you commit against the U.S. cannot qualify you as an enemy combatant or subject you to the system of military interrogation. You will instead be prosecuted in the U.S. criminal justice system, which would make any al Qaeda operative's day.
A case against a terrorist suspect would require a level of transparency that could compromise intelligence gathering and possibly the nation's security. Through the discovery process, the terrorist "defendant" would be privy to the sources that compromised him--sources that would thereby be made obsolete. And don't forget the domestic criminal rules of evidence. You think a lot of cases are dismissed on "technicalities" now?
This is the reason the Bush Administration decided on a separate legal process for handling terror cases--a process that has been substantially upheld by the courts. While the Supreme Court has put some limits on executive decision-making, it has upheld the President's right to designate "enemy combatants" and upheld the legality of Guantanamo and of military commissions. The next President may decide to close Guantanamo as a global PR gesture, but we doubt he or she will turn al Qaeda over to the civilian courts. And don't expect Hillary Clinton to make it a major campaign plank.
This assumes, to be sure, that this decision is overturned on appeal, either by the entire Fourth Circuit or by the Supreme Court. By the way, under the Military Commissions Act, cases of this nature are supposed to go to the D.C. Circuit Court of Appeals, and then on appeal to the Supreme Court. The Fourth Circuit panel's justification for taking the case was tortured enough to underscore that the judges knew better. Let's hope they're overturned and that their ruling becomes an unfortunate historical footnote.
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Don’t Listen to What the Man Says
NY Times editorial
June 17, 2007
If the Supreme Court, with its new conservative majority, wanted to announce that it was getting out of the fairness business, it could hardly have done better than its decision last week in the case of Keith Bowles. The court took away Mr. Bowles’s right to challenge his murder conviction in a ruling that was so wrong and mean-spirited that it seemed like an outtake from MTV’s practical joke show “Punk’d.”
Mr. Bowles, an Ohio inmate, challenged his conviction in federal district court and lost. The court told Mr. Bowles that he had until Feb. 27 to appeal. He filed the appeal on Feb. 26, and was ready to argue why he was wrongly convicted. But it turned out the district court made a mistake. The appeal should have been filed by Feb. 24.
The Supreme Court ruled, 5 to 4, in a majority opinion written by Justice Clarence Thomas, that Mr. Bowles was out of luck, and his appeal was invalid. So much for heeding a federal judge.
The decision was wrong for many reasons. The Supreme Court has made clear in its past rulings that deadlines like this are not make-or-break. Appeals could still be heard, the court recognized in the past, if there were “unique circumstances” that accounted for the delay. Clearly, following an order from a federal judge is such a circumstance.
Courts also have the authority to create an exception to the rules in the interest of fairness. The Supreme Court has recognized that an “equitable exception” should be granted when a party has relied on an order from a federal judge. By refusing to do so now, Justice David Souter argued for the dissenters, the court was saying that “every statement by a federal court is to be tagged with the warning ‘Beware of the judge.’ ”
The four dissenters distilled this case perfectly when they said, “it is intolerable for the judicial system to treat people this way.”
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The Patriot Post
Founders' Quote Daily
"It will be of little avail to the people, that the laws are made
by men of their own choice, if the laws be so voluminous that they
cannot be read, or so incoherent that they cannot be understood;
if they be repealed or revised before they are promulgated, or
undergo such incessant changes that no man, who knows what the
law is to-day, can guess what it will be to-morrow."
-- Alexander Hamilton and James Madison (Federalist No. 62, 1788)
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WASHINGTON — President Bush, who presided over 152 executions as governor of Texas, wants to halt the state's execution of a Mexican national for the brutal killing of two teenage girls.
The case of Jose Ernesto Medellin has become a confusing test of presidential power that the U.S. Supreme Court, which hears the case this week, ultimately will sort out.
The president wants to enforce a decision by the International Court of Justice that found the convictions of Medellin and 50 other Mexican-born prisoners violated their rights to legal help as outlined in the 1963 Vienna Convention.
That is the same court Bush has since said he plans to ignore if it makes similar decisions affecting state criminal laws.
"The president does not agree with the ICJ's interpretation of the Vienna Convention," the administration said in arguments filed with the court. This time, though, the U.S. agreed to abide by the international court's decision because ignoring it would harm American interests abroad, the government said.
Texas argues that neither the international court nor Bush has any say in Medellin's case.
Medellin was born in Mexico, but spent much of his childhood in the United States. He was 18 in June 1993, when he and other members of the Black and Whites gang in Houston encountered two teenage girls on a railroad trestle.
The girls were gang-raped and strangled. Their bodies were found four days later.
Medellin was arrested a few days later. He was told he had a right to remain silent and have a lawyer present, but the police did not tell him that he could request assistance from the Mexican consulate.
Medellin gave a written confession. He was convicted of murder in the course of a sexual assault, a capital offense in Texas. A judge sentenced him to death in October 1994.
Medellin did not raise the lack of assistance from Mexican diplomats during his trial or sentencing. When he did claim his rights had been violated, Texas and federal courts turned him down because he had not objected at his trial. Mexico later sued the United States in the International Court of Justice in The Hague, Netherlands, on behalf of Medellin and 50 other Mexicans on death row in the U.S.
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Second post of the morning:
WORLD POWER
Another U.N. Power Grab
What would Reagan do? On the Law of the Sea Treaty, we know the answer.
BY WILLIAM P. CLARK AND EDWIN MEESE
Monday, October 8, 2007 12:01 a.m. EDT
It is an impressive testament to the abiding affection and political influence of former President Ronald Reagan that the fate of a controversial treaty now before the U.S. Senate may ultimately turn on a single question: What would Reagan do?
As we had the privilege of working closely with President Reagan in connection with the foreign policy, national security and domestic implications of the United Nations Convention on the Law of the Sea (better known as the Law of the Sea Treaty or LOST), there is no question about how our 40th president felt about this accord. He so strongly opposed it that he formally refused to sign the treaty. He even sent Donald Rumsfeld as a personal emissary to our key allies around the world to explain his opposition and encourage them to follow suit. All of them did so at the time.
Proponents of LOST, however, have lately taken--on these pages and elsewhere--to portray President Reagan's concerns as relatively circumscribed. They contend that those objections were subsequently and satisfactorily addressed in a multilateral accord known as the Agreement of 1994. To the extent that such assertions may induce senators who would otherwise oppose the Law of the Sea Treaty to vote for it, perhaps within a matter of weeks and after only the most cursory of reviews, we feel compelled to set the record straight.
Ronald Reagan actually opposed LOST even before he came to office. He was troubled by a treaty that had, in the course of its protracted negotiations, mutated beyond recognition from an effort to codify certain navigation rights strongly supported by our Navy into a dramatic step toward world government. This supranational agenda was most closely identified with, but not limited to, the Treaty's Part XI, which created a variety of executive, legislative and judicial mechanisms to control the resources of the world's oceans.
In a radio address titled "Ocean Mining" on Oct. 10, 1978, Mr. Reagan applauded the idea that "no nat[ional] interest of ours could justify handing sovereign control of two-thirds of the earth's surface over to the Third World." He added, "No one has ruled out the idea of a [Law of the Sea] treaty--one which makes sense--but after long years of fruitless negotiating, it became apparent that the underdeveloped nations who now control the General Assembly were looking for a free ride at our expense--again."
The so-called seabed mining provisions were simply one manifestation of the problems Ronald Reagan had with LOST. That was made clear by an entry in his diary dated June 29, 1982, after months of efforts to negotiate extensive changes in the draft treaty text came to naught. On that evening, President Reagan wrote: "Decided in [National Security Council] meeting--will not sign 'Law of the Sea' treaty even without seabed mining provisions."
The man selected by President Reagan to undertake those renegotiations was the remarkable James Malone. In 1984, Ambassador Malone explained why the Law of the Sea Treaty was unacceptable: "The Treaty's provisions were intentionally designed to promote a new world order--a form of global collectivism known as the New International Economic Order (NIEO)--that seeks ultimately the redistribution of the world's wealth through a complex system of manipulative central economic planning and bureaucratic coercion. The Treaty's provisions are predicated on a distorted interpretation of the noble concept of the Earth's vast oceans as the 'common heritage of mankind.'"
Interestingly, Ambassador Malone declared in 1995, "This remains the case today." That statement is particularly relevant insofar as LOST's supporters, including some of our colleagues from the Reagan administration, insist that the 1994 Agreement "fixed" the previously unacceptable Part XI provisions. As James Malone explained to a conference on the Law of the Sea Treaty before his untimely death more than a decade ago:
"All the provisions from the past that make such a [new world order] outcome possible, indeed likely, still stand. It is not true, as argued by some, and frequently mentioned, that the U.S. rejected the Convention in 1982 solely because of technical difficulties with Part XI. The collectivist and redistributionist provisions of the treaty were at the core of the U.S. refusal to sign."
He added, "The regime's structural arrangements place central planning ahead of free market interests in determining influence over world resources; and yet, the collapse of socialist central planning throughout the world makes this a step in the wrong direction."
In a comment that is, if anything, even more true at present, Ambassador Malone observed that: "Today, not only are the seabed mining provisions inadequately corrected, and the collectivist ideologies of a now repudiated system of global central planning still imbedded in the treaty, new and potentially serious concerns have arisen."
Currently, these include: the increasingly brazen hostility of the United Nations and other multilateral institutions to the United States and its interests; the organization's ambition to impose international taxes, which would allow it to become still less transparent and accountable to member nations; the determination of European and other environmentalists to impose the "precautionary principle" (a Luddite, "better safe than sorry" approach that requires proof no harm can come from any initiative before it can be undertaken); the increasing practice of U.S. courts to allow "universal jurisprudence" to trump American constitutional rights and laws; and the use of "lawfare" (multilateral treaties, tribunal rulings and convention declarations) by adversaries of the U.S. military as asymmetric weapons to curtail or impede American power and operations.
Such developments only serve to reinforce the concerns President Reagan rightly had about the central, and abiding, defect of the Law of the Sea Treaty: its effort to promote global government at the expense of sovereign nation states--and most especially the United States. One of the prime movers behind LOST, the late Elisabeth Mann Borgese of the World Federalist Association (which now calls itself Citizens for Global Solutions), captured what is at stake when she cited an ancient aphorism: "He who rules the sea, rules the land." A U.N. publication lauding her work noted that Borgese saw LOST as a "possible test-bed for ideas she had developed concerning a common global constitution."
While we would not presume to speak for President Reagan, his own words and those of the man who worked most closely with him and us on Law of the Sea matters, Jim Malone, make one thing clear: Even if the 1994 Agreement actually amended LOST (and there are multiple reasons why it did not actually alter so much as a single word of the treaty), Ronald Reagan's belief in the U.S. as an exceptional "shining city on a hill" and his enmity towards threats to our sovereignty in general, and global governance schemes in particular, were such that he would likely encourage the Senate to do today what he did in 1982: Reject LOST.
Judge Clark and Mr. Meese served in several capacities in President Reagan's administration including, respectively, as national security adviser and attorney general.
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The Real Clarence Thomas
His fidelity to the Constitution often leads to results liberals like.
WSJ
BY JOHN YOO
Tuesday, October 9, 2007 12:01 a.m. EDT
Supreme Court Justice Clarence Thomas again finds himself in the crosshairs of liberals. After 16 years of diligently avoiding the press, he has written a memoir, "My Grandfather's Son," that describes his life story--from birth into poverty and an upbringing by a grandfather descended from slaves to the tough confirmation battle that brought him to the Supreme Court.
The book honestly and openly denies his former employee Anita Hill's accusations of sexual harassment, which almost derailed his appointment to the nation's highest bench. Liberals now are girding to insinuate that Justice Thomas is so angry about the personal attacks on him during his confirmation hearings that he must be unfit to sit on the bench.
But if Justices Stephen Breyer or Ruth Bader Ginsburg are the apple of liberal groups' eye, does that mean that they are unfit because they must be biased? Liberal attacks on Justice Thomas echo segregation-era hate speech that would be called racist if leveled at any other black.
For years, critics whispered that Justice Thomas was a mere clone of Justice Antonin Scalia, and that he could not think for himself. When speculation ran high that Justice Thomas might rise to chief justice, Sen. Harry Reid called him "an embarrassment" whose "opinions are poorly written." Mr. Reid apparently had not read a Thomas opinion, and his own Senate Web site ended up providing a nice contrast on grammar and writing style with Justice Thomas's fine work. Now, they say, Justice Thomas is so bitter over his ugly treatment at the hands of liberals, he must be unable to impartially judge cases argued by groups like the ACLU, Sen. Joseph Biden or the Yale Law School.
Critics ignore the unique, powerful intellect that Justice Thomas brings to the court. He is the justice most committed to the principle that the Constitution today means what the Framers thought it meant.
At times, this can cause him to lean liberal. He agrees, for example, that the use of thermal imaging technology by police in the street to scan for marijuana in homes violates the Constitution's ban on unreasonable searches. He opposes the court's effort to place caps on punitive damages. He has voted to strike down literally thousands of harsher criminal sentences because they were based on facts found by judges rather than juries, as required by the Bill of Rights. He supports the right of anonymous political speech, and wants advertising and other commercial speech to receive the same rights as political speech.
So was it Justice Thomas's anger, or lack of intellect, that made him rule in favor of the rights of criminals, the press and the plaintiffs bar--one of the Democratic Party's largest financial supporters?
No one, of course, would deny that Justice Thomas has strong conservative views on constitutional law. He would reject much of affirmative action, end constitutional protection for abortion, recognize broad executive powers in wartime and allow religious groups more participation in public life. What he brings to the court as no other justice does is a characteristically American skepticism of social engineering plans promoted by elites--whether in the media, academia or well-heeled lobbies in Washington--and a respect for individual self-reliance and individual choice. He writes not to be praised by professors or pundits, but for the American people.
As his memoir shows, Justice Thomas's views were forged in the crucible of a truly authentic American story. This is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him. A man like this on the court is the very definition of the healthy diversity his detractors pretend to support.
In his dissent from the court's approval of the use of race in law-school admissions, he quoted Frederick Douglass: "If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!" Justice Thomas observed: "Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators."
In a 1995 race case, Justice Thomas explained without cavil why he thought the government's use of race was wrong. Racial quotas and preferences run directly against the promise of the Declaration of Independence that all men are created equal. Affirmative action is "racial paternalism" whose "unintended consequences can be as poisonous and pernicious as any other form of discrimination."
Justice Thomas speaks from personal knowledge when he says: "So-called 'benign' discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence." He argued that "these programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are 'entitled' to preferences."
By forswearing the role of coalition builder or swing voter--a position happily occupied by Justice Anthony Kennedy--Justice Thomas has used his opinions to highlight how the latest social theories sometimes hurt those they are said to help. Because he both respects grass-roots democracy and knows more about poverty than most people do, he dissented vigorously from the court's 1999 decision to strike down a local law prohibiting loitering in an effort to reduce inner-city gang activity. "Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes."
Justice Thomas is an admirer of the work of Friedrich Hayek and Milton Friedman, both classical liberals. His firsthand experience of poverty, bad schools and crime has led him to favor bottom-up, decentralized solutions for such problems.
He rejects, for example, the massive, judicially run desegregation decrees that have produced school busing and judicially imposed tax hikes. A student of a segregated school himself, Justice Thomas declares that "it never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior."
To Justice Thomas, the national government's command-and-control policies have failed to make the poorest any better off. Rather, they have simply suppressed innovation in solving the nation's problems. He believes that the Constitution allows not just states and cities, but religious groups, to experiment to provide better education. In a 2002 concurrence supporting the use of school vouchers, Justice Thomas again quoted Frederick Douglass: Education "means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free." Justice Thomas followed with the sad truth: "Today many of our inner-city public schools deny emancipation to urban minority students."
"While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers," Justice Thomas wrote, "poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society."
These are not the words of an angry justice, or a political justice, but of a human justice. Justice Thomas's personal story shows him to be all too aware of the imperfections in our society and mindful of the limits of the government's ability to solve them. That kind of understanding and humility, and personal courage in the face of incessant unjustified attack, is what most Americans would want on their Supreme Court.
Mr. Yoo is a professor at the Law School of the University of California at Berkeley, and a former Supreme Court clerk for Justice Thomas
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Too much in that article to give a full response to, but I'll pick a couple of parts.
In his dissent from the court's approval of the use of race in law-school admissions, he quoted Frederick Douglass: "If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!" Justice Thomas observed: "Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators."
A reasonable person might take those statements to mean that if a black person gets a chance to achieve and fails, then it's his own damn fault. Clarence's (pretty cynical) interpretation is that blacks shouldn't consider themselves entitled to even a chance.
Mr. Yoo is a professor at the Law School of the University of California at Berkeley, and a former Supreme Court clerk for Justice Thomas
Mr. Yoo is also the author of several memos defending torture and arguing for essentially un-checked power of the executive branch while working for the Justice Department under George W. Bush.
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A SLAPP Against Freedom
Judith Miller
Attorneys have an effective new way to defeat Islamic groups’ libel suits.
Nothing gets a journalist’s attention like a subpoena. While authoritarian regimes silence critics by murdering or jailing them, journalists (and other critics) in the United States face gentler, but still effective, intimidation: libel lawsuits. Over the last few years, Islamists have tried silencing reporters, scholars, and citizens by suing them for defamation, often successfully. But recent legal cases in California, Massachusetts, and Minnesota suggest that the tactic may finally be backfiring, at least in the United States, if not in Britain, where libel laws overwhelmingly favor plaintiffs. The American lawsuits’ outcomes—poorly covered by the media—represent victories for the free expression and public participation that the First Amendment guarantees.
The latest victory came in August, when an Islamic charity, KinderUSA, and its board chairman, Laila Al-Marayati, dropped the libel suit they had filed in April in California state court against former Treasury Department official Matthew Levitt, the Washington Institute for Near East Policy (which now employs him), and Yale University Press. In 2006, Yale published Levitt’s book on Hamas, which Washington says supports terrorism. Levitt never mentioned Al-Marayati in his book, but he did assert that KinderUSA, founded to raise money for Palestinian children, had ties to terrorist groups.
Al-Marayati and KinderUSA charged that Levitt had made “false and damaging” charges that caused “irreparable harm to its reputation,” and they sought at least $500,000 in damages, a public retraction, and a halt to the book’s distribution. But Levitt and his codefendants stood by his claims. In June, they filed a motion against the charity and its chairman, seeking to quash the libel suit and demanding that the plaintiffs pay all legal fees. They cited a California law that bans “SLAPP”—or “strategic litigation against public participation”—suits, which aim not at winning in court, but at intimidating into silence a group or a publication raising issues of public concern. “California enacted anti-SLAPP legislation to get rid of inappropriate lawsuits like this one,” they wrote in a 15-page brief.
Less than six weeks later, Al-Marayati and KinderUSA dropped the suit. Todd Gallinger, who represented the plaintiffs, insisted that the charity had sued not to intimidate or silence Levitt, but rather to force him to correct charges that it still considers libelous. “They were trying to suppress the charity’s legitimate activities,” he said. But KinderUSA underestimated the costs involved, he acknowledged, and the defendants’ anti-SLAPP motion was a factor in its decision to drop the suit.
“Anti-SLAPP laws are a very powerful tool,” agreed Roger Myers, an attorney who specializes in using the law to defend journalists in libel claims. “There has been a fairly dramatic decline in the number of libel cases being filed here in California.”
Levitt’s case isn’t unique. Last May, the Islamic Society of Boston dropped its suit against the Boston Herald, a local Fox news channel, journalist Steven Emerson, and 14 others. The Society had accused the defendants of libel and of infringing its civil rights by claiming that it had funded terrorist organizations, received money from Saudi Arabia, and bought land for a mosque below market value from the City of Boston.
Though Massachusetts’s anti-SLAPP law does not cover media firms, ten of the non-media defendants filed a motion to quash the Society’s suit. When a state judge rejected the motion, a legal discovery process got under way while the defendants appealed. Bank records and other documents revealed that, contrary to its claims, the Society had raised over $7 million from Saudi and other Middle Eastern sources and had funded two groups that the Bush administration has designated terrorist entities: the Holy Land Foundation for Relief and Development and the Benevolence International Foundation. Records also showed that Society directors had deleted all e-mails about the Society’s land purchase. Finally, discovery revealed that the deputy director of the Boston city agency in charge of negotiating the land deal not only was a Society member whom it had paid to raise money in the Middle East, but also secretly advised the group about obtaining the land cheaply—a clear conflict of interest.
On May 29, soon after the state appellate court heard arguments on the anti-SLAPP appeal, the Society abandoned the suit. Though its lawyers did not respond to requests for comment and its website tried to put a good face on the surrender, Jeff Robbins, who represented several defendants in the complex lawsuit, expressed their belief that the Society had caved, fearing the prospect of paying what could have been millions of dollars in court and legal fees. “The anti-SLAPP motion clearly played a role,” said Robbins, who represented two clients for free because First Amendment issues were involved. Another factor, he said, was the Society’s fear that the court would order it to answer questions under oath and release information that it had tried to keep secret, such as the names of its donors. The case shows that while anti-SLAPP legislation makes it somewhat easier, cheaper, and faster for those accused of libel to fight back, “it doesn’t solve the problem entirely,” said Jeff Hermes, a lawyer for the Boston Herald. “Media companies are not covered by our state’s statute, and defendants in such cases still need to prepare a full defense.”
In Minnesota, a third lawsuit didn’t involve journalists or SLAPP statutes, but it did threaten citizens’ right to petition or warn the government on public safety issues. It also prompted Congress to protect people retroactively who report suspicious behavior. The defendants were anonymous citizens whose complaints about what they considered suspicious behavior by six Muslim imams on a flight in late 2006 led US Airways to remove the clerics from the plane. In a 2007 federal lawsuit claiming discrimination, the imams sued the airline, the Minneapolis airport, and several of the passengers who had complained.
But in August 2007, the “flying imams” dropped all claims against the passengers after Congress approved legislation to protect passengers from retaliatory lawsuits for reporting potentially terror-related activity. Under the measure, as in an anti-SLAPP law, if the plaintiffs cannot prove that a passenger lied in his complaint to the government, they can be held responsible for all court and legal fees. “The imams saw the handwriting on the wall,” said Representative Peter King, the New York Republican who promoted the bill. Gerry Nolting, a lawyer who represented a passenger, also without a fee, said that the imams might never have filed their suit if Minnesota had on its books an anti-SLAPP law like California’s.
However intimidating and expensive defamation lawsuits remain in the United States, the challenge is far greater in Britain, where journalists must prove that their allegations are true. Rachel Ehrenfeld, a New York–based terrorism researcher and the author of Funding Evil, is among more than 30 writers and publishers whom Saudi billionaire Khalid bin Mahfouz sued for libel in England for accusing him of ties to terrorist groups, a charge he denies. But rather than give him the apology, retraction, and $225,000 in fees that a British court ordered, Ehrenfeld, whose book was never even published in England, fought back. In 2004, she countersued bin Mahfouz in New York, asking the federal court here to declare the judgment against her unenforceable in America and contrary to the First Amendment protections that Americans enjoy.
In June, the Second Circuit Court of Appeals, overturning a lower court ruling, asked the state’s highest court to determine whether bin Mahfouz should be subject to New York jurisdiction. If it rules affirmatively, Ehrenfeld would be able to obtain considerable information about his finances in preparing for a trial. If he then failed to cooperate, he might have difficulty doing business in America.
Ehrenfeld’s effort comes none too soon, says Andrew McCarthy, a former federal prosecutor, for bin Mahfouz no longer needs to sue to intimidate his critics. After he merely threatened Cambridge University Press with a libel suit this spring, the prestigious publisher agreed to apologize on its website, pay his legal costs and unspecified damages, and stop distributing Alms for Jihad, a book written by J. Millard Burr, a former State Department analyst and relief coordinator, and Robert O. Collins, a former University of California history professor, which outlines bin Mahfouz’s alleged financial support for terrorism. Cambridge also asked libraries to remove the book from their shelves. On its website, Cambridge states that it took such steps because “under English libel laws, we simply did not have a defensible case.” A court victory for Rachel Ehrenfeld, and more anti-SLAPP statutes—only some 20 states have enacted such laws—would help curb the pernicious “libel tourism” so inimical to the free flow of information on which an informed citizenry and effective counterterrorism depend.
Judith Miller, a contributing editor of City Journal, is a Pulitzer Prize–winning journalist who writes about national security issues. She has written or coauthored four books, including Germs: Biological Weapons and America's Secret War.
http://www.city-journal.org/html/17_4_sndgs01.html
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Too much in that article to give a full response to, but I'll pick a couple of parts.
In his dissent from the court's approval of the use of race in law-school admissions, he quoted Frederick Douglass: "If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!" Justice Thomas observed: "Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators."
A reasonable person might take those statements to mean that if a black person gets a chance to achieve and fails, then it's his own damn fault. Clarence's (pretty cynical) interpretation is that blacks shouldn't consider themselves entitled to even a chance.
Mr. Yoo is a professor at the Law School of the University of California at Berkeley, and a former Supreme Court clerk for Justice Thomas
Mr. Yoo is also the author of several memos defending torture and arguing for essentially un-checked power of the executive branch while working for the Justice Department under George W. Bush.
Yes, black people can only succeed with the help of paternalistic white liberals and government programs. :roll:
The un-checked power of the executive branch is only ok when the democrats are in office. Everyone knows that.
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Yes, black people can only succeed with the help of paternalistic white liberals and government programs. :roll:
Of course you know I said no such thing... Just as I'm sure you're not saying that racism is not real.
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Permission slip for the sea—by Oliver North
In his 2004 State of the Union Address, President Bush said, “America will never seek a permission slip to defend the security of our country.” Members of both parties and both houses of Congress applauded. But if the Senate votes to ratify the United Nations Convention on the Law of the Sea—known as the Law of the Sea Treaty—or its appropriate acronym—LOST—he and his successors are going to need lots of permission slips.
In 1982, Ronald Reagan, concerned about the treaty’s implications for our sovereignty and national security, formally rejected LOST because it did “not satisfy the objectives sought by the United States.” In 1994, William Jefferson Clinton, eager to appease One World Government advocates in his own party and at the United Nations, negotiated a parallel “agreement” that purported to address Mr. Reagan’s concerns—and urged ratification. Since then, LOST has gathered dust in the bowels of the U.S. Senate Foreign Relations Committee. All that may be about to change. The deeply flawed, Soviet-era agreement giving unelected, unaccountable international bureaucrats control over 71 percent of the Earth’s surface is now on a fast track to ratification.
Advocates for LOST—among them Senate Foreign Relations Committee Chairman Joe Biden (D-DE)—claim that the Clinton-negotiated parallel “agreement” eliminates concerns about empowering international organizations to collect heavy fees or interfere with the U.S. military or intelligence collection. Yet a careful reading of LOST’s 202 pages—and the so-called agreement—proves that’s not true.
The UN Convention on the Law of the Sea already has created a Byzantine array of international organizations to administer the provisions of LOST. Everything from compliance with global environmental agreements, to the collection of “user fees” from private companies, to disputes about military operations above, on or under international waters are subject to mandatory dispute resolution by one or more of these international bodies.
According to the UN, the purpose of LOST is to preserve international waters for peaceful purposes. But Articles 19 and 20 of the treaty would proscribe the U.S. Navy from training with weapons, collecting intelligence or interfering with enemy communications in the territorial waters of other countries without their expressed permission. Military aircraft are prohibited specifically from taking off and landing in these waters, and severe limitations would be imposed on loading and unloading “any commodity, currency or person” including military equipment. Submarines are required to travel on the surface and “show their flag in territorial waters.” Article 30 states that warships not complying with the laws of a coastal nation can be forced to leave. Disputes about these issues would be adjudicated by international lawyers. Right.
LOST’s proponents discount these concerns by claiming the U.S. simply will exempt military activities from the treaty’s compulsory dispute resolution requirements. However, the “opt out” clause in Article 298 fails to define such operations. In our own Congress, intelligence functions are not considered to be military activities, so it is far from certain that the UN would accept the U.S. position that intelligence operations over, on or under the seas are indeed military activities. If there is a dispute as to what is or isn’t a military activity, LOST requires the matter to be resolved by international arbitration.
In 2003, Navy Adm. Michael Mullen, now the chairman of the Joint Chiefs of Staff, told the Senate Foreign Relations Committee that rulings from these arbitration panels “could have an impact on operational planning and activities, and our security.” Last week, in response to questions from Sen. David Vitter (R-LA) during a committee hearing, professor Bernard Oxman, a witness supporting LOST, admitted that if the parties to a dispute can’t agree on the arbitration panel, the UN secretary-general will chose the arbitrators. Lawyers in Pyongyang, Havana and Tehran: Call Turtle Bay.
LOST also opens the door to a long-sought UN goal: the redistribution of wealth by taxing Americans. The International Seabed Authority, a bloated, multinational bureaucracy headquartered in Jamaica, has the mandate to distribute revenues and “other economic benefits” on the basis of “equitable sharing criteria, taking into account the interests and needs of developing states.” In addition to acting as a global IRS, the ISA also decides which companies from which nations will develop mineral resources on the seabed.
In urging ratification, former President Bill Clinton described LOST as “a far-reaching environmental accord” that would “harmonize” U.S. laws to “prevent, reduce and control pollution” in the “best practical means.” But Article 213 requires nations to adopt “laws and regulations... to prevent, reduce and control pollution of the marine environment from land-based sources.” Thus, LOST could become a means of enforcing another agreement we never ratified: the Kyoto Protocol on global warming. Al Gore, call your office.
Before casting a vote to ratify LOST, all 100 senators should read Article 314 of this onerous treaty and Article II, Section 2 of the U.S. Constitution. The UN-crafted document specifies that amendments to the treaty can be adopted—and therefore enforced—without the consent of any signatory. Yet our Constitution requires that two-thirds of our Senate concur in any treaty. Do 67 members of this Senate now want to surrender that authority to foreign governments?
Quote of the week
“One of the most ridiculous arguments for LOST is to protect us against Russia’s claim to the North Pole and its oil riches. If we ratify LOST, we would have to accept the LOST tribunal’s decision. Even though the United States already has valid claims to the North Pole region under the Doctrine of Discovery, the chances of the LOST bureaucrats ruling for us against Russia are about 1 in 155.” —Phyllis Schlafly, founder and president of the Eagle Forum
Patriot Post
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Second post of the day:
As early as today, we'll find out whether House Speaker Nancy Pelosi really believes she can win a veto showdown with the president over a national security issue.
Ms. Pelosi is nudging legislation towards a floor vote to reauthorize the terrorist surveillance program for another two years. Mr. Bush has already said he will veto the bill for two reasons: It would severely hamper his ability to combat terrorism and does nothing to protect American phone companies from billion-dollar lawsuits for complying with government efforts to listen in on foreign phone calls involving suspected terrorists.
The ultra-liberal group MoveOn.org believes this is a fight Ms. Pelosi should make. On Monday, the organization blasted an email to 3.3 million supporters urging her into the fray. Trial lawyers, a big Democratic constituency that stands to benefit handsomely from such lawsuits, have been letting others carry the fight so far. Ms. Pelosi didn't mince words in a press conference last week in referring to Verizon, AT&T and other target companies: "These are not individual citizens without resources, these are major telecom companies with a phalanx of lawyers who understand the Constitution and the law. And if they have exposure, the courtroom is the place to go."
But Democrats would be wise to remember that they've lost elections and, ultimately, control of one house of Congress over the appearance of caring more about the party's bankrollers than national security. In 2002, Georgia Sen. Max Cleland lost his seat when Republican Saxby Chambliss ran a hard charging campaign that made an issue of Mr. Cleland's willingness to carry water for labor unions in establishing the Department of Homeland Security. Thanks partly to Mr. Cleland's loss, the GOP won back control of the Senate.
According to the New York Post, after al Qaeda operatives launched a sneak attack on American forces in Iraq last May, killing several GIs and capturing three others, a U.S. search-and-rescue team was halted from monitoring cell phone calls between enemy operatives because those calls were routed through American servers. For more than nine critical hours lawyers debated how to proceed. When confronted with incidents like that, voters might see the Democratic desire to let trial lawyers fatten their wallets at the expense of U.S. phone companies in a new light.
-- Brendan Miniter
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For the record, I opposed Bork's nominatin because of his interpretation that there is no right to Privacy in the Constitution. In my opinion, this theory would make the Ninth Amendment meaningless. That said, the vicious and scurrilous personal attacks on a fine man and a quality legal mind were an important and precedent setting step downwards in American political culture.
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AT LAW
The War for the Constitution
The anniversary of Robert Bork's failed nomination reminds us what's at stake in the coming election.
BY GARY L. MCDOWELL
Tuesday, October 23, 2007 12:01 a.m. EDT
Twenty years ago today the United States Senate voted to reject President Reagan's nomination of Judge Robert H. Bork to the Supreme Court. The senators may have had every reason to believe that was the end of the story. However ugly it had been, however much time it had taken, Mr. Bork's defeat was only one more routine sacrifice to partisan politics. But time would prove wrong anyone who actually thought that. The battle over Mr. Bork was politically transformative, its constitutional lessons enduring.
To many at the time (and still today) it was inconceivable that a man of Mr. Bork's professional accomplishments and personal character could be found unacceptable for a seat on the Court. Warren Burger summed it up for many when he described Mr. Bork as simply the best qualified nominee in the former chief justice's own professional lifetime--a span of years that included the appointments of such judicial luminaries as Benjamin Cardozo, Hugo Black and Felix Frankfurter. Such praise was no empty exaggeration.
A former Yale law professor and U.S. Solicitor General, Mr. Bork was, at the time of his nomination, a judge on the United States Court of Appeals for the District of Columbia Circuit. When he was a circuit court judge, Mr. Bork's opinions not only were never overruled on appeal, but on several occasions his dissents were adopted by the Supreme Court as its majority view.
In an earlier day such an appointment would have been celebrated as adding breadth, depth and luster to the highest bench. Instead, the nominee faced a mauling by those who set out not only to destroy him personally but to discredit all that he stood for as a jurist.
It was immediately clear that the unprecedented vote of 58-42 against his confirmation reflected something far more historic and fundamental than an ordinary partisan standoff. The confrontation in fact had been one of the most cataclysmic and divisive events in American domestic politics during the second half of the 20th century. The reason was that Mr. Bork's opponents succeeded in making the fight over his nomination into a contest over the future of the Constitution.
The issue that united the judge's critics in their fiery, scorched-earth opposition was never his ability or reputation but rather his theory of judging. Mr. Bork's belief was that judges and justices in their interpretations of the Constitution must be bound to the original intentions of its framers. In his sober constitutional jurisprudence there was no room for any airy talk about a general right of privacy, allegedly unwritten constitutions, vague notions of unenumerated rights, or what the progressive Justice Black once derided as "any mysterious and uncertain natural law concept." For Mr. Bork, the framers said what they meant, and meant what they said.
Mr. Bork's approach had its roots in hundreds of years of common law history as well as in the political philosophy of those whose works serve as the foundation of American constitutionalism. Chief Justice John Marshall had summed up that received tradition when he proclaimed that recourse to a lawgiver's original intention is "the most sacred rule of interpretation." In Marshall's view, it is always "the great duty of a judge who construes an instrument . . . to find the intention of its makers." As with Marshall, so also with Mr. Bork.
At its deepest level, Mr. Bork's defeat was the result of the very public affirmation by the Senate of a dangerous theory of ideological judging that had been developing for quite some time. It was the idea of a so-called "living" Constitution, one that various scholars have said means there need be "no theoretical gulf between law and morality," and that ordinary judges are empowered to interpret the fundamental law in light of their own "fresh moral insight" in order to effect a judicially mandated "moral evolution" of the nation.
The aim of this new approach to judging that was used to pillory Mr. Bork was not a matter of mere metaphysical speculation. It was the concrete political reality of Roe v. Wade and its judicially created right to abortion--and behind that, Griswold v. Connecticut and its even more amorphous right to privacy. Mr. Bork's originalism denied the constitutional legitimacy of such contrived decisions and would have left such issues to be resolved by the people in their legislatures.
Thus, his nomination threatened not only all that had been gained by judicial fiat, such as abortion rights, but all that might be gained, such as constitutional protections for same-sex marriages. That was why, to his critics, he had to be stopped at all costs.
The price paid has proved high, indeed. The defeat heralded a fundamental transformation in the process surrounding judicial appointments and thereby radically politicized the public's view of the nature and extent of judicial power under the Constitution. Confirmation battles from Mr. Bork to Clarence Thomas to Samuel Alito have taken on the trappings of ordinary political campaigns, from instant polling to rallies and protests and attack ads. Sadly, the courts are no longer above the fray.
The Supreme Court has continued to give voice to the rhetoric of a morally evolving or living Constitution, along the way upholding Roe in 1992 and striking down state sodomy laws in 2003. Moreover, the Court has decreed that it is "invested with the authority to speak . . . before all others for [the people's] constitutional ideals."
And Judge Bork's replacement as a nominee, Justice Anthony Kennedy, has insisted that the concept of liberty has both "spatial" and "transcendent dimensions," the boundaries of which "are not susceptible of expression as a simple rule." Thus constitutional meaning, even for some Republican appointees, is no longer a matter of the framers' intention but only the judges' intuition.
Recalling Mr. Bork's experience serves to remind us of how precarious the judiciary's balance is at any given time, and how today's highly politicized process prevents even the most gifted and prominent jurists from expecting to be confirmed (or perhaps even desiring the chance to undergo the ordeal).
But more important, it is a reminder that presidents must be willing to undertake what they know will be a horrific fight in order to see the bench filled not with liberals or conservatives or partisans, but with constitutionalists.
In this sense, the Bork vote is not just a matter of quaint historical interest, but the first great battle in the contemporary war for the Constitution--a continuing war that must be won if true self-government is to prevail.
Time has shown that Mr. Bork's theory of constitutional interpretation remains very much alive; he was defeated but his central idea was never discredited. That theory of interpretation and its implicit belief in restrained judging should continue to guide anyone who believes that the inherent arbitrariness of government by judiciary is not the same thing as the rule of law.
Mr. McDowell, currently a recipient of a fellowship from the National Endowment for the Humanities, is a professor at the Jepson School of Leadership Studies at the University of Richmond.
WSJ
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Woof All:
RBG was my Constitutional Law prof at Columbia, so I read this piece with particular interest. I would add that in the Gore v. Bush decision of the 2000 election her opinion was the first time I ever heard her side with a state's rights argument in a federalism issue. Indeed, quite the contrary-- I got on her frosty side by disagreeing with her in class over National League of Cities vs. Usery (IIRC whether the Feds could compel state governments to pay federal minimum wage).
Marc
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Speaking Ruth to Power
What business does Justice Ginsburg have trying "to propel legislative change"?
BY ORIN KERR
Wednesday, October 31, 2007 12:01 a.m. EDT
Justice Ruth Bader Ginsburg recently gave an address on the role of dissenting opinions that included a remarkable explanation for her dissent last term in Ledbetter v. Goodyear Tire & Rubber. That case involved a statute regulating when discrimination claims must be filed; the Supreme Court ruled 5-4 that the lawsuit in that case was filed too late. Justice Ginsburg dissented, and she took the unusual step of reading her dissent from the bench.
In her address, Justice Ginsburg explains that the purpose of her dissent was "to attract immediate public attention and to propel legislative change." She then explains how the other branches responded:
Several members of Congress responded within days after the Court's decision issued. A corrective measure passed the House on July 31, 2007. Senator Kennedy introduced a parallel bill, with 21 co-sponsors. The response was just what I contemplated when I wrote: "The ball is in Congress' court . . . to correct [the Supreme] Court's parsimonious reading of Title VII." But the fate of the proposed legislation has been clouded. On July 27, the Administration announced that if the measure "were presented to the President, his senior advisors would recommend that he veto the bill."
If I understand Justice Ginsburg correctly, she wrote a legal opinion at least in significant part to push a different branch of government to enact a law closer to her personal policy preferences. If I am reading her speech correctly, she appears to be pleased that Congress is following up on her efforts. She's watching the House and Senate, and the passage of a bill in the House and introduction in the Senate is just what she had in mind when she wrote her dissent and read it from the bench. But then she seems less than pleased that President Bush has "clouded" the prospects of the bill's passage by threatening a veto.
I find this explanation troubling. It seems to me that a Justice's job in a statutory case is to say what the statute means and no more. If you dissent, then dissent. But trying to push Congress to enact a law that you like better isn't part of the job description.
To be clear, it's not newsworthy that Supreme Court justices have been and are influenced by their personal policy preferences. That much is human nature. But Justice Ginsburg is not saying that her own views may color her view of what the law is. Nor is she simply acknowledging her personal view that it would be good for Congress to amend the law in a particular way (a position I tentatively share). Rather, she seems to believe that she has a legitimate interest in her capacity as a Supreme Court Justice to push coequal branches of government to enact a new law that will be more to her personal liking.
This view seems hard to square with Justice Ginsburg's frequent invocations of "judicial independence," the notion that legislators should leave the judging to the judges. Justice Ginsburg has frequently criticized legislators--particularly conservatives--who have tried to influence the federal courts by regulating its jurisdiction or closely scrutinizing appointees on political grounds. According to Justice Ginsburg, these efforts threaten the constitutional order because they involve legislative overreaching into the sphere of the judiciary.
But shouldn't this be a two-way street? If it is improper for legislators to try to influence the outcomes of future cases, why is it perfectly OK for her as a Supreme Court justice to try to influence the outcomes of future legislation? I don't mean to be too harsh, but I do find her position quite puzzling. Some might argue that her view of her role really isn't surprising, and that we should expect Justice Ginsburg to try to influence Congress this way. But if that's true, doesn't it mean Justice Ginsburg's argument for judicial independence falls flat and that legislators are justified in trying to influence the decisions of the court? I don't see how you can have it both ways.
Mr. Kerr is a law professor at George Washington University.
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A Sinkable Treaty
Why America doesn't need the Law of the Sea.
Saturday, November 3, 2007 12:01 a.m. EDT
The Senate Foreign Relations Committee voted 17-4 Wednesday to approve the Law of the Sea Treaty, meaning it's now up to 34 Senate Republicans to send this giant octopus of a document back where it belongs. To wit, the bottom of the ocean.
The U.S. last disposed of the United Nations Convention on the Law of the Sea--LOST to its critics--when Ronald Reagan was President. This May, however, the Bush Administration reversed course and declared that the Gipper's objections had been fixed by a 1994 amendment. We've since had a debate on these pages over that point, with former Secretaries of State George Shultz and James Baker in favor, while Ed Meese and William Clark, Reagan's Attorney General and National Security Adviser, remain opposed.
The best arguments for the treaty come from the U.S. Navy, which likes how it creates a legal framework for navigational rights. The oil and gas industry approves of provisions that create an "exclusive economic zone" for the U.S. out to 200 miles. There's also the potential for development (with clear legal title) of resources in the deep seabed, which would be managed by the International Seabed Authority on which the U.S. would be guaranteed a seat. And, in fact, the 1994 amendment did get rid of some of LOST's most obnoxious provisions, such as mandatory technology transfers and other redistributionist nostrums.
Then again, the Navy has been getting along fine by using the "customary law" that has guaranteed freedom of the seas for three centuries. Treaty proponents have taken to arguing that, unless we ratify, Russia will lay claim to oil rights over the Arctic seabed. But Russia's expansive Arctic claims, possibly including the sea floor under the North Pole, are themselves a product of the treaty. We also hear that the U.S. must have its proverbial "seat at the table" in negotiations over such claims. But the nations with a direct geographic Arctic claim ought to be able to cut a deal without giving Cuba or Zimbabwe a seat. America's historic experience with similar multinational bodies (e.g., the U.N. Human Rights Commission) hardly justifies confidence that having a seat will enhance our influence, rather than constrain it.
The larger problem is the treaty's sheer size, with no fewer than 320 articles and nine annexes. These cover everything from "Criminal jurisdiction on board a foreign ship" (Article 27) to "Anadromous stocks" and "Catadromous Species" (Articles 65 and 66) to the "Jurisdiction of the Seabed Disputes Chamber" (Article 187). Much of this is anodyne, but perhaps the Senators should read the fine print before voting. They might be surprised by what they find.
Consider the treaty's potential effects on military activities. The Administration says these are excluded from the treaty and, further, that the U.S. gets to decide what constitutes such activity. But then how to explain Article 20, which states that "In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag." How will this affect the ability of U.S. submarines to gather intelligence in coastal waters or deploy special forces on hostile shores? Last we checked, a $1 billion submarine called the USS Jimmy Carter had been built precisely for that purpose.
The Navy might also ask how its powerful sonars--which some environmentalists say harm marine life--could run afoul of Article 196. This states that countries "shall take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control."
Or take concerns that the treaty's requirements on pollution are a back-door mechanism for forcing U.S. compliance with the Kyoto Treaty and other global environmental pacts. Confronted with the argument, an Administration spokesman told the Senate that the treaty did not exercise jurisdiction over land-based pollution. Replied Republican Senator David Vitter: "If it is . . . not covered by the treaty, why is there a section entitled, 'Pollution from Land-Based Sources'?" A good question, considering that Article 213 notes that countries "shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations" to control such pollution. Note our emphasis.
Critics are also right to be concerned about the powers of direct taxation the treaty confers on the International Seabed Authority. The details of this innovation are buried in Article 13 of the treaty's third annex, and contain a mix of "production charges" and annual million-dollar "administrative" fees. Such measures are all but unprecedented for an international organization and have a potential for corruption, especially when the taxes can run as high as 70% of net proceeds.
Some 154 countries have joined the Law of the Sea Treaty, with the U.S. one of the few holdouts. Critics are being labeled isolationists, or worse. But the U.S. has been abiding voluntarily with the terms of the treaty since 1983, with no ill effect. Twenty-some years ago a former President objected to handing sovereignty over two-thirds of the Earth's surface to another unaccountable international body. Ronald Reagan sank the treaty then; now it's up to 34 Senators to show similar courage.
WSJ
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Lobbyists or Spies?
By GABRIEL SCHOENFELD
November 6, 2007; Page A19
Government insiders who engage in unauthorized leaks of classified information are violating their oaths, breaking the law, damaging national security and deserving of punishment. Sometimes those outside government who receive secrets and pass them to others are also breaking the law and deserve punishment. The latter category includes enemy spies. But what about American lobbyists -- and journalists -- who receive secrets and pass them along?
In an important trial set to begin in January, the Justice Department has irresponsibly confused the distinction between spying and lobbying. Keith Weissman and Steven J. Rosen, two former employees of AIPAC, the pro-Israel lobbying organization, are charged with unlawfully receiving and transmitting classified national-defense information. The stakes are high. The Pentagon official, Lawrence Franklin, who illicitly furnished the two men with secrets, and then participated in an FBI sting operation against them, has pleaded guilty for his part in the affair and was sentenced by federal judge T.S. Ellis III to more than 12 years in federal prison.
This past Friday, the same judge decided a pivotal preliminary issue in the Weissman-Rosen case. The defense has subpoenaed 20 present and former administration officials to appear as witnesses for its side, including Elliott Abrams, Richard Armitage, Douglas Feith, Dennis Ross, Paul Wolfowitz, Stephen Hadley and Condoleezza Rice. The idea is to use their testimony to demonstrate that their clients had every reason to believe that what Mr. Franklin told them in conversation -- no classified documents ever changed hands in this case -- was part and parcel of the normal back-channel method by which the U.S. government sometimes conveys information to the media and/or to allied countries, in this case, to Israel.
Prosecutors have resisted this contention and moved to quash the subpoenas to almost all of the officials. On Friday, Judge Ellis ruled against the prosecutors. The defendants, he wrote in his opinion, "claim that AIPAC played an important role in U.S. foreign-policy development." If true, he continued, the "government's use of AIPAC for 'back channel' purposes may serve to exculpate defendants by negating the criminal states of mind the government must prove to convict defendants of the charged offenses."
Judge Ellis has cut to a core issue, pertinent to the broader issue of secrecy. Back in February 2006, the New York Times published classified information that compromised the NSA's terrorist-surveillance program aimed at intercepting the communications of al-Qaeda suspects around the world. While the Justice Department did not prosecute the paper, it was clear that the Times had run afoul of Section 798 of Title 18, which protects the ultra-sensitive category of communications intelligence. Under it, intent is irrelevant; the willful disclosure of classified information is itself the crime. Even observers sympathetic to the Times acknowledge that it broke black-letter law.
The Times repeated its reckless behavior in the spring of 2006, when it compromised another highly sensitive counterterrorism program aimed at tracking the movement of al-Qaeda funds. Here the Times' disclosure, while damaging and deplorable, was probably not a crime. Because communications intelligence was not involved, the only other applicable statute was the Espionage Act of 1917, the same law under which the two AIPAC men have been charged. That antiquated law, unlike Section 798, contains stringent criminal-intent requirements. However much one might disapprove of what the Times did, it would be nearly impossible to demonstrate that its editors and reporters acted with a criminal state of mind.
In the AIPAC case, an equal or even higher barrier to successful prosecution exists. In order to convict, Judge Ellis has ruled, the prosecutors must prove the defendants had a long laundry list of "mental states," indicative of culpability. They not only had to be acting in bad faith, but had to know that the information they received was classified and closely held.
The high-profile witnesses whom the defense can now bring into the courtroom will make it a tall order to demonstrate any of this. They are almost certain to attest that, at one or another juncture in the course of their careers, they were authorized, as a means of promoting the national interest, to disclose classified information to individuals outside of government, including, on some occasions, to officials at AIPAC itself.
When Lawrence Franklin passed on classified information to the two defendants, he lacked such authorization, which is why he is a felon. But given how routinely classified information is dispensed for legitimate purposes, how were Mr. Weissman and Mr. Rosen to know that Mr. Franklin was telling them things he was not allowed to tell them and involving them in his crime? The answer is: They could not know.
Under the circumstances, this is a case that should never have been brought. No fair-minded jury could conclude that Mr. Weissman and Mr. Rosen acted with criminal intent. Jurors will see only two lobbyists going about their jobs, interacting with government officials in an ordinary fashion as other lobbyists do all the time. Yes, protecting classified information is crucial to our national defense. But the law is narrowly and properly tailored to protect innocent people from becoming ensnared by it.
Mr. Schoenfeld, senior editor of Commentary, blogs for connectingthedots.us.com.
WSJ
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Justice for Sale
How special-interest money threatens the integrity of our courts.
BY SANDRA DAY O'CONNOR
Thursday, November 15, 2007 12:01 a.m. EST
Voters generally don't express much interest in the election of judges. This year, as in years past, voter turnout in elections for judges was very low. But judicial elections, which occur in some form in 39 states, are receiving growing attention from those who seek to influence them. In fact, motivated interest groups are pouring money into judicial elections in record amounts. Whether or not they succeed in their attempts to sway the voters, these efforts threaten the integrity of judicial selection and compromise public perception of judicial decisions.
The final four candidates running for open seats on the Supreme Court of Pennsylvania raised more than $5.4 million combined in 2007, shattering fund-raising records in Pennsylvania judicial elections. Since 2006, high court campaigns in Georgia, Kentucky, Oregon and Washington also set fund-raising records. Since 2004, nine other states broke records for high court election spending.
Most of this money comes from special interest groups who believe that their contributions can help elect judges likely to rule in a manner favorable to their causes. As interest-group spending rises, public confidence in the judiciary declines. Nine out of 10 Pennsylvanians regard judicial fund raising as evidence that justice is for sale, and many judges agree. According to a nationwide survey by the Annenberg Public Policy Institute, partisan judicial elections decrease public confidence that courts are fair, impartial and operating in the best interest of the American people.
The first step that a state like Pennsylvania can take to reverse this trend is replace the partisan election of its judges with a merit-selection system, or at least with a nonpartisan system in which the candidates do not affiliate with political parties. In a typical merit-based system, an independent commission of knowledgeable citizens recommends several qualified candidates suitable for appointment by the governor of the state. After several years of service, the appointed judge's name is then submitted to the voters for an up or down vote known as a retention election.
The second step a state can take is set up campaign-conduct committees to educate voters and the media about the criteria people should use to select judges. These committees can also publicize accurate information about the sources of big contributions, providing the kind of transparency that allows voters to decide whether a judicial candidate's impartiality may be compromised by her contributors. Finally, the committees can flag inappropriate campaign conduct and provide information to help voters interpret charges made in campaign advertising sound bites.
The boundary of decency was certainly crossed in Pennsylvania this year when a candidate for the Supreme Court was called "the drug dealer's choice" by the opposing political party because of a decision that she had made to overturn a conviction based on an illegal search. Campaign-conduct committees can help restore a little perspective when the going gets too rough in judicial races.
The third step a state can take is distribute voter education pamphlets to provide accurate and unbiased information about the qualifications of a judicial candidate. Voter education guides can provide information about relevant qualifications that are often left out of campaign ads and meager media coverage.
These three reforms will help, but will not solve the problem of direct interest-group attacks on judicial candidates. Pennsylvania's experience demonstrates this problem. In addition to the contested Supreme Court seats, 67 state judges were up for retention election in Pennsylvania this year. Retention elections are historically very low profile, but they became contentious in 2007 when a small but organized grass-roots campaign sought to oust all but one of the judges whose names were before the voters because the judges had accepted a legislatively enacted pay raise rather than returning the money to the state treasury. They attacked the judges as "pigs in robes," conjuring images of greedy out-of-control politicians.
Fortunately, Pennsylvania voters were not swayed by the spurious attack, but that doesn't mean that the attacks weren't harmful, as they were essentially all anyone heard about Pennsylvania's 2007 retention elections. One of the dangers of low media coverage and high interest-group spending is that voters hear only from activists who have targeted a particular judicial race. The Pennsylvania retention races show how easily the issues in judicial elections can be controlled by special interests.
Special interest appeals to emotion and policy preferences tempt voters to join efforts to control the decisions of judges. Voters are less likely to devote themselves to the core value of judicial independence, because when judges apply the law fairly and impartially they cannot guarantee the outcome any particular voter might want. But fair and impartial judging is an essential part of our government, and must be preserved.
In the long term, a commitment to judicial independence will only come from robust civics education, starting at a very young age. Today, only a little more than one-third of Americans can name the three branches of government--much less explain the balance of power among them. If we lose appreciation for our government's structure and the role of the judiciary within it, it is only a matter of time before the judicial branch becomes just another political arm of the government. With the stakes so high, we cannot wait until the election cycle to educate the citizenry. We must start with civics education in our nation's schools.
Perhaps children can understand the role of a fair and impartial judiciary better than any of us. Children depend on their teachers, their parents and their sports referees to know the rules and to apply them fairly. Thus schools are the ideal place for the life-long process of civics education to begin. In the meantime, we need to look at practical short-term reforms that will restore public confidence in the selection of state judges.
Justice O'Connor is a retired associate justice of the Supreme Court of the United States.
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Anyone remember Kelo v. New London, 2005? It was one of the worst supreme court decisions in history. Kelo allowed government to take private property to give to other private property purposes and worse that local elected officials have unique local knowledge so courts shouldn't make judgment on those decisions. The public good can be as simple as higher property taxes collected after re-development or that new homes are more attractive to look at.
After the fake-emergency to get the real owners out against their will 2-3 years ago, the project is still delayed. http://www.theday.com/re.aspx?re=95bf73ca-9e07-41a3-968a-f9d9cf6b0563
Here is the link to the decision. I recommend a read of the dissent by Clarence Thomas: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-108
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Mr. Constitution
By DAVID B. RIVKIN and LEE A. CASEY
March 22, 2008; Page A25
WSJ
Clarence Thomas leaps from his chair. He retrieves a wire coat hanger from his closet for a demonstration -- the same demonstration he gives his law clerks. He bends it and says: "How do you compensate? So, you say well, deal with it. Bend this over here. Oh, wait a minute, bend it a little bit there. And you're saying that it throws everything out of whack. What do you do?"
He holds up a twisted wire, useless now for its original purpose and the point is made. "If you notice sometimes I will write just to point out that I think that we've gone down a track that's going to cause some distortion, then it's quite precisely because of that. I don't do things that I think are illegitimate in other areas, just to bend it back to compensate for what's already happened."
Terry Shoffner
Interpreting the Constitution is the Supreme Court's most important and most difficult task. An even harder question is how to approach a Constitution that, in fact, is no longer in pristine form -- with the Framers' design having been warped over the years by waves of judicial mischief. There is an obvious temptation to redress the imbalance, which Associate Justice Thomas decisively rejects. Thus his coat hanger metaphor.
So is the most controversial Supreme Court justice an "originalist" when it comes to Constitutional interpretation? He says he doesn't like labels, though he does admit to being a "meat and potatoes" kind of guy.
Upon entering his spacious office overlooking the Capitol Dome in Washington, D.C., the first thing to catch your eye is his Nebraska Cornhuskers screen saver. Mr. Thomas never attended the University of Nebraska, or even lived in the state. He's just a fan. His office is also decorated with pictures of the historical figures he admires, Frederick Douglass, Abraham Lincoln, Booker T. Washington, Thomas More and Winston Churchill, and he speaks of them with knowledge and passion. Watching over all is a bust of his grandfather atop Mr. Thomas's bookcase -- its countenance as stern as a Roman consul. There is little doubt this man was the driving force in Mr. Thomas's life -- a fact he confirms, and which is reflected in the title of his recently published memoir, "My Grandfather's Son."
Mr. Thomas faced one of the most destructive and personally vicious Supreme Court confirmation hearings in American history -- described at the time by Mr. Thomas himself as a "high-tech lynching." Mr. Thomas's opponents smeared his character and integrity. To this day, disappointed and embittered, they feel entitled to insult his qualifications, intelligence and record.
In 2004, when Mr. Thomas's name was floated as a possible replacement for ailing Chief Justice William Rehnquist, then Senate Minority Leader Harry Reid called him an "embarrassment" to the Court, and attacked his opinions as "poorly written."
In point of fact, Mr. Thomas's opinions are well-written, displaying a distinctive style -- a sure sign that the Justice and not his clerks does most of the writing.
As for his judicial philosophy, "I don't put myself in a category. Maybe I am labeled as an originalist or something, but it's not my constitution to play around with. Let's just start with that. We're citizens. It's our country, it's our constitution. I don't feel I have any particular right to put my gloss on your constitution. My job is simply to interpret it."
In that process, the first place to look is the document itself. "And when I can't find something in that document or in the tradition or history around that document, then I am getting on dangerous ground. Because that's when you drift so much more towards your own policy preferences."
It is the insertion of those policy preferences into the interpretive process that Mr. Thomas finds particularly illegitimate. "People can say you are an originalist, I just think that we should interpret the Constitution as it's drafted, not as we would have drafted it."
Mr. Thomas acknowledges that discerning a two-hundred-year-old document's meaning is not always easy. Mistakes are possible, if not inevitable, as advocates of a malleable "living constitution," subject to endless judicial revision, never tire of pointing out. "Of course it's flawed" agrees Mr. Thomas, "but all interpretive models are flawed."
Simply following your own preferences is both flawed and illegitimate, he says. "But if that is difficult, does that difficulty legitimate just simply watching your own preference?" By doing that "I haven't cleared up the problem, I've simply trumped it with my personal preferences."
Mr. Thomas has also been criticized for his supposed lack of respect for precedent. Even his fellow conservative, Justice Antonin Scalia, was reported by a Thomas biographer to have claimed that Mr. Thomas just doesn't believe in "stare decisis." Latin for "let the decision stand," stare decisis is an important aspect of the Anglo-American system of precedent -- deciding new cases based on what the courts have done before and leaving long established rules in place.
Mr. Thomas, however, is less absolute here than his critics suggest. He understands the Supreme Court can't simply erase decades, or even centuries, of precedent -- "you can't do it."
At the same time, he views precedent with respect, not veneration. "You have people who will just constantly point out stare decisis, stare decisis, stare decisis . . . then it is one big ratchet. It is something that you wrestle with." History would seem to vindicate Mr. Thomas and his insistence on "getting it right" -- even if that does mean questioning precedent.
The perfect example is Brown v. Board of Education (1954), where the Supreme Court overruled the racist "separate but equal" rule of Plessy v. Ferguson (1896), which permitted legally enforced segregation and had been settled precedent for nearly 60 years.
It is the Plessy dissent of Justice John Marshall Harlan to which Mr. Thomas points for an example of a Justice putting his personal predilections aside to keep faith with the Constitution. Harlan was a Kentucky aristocrat and former slaveowner, although he was also a Unionist who fought for the North during the Civil War. A man of his time, he believed in white superiority, if not supremacy, and wrote in Plessy that the "white race" would continue to be dominant in the United States "in prestige, in achievements, in education, in wealth and in power . . . for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty."
"But," Harlan continued, "in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among its citizens."
That, for Mr. Thomas, is the "great 'But,'" where Harlan's intellectual honesty trumped his personal prejudice, causing Mr. Thomas to describe Harlan as his favorite justice and even a role model. For both of them, justice is truly blind to everything but the law.
More than anything else, this explains Mr. Thomas's own understanding of his job -- a determination to put "a firewall between my [PERSONAL\]view and the way that I interpret the Constitution," and to vindicate his oath "that I will administer justice without respect to person, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all of the duties incumbent upon me as an Associate Justice of the Supreme Court of the United States."
This insistence by the Justice on judging based upon the law, and not on who the parties are, presents a stark contrast with today's liberal orthodoxy. The liberal approach -- which confuses law-driven judging with compassion-driven politics, enthused with a heavy distrust of the American political system's fairness -- was recently articulated by Democratic presidential candidate Barack Obama, who emphasized the need for judges with "heart" and "empathy" for the less fortunate, judges willing to favor the disempowered.
Born in rural Georgia in 1948, Mr. Thomas and his brother were mostly raised in Savannah by their maternal grandparents. His grandfather, Myers Anderson, believed in work, and that rights come with responsibilities. According to his book, Mr. Anderson told the seven-year-old Clarence that "the damn vacation is over" the morning he moved in.
Says Mr. Thomas: "Being willing to accept responsibility, that sort of dark side of freedom, first -- before you accept all the benefits. Being ready to be responsible for yourself -- you want to be independent. That was my grandfather." Anderson also taught his grandson to arrive at his conclusions honestly and not "to be bullied away from opinions that I think are legitimate. You know, not being unreasonable, but not being bullied away."
For a man who has been subjected to a great deal of vitriol, Mr. Thomas manifests remarkable serenity. He rejoices in life outside the Court, regaling us with stories about his travels throughout the U.S., his many encounters with ordinary Americans, and his love of sports -- especially the Cornhuskers, the Dallas Cowboys and Nascar.
Mr. Thomas isn't much bothered by his critics. "I can't answer the cynics and the negative people. I can't answer them because they can always be cynical about something."
Mr. Thomas speaks movingly about the Court as an institution, and about his colleagues, both past and present. He sees them all, despite their differences, as honorable, each possessing a distinctive voice, and trying to do right as they see it. Our job, he concludes, is "to do it right. It's no more than that. We can talk about methodology. It's merely a methodology. It's not a religion. It is in the approach to doing the job right. And at bottom what it comes to, is to choose to interpret this document as carefully and as accurately and as legitimately as I can, versus inflicting my personal opinion or imposing my personal opinion on the rest of the country."
And why doesn't he ask questions at oral argument, a question oft-posed by critics insinuating that he is intellectually lazy or worse? Mr. Thomas chuckles wryly and observes that oral advocacy was much more important in the Court's early days. Today, cases are thoroughly briefed by the time they reach the Supreme Court, and there is just too little time to have a meaningful conversation with the lawyers. "This is my 17th term and I haven't found it necessary to ask a bunch of questions. I would be doing it to satisfy other people, not to do my job. Most of the answers are in the briefs. This isn't Perry Mason."
Messrs. Rivkin and Casey served in the Justice Department under President George H.W. Bush.
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According to Jonah BO opinion:
"The Democratic front-runner and former lecturer on constitutional law at the University of Chicago has explained his thinking toward judicial appointments thus: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.”
What???????? How about justice? How about victim's rights? How about a nation of laws?
BO my friends, is *radical* left. In my view he is nuts. This talk about we have to get past the rhetoric falls in line with his own proclaimed learned way of dealing with white folks. Hold their hand, talk sweet and deflect their "innermost fears". We are being conned. Another version of BS the likes of HC and BC.
This guy is worse than Dukakis.
Just we wait till shrillary is out of the picture. The right is going to (rightly in my view) have a field day with this guy.
April 18, 2008 12:00 AM
Courting Disaster
In a very real sense, this election year we face the question: Do we want to live in a monarchy or a nation of laws?
By Jonah Goldberg
Every four years, we’re told that this is the most important election since a caveman asked for a show of hands. So some skepticism seems warranted when we hear the same refrain this year.
But then there’s the question of the Supreme Court. And here, at least for me, skepticism melts away into real anxiety, even panic.
Consider the stunning decision handed down from the Supreme Court this week.
The court ruled that the state of Kentucky may continue to use lethal injections when administering the death penalty. But that’s not what’s shocking. Nor was it surprising that for the first time Justice John Paul Stevens admitted he thinks the death penalty is unconstitutional.
What is staggering, or at least should be, is that Stevens freely admits that he no longer considers “objective evidence” or even the plain text of the Constitution determinative of what is or isn’t constitutional: “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional.
Justice Antonin Scalia, in a blistering response, justifiably exclaimed that, “Purer expression cannot be found of the principle of rule by judicial fiat.”
I say “justifiably” rather than “accurately” because I think we hear purer expressions of the principle that “good” judges are those who make it up as they go along all the time. Consider Barack Obama. The Democratic front-runner and former lecturer on constitutional law at the University of Chicago has explained his thinking toward judicial appointments thus: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.”
When defending his vote against Justice John Roberts’ confirmation, Obama explained that the standard for a justice must be “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
Now that is a pure expression of the principle of judicial fiat.
Indeed, by Obama’s own words the best justices are those who will most shamelessly violate their own oath of office.
Supreme Court justices must “solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as a justice of the Supreme Court of the United States under the Constitution and laws of the United States, so help me God.”
Note the bit about doing right to poor and rich alike. Feeling sorry for the poor guy who violates the Constitution or the law has no role in how a Supreme Court justice is supposed to make a decision. Legislators can write laws based on empathy. They can invoke their pet theories about “how the world works.” They can even, as Justices Stephen Breyer and Ruth Bader Ginsberg are fond of doing, consult foreign laws and court decisions in their efforts to make a more perfect union. But Supreme Court justices are supposed to decide what the written law requires, not pick winners and losers based upon some sense of noblesse oblige. That’s why all of those statues of Lady Justice show her standing blindfolded, not bent over kissing the boo-boos of the unfortunate and the downtrodden.
In a very real sense, this election year we face the question: Do we want to live in a monarchy or a nation of laws? Is this to be a country where justices serve as a reliable backstop against encroachments upon the constitutional order, or is this to be a country where the most undemocratic branch of government serves as the tip of the spear for such intrusions?
Five of the last seven presidents have been Republicans at least nominally committed to appointing conservative justices. Some have fallen short in that department (though not President George W. Bush), which is why the Supreme Court today hangs in the balance. John McCain could conceivably make the mistake of appointing a Souter or a Stevens or some other justice who sees the Constitution as an ink blot. But the key difference between McCain and his Democratic rivals is that he promises not to appoint such justices. Clinton and Obama consider it among their top priorities. That’s at least one reason for saying this is one of the most important elections in a very long time.
— Jonah Goldberg is the author of Liberal Fascism: The Secret History of the American Left from Mussolini to the Politics of Meaning.
(C) 2008 Tribune Media Services, Inc.
© National Review Online 2008. All Rights Reserved.
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News Flash: The Constitution Means What It Says
By RANDY E. BARNETT
June 27, 2008; Page A13
WSJ
Justice Antonin Scalia's majority opinion in yesterday's Supreme Court decision in District of Columbia v. Heller is historic in its implications and exemplary in its reasoning.
A federal ban on an entire class of guns in ordinary use for self-defense – such as the handgun ban adopted by the District of Columbia – is now off the table. Every gun controller's fondest desire has become a constitutional pipe dream.
Getty Images
Two important practical issues remain. First, will this ruling also apply to states and municipalities? That will depend on whether the Supreme Court decides to "incorporate" the right to keep and bear arms into the 14th Amendment. But in the middle of his opinion Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence.
My prediction: This ruling will eventually be extended to the states.
Second, how will the court deal with firearms regulations that fall short of a ban? The majority opinion strongly suggests that such regulations must now be subjected to meaningful judicial scrutiny. The exact nature of this scrutiny is not clear, but Justice Scalia explicitly rejects the extremely deferential "rationality" review advocated by Justice Stephen Breyer.
Most likely, gun laws will receive the same sort of judicial scrutiny that is now used to evaluate "time, place and manner" regulations of speech and assembly. Such regulations of First Amendment freedoms are today upheld if they are narrowly tailored to achieve a truly important government purpose, but not if they are really a pretext for undermining protected liberties.
My prediction? Because gun-rights groups like the NRA have so successfully prevented enactment of unreasonable gun laws, most existing gun regulations falling short of a ban will eventually be upheld. But more extreme or merely symbolic laws that are sometimes proposed – whose aim is to impose an "undue burden" by raising the cost of gun production, ownership and sale – would likely be found unconstitutional. All gun regulations – for example, safe storage laws and licensing – will have to be shown to be consistent with an effective right of self-defense by law-abiding citizens.
Justice Scalia's opinion is exemplary for the way it was reasoned. It will be studied by law professors and students for years to come. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Justice Scalia begins with the text, and carefully parses the grammatical relationship of the "operative clause" identifying "the right to keep and bear arms" to the "prefatory clause" about the importance of a "well-regulated militia." Only then does he consider the extensive evidence of original meaning that has been uncovered by scholars over the past 20 years – evidence that was presented to the Court in numerous "friends of the court" briefs.
Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens's dissenting opinion that largely focused on "original intent" – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a "larger context." Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using "original intent" – or the original principles "underlying" the text – to negate its original public meaning.
Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.
So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.
We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or "precedents" that are inconsistent with the original public meaning of the text. This shows why elections matter – especially presidential elections – and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.
Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge. (Disclosure: I joined a brief by Academics for the Second Amendment supporting the individual rights interpretation; one of my articles was cited by Justice Scalia and another by Justice Breyer in his dissent.)
Due to the political orthodoxy among most constitutional law professors, some of the most important and earliest of this scholarship was produced by nonacademics like Don Kates, Stephen Halbrook, David Kopel, Clayton Cramer and others. Believe it or not, Heller was a case of nearly first impression, uninhibited by any prior decisions misinterpreting the Second Amendment.
Last but not least, tribute must be paid to the plaintiffs – Shelly Parker, Dick Anthony Heller, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, and George Lyon – who went where the National Rifle Association feared to tread, and to their lawyers Robert Levy, Clark Neily, and lead counsel Alan Gura. I was privileged to witness Mr. Gura argue the case – his first Supreme Court argument ever – and he was outstanding. Heller provides yet another reminder of the crucial role that private lawyers play in the preservation of our liberties.
Mr. Barnett, a professor at Georgetown Law, is the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2004).
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JDN: "As for Justices, perhaps I was too harsh on Thomas, but I do not think he has the intellect of the others".
Still no examples. I strongly disagree and challenge you / others again to illustrate this often stated assertion. He doesn't ask questions of the lawyers who appear but he reads the briefs and writes opinions with wisdom and constitutional discipline like almost no one else IMO.
EXAMPLE: Kelo v. New London. The worst decision in recent memory destroying private property rights by allowing local governments to take private property for what THEY deem to be better private property purposes. Thomas wrote the strongest opinion opposing it.
Thomas' opinion follows. He goes beyond the dissent of Sandra Day O'Connor and argues very persuasively the original meaning of the public use in the takings restrictions clause. I watched his confirmation hearings and his intellect held up very well especially as compared to the Senators in the room. - Doug
(aside: JDN, I didn't know you play squash. Maybe we have another way of settling this...)
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Thomas, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 04—108
SUSETTE KELO, et al., PETITIONERS v. CITY OF
NEW LONDON, CONNECTICUT, et al.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT
[June 23, 2005]
Justice Thomas, dissenting.
Long ago, William Blackstone wrote that “the law of the land … postpones even public necessity to the sacred and inviolable rights of private property.” 1 Commentaries on the Laws of England 134—135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “ ‘[P]ublic [P]urpose’ ” Clause, ante, at 9—10 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”
I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent. Ante, at 1—2, 8—13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.
I. The Fifth Amendment provides:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process, of law; nor shall private property be taken for public use, without just compensation.” (Emphasis added.)
It is the last of these liberties, the Takings Clause, that is at issue in this case. In my view, it is “imperative that the Court maintain absolute fidelity to” the Clause’s express limit on the power of the government over the individual, no less than with every other liberty expressly enumerated in the Fifth Amendment or the Bill of Rights more generally. Shepard v. United States, 544 U.S. ___, ___ (2005) (slip op., at 2) (Thomas, J., concurring in part and concurring in judgment) (internal quotation marks omitted).
Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides “just compensation” for the taking, the Takings Clause also prohibits the government from taking property except “for public use.” Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power–for public or private uses–then it would be surplusage. See ante, at 3—4 (O’Connor, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174 (1803) (“It cannot be presumed that any clause in the constitution is intended to be without effect”); Myers v. United States, 272 U.S. 52, 151 (1926). Alternatively, the Clause could distinguish those takings that require compensation from those that do not. That interpretation, however, “would permit private property to be taken or appropriated for private use without any compensation whatever.” Cole v. La Grange, 113 U.S. 1, 8 (1885) (interpreting same language in the Missouri Public Use Clause). In other words, the Clause would require the government to compensate for takings done “for public use,” leaving it free to take property for purely private uses without the payment of compensation. This would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation. 1 Blackstone 135; 2 J. Kent, Commentaries on American Law 275 (1827) (hereinafter Kent); J. Madison, for the National Property Gazette, (Mar. 27, 1792), in 14 Papers of James Madison 266, 267 (R. Rutland et al. eds. 1983) (arguing that no property “shall be taken directly even for public use without indemnification to the owner”).1 The Public Use Clause, like the Just Compensation Clause, is therefore an express limit on the government’s power of eminent domain.
The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun “use” as “[t]he act of employing any thing to any purpose.” 2 S. Johnson, A Dictionary of the English Language 2194 (4th ed. 1773) (hereinafter Johnson). The term “use,” moreover, “is from the Latin utor, which means ‘to use, make use of, avail one’s self of, employ, apply, enjoy, etc.” J. Lewis, Law of Eminent Domain §165, p. 224, n. 4 (1888) (hereinafter Lewis). When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is “employing” the property, regardless of the incidental benefits that might accrue to the public from the private use. The term “public use,” then, means that either the government or its citizens as a whole must actually “employ” the taken property. See id., at 223 (reviewing founding-era dictionaries).
Granted, another sense of the word “use” was broader in meaning, extending to “[c]onvenience” or “help,” or “[q]ualities that make a thing proper for any purpose.” 2 Johnson 2194. Nevertheless, read in context, the term “public use” possesses the narrower meaning. Elsewhere, the Constitution twice employs the word “use,” both times in its narrower sense. Claeys, Public-Use Limitations and Natural Property Rights, 2004 Mich. St. L. Rev. 877, 897 (hereinafter Public Use Limitations). Article 1, §10 provides that “the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States,” meaning the Treasury itself will control the taxes, not use it to any beneficial end. And Article I, §8 grants Congress power “[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Here again, “use” means “employed to raise and support Armies,” not anything directed to achieving any military end. The same word in the Public Use Clause should be interpreted to have the same meaning.
Tellingly, the phrase “public use” contrasts with the very different phrase “general Welfare” used elsewhere in the Constitution. See ibid. (“Congress shall have Power To … provide for the common Defence and general Welfare of the United States”); preamble (Constitution established “to promote the general Welfare”). The Framers would have used some such broader term if they had meant the Public Use Clause to have a similarly sweeping scope. Other founding-era documents made the contrast between these two usages still more explicit. See Sales, Classical Republicanism and the Fifth Amendment’s “Public Use” Requirement, 49 Duke L. J. 339, 368 (2000) (hereinafter Sales) (noting contrast between, on the one hand, the term “public use” used by 6 of the first 13 States and, on the other, the terms “public exigencies” employed in the Massachusetts Bill of Rights and the Northwest Ordinance, and the term “public necessity” used in the Vermont Constitution of 1786). The Constitution’s text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking.
The Constitution’s common-law background reinforces this understanding. The common law provided an express method of eliminating uses of land that adversely impacted the public welfare: nuisance law. Blackstone and Kent, for instance, both carefully distinguished the law of nuisance from the power of eminent domain. Compare 1 Blackstone 135 (noting government’s power to take private property with compensation), with 3 id., at 216 (noting action to remedy “public …nuisances, which affect the public and are an annoyance to all the king’s subjects”); see also 2 Kent 274—276 (distinguishing the two). Blackstone rejected the idea that private property could be taken solely for purposes of any public benefit. “So great … is the regard of the law for private property,” he explained, “that it will not authorize the least violation of it; no, not even for the general good of the whole community.” 1 Blackstone 135. He continued: “If a new road … were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without the consent of the owner of the land.” Ibid. Only “by giving [the landowner] full indemnification” could the government take property, and even then “[t]he public [was] now considered as an individual, treating with an individual for an exchange.” Ibid. When the public took property, in other words, it took it as an individual buying property from another typically would: for one’s own use. The Public Use Clause, in short, embodied the Framers’ understanding that property is a natural, fundamental right, prohibiting the government from “tak[ing] property from A. and giv[ing] it to B.” Calder v. Bull, 3 Dall. 386, 388 (1798); see also Wilkinson v. Leland, 2 Pet. 627, 658 (1829); Vanhorne’s Lessee v. Dorrance, 2 Dall. 304, 311 (CC Pa. 1795).
The public purpose interpretation of the Public Use Clause also unnecessarily duplicates a similar inquiry required by the Necessary and Proper Clause. The Takings Clause is a prohibition, not a grant of power: The Constitution does not expressly grant the Federal Government the power to take property for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power. See Kohl v. United States, 91 U.S. 367, 371—372 (1876) (noting Federal Government’s power under the Necessary and Proper Clause to take property “needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses, post-offices, and court-houses, and for other public uses”). For a law to be within the Necessary and Proper Clause, as I have elsewhere explained, it must bear an “obvious, simple, and direct relation” to an exercise of Congress’ enumerated powers, Sabri v. United States, 541 U.S. 600, 613 (2004) (Thomas, J., concurring in judgment), and it must not “subvert basic principles of” constitutional design, Gonzales v. Raich, ante, at __ (Thomas, J., dissenting). In other words, a taking is permissible under the Necessary and Proper Clause only if it serves a valid public purpose. Interpreting the Public Use Clause likewise to limit the government to take property only for sufficiently public purposes replicates this inquiry. If this is all the Clause means, it is, once again, surplusage. See supra, at 3. The Clause is thus most naturally read to concern whether the property is used by the public or the government, not whether the purpose of the taking is legitimately public.
II
Early American eminent domain practice largely bears out this understanding of the Public Use Clause. This practice concerns state limits on eminent domain power, not the Fifth Amendment, since it was not until the late 19th century that the Federal Government began to use the power of eminent domain, and since the Takings Clause did not even arguably limit state power until after the passage of the Fourteenth Amendment. See Note, The Public Use Limitation on Eminent Domain: An Advance Requiem, 58 Yale L. J. 599, 599—600, and nn. 3—4 (1949); Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 250—251 (1833) (holding the Takings Clause inapplicable to the States of its own force). Nevertheless, several early state constitutions at the time of the founding likewise limited the power of eminent domain to “public uses.” See Sales 367—369, and n. 137 (emphasis deleted). Their practices therefore shed light on the original meaning of the same words contained in the Public Use Clause.
States employed the eminent domain power to provide quintessentially public goods, such as public roads, toll roads, ferries, canals, railroads, and public parks. Lewis §§166, 168—171, 175, at 227—228, 234—241, 243. Though use of the eminent domain power was sparse at the time of the founding, many States did have so-called Mill Acts, which authorized the owners of grist mills operated by water power to flood upstream lands with the payment of compensation to the upstream landowner. See, e.g., id., §178, at 245—246; Head v. Amoskeag Mfg. Co., 113 U.S. 9, 16—19, and n. (1885). Those early grist mills “were regulated by law and compelled to serve the public for a stipulated toll and in regular order,” and therefore were actually used by the public. Lewis §178, at 246, and n. 3; see also Head, supra, at 18—19. They were common carriers–quasi-public entities. These were “public uses” in the fullest sense of the word, because the public could legally use and benefit from them equally. See Public Use Limitations 903 (common-carrier status traditionally afforded to “private beneficiaries of a state franchise or another form of state monopoly, or to companies that operated in conditions of natural monopoly”).
To be sure, some early state legislatures tested the limits of their state-law eminent domain power. Some States enacted statutes allowing the taking of property for the purpose of building private roads. See Lewis §167, at 230. These statutes were mixed; some required the private landowner to keep the road open to the public, and others did not. See id., §167, at 230—234. Later in the 19th century, moreover, the Mill Acts were employed to grant rights to private manufacturing plants, in addition to grist mills that had common-carrier duties. See, e.g., M. Horwitz, The Transformation of American Law 1780—1860, pp. 51—52 (1977).
These early uses of the eminent domain power are often cited as evidence for the broad “public purpose” interpretation of the Public Use Clause, see, e.g., ante, at 8, n. 8 (majority opinion); Brief for Respondents 30; Brief for American Planning Assn. et al. as Amici Curiae at 6—7, but in fact the constitutionality of these exercises of eminent domain power under state public use restrictions was a hotly contested question in state courts throughout the 19th and into the 20th century. Some courts construed those clauses to authorize takings for public purposes, but others adhered to the natural meaning of “public use.”2 As noted above, the earliest Mill Acts were applied to entities with duties to remain open to the public, and their later extension is not deeply probative of whether that subsequent practice is consistent with the original meaning of the Public Use Clause. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 370 (1995) (Thomas, J., concurring in judgment). At the time of the founding, “business corporations were only beginning to upset the old corporate model, in which the raison d’ętre of chartered associations was their service to the public,” Horwitz, supra, at 49—50, so it was natural to those who framed the first Public Use Clauses to think of mills as inherently public entities. The disagreement among state courts, and state legislatures’ attempts to circumvent public use limits on their eminent domain power, cannot obscure that the Public Use Clause is most naturally read to authorize takings for public use only if the government or the public actually uses the taken property.
(opinion didn't fit, continued in next post)
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(Kelo v. New London, Justice Thomas dissenting continued)
III
Our current Public Use Clause jurisprudence, as the Court notes, has rejected this natural reading of the Clause. Ante, at 8—10. The Court adopted its modern reading blindly, with little discussion of the Clause’s history and original meaning, in two distinct lines of cases: first, in cases adopting the “public purpose” interpretation of the Clause, and second, in cases deferring to legislatures’ judgments regarding what constitutes a valid public purpose. Those questionable cases converged in the boundlessly broad and deferential conception of “public use” adopted by this Court in Berman v. Parker, 348 U.S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), cases that take center stage in the Court’s opinion. See ante, 10—12. The weakness of those two lines of cases, and consequently Berman and Midkiff, fatally undermines the doctrinal foundations of the Court’s decision. Today’s questionable application of these cases is further proof that the “public purpose” standard is not susceptible of principled application. This Court’s reliance by rote on this standard is ill advised and should be reconsidered.
A
As the Court notes, the “public purpose” interpretation of the Public Use Clause stems from Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 161—162 (1896). Ante, at 11. The issue in Bradley was whether a condemnation for purposes of constructing an irrigation ditch was for a public use. 164 U.S., at 161. This was a public use, Justice Peckham declared for the Court, because “[t]o irrigate and thus to bring into possible cultivation these large masses of otherwise worthless lands would seem to be a public purpose and a matter of public interest, not confined to landowners, or even to any one section of the State.” Ibid. That broad statement was dictum, for the law under review also provided that “[a]ll landowners in the district have the right to a proportionate share of the water.” Id., at 162. Thus, the “public” did have the right to use the irrigation ditch because all similarly situated members of the public–those who owned lands irrigated by the ditch—had a right to use it. The Court cited no authority for its dictum, and did not discuss either the Public Use Clause’s original meaning or the numerous authorities that had adopted the “actual use” test (though it at least acknowledged the conflict of authority in state courts, see id., at 158; supra, at 9, and n. 2). Instead, the Court reasoned that “[t]he use must be regarded as a public use, or else it would seem to follow that no general scheme of irrigation can be formed or carried into effect.” Bradley, supra, at 160—161. This is no statement of constitutional principle: Whatever the utility of irrigation districts or the merits of the Court’s view that another rule would be “impractical given the diverse and always evolving needs of society,” ante, at 8, the Constitution does not embody those policy preferences any more than it “enacts Mr. Herbert Spencer’s Social Statics.” Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting); but see id., at 58—62 (Peckham, J., for the Court).
This Court’s cases followed Bradley’s test with little analysis. In Clark v. Nash, 198 U.S. 361 (1905) (Peckham, J., for the Court), this Court relied on little more than a citation to Bradley in upholding another condemnation for the purpose of laying an irrigation ditch. 198 U.S., at 369—370. As in Bradley, use of the “public purpose” test was unnecessary to the result the Court reached. The government condemned the irrigation ditch for the purpose of ensuring access to water in which “other land owners adjoining the defendant in error … might share,” 198 U.S., at 370, and therefore Clark also involved a condemnation for the purpose of ensuring access to a resource to which similarly situated members of the public had a legal right of access. Likewise, in Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527 (1906), the Court upheld a condemnation establishing an aerial right-of-way for a bucket line operated by a mining company, relying on little more than Clark, see Strickley, supra, at 531. This case, too, could have been disposed of on the narrower ground that “the plaintiff [was] a carrier for itself and others,” 200 U.S., at 531—532, and therefore that the bucket line was legally open to the public. Instead, the Court unnecessarily rested its decision on the “inadequacy of use by the general public as a universal test.” Id., at 531. This Court’s cases quickly incorporated the public purpose standard set forth in Clark and Strickley by barren citation. See, e.g., Rindge Co. v. County of Los Angeles, 262 U.S. 700, 707 (1923); Block v. Hirsh, 256 U.S. 135, 155 (1921); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30, 32 (1916); O’Neill v. Leamer, 239 U.S. 244, 253 (1915).
B
A second line of this Court’s cases also deviated from the Public Use Clause’s original meaning by allowing legislatures to define the scope of valid “public uses.” United States v. Gettysburg Electric R. Co., 160 U.S. 668 (1896), involved the question whether Congress’ decision to condemn certain private land for the purpose of building battlefield memorials at Gettysburg, Pennsylvania, was for a public use. Id., at 679—680. Since the Federal Government was to use the lands in question, id., at 682, there is no doubt that it was a public use under any reasonable standard. Nonetheless, the Court, speaking through Justice Peckham, declared that “when the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation.” Id., at 680. As it had with the “public purpose” dictum in Bradley, supra, the Court quickly incorporated this dictum into its Public Use Clause cases with little discussion. See, e.g., United States ex rel. TVA v. Welch, 327 U.S. 546, 552 (1946); Old Dominion Land Co. v. United States, 269 U.S. 55, 66 (1925).
There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a “public use.” To begin with, a court owes no deference to a legislature’s judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the “public purpose” interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature’s determination of the various circumstances that establish, for example, when a search of a home would be reasonable, see, e.g., Payton v. New York, 445 U.S. 573, 589—590 (1980), or when a convicted double-murderer may be shackled during a sentencing proceeding without on-the-record findings, see Deck v. Missouri, 544 U.S. ___ (2005), or when state law creates a property interest protected by the Due Process Clause, see, e.g., Castle Rock v. Gonzales, post, at __; Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972); Goldberg v. Kelly, 397 U.S. 254, 262—263 (1970).
Still worse, it is backwards to adopt a searching standard of constitutional review for nontraditional property interests, such as welfare benefits, see, e.g., Goldberg, supra, while deferring to the legislature’s determination as to what constitutes a public use when it exercises the power of eminent domain, and thereby invades individuals’ traditional rights in real property. The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” Payton, supra, at 601, when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments,” ante, at 18, when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not. Once one accepts, as the Court at least nominally does, ante, at 6, that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it.
C
These two misguided lines of precedent converged in Berman v. Parker, 348 U.S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). Relying on those lines of cases, the Court in Berman and Midkiff upheld condemnations for the purposes of slum clearance and land redistribution, respectively. “Subject to specific constitutional limitations,” Berman proclaimed, “when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation.” 348 U.S., at 32. That reasoning was question begging, since the question to be decided was whether the “specific constitutional limitation” of the Public Use Clause prevented the taking of the appellant’s (concededly “nonblighted”) department store. Id., at 31, 34. Berman also appeared to reason that any exercise by Congress of an enumerated power (in this case, its plenary power over the District of Columbia) was per se a “public use” under the Fifth Amendment. Id., at 33. But the very point of the Public Use Clause is to limit that power. See supra, at 3—4.
More fundamentally, Berman and Midkiff erred by equating the eminent domain power with the police power of States. See Midkiff, 467 U.S., at 240 (“The ‘public use’ requirement is … coterminous with the scope of a sovereign’s police powers”); Berman, 348 U.S., at 32. Traditional uses of that regulatory power, such as the power to abate a nuisance, required no compensation whatsoever, see Mugler v. Kansas, 123 U.S. 623, 668—669 (1887), in sharp contrast to the takings power, which has always required compensation, see supra, at 3, and n. 1. The question whether the State can take property using the power of eminent domain is therefore distinct from the question whether it can regulate property pursuant to the police power. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014 (1992); Mugler, supra, at 668—669. In Berman, for example, if the slums at issue were truly “blighted,” then state nuisance law, see, e.g., supra, at 5—6; Lucas, supra, at 1029, not the power of eminent domain, would provide the appropriate remedy. To construe the Public Use Clause to overlap with the States’ police power conflates these two categories.3
The “public purpose” test applied by Berman and Midkiff also cannot be applied in principled manner. “When we depart from the natural import of the term ‘public use,’ and substitute for the simple idea of a public possession and occupation, that of public utility, public interest, common benefit, general advantage or convenience … we are afloat without any certain principle to guide us.” Bloodgood v. Mohawk & Hudson R. Co., 18 Wend. 9, 60—61 (NY 1837) (opinion of Tracy, Sen.). Once one permits takings for public purposes in addition to public uses, no coherent principle limits what could constitute a valid public use—at least, none beyond Justice O’Connor’s (entirely proper) appeal to the text of the Constitution itself. See ante, at 1—2, 8—13 (dissenting opinion). I share the Court’s skepticism about a public use standard that requires courts to second-guess the policy wisdom of public works projects. Ante, at 16—19. The “public purpose” standard this Court has adopted, however, demands the use of such judgment, for the Court concedes that the Public Use Clause would forbid a purely private taking. Ante, at 7—8. It is difficult to imagine how a court could find that a taking was purely private except by determining that the taking did not, in fact, rationally advance the public interest. Cf. ante, at 9—10 (O’Connor, J., dissenting) (noting the complicated inquiry the Court’s test requires). The Court is therefore wrong to criticize the “actual use” test as “difficult to administer.” Ante, at 8. It is far easier to analyze whether the government owns or the public has a legal right to use the taken property than to ask whether the taking has a “purely private purpose”—unless the Court means to eliminate public use scrutiny of takings entirely. Ante, at 7—8, 16—17. Obliterating a provision of the Constitution, of course, guarantees that it will not be misapplied.
For all these reasons, I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property.
IV
The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages “those citizens with dis-
proportionate influence and power in the political pro-
cess, including large corporations and development
firms” to victimize the weak. Ante, at 11 (O’Connor, J., dissenting).
Those incentives have made the legacy of this Court’s “public purpose” test an unhappy one. In the 1950’s, no doubt emboldened in part by the expansive understanding of “public use” this Court adopted in Berman, cities “rushed to draw plans” for downtown development. B. Frieden & L. Sagalayn, Downtown, Inc. How America Rebuilds Cities 17 (1989). “Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them.” Id., at 28. Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at 28—29. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated with the displacement of blacks; “n cities across the country, urban renewal came to be known as ‘Negro removal.’ ” Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47 (2003). Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black. 348 U.S., at 30. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.
***
The Court relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result. See ante, at 8—12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning. For the reasons I have given, and for the reasons given in Justice O’Connor’s dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners’ favor. I would reverse the judgment of the Connecticut Supreme Court.
Notes
1. Some state constitutions at the time of the founding lacked just compensation clauses and took property even without providing compensation. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1056—1057 (1992) (Blackmun, J., dissenting). The Framers of the Fifth Amendment apparently disagreed, for they expressly prohibited uncompensated takings, and the Fifth Amendment was not incorporated against the States until much later. See id., at 1028, n. 15.
2. Compare ante, at 8, and n. 8 (majority opinion) (noting that some state courts upheld the validity of applying the Mill Acts to private purposes and arguing that the “ ‘use by the public’ test” “eroded over time”), with, e.g., Ryerson v. Brown, 35 Mich. 333, 338—339 (1877) (holding it “essential” to the constitutionality of a Mill Act “that the statute should require the use to be public in fact; in other words, that it should contain provisions entitling the public to accommodations”); Gaylord v. Sanitary Dist. of Chicago, 204 Ill. 576, 581—584, 68 N. E. 522, 524 (1903) (same); Tyler v. Beacher, 44 Vt. 648, 652—656 (1871) (same); Sadler v. Langham, 34 Ala. 311, 332—334 (1859) (striking down taking for purely private road and grist mill); Varner v. Martin, 21 W. Va. 534, 546—548, 556—557, 566—567 (1883) (grist mill and private road had to be open to public for them to constitute public use); Harding v. Goodlett, 3 Yerg. 41, 53 (1832); Jacobs v. Clearview Water Supply Co., 220 Pa. 388, 393—395, 69 A. 870, 872 (1908) (endorsing actual public use standard); Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 449—451, 107 N. W. 405, 413 (1906) (same); Chesapeake Stone Co. v. Moreland, 126 Ky. 656, 663—667, 104 S. W. 762, 765 (Ct. App. 1907) (same); Note, Public Use in Eminent Domain, 21 N. Y. U. L. Q. Rev. 285, 286, and n. 11 (1946) (calling the actual public use standard the “majority view” and citing other cases).
3. Some States also promoted the alienability of property by abolishing the feudal “quit rent” system, i.e., long-term leases under which the proprietor reserved to himself the right to perpetual payment of rents from his tenant. See Vance, The Quest for Tenure in the United States, 33 Yale L. J. 248, 256—257, 260—263 (1923). In Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), the Court cited those state policies favoring the alienability of land as evidence that the government’s eminent domain power was similarly expansive, see id., at 241—242, and n. 5. But they were uses of the States’ regulatory power, not the takings power, and therefore were irrelevant to the issue in Midkiff. This mismatch underscores the error of conflating a State’s regulatory power with its taking power.
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Over to you JDN :-)
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Over to you JDN :-)
Gee thanks Crafty :-)
Doug said, "... maybe we have another way of settling this..." While I haven't played
squash in a while, I think I will start practicing... My odds, albeit weak, still might be better on the squash court :-)
PS Is the question this particular case? I too am against and agree with Thomas that "modern" courts have wrongly given a carte blanche
to "public purpose" and eminent domain. Yet, often the "public purpose" should provail; it depends upon the need and circumstances. Hospitals, roads, schools, etc. are all important for the public good.
As an example of abuse, in a nearly town (Alhambra) the city has given heavy handed notice (eminent domain) and intends to destroy a large public (privately owned) parking lot (note - parking is in short supply) and two small businesses. Why? To build a strip mall... One has to wonder... Why is the city interceding and claiming eminent domain... I don't get it.
As for Thomas, he sleeps on the court and in general puts me to sleep. He is not a leader and rarely writes the majority opinion. He seems to merely follow Scalla and rarely speaks. That said, I too often agree with his vote. Yet I hope for more from people on the Supreme Court.
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The question was the depth of Thomas' intellect. My example was the opinion posted. He is no lightweight. That Scalia or others find themselves on the same side does not mean Thomas followed them. He VERY often writes a separate opinion concurring or dissent. If the majority didn't sign on with this opinion, from my point of view, shame on them.
Jan Crawford Greenburg covers the court for the PBS Jim Lehrer News Hour, ABC News, and Chicago Tribune. I find her to be informed and objective. She wrote this for the Wall Street Journal in 2007: (this was posted previously)
AT LAW
The Truth About Clarence Thomas
He's an independent voice, not a Scalia lackey.
by JAN CRAWFORD GREENBURG
January 28, 2007 http://www.opinionjournal.com/extra/?id=110009590
Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive--and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.
That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.
Much of the documentary evidence for this comes from the papers of Justice Harry Blackmun, who recorded the justices' votes and took detailed notes explaining their views. I came across vivid proof while reading the papers as part of my research for a book about how the Rehnquist Court--a court with seven justices appointed by Republican presidents--evolved into an ideological and legal disappointment for conservatives.
Justice Thomas's first term was especially interesting. He replaced legendary liberal icon Thurgood Marshall, and joined the court just a year after David Souter took William Brennan's seat. There appeared to be a solid conservative majority, with the court poised to finally dismember the liberal legacy of the Warren Court. But that year it instead lurched inexplicably to the left--even putting Roe v. Wade on more solid ground.
Justice Thomas's first year on the job brought to life the adage that a new justice makes a new court. His entry didn't merely change the vote of the liberal justice he replaced. It turned the chessboard around entirely, rearranging ideological alliances. Justice Thomas acted as a catalyst in different ways, shoring up conservative positions in some cases and spurring others--the moderate Justice Sandra Day O'Connor, in particular--to realign themselves into new voting blocs.
Consider a criminal case argued during Justice Thomas's first week. It concerned a thief's effort to get out of a Louisiana mental institution and the state's desire to keep him there. Eight justices voted to side with the thief. Justice Thomas dissented, arguing that although it "may make eminent sense as a policy matter" to let the criminal out of the mental institution, nothing in the Constitution required "the states to conform to the policy preferences of federal judges."
After he sent his dissenting opinion to the other justices, as is custom, Justices Rehnquist, Scalia and Kennedy changed their votes. The case ended up 5-4.
Justice Thomas's dissents persuaded Justice Scalia to change his mind several times that year. Even in Hudson v. McMillan, the case that prompted the New York Times to infamously label Justice Thomas the "youngest, cruelest justice," he was again, initially, the lone dissenter. Justice Scalia changed his vote after he read Justice Thomas's dissent, which said a prison inmate beaten by guards had several options for redress--but not under the Eighth Amendment's prohibition of "cruel and unusual punishment."
From the beginning, Justice Thomas was an independent voice. His brutal confirmation hearings only enforced his autonomy, making him impervious to criticism from the media and liberal law professors. He'd told his story, and no one listened. From then on, he did not care what they said about him.
Clarence Thomas, for example, is the only justice who rarely asks questions at oral arguments. One reason is that he thinks his colleagues talk too much from the bench, and he prefers to let the lawyers explain their case with fewer interruptions. But his silence is sometimes interpreted as a lack of interest, and friends have begged him to ask a few questions to dispel those suggestions. He refuses to do it. "They have no credibility," he says of critics. "I am free to live up to my oath."
But the forcefulness and clarity of Justice Thomas's views, coupled with wrongheaded depictions of him doing Justice Scalia's bidding, created an internal dynamic that caused the court to make an unexpected turn in his first year. Justice O'Connor--who sought ideological balance--moved to the left. With the addition of Chief Justice John Roberts and Associate Justice Samuel Alito, the court now is poised to finally fulfill the hopes of the conservative movement. As George W. Bush told his legal advisers early in his presidency, he wanted justices in "the mold of Thomas and Scalia." Interestingly, on President Bush's marquee, Justice Thomas got top billing.
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Ok, ok, ok, I am busy looking for a sweater, a shirt, a sheet, SOMETHING white, anything white to wave... :-D
I stand corrected; Mea Culpa; I will pay more attention to Thomas and I now have greater respect. Thank you;
I should not have simply followed the herd, rather I should have analyzed his opinions and influence as you have
properly done.
But then that is why I come to this forum; to learn.
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Its why its such good fun around here. Glad to have you a part of it.
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Barack Obama's cabinet choices are understandably getting most media attention, but everyone knows policy is also made by the sub-cabinet. So we think more public scrutiny should be drawn to Mr. Obama's choice of Dawn Johnsen to lead one of the executive branch's most important legal offices. Her appointment makes sense for a President Gulliver, but not for a Commander in Chief fighting terrorists.
Ms. Johnsen became famous in the left-wing blogosphere as an especially arch critic of the Bush Administration's war on terror. As an Indiana University law professor, she took to the Web with such lawyerly analysis as "rogue," "lawless," "outrage," and that's the mild stuff. Now she's been nominated to run the Justice Department's Office of Legal Counsel, which interprets the law for the entire executive branch.
One of the OLC's main duties is to defend the Presidency against the inevitable encroachment of the judiciary and Congress on Constitutional authority, executive privilege, war powers, and so forth. Ms. Johnsen knows this, or should, having served as acting OLC head in the Clinton Administration between 1997 and 1998. The office has since become all the more central in a war on terror that has been "strangled by law," to quote Jack Goldsmith, a former Bush OLC chief.
Yet Ms. Johnsen seems to think her job isn't to defend the Presidency but to tie it down with even more legal ropes. She has written that "an essential source of constraint is often underappreciated and underestimated: legal advisors within the executive branch." And in touting her qualifications, the Obama transition cited her recent law review articles "What's a President to Do?: Interpreting the Constitution in the Wake of the Bush Administration's Abuses"; and "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power."
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In other words, Mr. Obama has nominated as his main executive branch lawyer someone who believes in diminishing the powers of the executive branch. This is akin to naming a conscientious objector as the head of the armed forces, or hiring your wife's divorce lawyer to handle your side of the settlement too.
It's also a radical reinvention of the Framers' view that the three branches of the federal government would vigorously assert their powers to achieve the proper political balance. For this reason, OLC's longstanding jurisprudence -- reaching across Administrations of both parties -- emphasizes an expansive reading of Presidential authority. For example, the office has always filed opinions opposing the 1973 War Powers Act, which sought to limit the chief executive's ability to send military forces abroad. Such opinions covered both Bill Clinton's intervention in Kosovo and George H.W. Bush's in Somalia.
Ms. Johnsen's work ignores all of this in an attempt to assail the entire scope of Bush counterterrorism policy, from surveillance to detention to interrogation. She claims that the OLC "misinterpreted relevant constitutional authorities, particularly when seeking to justify actions otherwise prohibited by law." She pays special attention to John Yoo's August 2002 OLC memorandum that set down the legal limits for interrogation, which she calls "the Torture Opinion."
In Today's Opinion Journal
REVIEW & OUTLOOK
Muslims Against HamasA Regulator With Promise – Really
Ms. Johnsen accuses Mr. Yoo of "seeking maximum flexibility -- that is, the ability to use the most extreme methods possible without risking criminal liability -- in interrogations of suspected al Qaeda operatives." She means this as a condemnation. But this in fact is the OLC's job -- to explore the legal boundaries of vague statutes and treaties to define where lawful interrogation ends and torture begins. You can debate that Mr. Yoo went too far, as Mr. Goldsmith later did when the Bush Administration withdrew the opinion. But Mr. Yoo was acting in good faith in response to the CIA's request for legal clarity, while leaving the policy choices to the war fighters.
And that's where Ms. Johnsen's premises are most dangerous. "In considering whether a proposed action is lawful," she writes, "the proper OLC inquiry is not simply whether the executive branch can get away with it," in the sense of writing opinions that can "withstand judicial review." She sees the OLC staff not as legal technicians working on behalf of the President but as a policy outfit free to quash Presidential actions with which it happens to disagree.
This is far from an academic exercise, because the OLC's advice is traditionally binding for the executive branch except in rare cases where it is overruled by the President or Attorney General. To the extent that such a mentality seeps across the executive branch, it will begin to make our spies and other war fighters risk-averse and overcautious. This is precisely what happened during the Clinton years after Deputy Attorney General Jamie Gorelick's infamous 1995 memo instructed FBI agents and federal prosecutors to go "beyond what the law requires" in limiting their collaboration against al Qaeda.
Suffocating our terror fighters with excessive legal caution can only impair the difficult task of defending a free society that believes in the rule of law from terrorists who believe in neither freedom nor law. If President Obama matures under the burden and accountability of stopping the next terror attack, he may come to regret having Dawn Johnsen around.
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Second post of the morning:
By DAVID B. RIVKIN JR. and BRUCE D. BROWN
The farce of foreigners suing Americans for defamation in overseas forums, where the law does not sufficiently protect free speech, is so well-known that it has a fitting nickname: libel tourism. And London is its hot destination. Particularly since 9/11, foreign nationals have cynically exploited British courts in an attempt to stifle any discussion by American journalists about the dangers of jihadist ideology and terrorist supporters.
At long last, U.S. politicians are waking up to the dangers posed by libel tourism, which threatens both the First Amendment and American national security. The trouble is that their efforts, though well-intentioned, are relatively toothless and constitutionally problematic.
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Early last year, New York State passed the nation's first anti-libel tourism law. The law allows state courts to assert authority over foreign citizens based solely on a libel judgment they have obtained abroad against a New Yorker.
The statute's passage was prompted by libel tourism's most frequent flier, Saudi bigwig Khalid bin Mahfouz. He brought a claim in England against author Rachel Ehrenfeld, who alleged in a 2003 book that the international moneyman also financed terrorism. Although "Funding Evil" was published in the U.S., Mr. Mahfouz relied upon (and the British court accepted) the fact that the book was purchased by a small number of British readers on the Internet as sufficient grounds to sue Ms. Ehrenfeld in England.
Under the New York law, the target of a foreign libel suit does not even have to defend himself overseas. If a judgment is entered against him, he can seek a declaration that the foreign tribunal did not live up to First Amendment standards and therefore its ruling cannot be enforced against his U.S. assets. While emotionally satisfying, it does not protect a libel tourism victim's assets outside the U.S.
Moreover, the New York law takes a constitutionally dubious approach to the acquisition of personal jurisdiction over libel tourists. U.S courts have never before claimed jurisdiction over individuals who have no ties whatsoever to the U.S., other than suing an American in a foreign court.
Rep. Peter King (D., N.Y.) and Sens. Arlen Specter (R., Pa.) and Joe Lieberman (I., Conn.) have been advancing federal libel tourism bills. Unfortunately these bills, which are modeled on New York's, carry the same constitutional risks.
It is a mistake to respond to libel tourism by seeking to catch foreign plaintiffs with no U.S. contacts in our jurisdictional net. This smacks of the same legal one-upmanship that makes libel tourism itself so odious.
It is high time for a strategy that would stop libel tourists dead in their tracks, without sacrificing constitutional values. The answer lies not in stretching claims of personal jurisdiction, but in federal legislation that would enable American publishers to sue for damages, including punitive damages, for the harms they have suffered. A proper federal libel tourism bill would punish conduct that takes place overseas -- in this case, the commencement of sham libel actions in foreign courts -- by utilizing the well-recognized congressional authority to apply U.S. laws extraterritorially when compelling interests demand it. The Alien Tort Statute, for example, gives U.S. courts subject matter jurisdiction over brutal acts that violate the "law of nations" wherever they may occur. More recently, Congress has created civil remedies to enable victims of international terrorism and human trafficking to sue in our courts for money damages.
But in devising a robust, substantive cause of action for damages -- a bludgeon that Messrs. King, Specter and Lieberman appropriately include in their bills -- Congress should not change normal personal jurisdiction rules. In order to sue foreigners under the federal libel tourism bill and remain consistent with due process, these individuals would have to visit or transact business in the U.S. in order for the U.S. courts to acquire jurisdiction over them. (Radovan Karadzic, the Bosnian Serb leader charged with genocide, was famously served with an Alien Tort complaint while leaving a Manhattan hotel restaurant.)
Under such a law, U.S. courts would be asked to evaluate, at the beginning stages of a foreign lawsuit, whether the plaintiffs are seeking to punish speech protected under the First Amendment. This type of early intervention by judges has worked very well in the 26 states that have passed laws to discourage frivolous libel suits here in the U.S.
To give this approach sufficiently sharp teeth, the damages awarded in libel tourism cases would have to be very substantial. While it is somewhat unusual in tort law to set statutory damages, it presents no constitutional problems. Accordingly, an effective federal bill should give courts the authority to impose damages that amount to double any foreign judgment, plus court costs and attorneys' fees (in both proceedings) for good measure. Habitual libel tourists who obviously seek to impair Americans' First Amendment freedoms should face even stiffer fines. Such a robust response would make foreign libel adventures fiscally disadvantageous, and should deter most overseas suits from ever being filed.
For libel tourists our courts can't fairly touch, it is better to leave them alone than to overreach and tread into unconstitutional territory. But they may yet pay a price. Availing themselves the pleasures of American life could one day be costly. As Karadzic learned, if you violate U.S. law, don't dine out in Manhattan.
Messrs. Rivkin and Brown are partners in the Washington, D.C., office of Baker Hostetler LLP.
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President Obama has learned that choosing a Cabinet without proper vetting can produce painful headaches. The same may be said of some sub-cabinet officials at the Justice Department, now being rushed through the confirmation process. Today the Senate Judiciary Committee holds hearings on Elena Kagan to be Solicitor General and Thomas Perrelli to be Associate Attorney General. Their consideration should not come at the expense of a thorough airing of their records.
Much government policy gets made at the sub-cabinet level. Attorney General Eric Holder may be on the front pages, but it is the subalterns whose work will leave a mark on the country's laws and legal policy. Last week's hearing for Deputy Attorney General David Ogden raised issues involving his work on abortion, the death penalty and obscenity cases while in private practice. Mr. Ogden told the committee he did not always share the controversial views of those he represented.
At the confirmation, Senator Jon Kyl said Mr. Ogden had "talked about the need to employ human compassion and described a tension between the rule of law and human compassion in judging cases." This resembles former Senator Obama's comment on the campaign trail that "empathy" was an important qualification for a judge. Pressed by Senator Kyl, Mr. Ogden said, "I think it's important, as I think the President does, that judges understand the circumstances of the people who are in front of them and understand the consequences of their rulings. I think that's quite important. But in the end, the law has to guide legal judgment."
In an op-ed in the Legal Times earlier in his career, Mr. Ogden wrote that "Constitutional interpretation cannot be limited to ascertain the way a particular law would have been viewed by the Framers." We'll see.
As a dean of Harvard Law School, Ms. Kagan has a thinner paper trail, though there are areas of her record the Senators should explore today, including her opposition to the Solomon Amendment. This law makes it possible to deny federal money to colleges and universities that ban military recruiters on campus -- an action Harvard Law School took under her guidance in 2004. In 2006 the Supreme Court ruled the Solomon Amendment constitutional with an 8-0 decision. Mr. Perrelli was known for his work with the Florida ACLU in defense of Terry Schiavo's husband in the hard-fought case over whether to take the Florida woman off life support.
None of these positions may trump the appropriate deference President Obama deserves in choosing those who serve him, but they qualify as legitimate information to be shared with the voters. While Mr. Obama has staked moderate positions on many issues, appointing sub-cabinet officials with more radical views amounts to a kind of back-door activism, out of view of the voters. Shortened timelines for confirmation leaves the Senate with little time to consider the thousands of pages of documents that were submitted for consideration prior to these hearings.
Complicit in this haste has been Judiciary Chairman Patrick Leahy, who arranged the Justice hearings at lightning speed, a sharp turn from the endless stalling that marked his treatment of Bush nominees. Ms. Kagan's hearing comes only 36 days after her nomination -- a sprint compared to the average 56 days for Solicitor General nominees since 1980 or the 74 days since September 11, 2001. Similar fast reviews apply to Messrs. Perrelli and Ogden.
Elections have consequences and no one should be surprised that Mr. Obama is picking people who represent the left of the political spectrum. But Senate confirmation exists for a reason. The point is less to give Senators a veto than it is to inform the public. These people will govern in their name.
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World Net Daily is not a particularly reliable source, and in the opinion of some, this is a crank subject-- but if we stay with logic alone, I do not see why the proof of BO's qualifications should not be seen by everyone.
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Wednesday, March 11, 2009
Lawyer confronts justice about prez's qualifications
By Bob Unruh
WorldNetDaily
A lawyer lobbying the U.S. Justice Department and the U.S. Supreme Court for a review of Barack Obama's qualifications to be president says a key conservative justice has hinted that another conservative justice has been voting against hearing the dispute.
According to Orly Taitz, a California attorney working through her Defend Our Freedoms Foundation on several cases challenging Obama, said she was presented with an opportunity to ask a question of Supreme Court Justice Antonin Scalia yesterday.
The issue of Obama's eligibility has been raised before the Supreme Court at least four times already but has yet to be given a single hearing. Cases have been brought by Taitz, Philip Berg, Cort Wrotnowski and Leo Donofrio.
While the requests have been heard "in conference" by the justices, no hearings have resulted on the evidence. WND previously has reported that cases brought to individual justices on an emergency basis can be discussed in such conferences, but they need the affirmative vote from four justices before a hearing on the merits can be scheduled.
The Supreme Court today is considered to have mainly a 4-4 conservative-liberal split, with one swing vote on most issues. On the conservative side generally are Chief Justice John Roberts, Justice Samuel Alito, Scalia and Justice Clarence Thomas. Justice Anthony Kennedy often is the swing vote. The liberal side frequently includes Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens.
No explanations on the court's response to the Obama citizenship issue have been offered until now.
Taitz reported she attended a reception for Scalia and stood "right by the mic, just to make sure I have an opportunity to ask a question. Only four lawyers out of about 300 in the audience got to ask their questions and I was lucky to be one of them."
She said, "I told Scalia that I was an attorney that filed Lightfoot v. Bowen that Chief Justice Roberts distributed for conference on Jan. 23 and now I represent nine state reps and 120 military officers, many of them high ranked, and I want to know if they will hear Quo Warranto and if they would hear it on original jurisdiction, if I bring Hawaii as an additional defendant to unseal the records and ascertain Obama's legitimacy for presidency."
Taitz said she had some worries asking the question.
"I have to say that I prepared myself to a lot of boo-ing, knowing that Los Angeles trial lawyers and entertainment elite are Obama's stronghold, however there was no boo-ing, no negative remarks," she said. "I actually could see a lot of approving nods, smiles, many gasped and listened intensely. I could tell, that even Obama's strongest supporters wanted to know the answer.
"Scalia stated that it would be heard if I can get four people to hear it. He repeated, you need four for the argument. I got a feeling that he was saying that one of these four that call themselves constitutionalists went to the other side," Taitz said.
"He did not say that it is a political question, he did not say that it is for the legislature to decide. For example, right after me another attorney has asked him about his case of taxing some Internet commerce and right away Scalia told him that he should address it with the legislature. He did not say it to me. He did not say that Quo Warranto is antiquated or not appropriate. No, just get four," she said.
She then bought Scalia's book and waited in line to get it autographed.
"I gave him the books to sign and asked, 'Tell me what to do, what can I do, those soldiers [her plaintiffs] can be court-martialed for asking a legitimate question, who is the president, is he legitimate.' He said, 'Bring the case, I'll hear it, I don't know about others.'"
Taitz' latest effort is a case of Quo Warranto submitted to U.S. Attorney General Eric Holder.
The legal phrase essentially means an explanation is being demanded for what authority Obama is using to act as president. An online constitutional resource says Quo Warranto "affords the only judicial remedy for violations of the Constitution by public officials and agents."
The plaintiffs allege Obama failed to submit prima facie evidence of his qualifications before Jan. 20, 2009.
"Election officers failed to challenge, validate or evaluate his qualifications. Relators submit that as president elect, Respondent Obama failed [tO] qualify per U.S. CONST. Amend. XX [paragraph] 3," the document said.
John Eidsmoe, an expert on the U.S. Constitution working with the Foundation on Moral Law, said the demand is a legitimate course of action.
"She basically is asking, 'By what authority' is Obama president," he told WND. "In other words, 'I want you to tell me by what authority. I don't really think you should hold the office.'"
Taitz said Americans should flood Holder's office with calls, e-mails and faxes, urging him to take action on the case.
WND has reported on dozens of legal challenges to Obama's status as a "natural born citizen." The Constitution, Article 2, Section 1, states, "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."
Some of the lawsuits question whether he was actually born in Hawaii, as he insists. If he was born out of the country, Obama's American mother, the suits contend, was too young at the time of his birth to confer American citizenship to her son under the law at the time.
Other challenges have focused on Obama's citizenship through his father, a Kenyan subject to the jurisdiction of the United Kingdom at the time of his birth, thus making him a dual citizen. The cases contend the framers of the Constitution excluded dual citizens from qualifying as natural born.
Where's the proof Barack Obama was born in the U.S. or that he fulfills the "natural-born American" clause in the Constitution? If you still want to see it, join more than 300,000 others and sign up now!
Although Obama officials have told WND all such allegations are "garbage," here is a partial listing and status update for some of the cases over Obama's eligibility:
New Jersey attorney Mario Apuzzo has filed a case on behalf of Charles Kerchner and others alleging Congress didn't properly ascertain that Obama is qualified to hold the office of president.
Pennsylvania Democrat Philip Berg has three cases pending, including Berg vs. Obama in the 3rd U.S. Circuit Court of Appeals, a separate Berg vs. Obama which is under seal at the U.S. District Court level and Hollister vs. Soetoro a/k/a Obama, (now dismissed) brought on behalf of a retired military member who could be facing recall to active duty by Obama.
Leo Donofrio of New Jersey filed a lawsuit claiming Obama's dual citizenship disqualified him from serving as president. His case was considered in conference by the U.S. Supreme Court but denied a full hearing.
Cort Wrotnowski filed suit against Connecticut's secretary of state, making a similar argument to Donofrio. His case was considered in conference by the U.S. Supreme Court, but was denied a full hearing.
Former presidential candidate Alan Keyes headlines a list of people filing a suit in California, in a case handled by the United States Justice Foundation, that asks the secretary of state to refuse to allow the state's 55 Electoral College votes to be cast in the 2008 presidential election until Obama verifies his eligibility to hold the office. The case is pending, and lawyers are seeking the public's support.
Chicago attorney Andy Martin sought legal action requiring Hawaii Gov. Linda Lingle to release Obama's vital statistics record. The case was dismissed by Hawaii Circuit Court Judge Bert Ayabe.
Lt. Col. Donald Sullivan sought a temporary restraining order to stop the Electoral College vote in North Carolina until Barack Obama's eligibility could be confirmed, alleging doubt about Obama's citizenship. His case was denied.
In Ohio, David M. Neal sued to force the secretary of state to request documents from the Federal Elections Commission, the Democratic National Committee, the Ohio Democratic Party and Obama to show the presidential candidate was born in Hawaii. The case was denied.
Also in Ohio, there was the Greenberg v. Brunner case which ended when the judge threatened to assess all case costs against the plaintiff.
In Washington state, Steven Marquis sued the secretary of state seeking a determination on Obama's citizenship. The case was denied.
In Georgia, Rev. Tom Terry asked the state Supreme Court to authenticate Obama's birth certificate. His request for an injunction against Georgia's secretary of state was denied by Georgia Superior Court Judge Jerry W. Baxter.
California attorney Orly Taitz has brought a case, Lightfoot vs. Bowen, on behalf of Gail Lightfoot, the vice presidential candidate on the ballot with Ron Paul, four electors and two registered voters.
In addition, other cases cited on the RightSideofLife blog as raising questions about Obama's eligibility include:
In Texas, Darrel Hunter vs. Obama later was dismissed.
In Ohio, Gordon Stamper vs. U.S. later was dismissed.
In Texas, Brockhausen vs. Andrade.
In Washington, L. Charles Cohen vs. Obama.
In Hawaii, Keyes vs. Lingle, dismissed.
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It seems to me a matter of timeliness that has elapsed. The accusers needed to challenge this when he went on the ballot, not when he started winning or after he won and was sworn in. This case was tried by the voters who knew he had a foreign father and spent overseas time as a child.
Let's say for sake of argument there is something fishy about the original birth certificate on file in Hawaii. The accusers still would need more than a hunch and multiple theories to get a judge to force a look. And what if they now find a sloppy or reconstituted document? Then what? Put the document on trial. Prove it's not original. And then what? Even a right-wing congress or conservative court would still not remove him now from office IMO. If the story of the sources in the WND piece are true, which is doubtful because Justices don't speak candidly on open matters to their spouses, much less at book signings, it sounds like you would have 3 votes maximum out of 9 at most AFTER proving the President ineligible to serve. I think no Justice and no congress would reopen this under any circumstance
I watched the hysteria on liberal boards about non-stop Bush impeachment talk that made it all the way to the fringe members of congress. The answer then was that the President will leave at the end of his term and in this case after being defeated or serving two terms. Trite but true: elections have consequences. There is a way forward and this isn't it.
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What we know:
Obama has, and has had a US passport issued by the State Dept.
To be issued a US passport, one must give proof of US citizenship by birth or naturalization.
No one has come forward claiming Obama was naturalized as either a child or adult.
Therefore: It is reasonable to assume the US State Depertment accepted his birth cert as proof of his US citizenship.
How long are we going to keep flogging this horse? I'm seeing signs of rigor mortis..... :roll:
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When does a single policy blunder herald much larger economic damage? Sometimes it's hard to know ahead of time. Few in Congress thought the Smoot-Hawley tariff was a disaster in 1930, but it led to retaliation and a collapse of world trade. The question amid Washington's AIG bonus panic is whether Congress's war on private contracts and the financial system is a similarly destructive moment.
It is certainly one of the more amazing and senseless acts of political retribution in American history. In its bipartisan rage, the House saw fit last week not merely to punish the employees of AIG's Financial Products unit that the company still needs to safely unwind credit default swaps. The Members voted, 328-93, to slap a 90% tax on the bonuses of anyone at every bank receiving $5 billion in TARP money who earns more than $250,000 a year. A draft Senate version is even broader. Never mind if the bonus was earned last year or earlier, or under a legally binding employment contract. The confiscatory tax will apply ex post facto.
Never mind, too, that such punitive laws were expressly deplored by America's Founders. In Federalist 44, James Madison warned that "Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation."
In 1827 in Ogden v. Saunders, the U.S. Supreme Court issued a similar warning about legislative limits under Article I, Section 10 of the Constitution: "The states are forbidden to pass any bill of attainder or ex post facto law, by which a man shall be punished criminally or penally by loss of life of his liberty, property, or reputation for an act which, at the time of its commission, violated no existing law of the land," wrote Justice Bushrod Washington.
"Why did the authors of the Constitution turn their attention to this subject, which, at the first blush, would appear to be peculiarly fit to be left to the discretion of those who have the police and good government of the state under their management and control? The only answer to be given is because laws of this character are oppressive, unjust, and tyrannical, and as such are condemned by the universal sentence of civilized man."
Yes, Article I, Section 10 applies to the states, and this is a federal law. Congress may also figure it avoids the "bill of attainder" objection by applying the law to individuals at several companies receiving TARP money. But Congress's willingness to wreak such vengeance against a specific class of Americans is still as offensive as a matter of principle as Justice Washington and the Federalist Papers noted. The Founders feared the punitive whim of the legislative mob as much as they did the tyranny of a King.
The House legislation may also be unconstitutional on equal protection grounds given that it treats a homogeneous group of individuals differently depending on which companies they work for. It is one thing to treat the companies that receive federal funds differently from those that don't. But the individuals receiving bonuses may have nothing to do with the decision to receive TARP money. The House's 90% tax on some bankers but not others is only a step away from deciding to impose a higher tax rate on employees of any company out of political favor -- say, tobacco companies, or in the next Republican Congress, the New York Times Co.
Which brings us to the Smoot-Hawley analogy. With such a sweeping assault on contracts and punitive taxation, Congress is introducing an element of political risk to economic decisions that is typical of Argentina or Russia. The sanctity of U.S. contracts has long been one of America's competitive advantages in luring capital, a counterpoint to our lottery tort system and costly regulation. Meanwhile, the 90% tax rate marks a return to the pre-Reagan era when Congress and the political class behaved as if taxes didn't matter to growth or incentives. It is a revival of the philosophy of redistributionist "justice" of the 1930s, when capital went on strike for an entire decade.
The financial system will suffer in particular, just when the Obama Administration is desperately seeking more private capital to ride out future losses. Facing such limits on the ability to reward talent, every bank CEO will try to pay off the TARP as soon as possible, whether or not this leaves the bank with a weaker capital base. Hedge funds and other investors that Treasury needs for its new Public-Private Investment Program, or for the Federal Reserve's TALF, will also be warier, if they'll play at all. Treasury may promise nothing punitive for these programs, but that's also what it said about the TARP.
The other Smoot-Hawley comparison relates to our new President. Herbert Hoover sent mixed signals about the tariff until he finally bent to a panicked GOP Congress. President Obama has behaved in the past week as if he can appease and "channel" Congressional anger without being run over himself. So not only did he incite the Members last Monday, he welcomed the House bill on Thursday. By the weekend, cooler White House heads were whispering that the mob had gone too far, but it will take more than words to kill this terrible legislation. Mr. Obama will have to fire a gun in the air -- which means threatening a veto.
On Inauguration Day, we wrote that our young President has a first-class intellect and temperament. Our question was whether he is tough enough. So far the answer is no. He has failed to stand up to a Congress of his own party on anything difficult -- from stimulus priorities, to earmarks, to protectionism against Mexican trucks. Mr. Obama needs to face down the AIG mob, or his Presidency may be its next victim.
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Thanks Crafty for raising the legal/constitutional issues of the targeted tax hike. I clipped this from the pajama medias post from Obama on 60 minutes:
"...Kroft’s question about the constitutionality of the attempt to tax away the bonuses of the AIG executives and Obama’s answer:
Kroft: I mean, you’re a constitutional law professor. Do you think this bill is constitutional?
Obama: Well, I think that as a general proposition, you don’t want to be passing laws that are just targeting a handful of individuals."
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So we don't want to be doing exactly what we are doing. It was a VERY nonchalant response for a professor of constitutional law. Reminds me that who picks nominees for the courts is one of the top reasons to stay involved in elections even when it feels like choosing the lesser of two evils.
I've called Kelo the worst decision of recent memory. They took private property for private purposes - because they could. One logical reaction was a proposal to 'take' the David Souter place in New Hampshire and build a hotel: "This is not a prank" said Clements, "The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development." http://www.freestarmedia.com/hotellostliberty2.html
Of course it was quickly pointed out that you can't pass laws that target or punish individuals. Hmmm.....
It occurs to me that Obama is a worker under public subsidy who at 400k makes more than 250k at his day job. Seems to me any constitutional interpretation of the 90% over 250k tax would apply it to him as well.
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If what powers are not granted to the feds are left to the states - by constitutional mandate, is there no legal issue regarding feds bailing states out of their budget errors?
http://www.realclearpolitics.com/lists/biggest_state_deficits/introduction1.html?utm_source=rcp&utm_medium=link&utm_campaign=will
At least 7 of the top 10 bankrupt states are 'blue states' and are among the largest and richest states needing bailouts from working people across the fruited plain. Besides the obvious legal issue of granted powers, does not their own state constitution require a balanced budget? Crying like a baby for a bailout is easier than spending, subsidizing and governing less, but is it constitutional for feds to pay for state powers?
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Under what provision in the constitution does it grant authority to the Obama Administration or to Congress to give the Treasury Secretary the authority to take over non-bank financial companies, such as large insurers, investment firms and hedge funds?
Please watch conservative representative Michele Bachmann, a private tax attorney, ask about constitutional authority and watch Treasury Sec. Geithner dodge and squirm. He is not familiar with the document. Fed Chair Bernancke also receives tough questions and handles them better. Committee chair Barney Frank cuts off the time without allowing an answer to the last question asked, how would taxpayers be paid back for their investment in the private companies.
http://www.youtube.com/watch?v=C69h5PEsDrE&feature=player_embedded
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http://www.nypost.com/seven/03302009/postopinion/opedcolumnists/oba...
JUDGES should interpret the Constitution according to other nations' legal "norms." Sharia law could apply to disputes in US courts. The United States constitutes an "axis of disobedience" along with North Korea and Saddam-era Iraq.
Those are the views of the man on track to become one of the US government's top lawyers: Harold Koh.
President Obama has nominated Koh -- until last week the dean of Yale Law School -- to be the State Department's legal adviser. In that job, Koh would forge a wide range of international agreements on issues from trade to arms control, and help represent our country in such places as the United Nations and the International Court of Justice.
It's a job where you want a strong defender of America's sovereignty. But that's not Koh. He's a fan of "transnational legal process," arguing that the distinctions between US and international law should vanish.
What would this look like in a practical sense? Well, California voters have overruled their courts, which had imposed same-sex marriage on the state. Koh would like to see such matters go up the chain through federal courts -- which, in turn, should look to the rest of the world. If Canada, the European Human Rights Commission and the United Nations all say gay marriage should be legal -- well, then, it should be legal in California too, regardless of what the state's voters and elected representatives might say.
He even believes judges should use this "logic" to strike down the death penalty, which is clearly permitted in the US Constitution.
The primacy of international legal "norms" applies even to treaties we reject. For example, Koh believes that the UN Convention on the Rights of the Child -- a problematic document that we haven't ratified -- should dictate the age at which individual US states can execute criminals. Got that? On issues ranging from affirmative action to the interrogation of terrorists, what the rest of the world says, goes.
Including, apparently, the world of radical imams. A New York lawyer, Steven Stein, says that, in addressing the Yale Club of Greenwich in 2007, Koh claimed that "in an appropriate case, he didn't see any reason why sharia law would not be applied to govern a case in the United States."
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Think about this: the State Dept. job might be a launching pad for a Supreme Court nomination. (He’s on many liberals’ short lists for the high court.) Since this job requires Senate confirmation, it’s certainly a useful trial run.
What happens to Koh in the Senate will send an important signal. If he sails through to State, he’s a far better bet to make it onto the Supreme Court. So Senate Republicans have a duty to expose and confront his radical views.
Even though he’s up for a State Department job, Koh is a key test case in the “judicial wars.” If he makes it through (which he will if he gets even a single GOP vote) the message to the Obama team will be: You can pick ‘em as radical as you like.
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Bailing Out of the Constitution
By George Will
http://www.JewishWorldReview.com | It is high time Americans heard an argument that might turn a vague national uneasiness into a vivid awareness of something going very wrong. The argument is that the Emergency Economic Stabilization Act of 2008 (EESA) is unconstitutional.
By enacting it, Congress did not in any meaningful sense make a law. Rather, it made executive branch officials into legislators. Congress said to the executive branch, in effect: "Here is $700 billion. You say you will use some of it to buy up banks' 'troubled assets.' But if you prefer to do anything else with the money — even, say, subsidize automobile companies — well, whatever."
FreedomWorks, a Washington-based libertarian advocacy organization, argues that EESA violates "the nondelegation doctrine." Although the text does not spell it out, the Constitution's logic and structure — particularly the separation of powers — imply limits on the size and kind of discretion that Congress may confer on the executive branch.
The Vesting Clause of Article I says, "All legislative powers herein granted shall be vested in" Congress. All. Therefore, none shall be vested elsewhere. Gary Lawson of Boston University's School of Law suggests a thought experiment:
Suppose Congress passes the Goodness and Niceness Act. Section 1 outlaws all transactions involving, no matter how tangentially, interstate commerce that do not promote goodness and niceness. Section 2 says that the president shall define the statute's meaning with regulations that define and promote goodness and niceness and specify penalties for violations.
Surely this would be incompatible with the Vesting Clause. Where would the Goodness and Niceness Act really be written? In Congress? No, in the executive branch. Lawson says that nothing in the Constitution's enumeration of powers authorizes Congress to enact such a statute. The only power conferred on Congress by the commerce clause is to regulate. The Goodness and Niceness Act does not itself regulate, it just identifies a regulator.
The Constitution empowers Congress to make laws "necessary and proper" for carrying into execution federal purposes. But if gargantuan grants of discretion are necessary, are the purposes proper? Indeed, such designs should be considered presumptively improper. What, then, about the Goodness and Niceness Act, which, as Lawson says, delegates all practical decision-making power to the president? What about EESA?
Writing in the New Republic, Jeffrey Rosen of George Washington University Law School makes a prudential point: "The military-spending scandals during World War II, exposed by the Truman Committee, showed the risks for corruption and fraud when the executive branch is given a free hand to spend vast amounts of money." But even in the unlikely event that the executive branch exercises its excessive EESA discretion efficiently, the mere exercise would nevertheless subvert the principle of separation of powers, which, as Justice Louis Brandeis said, was adopted "not to promote efficiency but to preclude the exercise of arbitrary power."
As government grows, legislative power, and with it accountability, must shrink. The nation has had 535 national legislators for almost half a century. During that time the federal government's business — or, more precisely, its busy-ness — has probably grown at least twenty-fold. Vast grants of discretion to the executive branch by Congress, such as EESA, may be necessary — if America is going to have constant governmental hyperkinesis. If Washington is going to do the sort of things that EESA enables — erasing the distinction between public and private sectors; licensing uncircumscribed executive branch conscription of, and experimentation with, the nation's resources.
Since the New Deal era, few laws have been invalidated on the ground that they improperly delegated legislative powers. And Chief Justice John Marshall did say that the "precise boundary" of the power to "make" or the power to "execute" the law "is a subject of delicate and difficult inquiry." Still, surely sometimes the judiciary must adjudicate such boundary disputes.
The Supreme Court has said: "That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." And the court has said that properly delegated discretion must come with "an intelligible principle" and must "clearly delineate" a policy that limits the discretion. EESA flunks that test.
With EESA, Congress forces the country to ponder the paradox of sovereignty: If sovereign people freely choose to surrender their sovereignty, is this willed subordination really subordination?
It is. Congress has done that. A court should hear the argument that Congress cannot so divest itself of powers vested in it.
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This is a powerful point.
Concerning the allegation of the people's surrender of its sovereignty, I am prompted to inquire what the incumbency rate currently is for the US Congress. I know that due to gerrymandering it is often in the high 90s!!! :-o
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second post
Here's the match-up. In the right corner we have Omar al-Bashir, for 20 years the Islamist dictator of Sudan and the man most responsible for the death of hundreds of thousands of Darfuris. In the left corner we have six former Bush Administration officials who were given the task after September 11 of formulating America's response to the atrocities. Who do you think is in the greatest legal jeopardy?
This should be easy: Mr. Bashir was recently issued with an arrest warrant by the International Criminal Court for "crimes of genocide, crimes against humanity and war crimes in Darfur." More specifically, the court's prosecutor alleges that Mr. Bashir "masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity."
Yet thanks to the concept of "universal jurisdiction" (or "universal competence") the six Americans, including former Attorney General Alberto Gonzales, former under Undersecretary of Defense for Policy Douglas Feith and former vice presidential Chief of Staff David Addington, are the ones who may soon have to watch their back -- at least when they travel abroad.
That's because a hyperactive Spanish judge named Baltasar Garzón has begun the process of opening a criminal case against the six, following a complaint from a Spanish human rights group arguing they helped establish the legal framework that created the detention facilities at Guantanamo and the "torture" they allege took place there. According to the New York Times, an unnamed official said it "was 'highly probable' that the case would go forward and that it could lead to arrest warrants." In 1998, a similar warrant from Judge Garzón led to the house arrest in Britain of former Chilean strongman Augusto Pinochet, a stunt that did nothing except create a diplomatic headache for the government of Tony Blair.
This case would be absurd were the consequences less pernicious, and not merely to the former officials now in legal jeopardy. The idea that any magistrate, anywhere, is entitled to judge the legality of decisions -- or even merely the advice -- of foreign officials acting in good faith under the laws of their own elected governments makes a nonsense of centuries-old concepts of sovereign jurisdiction and democratic accountability. It also sends a chilling signal to any official, including those now in the Obama Administration, who must weigh the counsel they provide the President against the personal legal risks they may run once they are out of office because of that counsel.
Put simply, Mr. Garzón's intercession is a recipe for legal anarchy, compromised executive decision-making, and the diminution of American sovereignty. Nor does it help that the names of the would-be defendants seem to have been chosen pretty much at random: As Mr. Feith told the Times, "I didn't even argue for the thing I understand they're objecting to."
One reason Mr. Garzón may have chosen Mr. Feith is because he has been a special target of Senator Carl Levin (D., Mich.), who has all but encouraged foreign prosecutors to bring such charges against Bush officials. The goal of Mr. Levin, Senator Pat Leahy and Congressman John Conyers has been to promote the "torture" smears against Republican officials without having to take responsibility for any potential damage to U.S. security. If a foreign prosecutor or an allegedly independent "commission" does their dirty work, so much the better.
Now turn to Mr. Bashir, who on Sunday was given a warm reception by fellow leaders of the Arab League at their summit in Doha, Qatar. This is at least the second time Mr. Bashir has ventured out of Sudan since the ICC issued its arrest warrant, and it's clear he has nothing to fear from his fellow Arab potentates, none of whom have signed on to the ICC. But that only illustrates the fundamental problem of a court that has no jurisdiction in the places where the massive human rights violations it was created to punish typically take place. As for the countries that are signatories, the courts of Norway or New Zealand are more than adequate for dealing with whatever genocidaires may be in their midst.
These columns have long argued that it would be dangerous for the U.S. to become a party to the ICC. As a Senate candidate in 2004, Barack Obama offered merely that the U.S. should "cooperate" with the ICC "in a way that reflects American sovereignty and promotes our national security interests."
Now that he is President, he has larger obligations. One is to stand against foreign grandstanding that intrudes on America's rule of law. Another is to oppose Members of his own party, such as Mr. Levin, who are running political vendettas against former U.S. officials. We hope Mr. Obama will value the frank opinions of his own advisers enough to publicly condemn Judge Garzón's legal assault on honorable public servants who did their best to protect the U.S. from harm.
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It would be hard to believe that some form of nepotism or and bribery did not cause "lawmakers" to decide it is OK to confiscate money from casinos to give to horse racing tracks. Did this subtle type of corruption also influence the courts?
Probably.
****Racing Past the Constitution
By George Will
http://www.JewishWorldReview.com | Rampant redistribution of wealth by government is now the norm. So is this: This redistribution inflames government's natural rapaciousness and subverts the rule of law. This degeneration of governance is illustrated by the Illinois legislature's transfer of income from some disfavored riverboat casinos to racetracks.
Illinois has nine licensed riverboat casinos and five horse-racing tracks. In 2006, supposedly to "address the negative impact that riverboat gaming has had" on Illinois horse racing, the legislature -- racing interests made huge contributions to Gov. Rod Blagojevich -- mandated a transfer of 3 percent of the gross receipts of the four most profitable casinos, those in the Chicago area, to the horse-racing tracks. This levy, subsequently extended to run until 2011, will confiscate substantially more than $100 million.
What is to prevent legislators from taking revenue from Wal-Mart and giving it to local retailers? Or from chain drugstores to local pharmacies? Not the tattered remnant of the Constitution's takings clause.
The Fifth Amendment says that private property shall not "be taken for public use without just compensation" (emphasis added). Fifty state constitutions also stipulate taking only for public uses. But the Illinois Supreme Court ignored the public-use question. Instead, the court said it is "well settled" that the takings clause applies only to government's exercise of its eminent domain power regarding land, buildings and other tangible or intellectual property -- but not money.
Conflicting rulings by state courts demonstrate that that question is chaotically unsettled. That is one reason the U.S. Supreme Court should take the Illinois case and reject the preposterous idea that money is not property within the scope of the takings clause -- an idea that licenses legislative confiscations. Another and related reason the court should take the case is to reconsider its 2005 ruling that rendered the "public purpose" requirement empty.
The careful crafters of the Bill of Rights intended the adjective "public" to restrict government takings to uses directly owned by government or primarily serving the general public, such as roads, bridges or public buildings. In 1954, in a case arising from a disease-ridden section of Washington, the court broadened the "public use" criterion. It declared constitutional takings for the purpose of combating "blight" that is harmful to the larger community.
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In 2005, however, in a 5 to 4 decision, the court radically attenuated the "public use" restriction on takings, saying that promoting "economic development" is a sufficient public use. The court upheld the New London, Conn., city government's decision to seize an unblighted middle-class neighborhood for the purpose of turning the land over to private businesses which, being wealthier than the previous owners, would be a richer source of tax revenue. So now government takings need have only some anticipated public benefit, however indirect and derivative, at the end of some chain of causation hypothesized by the government doing the taking and benefiting from it.
In a brief opposing the Illinois legislature, the American Legislative Exchange Council, an organization of state legislators, makes this argument against "predatory taxation": Suppose Congress, eager to aid newspapers hurt by competition from new information technologies, decides to take a percentage of the assets of Bill Gates and half a dozen other beneficiaries of those technologies and give the money to newspapers. Would not this "take and transfer" scheme be unconstitutional? Targeting specific, identifiable persons or entities for unfavorable treatment, and transferring their assets to equally identifiable persons or entities, surely also raises equal protection issues. Unquestionably a legislature can impose a levy on casinos if the revenue becomes subject to what the state legislators' brief calls "allocation via the familiar push and pull of political decision-making." But Illinois' confiscation of riverboat revenue is a private-pockets-to-private-pockets transfer, without even laundering the money through the state treasury.
The Supreme Court has held that "one person's property may not be taken for the benefit of another private person without a justifying public purpose." But in the aftermath of the court's ruling in the New London case, the Illinois legislature merely seeks judicial deference toward its judgment that transferring wealth from casinos to racetracks serves the public purpose of benefiting "farmers, breeders, and fans of horse racing."
The court's virtual nullification of the "public use" requirement encourages lawlessness, which will proliferate until the court enunciates the constitutional principle that the takings clause protects money, like other forms of property, against egregious seizures. Enunciating such a principle would be a step toward restoring meaning to the "public purpose" clause.****
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The BO love affair of international "law" continues unabated , , ,
It's strange enough that the Obama Administration is hyping last week's toothless statement by the United Nations Security Council condemning North Korea's recent rocket launch. Even more amazing, it says the U.N. move is "legally binding" on member states.
Those were the words used by Susan Rice, U.S. ambassador to the U.N., and repeated by a State Department spokesman. Ms. Rice is badly misinformed. As she ought to know, a "presidential statement" issued by the Security Council is legally binding on no one.
A presidential statement is agreed to by all 15 members of the Security Council and issued by the rotating president. Invented in 1994, such statements aren't even mentioned in the Security Council's procedural rules and impose zero obligations on members. They are a last resort when the Security Council can't summon the will or agreement to pass a resolution.
That's what happened after North Korea's April 5 missile launch, when neither China nor Russia would agree to the U.S. wish for a resolution. Legal experts -- including the Permanent Five's attorneys in a 2005 memo -- agree that the only U.N. pronouncement that is legally binding is a Security Council resolution issued under Chapter VII of the U.N. Charter, which sets out the Council's powers to maintain peace. Such resolutions can be enforced with sanctions or military action. Resolution 1718, passed in 2006 after North Korea's nuclear and missile tests, falls in this category.
The distinction between "Chapter VII resolutions" and other U.N. utterances is important -- as the example of Israel illustrates. Since the Jewish state has never been subject to a Chapter VII resolution, no Israeli "violation" of a U.N. pronouncement can give rise to sanctions. Even the famous Resolution 242, issued at the end of the 1967 Six-Day War, was not issued under Chapter VII. If the Obama Administration considers even U.N. presidential statements "legally binding," it's an invitation to the U.N. to ramp up its attacks on Israel.
Last week's statement on North Korea is binding only in the sense that it calls on member states "to comply fully" with their obligations under Resolution 1718, which bans sales of weapons, weapons parts and luxury goods to North Korea. Resolution 1718 is legally binding, but it has never been enforced. This speaks volumes about the sincerity of promises made at the U.N., and about the failure of the Obama Administration to win Security Council support for a serious response to North Korea's missile launch.
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I recall Chief Justice John Roberts saying just the opposite. (Paraphrasing from memory) Question: Will you side with the little guy? Answer: When the constitution is on the side of the little guy I will side with the little guy; when the constitution is not on his side I won't.
A lawless president looks for a lawless Supreme Court Justice
powerlineblog.com
May 1, 2009 Paul Mirengoff
President Obama made a short statement about the retirement of Justice Souter in which he outlined what he will be looking for in Souter's replacement. He stated, in part:
"I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation."
"I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions AND OUTCOMES"
(emphasis added)
By indicating that his concern is not just with just decisions but also just outcomes, Obama reveals the lawless quality of his thinking. The legitimate function of a judge is to reach just decisions, full stop. Once judges, or the president who appoints them, start thinking about just outcomes, we are well down the path to judicial tyranny. And once just outcomes are defined as those that display empathy for "the people," we could be starting down the road to banana republic status.
Obama apparently wants outcomes that will make people feel welcome in their own nation. It's not clear to me what he's referring to here. But whatever it is, the extent to which people feel welcome must be determined by how their neighbors view them and, to the extent (limited, one hopes) the law becomes involved, the rights and benefits conferred by the language of the laws in question.
If Obama wants to appoint a Justice who has run or worked in a soup kitchen, that's fine. But it looks to me like he wants to appoint a Justice who will reach outcomes that establish "soup kitchens" regardless of whether that's the best view of the legal provision he or she is interpreting.
Expect the worst, not just from this judicial nomination but from all subsequent ones.
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May 1, 2009 12:42 PM
White & Case's Thomas Lauria: Lawyer for the Holdout Lenders
Posted by Zach Lowe
Thomas Lauria, head of the restructuring practice at White & Case, is in a tough spot: the lead lawyer for the group of holdout lenders that the Obama administration is blaming for pushing Chrysler into Chapter 11.
The group, as you know by now, refused to take 33 cents on the dollar for the approximately $1 billion in Chrysler debt they hold. The four biggest bank lenders to Chrysler--all recipients of federal bailout money--took that deal, drawing praise from Obama for their decision.
Now Lauria is vowing to fight. Specifically, he says the holdout lenders will challenge the planned sale of Chrysler's prime assets to a new company controlled by the auto workers union and Fiat, according to Reuters. The lenders say the sale is an "end run" around established bankruptcy law that gives secured lenders priority over junior lenders (including the union) when it comes to getting repaid.
Lauria has been here before. In the contentious Adelphia Communications bankruptcy, Lauria led a group of creditors that filed late motions calling for a special trustee to investigate whether each group of note holders was getting what they deserved, according to this 2006 story from the New York Law Journal. A judge dismissed his motion, calling it a "nuclear war button" that threatened to disrupt the planned sale of Adelphia's prime assets to Time Warner and Comcast for nearly $18 billion.
This is the exact strategy University of Chicago law professor Douglas Baird predicted the holdout lenders would use when we interviewed him yesterday. As Baird noted, creditors have the right to challenge any bankruptcy reorganization plan that ends with them receiving less than they would have had the company been liquidated. The holdout lenders believe that to be the case here, Baird told us. But section 363 of the U.S. bankruptcy code allows for Chapter 11 debtors to sell assets before creditors can challenge the general reorganization plan.
That means Lauria's only option is to object to the sale, Baird told us.
Lauria did not respond to a message seeking comment; he's likely tied up at a massive hearing in federal bankruptcy court in Manhattan today.
On the other end of the lender spectrum is Simpson, Thacher & Bartlett, which is advising JPMorgan Chase, the lead lender to Chrysler. Peter Pantaleo, head of Simpson's bankruptcy practice, is representing JPMorgan. He declined to comment.
So will Lauria's plan work, or will only serve to delay Chrysler's emergence from bankruptcy? Steven Gross, co-chair of the restructuring practice at Debevoise & Plimpton, told our colleague Brian Baxter he's anxious to see the group's motion objecting to the sale. But Gross says the press release the lenders put out Thursday was "not very compelling," and that the chips may be stacked against their objection to the Fiat sale.
"People are saying this is just the government bullying people," Gross says. "But there is still a statute, and if there are grounds to derail [the sale], you can be sure [the non-TARP lenders] will use it, although in bankruptcy if you get some many constituents to support something, that can be very hard."
http://amlawdaily.typepad.com/amlawdaily/2009/05/white-cases-thomas-lauria-lawyer-for-the-holdout-lenders.html
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I hate PC. And I hate Bullies, whether they wear red or blue.
What happened to basic contract law?
The banks received a bailout (I still don't understand that one) so of
course they go along. But why should the Secured Creditors go along?
One of the many things that has made our country great is the concept
of risk/reward. The bondholders took a risk...
I am cheering for Thomas Lauria.
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"What happened to basic contract law? ...But why should the Secured Creditors go along?
One of the many things that has made our country great is the concept of risk/reward."
Great Points JDN! I am with you on this one. We are in the process of neutralizing the upside and downside of risk, degrading reward and eliminating consequences and corrections, all from leadership in the executive and legislative branches that are disdainful of the economic system that made America great.
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Souter Retiring: Ayers, Wright Downplay Rumors
by Scott Ott for ScrappleFace ·
(2009-05-01) — As speculation runs rampant about who President Barack Obama will pick to replace retiring Supreme Court Justice David Souter, two long-time associates of the president have downplayed rumors that their names might be on the president’s short list.
William Ayers, a Chicago educator and Jeremiah Wright, Mr. Obama’s former pastor, each denied they had been in recent contact with the White House.
“While I have been a vocal advocate of justice for years,” said Rev. Wright, “I’m enjoying my retirement, traveling around, and spreading the good news of God’s condemnation of America. I’m certainly qualified for the high court, and I already have the wardrobe, but these rumors are premature.”
Meanwhile, Mr. Ayers, who exploded onto the national scene in the 1960s and 70s, and has intimate knowledge of the legal system, said he’s “too busy preparing youth to live in the new America to mull a court appointment at this time.”
White House spokesman Robert Gibbs said it’s unlikely that the president would appoint either Mr. Ayers or Rev. Wright, “since he knows many other similarly-qualified candidates with less name recognition.”
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Palm Beach County school bus attendant convicted of child neglect for doing nothing while toddler was raped
By CHRISTINA DeNARDO
Palm Beach Post Staff Writer
Thursday, May 21, 2009
WEST PALM BEACH — A former Palm Beach County school bus attendant who stood by as a pre-schooler was raped by a teenager on her bus was convicted of child neglect on Thursday.
The incident happened in January 2007 on a bus filled with Gladeview Elementary and Pahokee Middle/Senior High students.
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The attendant, Grenisha Williams, saw a boy kneeling on the bus floor and kissing a 3 1/2 year old girl's neck and asked the student what he was doing. The student responded he was not doing anything, and Williams told him to go to another seat. When the student refused, Williams walked away but told police she kept an eye on the boy. The boy was not questioned further, and he was allowed to get off at his stop.
After the boy left, the girl was questioned and said that the boy touched her. When bus supervisors reviewed a tape of the incident, they saw the boy, who was 14, sexually assaulting the little girl. The content of the tape was so disturbing, it was sealed from public disclosure.
In an interview with police, Williams said she "just panicked" and did not know what to do. The driver, Laverne Sellers, told police she was unaware of the incident until she was later told by Williams.
Williams and Sellers were fired in May 2008.
Since the incident, the school district no longer allows older students to ride with elementary or preschool children.
The boy, who admitted to police that he sexually assaulted the girl, was charged with felony sexual battery. His case is pending.
~'christina_denardo@pbpost.com
Find this article at:
http://www.palmbeachpost.com/localnews/content/local_news/epaper/2009/05/21/0521neglect.html?cxntlid=inform_artr
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I'm almost tempted to start a new thread regarding the Sotomyer nomination. Her beliefs where the Second Amendment is concerned appear absurd, and she certainly doesn't take the court in a direction regarding takings and Kelo that Souter hasn't already staked.
The Sotomayor Nomination
Richard A. Epstein, 05.26.09, 11:45 AM ET
In a previous Forbes column, I decried President Barack Obama's insistence that empathy would weigh heavily in the scales when it came to his next Supreme Court nominee. And reading the arguments that were put forth to justify the nomination of Sonia Sotomayor of the Second Circuit to the Supreme Court, it appears that all the bad chickens have come home to roost.
Evidently, the characteristics that matter most for a potential nominee to the Supreme Court have little to do with judicial ability or temperament, or even so ephemeral a consideration as a knowledge of the law. Instead, the tag line for this appointment says it all. The president wants to choose "a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation's first Hispanic justice."
Obviously, none of these factors disqualifies anyone for the Supreme Court. But affirmative action standards are a bad way to pick one of the nine most influential jurists in the U.S., whose vast powers can shape virtually every aspect of our current lives. In these hard economic times, one worrisome feature about the Sotomayor nomination is that the justices of the Supreme Court are likely to have to pass on some of the high-handed Obama administration tactics on a wide range of issues that concern the fortunes of American business.
We have already seen a president whose professed devotion to the law takes a backseat to all sorts of other considerations. The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court's jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.
Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the "public use language." Of course, the takings clause of the Fifth Amendment is as complex as it is short: "Nor shall private property be taken for public use, without just compensation." But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion--one that makes Justice Stevens look like a paradigmatic defender of strong property rights.
I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."
Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo's home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco. Indeed, the threats that Wasser made look all too much like the "or else" diplomacy of the Obama administration in business matters.
Jurisprudentially, moreover, the sorry Didden episode reveals an important lesson about constitutional law. It is always possible to top one bad decision (Kelo) with another (Didden). This does not auger well for a Sotomayor appointment to the Supreme Court. The president should have done better, and the Senate, Democrats and Republicans alike, should subject this dubious nomination to the intense scrutiny that it deserves.
Richard A. Epstein is the James Parker Hall distinguished service professor of law at the University of Chicago, the Peter and Kirsten Bedford senior fellow at the Hoover Institution and a visiting professor at NYU Law School. He is a columnist at Forbes.
http://www.forbes.com/2009/05/26/supreme-court-nomination-obama-opinions-columnists-sonia-sotomayor_print.html
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I think perhaps a new thread should be started, but that is up to our Moderator I guess.
Is the Sotomyer the "perfect" choice? No, I suppose not.
However, is she qualified? Yes, she is...
And as as Sen. John McCain said Tuesday, she would probably not have been his pick. But then again, he added, "my initial thoughts are that elections have consequences".
And given the rut that Republicans seem to be in, do they really really want to attack a woman nominee?
Or a historic Lintino nominee?
So here's the question: Wouldn't it be more prudent for Republicans to save their fire for a better target? Someone perhaps not as qualified? Or someone who is not quite as historic an appointment as Sotomayor?
Instead of shooting themselves in the foot?
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Howabout selecting a legitimate legal scholar instead of selecting on gender and ethnicity? I know, that's just crazy talk.....
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Power Line Blog: John Hinderaker, Scott Johnson, Paul Mirengoff
http://www.powerlineblog.com
HOW WILL THE SOTOMAYOR NOMINATION PLAY OUT?
May 26, 2009 Posted by Paul at 12:13 PM
From Judge Sotomayor's point of view the answer to this question seems apparent -- in all likelihood she will be confirmed. The interesting questions center around how Republicans will conduct themselves, and how they should.
In addressing the prescriptive question, I take the following propositions as axiomatic:
First, Republicans are free to follow existing standards for considering Supreme Court nominees -- i.e., those set by the Democrats during the Roberts and Alito confirmation processes. I exclude from this rule only matters of demeanor; Republicans should act with far more courtesy and respect towards Sotomayor than the Dems did towards President Bush's nominees. But when it comes to "discovery," substantive questioning, voting up or down, and deciding whether to filibuster, Republicans are free to follow existing standard. Indeed, the presumption should be in favor of doing so, since it clearly will not do to have different standards depending on which party nominates a potential Justice.
Second, Repubilcans should not raise the bar. During the Roberts and Alito proceedings, the Democrats raised the bar considerably as compared to where it had been set for Ginsburg and Breyer. But Republicans should not follow suit. The higher the bar, the more likely the Senate will confirm only wishy-washy centrists or stealth nominees. The Supreme Court would suffer as a result.
It's premature fully to apply these rules to Judge Sotomayor other than to say that she should be subjected to a high degree of scrutiny -- including production of potentially relevant documents and extensive questioning -- as Roberts and Alito were.
From what we already know, however, I submit that Republican Senators should feel free to vote against Sotomayor. Half of the Senate Democrats voted against Roberts and a strong majority voted against Alito. They did this for no other reason than their desire not to have another "conservative" on the Supreme Court. There is substantial evidence that Sotomayor is a "liberal." Thus, non-liberal Senators have every right to vote against her for that reason.
Some Republican Senators may be reluctant to do so given her ethnicity and the power of the Hispanic vote. Depending on how the confirmation process goes and what state a given Senator represent, voting "yes" may be a sensible option. There is no imperative that Senators jeopardize their political future by voting against Sotomayor if the cause is lost.
The existing practice on filibusters is ambiguous. However, the "Gang of 14" approach -- that filibusters should occur only under "extraordinary circumstances" -- probably can pass for a rough description of the current state of play.
So far, I'm aware of no extraordinary circumstance that would justify a filibuster against Sotomayor. Her attempt to "fly under the radar screen" while upholding racial discrimination against non-black firefighters was deplorable, but probably not sufficiently so.
Sotomayor's suggestion that, other things being equal, Latina judges can decide cases better than their white male counterparts hints at a special circumstance, since it entails a view of judging that arguably is antithetical to existing norms. Sotomayor should be examined carefully on this question. If she does not walk away from her prior statement, then (coupled with her positions on race-based preferences) the Republicans may have (a) a basis for asserting the existence of an extraordinary circumstance and (b) a tenable political basis for obstructing this nominee.
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moved to Electoral/ACORN thread:
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I wouldn't worry too much about peaceful protests in Paris Supermarkets. Or some produce or can goods being damaged. We need to look in our own back yard.
Much much worse, we have anti abortion groups. A rather cold blooded and vicious lot.
For the "cause" (sound familiar?) they too wear protest T-shirts, disregard the law, damage and destroy property, bomb buildings, start fires, blockade and disrupt business, harass patients,
severely hurt people, extort, and occasionally murder people. Peaceful they are not...
And this week they shot a physician in front of his own family in the middle of church??? That one is tough to top...
Maybe it's time the full force of the law is heard. Lock them all up; for a very long long time. This is not the first time.....
And these anti abortion cold blooded murderers have been called martyrs......
__________________
By Robin Abcarian and Nicholas Riccardi
June 1, 2009
Reporting from Los Angeles and Wichita, Kan. — For years, abortion foes tried to put Dr. George Tiller out of business. One of the few American physicians who performed late-term abortions, he was targeted by violent extremists as well as principled opponents.
In 1986, his clinic was bombed. In 1991, it was blockaded for six weeks. In 1993, he was shot in both arms. In March, Kansas prosecutors tried him on charges of breaking an abortion law; he was acquitted. In May, vandals cut wires to security cameras and made holes in the roof of Tiller's clinic, Women's Health Care Services, a fortified single-story building where abortion foes keep daily vigil.
Until Sunday, when a gunman shot Tiller to death in the foyer of his church, the doctor had always overcome the daunting legal and physical challenges of his work, terminating pregnancies of women and girls who were in the 22nd week of gestation or beyond. But where supporters of legal abortion saw a savior, opponents saw a heartless killer.
Tiller was working as an usher at Reformation Lutheran Church and his wife, Jeanne, was in the choir when he was gunned down about 10 a.m.
Adam Watkins, 20, told the Associated Press that he was sitting in the middle of the congregation when he heard a small pop.
"We just thought a child had come in with a balloon and it had popped," he said.
Another usher told the congregation to remain seated, then escorted Tiller's wife out. "When she got to the back doors, we heard her scream, and so we knew something bad had happened," Watkins said.
Tiller's lawyers released a statement from Tiller's wife, four children and 10 grandchildren: "Today we mourn the loss of our husband, father and grandfather," it said. "This is particularly heart-wrenching because George was shot down in his house of worship, a place of peace."
Hours later, Wichita police announced they had arrested a 51-year-old man about 170 miles away. A Johnson County sheriff's spokesman said Scott Roeder was arrested near Kansas City, the Associated Press reported.
Wichita police said the suspect could be charged today with murder and aggravated assault.
U.S. Atty. Gen. Eric H. Holder Jr. said the Justice Department was involved in the investigation. In a statement, Holder pledged to help protect abortion facilities and providers around the country to prevent "related acts of violence."
Obama 'outraged'
Tiller's slaying comes as President Obama, who supports abortion rights, has called for the opposing sides to find common ground. "I am shocked and outraged by the murder of Dr. George Tiller as he attended church services this morning," Obama said in a statement. "However profound our differences as Americans over difficult issues such as abortion, they cannot be resolved by heinous acts of violence."
Last month, in a commencement speech at the University of Notre Dame, the president issued a plea for respectful discourse, but acknowledged, "The fact is that at some level, the views of the two camps are irreconcilable."
Kelli Conlin, president of NARAL Pro-Choice New York, echoed that sentiment Sunday: "It is cold-blooded, vicious actions like today's assassination that make it hard for those of us in the pro-choice community to find common ground with those on the other side."
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A nice example of JDN-hypocrisy. Watch the shooter turn out to be a muslim and suddenly it won't be a criminal act in his eyes. :roll:
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Its clear enough that this killing was wrong and the killers should be apprehended and punished heavily.
Its also clear to me that there is something profoundly incongruent about specializing in late term abortions , , , and going to church to pray.
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Monday, Jun 1, 2009
Posted on Mon, Jun. 01, 2009
Suspect in shooting death of abortion provider George Tiller may be charged today
BY JOE RODRIGUEZ, TIM POTTER AND STAN FINGER
The Wichita Eagle
With one bullet, a gunman ended the life and the controversial career of abortion doctor George Tiller, killing him as he stood in the foyer of his church Sunday.
Today, a 51-year-old Johnson County man could be charged with murder and aggravated assault in the shooting of Tiller, who had been shot before by an anti-abortion foe.
The crime has drawn condemnation and outrage from the president and stirred strong emotions across the nation.
Tiller, 67, was shot once just after 10 a.m. Sunday as he stood in the lobby of Reformation Lutheran Church, 7601 E. 13th St., where he was serving as an usher. The gunman threatened to shoot two men who tried to apprehend him.
Wichita police said that the suspect was arrested without incident on I-35 in Johnson County about three hours after the shooting, following a statewide broadcast describing the suspect and his car.
Although Wichita police would not name the suspect, the Johnson County Sheriff's Office identified him as Scott P. Roeder, according to the Associated Press.
Wichita police said it appeared that the suspect had acted alone but that they are investigating whether he had any connection to anti-abortion groups.
Police on Sunday said they expected the man to be charged with murder and two counts of aggravated assault.
In a news conference at Wichita City Hall, Deputy Police Chief Tom Stolz said police will "investigate this suspect to the Nth degree, his history, his family, his associates, and we're just in the beginning stages of that."
Tiller had long been a focal point of protests by abortion opponents because his clinic, Women's Health Care Services, 5107 E. Kellogg, is one of a few in the country where late-term abortions are performed.
He was shot and wounded in both arms at his clinic in 1993.
Sunday's shooting stoked emotional debate on the Internet between supporters of abortion rights and abortion opponents.
Without elaborating, Stolz said investigators will look into the Internet comments because the discussion could bear on public safety.
Tiller's family issued a statement through Wichita lawyers Dan Monnat and Lee Thompson:
"Today we mourn the loss of our husband, father and grandfather. Today's event is an unspeakable tragedy for all of us and for George's friends and patients.
"This is particularly heart wrenching because George was shot down in his house of worship, a place of peace."
A timeline
Police and other sources described what happened in the church.
For the 10 a.m. service, Tiller was serving as an usher, one of six ushers listed in the church bulletin. He was handing out bulletins to people going into the sanctuary minutes before being shot.
At 10:03, Tiller was one of six to 12 people in the foyer, outside the sanctuary. His wife, Jeanne, was at the church.
A man armed with a handgun shot Tiller once, according to the preliminary investigation. Three to four people saw the shooting.
Two men confronted the suspect and exchanged words with him, but police would not say what was said.
"They were both threatened, and the gun was pointed at them," Stolz said.
That is why the suspect could face the aggravated assault charges, Stolz said.
Within minutes, paramedics arrived and pronounced Tiller dead at the scene.
Officers arrived and immediately started interviewing witnesses.
Police obtained the suspect's description and vehicle description -- a powder-blue 1993 Ford Taurus -- from witnesses at the church and broadcast it and the tag number to law enforcement agencies throughout the state. The car was registered to Scott Roeder of Merriam, in Johnson County.
Police also obtained a photo of the suspect, who had a prior conviction for criminal use of explosives, which was overturned on appeal, according to court records.
Officers began checking motels and other places for the suspect.
Before the shooting, the church was packed, said Shirley King, one of the parishioners. New members were joining. A baptism was on the agenda.
When King heard a "pop" sound, she thought it was special effects from the percussionist. Some people glanced toward the rear of the church, curious.
Tiller's wife, Jeanne, was sitting with the choir downstairs, King said. An usher came, and motioned for Jeanne Tiller to come with him.
"The rest of us were listening to the prelude, but then came the piercing screams of a woman who obviously had witnessed a horrible sight," King wrote in an e-mail.
"A few people immediately jumped up, but quickly one of our church leaders said, 'Everyone please be seated. Please remain calm. We have had an incident and we are taking care of it. Remain in your seat.' "
Adam Watkins, 20, who said he has attended the church his entire life, said he was sitting in the middle of the congregation when he heard the "pop."
"We just thought a child had come in with a balloon and it... had gone up and hit the ceiling and popped," Watkins said.
Once they learned of the shooting, Watkins said:
"We were just really shocked. We were kind of dumbfounded. We couldn't really believe it had happened."
The suspect's car was spotted shortly before 2 p.m. just south of Gardner by two Johnson County sheriff's deputies -- Andy Lento and Tyson Kilbey. The Sheriff's Office had suspected that the man would be coming back on I-35 to his home, and Kilbey and Lento waited for him.
As the car went north, Lento and Kilbey followed and were joined by three other sheriff's patrol cars.
Lt. Mike Pfannenstiel of the Sheriff's Office said officers pulled the car over just south of the main Gardner exit and got out with guns drawn. The man got out of his car with his hands up.
"We took him down without incident," Pfannenstiel said, adding that the man appeared to be driving the speed limit and made no attempt to elude the deputies.
At the 4 p.m. news conference, Stolz said authorities were bringing the suspect to Wichita.
He said that police expect to present the case to the Sedgwick County District Attorney's Office today.
At 7 p.m., a private vigil service was held at Reformation Lutheran Church. Tiller's wife, his children and grandchildren attended. Two police officers stood in the back of the sanctuary.
The Rev. Lowell Michelson, senior pastor of Reformation, said that part of the message of the vigil focused on the message that "love is stronger than hate."
That was clear, he said, in the congregation's response to one another.
"I think the way that folks gathered around Jeanne tonight in large numbers speaks volumes not only about the support and encouragement we get from Jesus Christ," he said, "but also the way the Holy Spirit works."
Reaction to shooting
President Obama released a statement on the shooting.
"I am shocked and outraged by the murder of Dr. George Tiller as he attended church services this morning. However profound our differences as Americans over difficult issues such as abortion, they cannot be resolved by heinous acts of violence."
Mickey Cohlmia, a member of the neighboring St. George Orthodox Christian Cathedral, said: "It is absolutely disheartening.... I think it shows where our world is today.... There is no safe place."
The anti-abortion group Operation Rescue, in a statement on its Web site, said:
"We are shocked at (Sunday) morning's disturbing news that Mr. Tiller was gunned down. Operation Rescue has worked for years through peaceful, legal means, and through the proper channels to see him brought to justice. We denounce vigilantism and the cowardly act that took place this morning. We pray for Mr. Tiller's family that they will find comfort and healing that can only be found in Jesus Christ."
Former Kansas Attorney General Phill Kline, who conducted an investigation into Tiller, said in a statement that he was "stunned by this lawless and violent act which must be condemned and should be met with the full force of law. We join in lifting prayer that God's grace and presence rest with Dr. Tiller's family and friends."
Warren Hern, a Colorado physician and close friend of Tiller's -- who described himself now as "the only doctor in the world" who performs very-late-term abortions -- said Tiller's death was predictable.
"I think it's the inevitable consequence of more than 35 years of constant anti-abortion terrorism, harassment and violence," he said.
When Obama was elected last fall, Hern predicted that anti-abortion violence would increase, he said. Because Obama supports legalized abortion, Hern said, its foes "have lost ground.... They want the doctors dead, and they invite people to assassinate us. No wonder that this happens.
"I am next on the list."
Ongoing threats
Tiller and his clinic have faced continuous threats and legal action.
A Wichita jury ruled in March that he was not guilty of illegal abortion on 19 criminal charges he faced for allegedly violating a state law requiring an independent second physician's concurring opinion before performing late-term abortions.
Immediately following the ruling in the criminal case, the Kansas Board of Healing Arts made public a similar complaint against Tiller that was originally filed in December 2008.
Protesters blockaded Tiller's clinic during Operation Rescue's "Summer of Mercy" protests during the summer of 1991, and Tiller was shot by Rachelle Shannon at his clinic in 1993. Tiller was wounded in both arms. Shannon remains in prison.
The clinic was bombed in June 1986 and was severely vandalized last month. His lawyer said wires to security cameras and outdoor lights were cut and that the vandals also cut through the roof and plugged the buildings' downspouts. Rain poured through the roof and caused thousands of dollars of damage in the clinic. Tiller reportedly asked the FBI to investigate the incident.
Contributing: Kevin McGrath, Conor Shine and Stephanie Barnard of The Eagle; Kansas City Star; Associated Press; Los Angeles Times
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JDN,
As if you didn't know this, but i'll state it anyway. This sunday, the murderer of Dr. Tiller won't be celebrated in churches, as opposed to how shaheeds are celebrated in mosques around the world.
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A nice example of JDN-hypocrisy. Watch the shooter turn out to be a muslim and suddenly it won't be a criminal act in his eyes. :roll:
GM; be nice :-)
A crime is a crime. I don't care if the shooter was Christian, Jew, Buddhist OR Muslim. He deserves a quick trial and then hanging within the year.
And groups, be they of whatever order or cause that commit such violence and illegal acts also deserve to be serverely punished.
And on American soil; I find it particularly repugnant.
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Even if this were Texas, you wouldn't see a trial, much less an execution in a year.
Are you outraged that this was an abortion doctor murdered? Funny, I don't recall you being this upset by the murdered cops killed by Obama's friend's little domestic terrorist group.
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A late term abortion doctor praying in a church produces in me a deep sense of cognitive dissonance. That said, there should be no hesitation in any circle in condemning his murder nor calling for his punishment, regardless of the incongruities of others. Wrong is wrong.
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I condemn the murder of the abortionist. May he face the full penalties of the law including death penalty if available.
Beside the crime, he hurts his own movement, encouraging drivel like this: "anti abortion groups. A rather cold blooded and vicious lot...Lock them all up; for a very long long time." - Lock up whom? The ones who killed an abortion doctor (we already do that) or the ones who are trying to save lives?
"A late term abortion doctor praying in a church produces in me a deep sense of cognitive dissonance."
I've shed not a tear yet for the late term abortionist, but his life would have been saved IMO if we lived under one of our own pretend principles called 'consent of the governed'. As posted elsewhere, no serious anti-abortion law has EVER been proposed that does not make exception for protecting the life of the mother. Assuming the killer's objective was to save innocent life, he would not feel driven to murder, so powerless in the democratic process if there was a possibility in his state to even debate, lobby or petition the government for the right to protect innocent human life from slaughter.
Instead that issue is determined for us by the likes David Souter et al posing as royalty for life, like a third world country. They even time their departures to allow for the continuation of their agenda with 'policy makers' that cannot be recalled by election and will not answer anything in confirmation that resembles a 'litmus test'.
Regarding the church, offering forgiveness for sins on Sunday for those who then continue their lawful killing on Monday through Friday, may I refrain from posting my view of how the late term abortionist will be judged when he meets his maker.
Sorry I didn't follow the argument about which one of these guys was a martyr. One kills at least in his mind the guilty to stop the killing of innocent human life, and these are not gobs of goo or embryos. These are formed, small humans with unique DNA and beating hearts but 'the law' from the liberal elites does not allow any legal means to pursue their protection. The other was also a martyr, bless his soul, killing to protect the right of the mother to not be forced give birth to a baby, defective or unwanted by her. The baby is killed inside the womb because a 'legal issue' is created if you remove from the womb first and then kill it. Also the gruesome procedure allows them to shrink the killed, late term 'little one' to make the procedure easier for the doctor and 'the mother'.
As we judge a wrong and a wrong after removing the issue from legitimate debate in the political arena leaving only street 'justice', we might also take a look at the kill ratios of the 2 martyrs. One killed once wrongly, and the other M-F by occupation.
Regarding prosecution ratios, I don't believe any abortionist killers have ever walked free. Still waiting for our followup from France regarding the prosecution of the peaceful protesters by day who lawlessly torch vehicles by night. Even if they are not one and the same, the 'peaceful' protesters benefit from the intimidation. He who made the false comparison could post the prosecution rate for cars torched and other violent acts in that particularly peaceful French municipality, but that I don't expect.
Repeating, their is no legal issue over aborting to save the life of the mother. That is true in far less than 1% of abortions according to planned parenthood statistics and not banned under any pro-life proposal. And there is no legal issue about prosecuting the accused murderer under the full extent of the law. His action was wrong and it was illegal. Too bad that it is likely in his view that it was the only recourse left to him living in an undemocratic society that rejects the principle of consent of the governed for its most hotly contested life and death issue.
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Funny how JDN becomes Mr. Law and Order when an abortion doctor is murdered, but left wing terrorists like Bill Ayers get a pass.
_____________________________________________________________________________
**I know that the current narrative from the left/MSM is that the Weather Underground was just a youthful indiscretion to be ignored. Just a reminder of who they killed.**
Weather Underground: Honoring the Cops They Killed
From left: Sergeant Brian McDonnell, Officer Waverly Brown, Sergeant Edward O'Grady
Chris Cosgriff / PoliceLink
October 13, 2008
Editor’s Note: With the recent headlines mentioning the Weather Underground, the focus has been on who said what and who did what when. What has been overlooked, and seemingly forgotten, is the sacrifice of three real American heroes. This article’s only purpose is to honor those three fallen heroes.
If you’ve been keeping up with the presidential race then you’ve likely heard mention the accusations and denials from both campaigns about alleged ties between Senator Barack Obama, the Democratic candidate for president, and Bill Ayers. Plenty has been written about their relationship from both sides of the campaign, and I have absolutely no interest in exploring that relationship further.
I am interested only in honoring the memories of three fallen police officers and holding responsible those who actually planned and committed these murderous attacks against the American people and our criminal justice system.
Ayers, who has long held a position as a college professor in Chicago, has a surprisingly nefarious past. He happens to be the founder of a domestic terrorist group called the Weather Underground, which he has written about extensively in his own memoir, Fugitive Days: A Memoir.
The Weather Underground was responsible for bombing several government targets throughout the 1970s and early 1980s, including the U.S. Capitol, the Pentagon, and a building used by the New York City Police Department. To finance their domestic terrorism activities the group also conducted “traditional” robberies, which occasionally led to murder.
What you don’t usually hear in modern-day news coverage of the group, is that three of those murders were of police officers killed in the line of duty.
On February 16, 1970, a bomb exploded at a San Francisco, California, Police Department substation, fatally wounding Sergeant Brian McDonnell. McDonnell died of his wounds two days later. A second officer, Robert Fogarty was partially blinded by the bomb’s shrapnel. Although the case has never officially been solved, members of the Weather Underground, including Bill Ayers and his wife, Bernardine Dohrn, were prime suspects.
On October 20, 1981, several members of the Weather Underground undertook the robbery of a bank to finance their terrorist activities. During the robbery the group murdered an armored car guard and two members of the Nyack, New York, Police Department – Officer Waverly Brown and Sergeant Edward O’Grady,. a Vietnam War veteran. Unlike with Sergeant McDonnell’s murder, this case was quickly solved and several members of the group were sentenced to lengthy prison terms.
Sergeant McDonnell, Officer Brown, and Sergeant O’Grady were just three of over a dozen law enforcement officers killed by radical, domestic terrorist groups during the 1970s and 1980s. Their memories may be forgotten by those who killed them and walk free – whether through lack of arrest and prosecution in McDonnell’s case or having served their sentences in Brown’s and O’Grady’s cases – but they will never be forgotten by their brothers and sisters in law enforcement.
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So Obama wasted no time in making a statement on the abortion doctor's murder, meanwhile one soldier wounded and another murdered in Arkansas by a black muslim convert and he seems to have nothing to say....
I guess some murders matter more than others. Right, JDN ?
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Actually, I am Mr. Law and Order or a reasonable facsimile thereof.
But like the TV Show, there are two parts; the police AND the criminal justice system.
I believe your own post mentioned, "Although the case has never officially been solved, members of the Weather Underground, including Bill Ayers and his wife,
Bernardine Dohrn, were prime suspects." "prime suspects" doesn't mean much in the criminal justice system.
Part of our law and order is innocent until proven guilty. And I can't imagine with police officers tragically being killed, the police and the DA's office didn't try
real hard to find proof... The result; nothing... They didn't even go to trial and that says a lot...
And sad but true, some murders do matter (get noticed) more than others. In LA we seem to have a murder a day. It doesn't even hit the front page. Heck, it doesn't even
hit the back page, unless it is somebody notable. And then yes, they get all the attention. But even in LA, if you walk into a church, in front of a man's family,
and shoot and kill him; I bet that would get front page regardless of who you are, or where you live, or what religion you practice or color you are. That murder would
get noticed by everyone.
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Obama's friend Ayers, formed the terrorist group, other members were convicted of murder and other terrorist acts. Using your logic, Bin Laden should be cleared because he wasn't on any plane on 9/11.
OBAMA or OSAMA? You guess the right answer!
Question 1: Which one of these men had the name of Jesus Christ covered up with plywood before he would enter the room and speak?
Answer: Obama at Georgetown University
Question 2: Which one of these two men said "I will stand with my Muslim brothers' if the winds change in an ugly direction"?
Answer: Obama in his book Dreams of My Father.
Question 3: Which one of these men associated with admitted terrorists' who bombed U.S. buildings and killed law enforcement officers?
Answer: Obama, he was friends and neighbors with U.S. terrorist, William Ayers, and started his political career in Ayer's living room.
Question 4: Which one of these men told Muslim leaders--from inside a Mosque--that America is not a Christian nation?
Answer: Obama while he was in the Muslim country, Turkey.
Question 5: Which one of these men bowed down to the Muslim Saudi King, overseer of Mecca and Medina?
Answer: Obama during a meeting of world leaders this year.
Question 6: Which one of these men had his subordinates fly extremely low flying jets over Manhattan New York causing citizens to scream and run?
Answer: Both
Question 7: Which one of these man refused to acknowledge U.S. prayer day?
Answer: Obama, all previous presidents honored the day since its inception.
Question 8: Which one of these men was in Kenya wearing a full Muslim head dress and Islamic clothing?
Answer: Obama, when he visited Kenya.
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New York -- A U.S. Federal Grand Jury in New York on Nov. 5 issued an
indictment against Usama Bin Laden alleging that he and others engaged
in a long-term conspiracy to attack U.S. facilities overseas and to
kill American citizens.
The indictment noted that Al Qaeda, Bin Laden's international
terrorist group, forged alliances with the National Islamic Front in
Sudan and with the government of Iran and with its associated group
Hezballah to "work together against their perceived common enemies in
the West, particularly the United States."
Additionally, the indictment states that Al Qaeda reached an agreement
with Iraq not to work against the regime of Saddam Hussein and that
they would work cooperatively with Iraq, particularly in weapons
development.
According to the indictment, Bin Laden's group also tried to recruit
Americans to travel through the United States and the West to deliver
messages and to conduct financial transactions to aid their terrorist
activities. The indictment also states that Al Qaeda used humanitarian
work as a conduit for transmitting funds to affiliate terrorist
groups.
The indictment also claims that Bin Laden's supporters purchased land
for terrorist training camps; bought warehouses where explosives were
stored; transferred bank accounts using various aliases; purchased
sophisticated telecommunications equipment; and transferred money and
weapons to Al Qaeda and affiliated terrorist organizations.
The indictment also states that beginning in 1993, Al Qaeda began
training Somali tribes to oppose the United Nation's humanitarian
effort in Somalia. In October, members of Al Qaeda participated in an
attack on U.S. military personnel where 18 soldiers were killed and 73
others wounded in Mogadishu. In another reference, the indictment
noted that an unnamed "co-conspirator" transported weapons and
explosives from Khartoum to Port Sudan for transshipment to the Saudi
Arabian peninsula.
The Grand Jury document, which usually does not provide a great amount
of details in advance of a prosecution, also stated that Bin Laden and
"others" tried to develop chemical weapons and attempted to obtain
nuclear weapons components in 1993.
The indictment noted that Bin Laden issued his Declaration of Jihad
with the aim of recruiting others to "kill Americans and encouraged
other persons to join the jihad against the American enemy."
Following is the text of the indictment:
(Begin text)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
- V-
USAMA BIN LADEN,
a/k/a "Usamah Bin-Muhammad Bin-Laden,"
a/k/a "Shaykh Usamah Bin-Laden,"
a/k/a "Mujahid Shaykh,"
a/k/a "Abu Abdallah,"
a/k/a "Qa Qa,"
Defendant
COUNT ONE
Conspiracy to Attack Defense Utilities of the United States
The Grand Jury charges:
Background: Al Qaeda
1. At all relevant times from in or about 1989 until the date of the
filing of this Indictment, an international terrorist group existed
which was dedicated to opposing non-Islamic governments with force and
violence. This organization grew out of the "mekhtab al Khidemat" (the
"Services Office") organization which had maintained (and continues to
maintain) offices in various parts of the world, including
Afghanistan, Pakistan (particularly in Peshawar) and the United
States, particularly at the Alkifah Refugee Center - in Brooklyn. From
in or about 1989 until the present, the group called itself "Al Qaeda"
("the Base"). From 1989 until in or about 1991, the group was
headquartered in Afghanistan and Peshawar, Pakistan. In or about 1992,
the leadership of Al Qaeda, including its "emir" (or prince) USAMA BIN
LADEN the defendant, and its military command relocated to the Sudan.
From in or about 1991 until the present, the group also called itself
the "Islamic Army." The international terrorist group (hereafter
referred to as "Al Qaeda") was headquartered in the Sudan from
approximately 1992 until approximately 1996 but still maintained
offices in various parts of the world. In 1996, USAMA BIN LADEN and Al
Qaeda relocated to Afghanistan. At all relevant times, Al Qaeda was
led by its "emir," USAMA BIN LADEN. Members of Al Qaeda pledged an
oath of allegiance to USAMA BIN LADEN and Al Qaeda.
2. Al Qaeda opposed the United States for several reasons. First, the
United States was regarded as "infidel" because it was not governed in
a manner consistent with the group's extremist interpretation of
Islam. Second, the United States was viewed as providing essential
support for other "infidel" governments and institutions, particularly
the governments of Saudi Arabia and Egypt, the nation of Israel and
the United Nations, which were regarded as enemies of the group.
Third, Al Qaeda opposed the involvement of the United states armed
forces in the Gulf War in 1991 and in Operation Restore Hope in
Somalia in 1992 and 1993. In particular, Al Qaeda opposed the
continued presence of American military forces in Saudi Arabia (and
elsewhere on the Saudi Arabian peninsula) following the Gulf war.
Fourth, Al Qaeda opposed the United States Government because of the
arrest, conviction and imprisonment of persons belonging to Al Qaeda
or its affiliated terrorist groups, including Sheik Omar Abdel Rahman.
3. Al Qaeda has functioned both on its own and through some of the
terrorist organizations that have operated under its umbrella,
including: the Islamic Group (also known as "al Gamaa Islamia" or
simply "Gamaa't"), led by co-conspirator Sheik Oxar Abdal Rahman; the
al Jihad group based in Egypt; the "Talah e Fatah" ("Vanguards of
conquest") faction of al Jibad, which was also based in Egypt, Which
faction was led by co-conspirator Ayman al Zawahiri ("al Jibad");
Palestinian Islamic Jihad and a number of Jihad groups in other
countries, including Egypt, the Sudan, Saudi Arabia, Yemen, Somalia,
Eritrea, Kenya, Pakistan, Bosnia, Croatia, Algeria, Tunisia, Lebanon,
the Philippines, Tajikistan, Chechnya, Bangladesh, Kashmir and
Azerbaijan. In February 1998, Al Qaeda joined forces with Gamaa't, Al
Jihad, the Jihad Movement in Bangladesh and the "Jamaat ul Ulema e
Pakistan" to issue a fatwah (an Islamic religious ruling) declaring
war against American civilians worldwide under the banner of the
"International Islamic Front for Jibad on the Jews and Crusaders."
4. Al Qaeda also forged alliances with the National Islamic Front in
the Sudan and with the government of Iran and its associated terrorist
group Hezballah for the purpose of working together against their
perceived common enemies in the West, particularly the United States.
In addition, al Qaeda reached an understanding with the government of
Iraq that al Qaeda would not work against that government and that on
particular projects, specifically including weapons development, al
Qaeda would work cooperatively with the Government of Iraq.
5. Al Qaeda had a command and control structure which included a
majlis al shura (or consultation council) which discussed and approved
major undertakings, including terrorist operations.
6. Al Qaeda also conducted internal investigations of its members and
their associates in an effort to detect informants and killed those
suspected of collaborating with enemies of Al Qaeda.
7. From at least 1991 until the date of the filing of this Indictment,
in the Sudan, Afghanistan and elsewhere out of the jurisdiction of any
particular state or district, USAMA BIN LADEN, a/k/a "Usamah
Bin-Muhammad Bin-Laden," a/k/a "Shaykh Usamah Bin-Laden," a/k/a
"Mujahid Shaykh," a/k/a "Abu Abdallah," a/k/a "Qa Qa," the defendant,
and a co-conspirator not named as a defendant herein (hereafter
"Co-conspirator") who was first brought to and arrested in the
Southern District of New York, and others known and unknown to the
grand jury, unlawfully, willfully and knowingly combined conspired,
confederated and agreed together and with each other to injure and
destroy, and attempt to injure and destroy, national-defense material,
national-defense premises and national-defense utilities of the United
States with the intent to injure, interfere with and obstruct the
national defense of the United states.
Overt Acts
8. In furtherance of the said conspiracy, and to effect the illegal
object thereof, the following overt acts, among others, were
committed:
a. At various times from at least as early as 1991 until at least in
or about February 1998, USAMA BIN LADEN, the defendant, met with
Co-conspirator and other members of Al Qaeda in the Sudan, Afghanistan
and elsewhere;
b. At various times from at least as early as 1991, USAMA BIN LADEN,
and others known and unknown, made efforts to obtain weapons,
including firearms and explosives, for Al Qaeda and its affiliated
terrorist groups;
c. At various times from at least as early as 1991 USAMA BIN LADEN,
and others known and unknown, provided training camps and guest houses
in various areas, including Afghanistan and the Sudan, for the use of
Al Qaeda and its affiliated terrorist groups;
d. At various times from at least as early as 1991, USAMA BIN LADEN,
and others known and unknown, made efforts to produce counterfeit
passports purporting to be issued by various countries and also
obtained official passports from the Government of the Sudan for use
by Al Qaeda and its affiliated groups;
e. At various times from at least as early as 1991, USAMA BIN LADEN,
and others known and unknown, made efforts to recruit United States
citizens to Al Qaeda in order to utilize the American citizens for
travel throughout the Western world to deliver messages and engage in
financial transactions for the benefit of Al Qaeda and its affiliated
groups;
f. At various times from at least as early as 1991, USAMA BIN LADEN,
and others known and unknown, made efforts to utilize non-Government
organizations which purported to be engaged in humanitarian work as
conduits for transmitting funds for the benefit of Al Qaeda and its
affiliated groups;
g. At various times from at least as early as 1991, Co-conspirator and
others known and unknown to the grand jury engaged in financial and
business transactions on behalf of defendant USAMA BIN LADEN and Al
Qaeda, including, but not limited to: purchasing land for training
camps; purchasing warehouses for storage of items, including
explosives; transferring funds between bank accounts opened in various
names, obtaining various communications equipment, including satellite
telephones and transporting currency and weapons to members of Al
Qaeda and its associated terrorist organizations in various countries
throughout the world;
h. At various times from in or about 1992 until the date of the filing
of this Indictment, USAMA BIN LADEN and other ranking members of Al
Qaeda stated privately to other members of Al Qaeda that Al Qaeda
should put aside its differences with Shiite Muslim terrorist
organizations, including the Government of Iran and its affiliated
terrorist group Hezballah, to cooperate against the perceived common
enemy, the United States and its allies;
i. At various times from in or about 1992 until the date of the filing
of this Indictment, USAMA BIN LADEN and other ranking members of Al
Qaeda stated privately to other members of Al Qaeda that the United
States forces stationed on the Saudi Arabian peninsula, including both
Saudi Arabia and Yemen, should be Attacked;
j. At various times from in or about 1992 until the date of the filing
of this Indictment, USAMA BIN LADEN and other ranking members of Al
Qaeda stated privately to other members of Al Qaeda that the United
States forces stationed in the Horn of Africa, including Somalia,
should be attacked;
k. Beginning in or about early spring 1993, Al Qaeda members began to
provide training and assistance to Somali tribes opposed to the United
Nations intervention in Somalia;
l. On October 3 and 4, 1993, members of Al Qaeda participated with
Somali tribesmen in an attack on United States military personnel
serving in Somalia as part of Operation Restore Hope, which attack
killed a total of 18 United States soldiers and wounded 73 others in
Mogadishu;
m. On two occasions in the period from in or about 1992 until in or
about 1995, Co-conspirator helped transport weapons and explosives
from Khartoum to Port Sudan for transshipment to the Saudi Arabian
peninsula;
n. At various times from at least as early as 1993, USAMA BIN LADEN
and others known and unknown, made efforts to obtain the components of
nuclear weapons;
o. At various times from at least as early as 1993 USAMA BIN LADEN and
others known and unknown, made efforts to produce chemical weapons;
p. On or about August 23, 1996, USAMA BIN LADEN signed and issued a
declaration of Jihad entitled "Message from Usamah Bin-Muhammad
Bin-Laden to His Muslim Brothers in the Whole World and Especially in
the Arabian Peninsula: Declaration of Jihad Against the Americans
Occupying the Land of the Two Holy Mosques; Expel the Heretics from
the Arabian Peninsula" (hereafter the "Declaration of Jihad) from the
Hindu Kush mountains in Afghanistan. The Declaration of Jihad included
statements that efforts should be pooled to kill Americans and
encouraged other persons to join the jihad against the American
enemy";
q. In or about late August 1996, USAMA BIN LADEN read aloud the
Declaration of Jihad and made an audiotape recording of such reading
for worldwide distribution; and
r. In February 1998, USAMA BIN LADEN issued a joint declaration in the
name of Gamaa't, Al Jihad, the Jihad movement in Bangladesh and the
"Jamaat ul Ulema e Pakistan" under the banner of the "International
Islamic Front for Jihad on the Jews and Crusaders," which stated that
Muslims should kill Americans -- including civilians -- anywhere in
the world where they can be found.
(Title 18, United States code, Section 2155(b).)
(End text)
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Now, you'll note that nowhere in the above indictment do you see Bin Laden accused of any direct terrorist act.
-
Now, you'll note that nowhere in the above indictment do you see Bin Laden accused of any direct terrorist act.
Your quote said,
"A U.S. Federal Grand Jury in New York on Nov. 5 issued an
indictment against Usama Bin Laden alleging that he and others engaged
in a long-term conspiracy to attack U.S. facilities overseas and to
kill American citizens."
Sounds like a terrorist act to me...
But catch him if you can. That's the problem. If you did, I don't think the trial would take long;
and probably he would be found guilty.
Ayers (I am not defending him, just the system) was never indicted. More important,
he was NEVER brought to trial although he was obviously available and findable (just drop by
Chicago). That tells you, there was/is NO case. Sorry. You are in Law Enforcement; you know
the law...
As for your previous post, that has what to do with Legal Issues???
And (he's says he is not) is there something wrong with having a Muslim President?
Or a Jewish one? Or a Buddhist? Or??? Where does it say the President has to be Christian?
And we are NOT a Christian nation. Jews are not Christian. Are they not a part of our nation?
All religions are welcome. That's my point.
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Now, you'll note that nowhere in the above indictment do you see Bin Laden accused of any direct terrorist act.
Your quote said,
"A U.S. Federal Grand Jury in New York on Nov. 5 issued an
indictment against Usama Bin Laden alleging that he and others engaged
in a long-term conspiracy to attack U.S. facilities overseas and to
kill American citizens."
Sounds like a terrorist act to me...
**It's specifically a conspiracy crime, which differs from a direct criminal act. The person that actually pulls a trigger or detonates the bomb can be prosecuted for that act. The conspiracy charge can be used to prosecute those in the organizational structure that plan and give orders, but never get their hands dirty with direct action.**
But catch him if you can. That's the problem. If you did, I don't think the trial would take long;
and probably he would be found guilty.
**Under Obama, it would be the world's biggest circus, with legions of ACLU types stampeding to defend him while he used it as a platform to spew propaganda.**
Ayers (I am not defending him, just the system) was never indicted.
**Yes he was, but the case was dropped for prosecutorial misconduct. The FBI had been wiretapping Ayers and others without warrants in some cases. Thank the Atty. General and Deep Throat (Assist. Director of the FBI, Mark Felt)**
More important,
he was NEVER brought to trial although he was obviously available and findable (just drop by
Chicago). That tells you, there was/is NO case.
**There was a case, but it was fcuked up.**
Sorry. You are in Law Enforcement; you know
the law...
As for your previous post, that has what to do with Legal Issues???
And (he's says he is not) is there something wrong with having a Muslim President?
**It would be like having a nazi president during WWII, you want someone in the office who wants our side to win. Not someone trying to undercut the nation to assist our enemies.**
Or a Jewish one? Or a Buddhist? Or??? Where does it say the President has to be Christian?
And we are NOT a Christian nation. Jews are not Christian. Are they not a part of our nation?
All religions are welcome. That's my point.
**Our culture, what is left of it is judeo-christian in nature. Our fundamental ideals flow from that perspective. The vast majority of citizens identify as some version of christian. No one is forced to be any religion, but our system is based on the public sharing a common sense of morality and self control based on judeo-christian ethics.**
So, note that aside from all the destruction done by Obama and his abandonment of Israel, note how he, like you was verbally condemning the murder of Dr. Tiller, yet silent of the murder of one soldier and wounding of another by a fellow traveler. So, yes, he loyalty is very much in question, though day by day it seems clearer where his loyalty lies. It isn't with America.
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http://www.discoverthenetworks.org/groupProfile.asp?grpid=6808
Declared "war on Amerikkka" at its Flint War Council in 1969
Responsible for the deaths of police officers and the wanton destruction of public property
Some former members are now comfortably ensconced in University professorships
Weatherman (known colloquially as The Weathermen) was a political faction elected in 1968 to lead the radical group Students for a Democratic Society (SDS). The organization took its name from a line in the Bob Dylan song Subterranean Homesick Blues ("You don't need a weatherman to know which way the wind blows"). Emerging in 1969 as the most militant wing of the SDS's Revolutionary Youth Movement, the fledgling Weatherman issued a "manifesto" eschewing nonviolence and calling instead for armed opposition to U.S. policies; advocating the overthrow of capitalism; exhorting white radicals to trigger a worldwide revolution by fighting in the streets of the "mother country"; and proclaiming that the time had come to launch a race war against the "white" United States on behalf of the non-white Third World.
Grounded in identity politics, Weatherman ideology and rhetoric rebelled against what later came to be known as America's "white skin privilege." Weatherman opposed the strategy of a rival SDS faction, Progressive Labor, which rejected the sexual and chemical excesses of the counter-cultural movements of the 1960s in favor of a purer, Marxist-Leninist popular front movement aimed at developing student-labor alliances.
FBI files from 1976, recently made public under the Freedom of Information Act, confirm the connections between Weatherman, Havana, and Moscow. Weatherman leaders like Mark Rudd traveled illegally to Havana in 1968 to engage in terrorist training. There, camps set up by Soviet KGB Colonel Vadim Kotchergine were educating Westerners both in Marxist philosophy and urban warfare.
At a 1969 "War Council" in Flint, Michigan, Weatherman leader Bernardine Dohrn (currently a law professor at Northwestern University and a Board member of the ACLU) praised the serial murderer Charles Manson and his accomplices: "Dig it. First they killed those pigs, then they ate dinner in the same room with them. They even shoved a fork into the victim's stomach. Wild." She then proclaimed that the time had come to launch a war against "Amerikkka" (Weatherman always spelled "America" this way, to convey the group's belief that the nation was ineradicably racist to its core). Toward this end, Dohrn advocated the formation of an even more radical "Weather Underground" cult to carry out covert terrorist activities rather than public acts of protest. By early 1970, her wish would be realized.
Weatherman's first public demonstration was its October 1969 "Days of Rage" protest in Chicago, timed to coincide with the trials of the Chicago Seven (a group of radical leftists led by Tom Hayden), who had fomented a riot at the Democratic Party nominating convention in that city the previous year. Advertised with the slogan "Bring the war home," "Days of Rage" sought to create enough chaos to shock the American public out of its alleged complacency vis a vis the Vietnam War.
The opening "Days of Rage" salvo, designed to glorify the anarchist movement, was the October 8 demolition of a statue dedicated to the memory of eight policemen who had been killed in the Haymarket Labor Riot of 1886. Thereafter, some 300 people -- both members and supporters of the Weatherman agenda -- ravaged Chicago's business district, smashing windows and destroying automobiles. Six people were shot and seventy were arrested. The violence continued, though on a smaller scale, for each of the next two nights. As Sixties historian Todd Gitlin observed, however, no popular uprising was sparked by these events, much to the group's dismay. Notable "Days of Rage" leaders included Bill Ayers, now a Professor of Education at the University of Illinois, and Mark William Rudd, currently a mathematics professor at a New Mexico community college.
Weatherman was further radicalized by the December 1969 shooting death of Black Panther leader Fred Hampton by Chicago police. Hampton was a street thug who, in his much-heralded "morning education" programs, taught black youths that violent opposition to the U.S. government was a worthy goal. He was quoted in a 1969 Chicago Sun-Times article as saying, "I am at war with the pigs," and forecasting an armed struggle between blacks and whites. He routinely carried weapons and instructed his subordinates to do the same. For Weatherman, Hampton's death provided one more excuse to pursue a revolutionary agenda. In March 1970 the organization issued a "Declaration of a State of War" against the United States government, using for the first time its new name, the "Weather Underground Organization" (WUO), adopting fake identities, and pledging to pursue covert activities only.
Shortly after that Declaration was made public, three members of the Weather Underground accidentally killed themselves in a Manhattan townhouse while attempting to build a powerful bomb they had intended to plant at a social dance in Fort Dix, New Jersey -- an event that was to be attended by U.S. Army soldiers. Hundreds of lives could have been lost had the plot been successfully executed.
The Weather Underground went on to claim credit for some 25 bombings over the next several years, detonating explosives at the rebuilt Haymarket statue, a bathroom at the Pentagon, the Capitol barber shop, the New York City police headquarters, and a variety of other targets.
The Weather Underground also (for a fee of $25,000) helped psychedelic drug guru Timothy Leary break out of a California prison and arranged for his transport to Algiers. When Leary was re-arrested in 1974, he cooperated in the FBI investigation of WUO in exchange for a lighter sentence.
By the time the U.S. withdrew its military forces from Vietnam in 1975, the Weather Underground was clearly losing vitality as an organization, having failed to invigorate a new radical movement in the U.S. or to inspire an all-out war against the government. In the wake of President Jimmy Carter's amnesty for draft dodgers, members of the group began to emerge from hiding. Many were never prosecuted; others had their convictions overturned. Some, like Rudd, Dohrn, and Ayers, claimed places for themselves in academia, while others attempted to return to the mainstream.
On October 20, 1981 -- long after the Weather Underground had ceased to exist -- former Underground member Kathy Boudin and her soon-to-be husband, David Gilbert, were accomplices in the robbery of a Brinks armored car in Nyack, New York. In the course of that heist, one Brinks guard and two Nyack police officers were murdered. Also involved in the robbery was Judith Clark, who had served a prison term for her participation in the "Days of Rage." Boudin hired attorney Leonard Weinglass, a law partner of her father, to defend her in the case. Weinglass arranged for a plea bargain whereby Boudin pled guilty to one count of felony murder and robbery, in exchange for a prison sentence of twenty years to life. She was paroled in 2003, however, over strong opposition from New York State police. Gilbert remains in New York's Attica State Prison, having refused to bargain.
In 1985, former Weather Underground members Susan Rosenberg (who also was implicated in the Nyack robbery) and Linda Evans were apprehended while transporting 740 pounds of explosives which they both acknowledged were slated for use in additional bombings. Rosenberg was sentenced to 58 years in prison, Evans 40; President Bill Clinton pardoned both women in January 2001.
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http://corner.nationalreview.com/post/?q=ODk2ZTRmZDIwNWEzOWE2MDNhMTQ0ZWYwYmRiNWZmNDM=
Wednesday, August 27, 2008
Bill Ayers: Unrepentant LYING Terrorist [Andy McCarthy]
In that Fox interview that Rich linked to, Ayers preposterously claimed that he and his fellow Weather Underground terrorists did not really intend to harm any people — the fact that no one was killed in their 20 or so bombings was, he said, "by design"; they only wanted to cause property damage:
Between October 1969 and September 1973, the Weather Underground claimed credit for some twenty bombings across the country, in which no one was harmed — save the three cell members who perished in a Greenwich Village townhouse in March 1970, when one of their creations detonated prematurely. Ayers claimed the fact that no other individuals were killed as a result of the Weathermen’s actions was “by design.”
In his autobiography, Fugitive Days: A Memoir, Ayers recalled, he posed the question: “How far are you willing to take that step into what I consider the abyss of violence? And we really never did, except for that moment in the townhouse.… I actually think destroying property in the face of that kind of catastrophe is so — restrained. And I don’t see it as a big deal.
Right.
First of all, "that moment in the townhouse" he's talking about happened in 1970. Three of his confederates, including his then girlfriend Diana Oughton, were accidentally killed when the explosive they were building to Ayers specifications (Ayers was a bomb designer) went off during construction. As noted in Ayers' Discover the Networks profile, the explosive had been a nail bomb. Back when Ayers was being more honest about his intentions, he admitted that the purpose of that bomb had been to murder United States soldiers:
That bomb had been intended for detonation at a dance that was to be attended by army soldiers at Fort Dix, New Jersey. Hundreds of lives could have been lost had the plan been successfully executed. Ayers attested that the bomb would have done serious damage, "tearing through windows and walls and, yes, people too."
In fact, Ayers was a founder of the Weatherman terror group and he defined its purpose as carrying out murder. Again, from Discover the Networks:
Characterizing Weatherman as "an American Red Army," Ayers summed up the organization's ideology as follows: "Kill all the rich people. Break up their cars and apartments. Bring the revolution home, Kill your parents."
Now he wants you to think they just wanted to break a few dishes. But in his book Fugitive Days, in which he boasts that he "participated in the bombings of New York City Police Headquarters in 1970, of the Capitol building in 1971, and the Pentagon in 1972," he says of the day that he bombed the Pentagon: "Everything was absolutely ideal. ... The sky was blue. The birds were singing. And the bastards were finally going to get what was coming to them."
And he wasn't singular. As I noted back in April in this article about Obama's motley collection of radical friends, at the Weatherman “War Council” meeting in 1969, Ayers' fellow terrorist and now-wife, Bernadine Dohrn, famously gushed over the barbaric Manson Family murders of the pregnant actress Sharon Tate, coffee heiress Abigail Folger, and three others: “Dig it! First they killed those pigs, then they ate dinner in the same room with them. They even shoved a fork into the victim’s stomach! Wild!” And as Jonah recalled yesterday, "In appreciation, her Weather Underground cell made a threefingered 'fork' gesture its official salute." They weren't talking about scratching up the wall-paper.
A Weatherman affiliate group which called itself "the Family" colluded with the Black Liberation Army in the 1981 Brinks robbery in which two police officers and an armed guard were murdered. (Obama would like people to believe all this terrorist activity ended in 1969 when he was eight years old. In fact, it continued well into the eighties.) Afterwards, like Ayers and Dohrn, their friend and fellow terrorist Susan Rosenberg became a fugitive.
On November 29, 1984, Rosenberg and a co-conspirator, Timothy Blunk, were finally apprehended in Cherry Hill, New Jersey. At the time, they were actively planning an unspeakable bombing campaign that would have put at risk the lives of countless innocent people. They also possessed twelve assorted guns (including an Uzi 9 mm. semi-automatic rifle and an Ithaca twelve-gauge shotgun with its barrel sawed off), nearly 200 sticks of dynamite, more than 100 sticks of DuPont Trovex (a high explosive), a wide array of blasting agents and caps, batteries, and switches for explosive devices. Arrayed in disguises and offering multiple false identities to arresting officers, the pair also maintained hundreds of false identification documents, including FBI and DEA badges.
When she was sentenced to 58 years' imprisonment in 1985, the only remorse Rosenberg expressed was over the fact that she and Blunk had allowed themselves to be captured rather than fighting it out with the police. Bernadine Dohrn was jailed for contempt when she refused to testify against Rosenberg. Not to worry, though. On his last day in office, the last Democrat president, Bill Clinton, pardoned Rosenberg — commuting her 58-year sentence to time-served.
These savages wanted to kill massively. That they killed only a few people owes to our luck and their incompetence, not design. They and the Democrat politicians who now befriend and serve them can rationalize that all they want. But those are the facts.
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http://formerspook.blogspot.com/2009/06/two-shootings-different-priorities.html
TUESDAY, JUNE 02, 2009
Two Shootings, Different Priorities
Abdulhakim Mujahid Muhammad, flanked by his attorney, enters a not guilty plea in an Arkansas courtroom. The Muslim convert is facing capital murder charges in connection with Monday's shooting of two U.S. Army recruiters in Little Rock (Arkansas Democrat-Gazette photo).
After an anti-abortion extremist killed Kansas physician George Tiller on Sunday, the Obama Justice Department swung into action. Just hours after the shooting, Attorney General Eric Holder announced added security for selected abortion providers and the clinics where they work.
A spokesman for the U.S. Marshal's Service has confirmed that federal agents would be guarding abortion doctors and medical offices in the coming days, though the scope of the security operation remains unclear.
Readers will note that Mr. Holder offered no public reaction just 24 hours later, when two U.S. Army soldiers were gunned down outside a recruiting office in Little Rock, Arkansas. Privates William Long and Quinton Ezeagwula were shot by 23-year-old Abdulhakim Mujahid Muhammad, a Muslim convert who spent time in Yemen.
Long died from his injuries at a Little Rock hospital a short time after the shooting; Ezeagwula, who was shot in the neck, is expected to survive.
Both soldiers were recent graduates of basic training, participating in the "Hometown Recruiter" assistance program. Long and Ezeagwula were assigned to the Little Rock office for two weeks, talking to friends and family members about opportunities offered by the Army. The hometown recruiter program has been in existence for more than 30 years, and dates back to the earliest days of the all-volunteer military.
Appearing in court today, Muhammad entered a "not guilty" plea to capital murder charges in connection with the shootings. A prosecutor said the suspect admitted to targeting the soldiers, and said he "would have shot more" had other recruiters been outside. Muhammad also told investigators that he was "upset" over the military's treatment of Muslims.
There are literally hundreds of armed forces recruiting stations across the country, but despite Monday's deadly attack, Mr. Holder apparently sees no need for added security. Never mind that recruiters are unarmed and their offices are (typically) located in storefronts, behind pane-glass windows and doors. While some recruiting centers have added security measures in recent years, most are unprotected. Comparatively speaking, a typical abortion clinic is far more secure than a military recruiting center in the same community.
And never mind that recruiting stations have been the target of an escalating campaign of harassment, intimidation and violence in recent years. Michelle Malkin has chronicled scores of attacks across the country in recent years, but the anti-recruiter campaign has received virtually no attention from the MSM. Given the media's indifference--and the Democratic Party's cozy alliance with the anti-war left--it's no surprise that Mr. Holder is unconcerned about attacks on military recruiters.
But that position may come back to haunt the attorney general and his boss, President Obama. Early reports suggest the Little Rock suspect spent several years in Yemen after his conversion to Islam, and one source indicated that Muhammed may have traveled on a Somali passport. Additionally, the FBI has confirmed that it's anti-terror division was investigating Muhammad before the shooting (emphasis ours).
While Federal authorities have uncovered no evidence of a wider conspiracy (at least not yet), there's much we don't know about the former Carlos Bledsoe. What prompted his conversion to Islam, and how did he make it to Yemen, a hotspot for jihad? Did he come in contact with former Gitmo detainees who migrated to that Middle Eastern nation, and have become a key part of the local Al Qaida affiliate? Was there a Somali connection, and finally, what brought Mr. Muhammad back to the U.S. and sent him on that murderous rampage?
At this point, answers to those questions are in short supply. We have no doubt that the FBI will conduct a professional investigation, but there's a larger issue that must be resolved, since it will set the tone for the inquiry. Simply stated, as the probe unfolds, will Mr. Obama allow his Justice Department to follow all leads, regardless of where they lead?
Thirteen years ago, another Democratic President (Bill Clinton) had an opportunity to aggressively pursue a terror investigation. But he thwarted an FBI probe into the 1996 Khobar Towers bombing, believing the search for Iranian masterminds would undermine his overtures toward Tehran.
Obviously, the shootings in Little Rock are vastly different that the massive truck bomb that devastated our military barracks in Saudi Arabia, killing 19 airmen. But the saga of Abdul Hakim Mujahid Muhammad has foreign elements that must be investigated. There's every chance that Mr. Muhammad acted alone, but there is also the possibility that he had assistance and influence from individuals abroad.
As Mr. Obama prepares for his Cairo speech, he might consider a proper balance between building better relations with the Muslim world, and protecting U.S. citizens from its most radical elements. Mr. Muhammad is a product of that environment, and the family of Private Long has every right to know how those elements influenced his murder. They should also ask Mr. Holder why abortion doctors deserve federal protection ahead of our military recruiters.
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Allies in War
FrontPageMagazine.com | September 14, 2001
ON THE MORNING OF THE ATTACKS on the World Trade Center and the Pentagon, along with a million other readers of the New York Times including many who would never be able to read the paper again, I opened its pages to be confronted by a color photo showing a middle-aged couple holding hands and affecting a defiant look at the camera. The article was headlined in an irony that could not have been more poignant, "No Regrets For A Love Of Explosives." The couple pictured were Bill Ayers and Bernardine Dohrn, former leaders of the 1960s’ Weather Underground, America’s first terrorist cult. One of their bombing targets, as it happened, was the Pentagon.
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"I don’t regret setting bombs," Ayers was quoted in the opening line of the Times profile; "I feel we didn’t do enough." In 1969, Ayers and his wife convened a "War Council" in Flint Michigan, whose purpose was to launch a military front inside the United States with the purpose of helping Third World revolutionaries conquer and destroy it. Taking charge of the podium, dressed in a high-heeled boots and a leather mini-skirt – her signature uniform – Dorhn incited the assembled radicals to join the war against "Amerikkka" and create chaos and destruction in the "belly of the beast." Her voice rising to a fevered pitch, Dohrn raised three fingers in a "fork salute" to mass murderer Charles Manson whom she proposed as a symbol to her troops. Referring to the helpless victims of the Manson Family as the "Tate Eight" (the most famous was actress Sharon Tate) Dohrn shouted:
Dig It. First they killed those pigs, then they ate dinner in the same room with them, they even shoved a fork into a victim’s stomach! Wild!
Embarrassed today by this memory, but unable to expunge it from the record and unwilling to repudiate her terrorist deeds, Dorhn resorts to the lie direct. "It was a joke," she told the sympathetic Times reporter, Dinitia Smith; she was actually protesting America’s crimes. "We were mocking violence in America. Even in my most inflamed moment I never supported a racist mass murderer." In 1980, I taped interviews with thirty members of the Weather Underground who were present at the Flint War Council, including most of its leadership. Not one of them thought Dohrn was anything but deadly serious. Outrageous nihilism was the Weatherman political style. As soon as her tribute to Manson was completed, Dohrn was followed to the Flint platform by another Weather leader who ranted, "We’re against everything that’s ‘good and decent’ in honky America. We will loot and burn and destroy. We are the incubation of your mothers’ nightmares."
It has long been a fashion among media sophisticates to ridicule the late J. Edgar Hoover and the FBI men who sought to protect Americans from the threats posed by people like Ayers and Dohrn in their "days of rage." But Hoover’s description of Bernardine Dohrn as "La Pasionara of the lunatic left" is far more accurate than anything that can be found in the Times profile.
Instead of a critique of this malignant couple and their destructive resume, the Times’ portrait provides a soft-focus promotion for Ayers’ newly published Fugitive Days, a memoir notable for its dishonesty and its celebration of his malevolent exploits. Ayers’ text wallows in familiar Marxist incitements and the homicidal delusions of Sixties radicalism, including a loving reprint of an editorial from the old socialist magazine Alarm! Written by Albert Parsons, one of the Haymarket anarchists, whom the Weathermen idolized:
Dynamite! Of all the good stuff, that is the stuff! Stuff several pounds of this sublime stuff into an inch pipe…plug up both ends, insert a cap with a fuse attached, place this in the immediate vicinity of a lot of rich loafers who live by the sweat of other people’s brows, and light the fuse. A most cheerful and gratifying result will follow. In giving dynamite to the downtrodden millions of the globe, science has done its best work.
In Fugitive Days, Ayers has written – and the Times promoted – a text that the bombers of the World Trade Center could have packed in their flight bags alongside the Koran, as they embarked on their sinister mission.
"Memory is a motherf*cker," Ayers warns his readers, in the illiterate style that made him an icon of the New Left. It is as close as he gets to acknowledging that his account leaves World Trade Center size holes in the story of his criminal past. Among them is its second half, how Weatherman imploded in the year other Americans were celebrating the bicentennial of their nation. It imploded because the devotion of the terrorists to the bibles of the cause – Lenin, Stalin, Mao – eventually led them into a series of brainwashing rituals and purges that decimated their ranks. None of this is remembered in Ayers’ book. Nor is the passage of their closest comrades into the ranks of the May 19th Communist Movement, which murdered three officers – including the first black policeman on the Nyack force, during an infamous robbery of a Brinks armored car in 1981. Caveat emptor. The point of the omissions is to hide from others (and from Ayers himself) the real-world consequences of the anti-American ideologies, which took root in the Sixties and now flourish on college campuses across the country.
Today William Ayers is not merely an author favored by the New York Times, but a Distinguished Professor of Education at the University of Illinois, Chicago. His Lady Macbeth is not merely a lawyer, but a member of the American Bar Association’s governing elite, as well as the director of Northwestern University’s Children and Family Justice Center. These facts reflect a reality about the culture of facile defamation of America and ready appeasement of her mortal enemies, that confronts us as we struggle to deal with the terrorist attack.
The President has correctly defined the repulsive deed that has left 10,000 dead as an "act of war." This, it must be said, is a very belated recognition of our reality, which was postponed for almost a decade by an Administration infused with the attitudes of self-flagellation and moral equivalence perfectly expressed on the day of the attack by John Lahr, a writer for the Microsoft Internet journal Slate. On the day of the attack that crushed to death and burned alive 10,000 innocent civilians at their workplace, John Lahr advised America to "Rush to Thought, Not to Judgment."
I fear the hysteria in the American character, which splits so easily into good and bad, which rushes to judgment rather than to thought. The terrorists have taken aim at the American government and American capitalism and brought them both – symbolically at least – down. America, from the point of view of the terrorists, has been humiliated and brutalized as they feel they have felt humiliated and brutalized by America.
This is the we-feel-your-terrorist-pain, appeasement perspective perfectly tuned. The hysteria in the American character! A character that permitted fanatical America-haters to bomb the World Trade Center not once but twice without so much as instituting serious security at its airports, lest the American Civil Liberties Union and other members of the appeasement coalition take their government to court to ensure that terrorists, too, have civil liberties. Hysterically "anti-Islamic" America, which during the Clinton years forbade its intelligence operatives from using "human rights violators" as intelligence assets to prevent such terrorist attacks. Who in these Middle Eastern thugdoms with any access to authority or power let alone terrorist networks is not a human rights violator? Liberal self-hatred masquerading as a concern for human rights was the primary reason why it was so easy for a complicated and lethal attack to be planned and carried out without coming to the attention of American intelligence agencies. It was more important for the Clinton Administration to be sensitive to the utopian concerns of the progressive elites and the one-world kleptocrats who make up the UN than to protect the American people.
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America the brutalizer! Osama bin Laden our terrorist enemy and mass murderer is not exactly one of your huddled masses. He is a Saudi prince! Sheik Abdel Rahman, architect of the first World Trade Center bombing is a sheik! Brutalization is not their problem. They are brutes! Like other radical zealots they are driven by a religious fanaticism confident that God is on their side and those who do not share their faith – in our case, Christians and Jews – are infidels, worthy of destruction. In Palestinian schools in democratic Israel, Palestinian school children are taught by their Palestinian teachers to chant "Destroy the heathen Jews." Register it. Not those who have injured them, but those who are not Muslims. Religious fanaticism will express itself in political – and eventually military – fanaticism whatever you do. Ask not, Americans, what your country has done to deserve its pain. Ask what has been done to inflict pain on your country and what you can do about it.
In May 1998, three years before the World Trade Center bombing, Osama bin Laden was interviewed by ABC News reporter John Miller. He explained his war this way:
John Miller: Mr. Bin Laden, you have issued a fatwa [death sentence] calling on all Muslims to kill Americans where they can, when they can. Is that directed at all Americans, just American military, just Americans in Saudi Arabia?
Osama bin Laden: Allah ordered us … to purify Muslim land of all non-believers,… We are surprised this question is coming from Americans…. American history does not distinguish between civilians and military, and not even women and children. They are the ones who used the bombs against Nagasaki…. America does not have a religion that will prevent it from destroying all people…. We believe that the biggest thieves in the world and the terrorists are the Americans… We are sure of Allah’s victory and our victory against the Americans and the Jews as promised by the prophet peace be upon him….We predict a black day for America and the end of the United States as United States…
Is this clear enough? This holy war is not about American acts. It is about who we are. It is not a war that can be negotiated. It is them or us.
This is the hour for America to take care of itself; to take steps to defend itself. America must be hard where it has been soft, calculating where it has been sensitive, strong where it has been weak. Osama bin Laden is impressed with American weakness, the very kind of weakness urged again on America in this crisis, by appeasers like John Lahr. Rush to thought, not judgment:
Osama bin Laden: We have seen in the last decade the decline of the American government and the weakness of the American soldier who is ready to wage Cold Wars and unprepared to fight long wars. This was proven in Beirut when Marines fled after two explosions. It also proves they can run in less than 24 hours, and this was also repeated in Somalia. We are ready for all occasions. We rely on Allah.
On the day of the World Trade Center bombing, I appeared on a Fox TV program in San Diego and did my best to steer the discussion towards the steps America must take to defend herself, to carry the war to the enemy camp. But the host would have none of it. While thousands of Americans writhed in agony in the twisted steel of the Trade Center, she wanted to discuss the danger of American "hysteria," the "threat" that American prejudice might pose to Muslims in our midst. It did not even occur to her that if Americans were prejudiced in a way that made this issue pressing, these terrorists would never have been trained as pilots by American companies, housed in American homes, or ignored by American security agents at the airports where they hijacked the airliners in order to convert them into bombs.
Bill Ayers and Bernardine Dohrn are a far more typical academic couple, and their NY Times interlocutor a far more familiar arbiter of information to the American public than is comforting to consider. We have already been treated to TV images of college students shifting the blame to American shoulders while the embers of the Trade Center are still warm. Many of us have children in secondary schools who, in this hour of mourning, have been lectured by their teachers on America’s sins and chickens coming home to roost. The political friends of Bill Ayers and Bernardine Dohrn have been busily at work for the last two decades seeding our educational culture with anti-American poisons that could one day destroy us.
A visit to a well-traveled website "for the progressive community" – www.commondreams.org – reveals how profoundly America has been rejected and how passionately its bloodthirsty enemies have been embraced by significant sections of our population, even as we enter a life and death struggle with an enemy that wants to exterminate us:
"Not only have we caused these events with our monstrous foreign policies but also with our complete disregard of our environment causing mortal damage to the Earth (Earth is a living being) and other species that co-exist with us." – Susan Yost, Cumberland VA
"My heart went out to all the people there as I sat watching, waiting … and then sadness filled me, sadness that the foreign policy of this country has come back to haunt us; sadness that our government has been so arrogant that a lesson like this occurred;…It is US policies of terror in other countries that have brought this down on us." Matthew A Peckham, Eugene OR
"Our corporate entities not only run this country but have decimated many other small countries in ways we cannot even fathom….This is a wake up call, America. It is time to change our ways." –Rich Cianflone, Colorado
"We are reaping what we have sown. We will now have the dreaded opportunity to live in the same fear that our financial policies and military assistance have inflicted on others." – Harold Parkey, Fort Worth, Texas
"For fifty-six years Washington has successfully conducted mass murders…." – William Mandel, Oakland, California (Mandel is a lifelong Communist and taxpayer funded Public Radio commentator.)
"The United States conducts itself as a terrorist organization throughout the world." – Lance Del Goebel, Manhattan, Illinois
"U.S. foreign policy has come home to roost today … we are reaping what we have sown."—Glynn Ash
America, the Great Satan.
Actually, these comments are merely cribbed from bin Laden’s friend, Saddam Hussein, whose response to the Trade Center attacks was as follows: "Notwithstanding the conflicting human feelings about what happened in America yesterday, America is reaping the thorns sown by its rulers in the world. Those thorns have not only bloodied the feet and the hearts of many, but also the eyes of people shedding tears on their dead whose souls have been reaped by America." Saddam then invoked a litany of misdeeds that could have come from a primer written by Noam Chomsky, Howard Zinn or any number of familiar anti-American extremists: "There is no place that does not have a symbolic monument that shows America’s criminal acts against these victims, whether in Japan that was the first to be seared by the nuclear destruction weapons boasted by America, or Vietnam, Iraq … or the criminal acts the US is now perpetrating by supporting the criminal racist Zionism against our heroic Palestinian people…."
This is the banal excuse of common criminals – the devil made me do it. "I don’t think you can understand a single thing we did," explains the pampered Weatherman bomber Bill Ayers "without understanding the violence of the Vietnam War."
I interviewed Ayers ten years ago, in a kindergarten classroom in uptown Manhattan where he was employed to shape the minds of inner city children. Dressed in bib overalls with golden curls rolling below his ears, Ayers reviewed his activities as a terrorist for my tape recorder. When he was done, he broke into a broad, Jack Horner grin and summed up his experience: "Guilty as hell. Free as a bird. America is a great country."
In my experience, what drives most radicals are passions of resentment, envy and inner rage. Bill Ayers is a scion of wealth. His father was head of Detroit’s giant utility Commonwealth Edison, in line for a cabinet position in the Nixon Administration before his son ruined it by going on a rampage that to this day he cannot explain to any reasonable person’s satisfaction (which is why he has to conceal so much). It could be said of Bill Ayers that he was consumed by angers so terrible they led him to destroy his father’s career. But in the 10 hours I interviewed him I saw none of it. What I saw was a shallowness beyond conception. All the Weather leaders I interviewed shared a similar vacuity. They were living inside a utopian fantasy, a separate reality, and had no idea of what they had done. Nor any way to measure it. Appreciating the nation to which they were born, recognizing the great gifts of freedom and opportunity their parents and communities had given them, distinguishing between right and wrong – it was all above their mental and moral ceiling.
In the days ahead, this is one of the dangers we face.
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And Obama is Ayers' protege. God help us.
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http://www.zombietime.com/prairie_fire/
Great documentation of who Ayers really is and the Obama connection.
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http://directorblue.blogspot.com/2009/06/red-alert-did-white-house-order-fbi-to.html
Wednesday, June 03, 2009
RED ALERT: Did White House order FBI to "back off" anti-terror investigations of radicalized Muslim converts?
Today's update from Stratfor Research describes the background of a recent attack on U.S. soldiers in Little Rock, Arkansas. One soldier was killed and another critically wounded by a lone gunman who began shooting from a pickup truck.
Police quickly apprehended a suspect, Abdulhakim Mujahid Muhammad, a 21-year-old African-American man and convert to Islam. In his vehicle, police recovered an SKS rifle and two handguns. Muhammad reportedly admitted to the shootings and claimed he had specifically targeted U.S. military personnel; he stated had more soldiers been in the parking lot, he would have shot them too.
A disturbing aspect of the attack is that Muhammad had been brought to the FBI’s attention months ago, according to ABC News.
But U.S. counterterror teams may have been intentionally prevented from investigating radicalized converts to Islam:
Several weeks ago, STRATFOR heard from sources that the FBI and other law enforcement organizations had been ordered to “back off” of counterterrorism investigations into the activities of Black Muslim converts. At this point, it is unclear to us if that guidance was given by the White House or the Department of Justice, or if it was promulgated by the agencies themselves, anticipating the wishes of President Barack Obama and Attorney General Eric Holder.
Stratfor implies, however, that the investigations were canceled for purely political reasons.
...politics have proved obstructive to all facets of counterterrorism policy. And politics may have been at play in the Muhammad case as well as in other cases involving Black Muslim converts...
Is it possible that the White House or Eric Holder's Justice Department "turned off" counterterror investigations that could have saved the targeted soldiers?
This paragraph would appear to make clear that such an order was given:
Many FBI supervisors are reluctant to authorize investigations that they believe may have negative blow-back on their career advancement. In light of this institutional culture, and the order to be careful in investigations relating to Black Muslim converts, it would not be at all surprising to us if a supervisor refused to authorize a full-field investigation of Muhammad that would have included surveillance of his activities... Had the FBI opened a full-field investigation on Muhammad, and had it conducted surveillance on him, it would have been able to watch him participate in preoperational activities such as conducting surveillance of potential targets and obtaining weapons.
Congress must demand the release of this order and a complete explanation of its issuance.
Furthermore, the White House was silent on this incident, but immediately issued a press release in the case of the slain Kansan abortion doctor.
Congress must demand an immediate investigation of these reports. Our men and women serving in the military deserve better.
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THE FOUNDATION
"Were we directed from Washington when to sow, and when to reap, we should soon want bread." --Thomas Jefferson
GOVERNMENT & POLITICS
Hope 'n' Change: Government Motors
Chavez gives Obama the book on nationalization
"I want to disabuse people of this notion that somehow we enjoy, you know, meddling in the private sector." So said Barack Obama in March. But as the president announced General Motors' bankruptcy Monday, it became ever clearer that he is the new CEO of the world's largest automaker. The federal government now owns 60 percent of GM; the United Auto Workers own 17.5 percent. Even Venezuelan dictator Hugo Chavez recognized the significance: "Hey, Obama has just nationalized nothing more and nothing less than General Motors. Comrade Obama! Fidel, careful or we are going to end up to his right!"
In his speech, as columnist Terence Jeffrey points out, "President Obama used the first-person singular pronoun 'I' 34 times when he announced he was nationalizing General Motors. He used 'Congress' once and 'law' not at all."
How could Obama use the word "law"? There is nothing in the Troubled Asset Relief Program (TARP) legislation of last fall, much less the U.S. Constitution, that authorizes the bailout or nationalization of an automaker. Of course, when pressed, the administration points to TARP as its authority for giving GM $50 billion in various loans so far, not counting $15 billion for its financial arm, GMAC. In fact, TARP specifically limited funds to financial institutions. The Bush administration used it to make loans to GM and Chrysler anyway after Congress debated but abandoned the "Auto Industry Financing and Restructuring Act," which would have granted bailout money to automakers. Indiana is now challenging the constitutionality of using TARP for GM and Chrysler in federal court.
But never mind such petty details. Obama feels our pain: "I recognize that this may give some Americans pause," he said. Still, he assured us, "What we are not doing -- what I have no interest in doing, is running GM." And while he is running GM, it's only as a "reluctant shareholder because this is the only way to help GM succeed."
That depends on the definition of "succeed." In tandem with the new CAFE standards, the administration wants GM to produce more green cars. As The Wall Street Journal notes, "No one knows if Americans will buy such cars, even if GM can make them competitively in the U.S." Obama has already made clear, however, that it's not about whether Americans want such cars, it's about whether he does.
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June 08, 2009, 4:00 a.m.
Bill of Rights, Inc.
Could a Second Amendment case establish Fourteenth Amendment originalism?
By Will Haun
The Seventh Circuit Court of Appeals recently decided McDonald v. City of Chicago, a challenge to Chicago’s gun ban. The case has major implications for protecting gun rights at the state level, but its importance goes further than that. Depending on what the Supreme Court does, it could make originalism — relying on the text of the Constitution and its amendments as they were understood when enacted — the accepted standard for interpreting the Bill of Rights, rather than the whims of a handful of justices.
The plaintiff’s case in McDonald is based on the Second Amendment, but also on the Fourteenth. Last year, in Heller v. District of Columbia, the Supreme Court ruled that the Second Amendment protects an individual’s right to own firearms against infringement by the federal government. But can a state or local government infringe that right? This question hinges on the constitutional principle of “incorporation” — the notion that the Fourteenth Amendment makes the states subject to the Bill of Rights.
When it was enacted in 1791, the Bill of Rights applied to the federal government only. Individual states could (and did) restrict free speech, for example, or have an established church. The states were beholden only to their own laws and constitutions and to certain provisions in Article I of the U.S. Constitution. After the Civil War, as Justice Clarence Thomas wrote in Zelman v. Simmons-Harris (2002), “the Fourteenth Amendment fundamentally restructured the relationship between individuals and the States and ensured that States would not deprive citizens of liberty without due process of law.” But what “liberty” was included in this guarantee, and what was meant by “due process”?
The full text of the first section of the Fourteenth Amendment reads:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Ringing phrases, to be sure, but somewhat short on specifics. In fact, the meaning of every major clause in the first section is disputed, and has been since the amendment’s enactment in 1868.
Case law provides little clarity. The first major Supreme Court decision to grapple with these questions came in the Slaughterhouse cases of 1873, but — to quote Justice Thomas again, this time from his dissent in Saenz v. Roe (1999) — that decision “all but read the Privileges or Immunities Clause out of the Constitution.” By adopting a narrow interpretation of the clause, the Court gave states wide latitude to enact laws they thought were necessary.
Towards the end of the 19th century, however, as various reform movements took hold, restrictive state laws came to be seen as an obstacle to progress. So the justices eventually concluded, as Prof. James W. Ely of Vanderbilt Law School notes, “that the Fourteenth Amendment did confer a national standard of rights against the states.” But instead of reviving the “privileges or immunities” clause to enforce this standard (and thus reversing Slaughterhouse), they seized upon the “due process” clause.
That clause may simply seem to restate the Fifth Amendment requirement guaranteeing an individual’s right to a day in court and the protections of the legal process, this time applying it to the states as well as the federal government. That’s the way many modern originalists understand the clause. But as reform took hold, courts began interpreting it to mean that states had no power to deprive citizens of important rights, whether or not those rights were mentioned in the Constitution. The judges themselves would decide what rights fell under the clause’s protection. They called this doctrine “substantive due process” to distinguish it from the traditional day-in-court meaning, which came to be called “procedural due process.”
At first, substantive due process was used mostly to reverse state encroachments on economic choices, like freedom of contract. If a baker wanted to work 70 or 80 hours a week, no one could stop him. But as the doctrine evolved, justices used it to incorporate selective provisions of the Bill of Rights, making them enforceable against state governments (the Second Amendment, among other provisions, was excluded for various reasons). And as the 20th century wore on, these two trends diverged: Economic regulation became popular among the progressives on the Court, while regulation of individuals’ “private” conduct became even less so. The justices modified the doctrine to fit their new preferences.
The result, Ely notes, was to create “an artificial division between economic rights, which the pro–New Deal court wanted to reject, and personal rights, which they wanted to expand to mean virtually anything.” Since the 1940s, the concept of substantive due process has been greatly expanded by the Court, not just to protect the Bill of Rights from abridgment by state action, but to create rights to privacy and abortion, a “wall of separation” between church and state, and many other inventions of the Warren and Berger Courts.
Many originalists, such as David Forte, co-editor of The Heritage Guide to the Constitution, have rightly argued that “due process was never meant to have a substantive meaning,” but merely a judicial one. This argument provides the basis for many conservatives and originalists to stand against the whole principle of incorporation. In a strict interpretation of this view, Chicago is entitled to restrict gun rights, since the Second Amendment (and the rest of the Bill of Rights) does not apply to it.
To parry this objection, the briefs in McDonald that argue for incorporation rely on recent scholarship that justifies incorporation on originalist grounds. Prof. Michael Kent Curtis, of Wake Forest School of Law, who worked on an amicus brief in McDonald, used the broad text of the Fourteenth Amendment, statements made in the 39th Congress (which passed the amendment), and the legal theories of its sponsors to conclude in his 1990 book No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights that incorporation through the “privileges or immunities” clause was part of the amendment’s intent.
Other originalists, such as Jim Bond, professor emeritus at Seattle University School of Law, have questioned how widespread the agreement on incorporation was, especially in the southern-state ratifying conventions that meticulously reviewed the amendment before passing it. But there is still good reason to believe, as Forte says, that some “federal package of rights is protected by the privileges or immunities clause.”
Exactly what rights are included in that package is unclear, but the connection of incorporation with the “privileges or immunities” clause provides another weapon for civil-liberties lawyers. That explains why both the progressive Constitutional Accountability Center (a “living Constitution” advocate) and the libertarian Institute for Justice filed amicus briefs in McDonald v. Chicago in favor of incorporating the Second Amendment. In a case of politics making strange bedfellows, the amicus briefs put those two groups on the same side as the National Rifle Association, which is co-plaintiff with McDonald.
In a decision delivered earlier this week, the Seventh Circuit upheld Chicago’s ban on firearms, but the decision left the merits of incorporation through the “privileges or immunities” clause to the Supreme Court. Alan Gura, arguing on behalf of the NRA and McDonald, anticipated this; he noted in oral arguments that his side intends to “preserve this argument for the upper [Supreme] Court.” (Gura was also the lawyer for the plaintiff in Heller v. D.C.)
Assuming the Supreme Court agrees to review McDonald, its decision could send shock waves through constitutional law. If the “privileges or immunities” clause becomes the new justification for incorporating the Bill of Rights into state law, the days of “substantive due process,” and all the judicial overreaching it has brought, could be numbered. Still, the fact that some liberals support this interpretation is worrisome. Would it merely substitute a new all-purpose tool for legislating from the bench in place of the old one?
Not necessarily. Basing decisions on the text-based “privileges or immunities” clause, rather than the judge-created doctrine of “substantive due process,” would naturally lend itself to the increased use of originalist analysis of the Fourteenth Amendment. The focus of inquiry would be, in Forte’s words, “what could have been reasonably understood to be the ‘Privileges or Immunities’ of Federal Citizenship by the amendment’s framers” — limiting the ability of future justices to “find” new “rights” protected by it. So no matter how the incorporation debate shakes out, an endorsement of originalism would be a victory for conservatives who prize intellectual honesty in constitutional interpretation.
Seemingly aware of these implications, the Left is trying to preserve the contrivances of “substantive due process” in an originalist guise. They want to define “privileges” and “immunities” as broadly as possible, to include what Doug Kendall of the Constitutional Accountability Center calls “very important progressive values,” such as abortion rights and same-sex marriage. The goal is to continue expanding “individual rights” while permitting restriction of property rights and economic freedoms. So if the Supreme Court decides in McDonald’s favor, it could end the controversy over gun rights but begin a host of new battles in other areas.
Yet Robert Levy, chairman of the Cato Institute, is not afraid of opening a can of worms. He says that libertarians see McDonald as an opportunity “to resurrect economic liberties suspended by the Court under the post–New Deal version of substantive due process.” Conservatives should see this case as a rare opportunity to base any incorporation of the Bill of Rights on originalist grounds — an opportunity they should waste no time in seizing, for it may not come again.
— Will Haun is a recent graduate of American University and is policy chairman of the Young Conservative Coalition. He is interning at the Heritage Foundation’s Center for Legal and Judicial Studies this summer before beginning law school at Catholic University this fall.
National Review Online - http://article.nationalreview.com/?q=NjM5ODQ5NGE5MGYxOTY4ZjdlMDMzMGU2NzZlMjI2NDM=
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The most consequential decision of the Supreme Court’s last term got only a little attention when it landed in May. And what attention it got was for the wrong reason.
But the lower courts have certainly understood the significance of the decision, Ashcroft v. Iqbal, which makes it much easier for judges to dismiss civil lawsuits right after they are filed. They have cited it more than 500 times in just the last two months.
“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.
On its face, the Iqbal decision concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man swept up on immigration charges could not sue two Bush administration officials for what he said was the terrible abuse he suffered in detention.
But something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States. Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation.
For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath.
This approach, particularly when coupled with the American requirement that each side pay its own lawyers no matter who wins, gave plaintiffs settlement leverage. Just by filing a lawsuit, a plaintiff could subject a defendant to great cost and inconvenience in the pre-trial fact-finding process called discovery.
Mark Herrmann, a corporate defense lawyer with Jones Day in Chicago, said the Iqbal decision will allow for the dismissal of cases that would otherwise have subjected defendants to millions of dollars in discovery costs. On the other hand, information about wrongdoing is often secret. Plaintiffs claiming they were the victims of employment discrimination, a defective product, an antitrust conspiracy or a policy of harsh treatment in detention may not know exactly who harmed them and how before filing suit. But plaintiffs can learn valuable information during discovery.
The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.
“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”
Note those words: Plausible. Common sense.
The old world was mechanical. A lawsuit that mouthed the required words was off and running. As the Supreme Court said in 1957 in Conley v. Gibson, a lawsuit should be allowed to go forward “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Things started to change two years ago, when the Supreme Court found a complaint in an antitrust suit implausible.
In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.
“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”
Courts applying Iqbal have been busy. A federal judge in Connecticut dismissed a disability discrimination suit this month, saying that Iqbal required her to treat the plaintiff’s assertions as implausible. A few days later, the federal appeals court in New York dismissed a breach of contract and securities fraud suit after concluding that its account of the defendants’ asserted wrongdoing was too speculative.
The judge hearing the claims of the falsely accused Duke lacrosse players has asked for briefing on whether their lawsuit against Durham, N.C., can pass muster under Iqbal. But the judge considering a case against John C. Yoo, the former Bush administration lawyer, said it could move forward despite Iqbal because the suit contained specific allegations about Mr. Yoo’s conduct in justifying the use of harsh interrogation methods.
In the Iqbal case itself, Javaid Iqbal, a Pakistani Muslim who was working as a cable television installer on Long Island, said he was subjected to intrusive searches and vicious beatings after being arrested on identity fraud charges two months after the Sept. 11 attacks.
Justice Kennedy said Mr. Iqbal’s suit against two officials had not cleared the plausibility bar. All Mr. Iqbal’s complaint plausibly suggested, Justice Kennedy wrote, “is that the nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available.”
Justice David H. Souter, said the majority had adopted a crabbed view of plausibility and had in the process upended the civil litigation system.
In his dissent in Iqbal, Justice Souter wrote that judges should accept the accusations in a complaint as true “no matter how skeptical the court may be.”
“The sole exception to this rule,” Justice Souter continued, “lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel.”
But that is no longer the law. Under the Iqbal decision, federal judges will now decide at the very start of a litigation whether the plaintiff’s accusations ring true, and they will close the courthouse door if they do not.
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Testimony
of
Timothy Lynch,
Director, Project on Criminal Justice, Cato Institute
before the
Subcommittee on Crime, Terrorism, and Homeland Security
Judiciary Committee
United States House of Representatives
Over-Criminalization of Conduct/Over-Federalization of Criminal Law
July 22, 2009
My name is Tim Lynch. I am the director of the Cato Institute's Project on Criminal Justice. Before I get into some of the nitty-gritty details of legal doctrine, let me begin by thanking you for the invitation to testify this afternoon. Although I believe the problems of Over-Criminalization of Conduct and Over-Federalization of Criminal Law are among the most serious problems facing the Congress today,1 my role this afternoon, as I understand it, is to highlight a related trend in the law—and that is the drift away from the idea of blameworthiness as a first principle of American criminal justice. That is, too often the government seeks to deny the proposition that it is unjust to inflict criminal punishment on people who are not blameworthy. My remarks will thus focus on that particular subject.
I. Introduction and Background
My approach to the criminal law begins with three basic propositions. First, the power that is wielded by police and prosecutors is truly immense. A dramatic raid, arrest, or indictment can bring enormous damage to a person's life—even before he or she has an opportunity to mount a defense in court. Second, the term "criminal" carries a stigma. It implies that the culprit has done something that is blameworthy. Third—and relatedly—it is important to keep a close eye on the manner in which the government creates and defines "criminal offenses." For as Harvard Law Professor Henry Hart once noted, "What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?"2 In my view, all persons of goodwill ought to be disturbed by the fact that the government is now bypassing the procedural protections of the Bill of Rights and attaching the "criminal" label to people who are not truly blameworthy.
Let me begin by trying to clarify some terminology. In our law schools today, the terms "intent" and "mens rea" are commonly used in a very broad manner—as concepts that include a spectrum of mental states (ranging from purposeful conduct to strict or vicarious liability) to be defined in statutes by policymakers. But for purposes of my testimony today, I will be using those terms in a more narrow sense. As Justice Potter Stewart once observed, "Whether postulated as a problem of 'mens rea,' of 'willfulness,' of 'criminal responsibility,' or of 'scienter,' the infliction of criminal punishment upon the unaware has long troubled the fair administration of justice."3 Today I want to advance the claim that it is wrong to criminally punish those who were "unaware" of the facts or rules that made their conduct unlawful. The remainder of my testimony will pinpoint the areas of our law where this problem is especially acute.
II. The Problem Areas
A. Ignorance of the Law is No Excuse
The sheer volume of modern law makes it impossible for an ordinary American household to stay informed. And yet, prosecutors vigorously defend the old legal maxim that "ignorance of the law is no excuse."4 That maxim may have been appropriate for a society that simply criminalized inherently evil conduct, such as murder, rape, and theft, but it is wholly inappropriate in a labyrinthine regulatory regime that criminalizes activities that are morally neutral. As Professor Henry M. Hart opined, "In no respect is contemporary law subject to greater reproach than for its obtuseness to this fact."5
To illustrate the rank injustice that can and does occur, take the case of Carlton Wilson, who was prosecuted because he possessed a firearm. Wilson's purchase of the firearm was perfectly legal, but, years later, he didn't know that he had to give it up after a judge issued a restraining order during his divorce proceedings. When Wilson protested that the judge never informed him of that obligation and that the restraining order itself said nothing about firearms, prosecutors shrugged, "ignorance of the law is no excuse."6 Although the courts upheld Wilson's conviction, Judge Richard Posner filed a dissent: "We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn't mean being able to go to the local law library and read Title 18. It would be preposterous to suppose that someone from Wilson's milieu is able to take advantage of such an opportunity."7 Judge Posner noted that Wilson would serve more than three years in a federal penitentiary for an omission that he "could not have suspected was a crime or even a civil wrong."8
It is simply outrageous for the government to impose a legal duty on every citizen to "know" all of the mind-boggling rules and regulations that have been promulgated over the years. Policymakers can and should discard the "ignorance-is-no-excuse" maxim by enacting a law that would require prosecutors to prove that regulatory violations are "willful" or, in the alternative, that would permit a good-faith belief in the legality of one's conduct to be pleaded and proved as a defense. The former rule is already in place for our complicated tax laws—but it should also shield unwary Americans from all of the laws and regulations as well.9
B. Vague Statutes
Even if there were but a few crimes on the books, the terms of such laws need to be drafted with precision. There is precious little difference between a secret law and a published regulation that cannot be understood. History is filled with examples of oppressive governments that persecuted unpopular groups and innocent individuals by keeping the law's requirements from the people. For example, the Roman emperor Caligula posted new laws high on the columns of buildings so that ordinary citizens could not study the laws. Such abominable policies were discarded during the Age of Enlightenment, and a new set of principles—known generally as the "rule of law"—took hold. Those principles included the requirements of legality and specificity.
"Legality" means a regularized process, ideally rooted in moral principle, by which crimes are designated and prosecuted by the government. The Enlightenment philosophy was expressed by the maxim nullum crimen sine lege (there is no crime without a law). In other words, people can be punished only for conduct previously prohibited by law. That principle is clearly enunciated in the ex post facto clause of the U.S. Constitution (article I, section 9). But the purpose of the ex post facto clause can be subverted if the legislature can enact a criminal law that condemns conduct in general terms, such as "dangerous and harmful" behavior. Such a law would not give people fair warning of the prohibited conduct. To guard against the risk of arbitrary enforcement, the Supreme Court has said that the law must be clear:
A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.10
The principles of legality and specificity operate together to reduce the likelihood of arbitrary and discriminatory application of the law by keeping policy matters away from police officers, administrative bureaucrats, prosecutors, judges, and members of juries, who would have to resolve ambiguities on an ad hoc and subjective basis.
Although the legality and specificity requirements are supposed to be among the first principles of American criminal law, a "regulatory" exception has crept into modern jurisprudence. The Supreme Court has unfortunately allowed "greater leeway" in regulatory matters because the practicalities of modern governance supposedly limit "the specificity with which legislators can spell out prohibitions."11 During the past 50 years, fuzzy legal standards, such as "unreasonable," "unusual," and "excessive," have withstood constitutional challenge.
The Framers of the American Constitution understood that democracy alone was no guarantor of justice. As James Madison noted, "It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow."12 Unfortunately, Madison's vision of unbridled lawmaking is an apt description of our modern regulatory state.13 For example, the Environmental Protection Agency received so many queries about the meaning of the Resource Conservation and Recovery Act that it set up a special hotline for questions. Note, however, that the "EPA itself does not guarantee that its answers are correct, and reliance on wrong information given over the RCRA hotline is no defense to an enforcement action."14 The situation is so bad that even many prosecutors are acknowledging that there is simply too much uncertainty in criminal law. Former Massachusetts Attorney General Scott Harshbarger concedes, "One thing we haven't done well in government is make it very clear, with bright lines, what kinds of activity will subject you to . . . criminal or civil prosecution."15
The first step toward addressing the problem of vague and ambiguous criminal laws would be for the Congress to direct the courts to follow the rule of lenity in all criminal cases.16 Legal uncertainties should be resolved in favor of private individuals and organizations, not the government.
C. Strict Liability
Two basic premises that undergird Anglo-American criminal law are the requirements of mens rea (guilty mind) and actus reus (guilty act).17 The first requirement says that for an act to constitute a crime there must be "bad intent." Dean Roscoe Pound of Harvard Law School writes, "Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong."18 According to that view, a man could not be prosecuted for leaving an airport with the luggage of another if he mistakenly believed that he owned the luggage. As the Utah Supreme Court noted in State v. Blue (1898), mens rea was considered an indispensable element of a criminal offense. "To prevent the punishment of the innocent, there has been ingrafted into our system of jurisprudence, as presumably in every other, the principle that the wrongful or criminal intent is the essence of crime, without which it cannot exist."19
By the same token, bad thoughts alone do not constitute a crime if there is no "bad act." If a police officer discovers a diary that someone mistakenly left behind in a coffee shop, and the contents include references to wanting to steal the possessions of another, the author cannot be prosecuted for a crime. Even if an off-duty police officer overhears two men in a tavern discussing their hatred of the police and their desire to kill a cop, no lawful arrest can be made if the men do not take action to further their cop-killing scheme. The basic idea, of course, is that the government should not be in the business of punishing "bad thoughts."
When mens rea and actus reus were fundamental prerequisites for criminal activity, no person could be branded a "criminal" until a prosecutor could persuade a jury that the accused possessed "an evil-meaning mind with an evil-doing hand."20 That understanding of crime—as a compound concept—was firmly entrenched in the English common law at the time of the American Revolution.
Over the years, however, the moral underpinnings of the Anglo-American view of criminal law fell into disfavor. The mens rea and actus reus requirements came to be viewed as burdensome restraints on well-meaning lawmakers who wanted to solve social problems through administrative regulations. As Professor Richard G. Singer has written, "Criminal law . . . has come to be seen as merely one more method used by society to achieve social control."21
The change began innocently enough. To protect young girls, statutory rape laws were enacted that flatly prohibited sex with girls under the age of legal consent. Those groundbreaking laws applied even if the girl lied about her age and consented to sex and if the man reasonably believed the girl to be over the age of consent. Once the courts accepted that exception to the mens rea principle, legislators began to identify other activities that had to be stamped out—even at the cost of convicting innocent-minded people.
The number of strict liability criminal offenses grew during the 20th century as legislators created scores of "public welfare offenses" relating to health and safety. Each time a person sought to prove an innocent state-of-mind, the Supreme Court responded that there is "wide latitude" in the legislative power to create offenses and "to exclude elements of knowledge and diligence from [their] definition."22 Those strict liability rulings have been sharply criticized by legal commentators. Professor Herbert Packer argues that the creation of strict liability crimes is both inefficacious and unjust.
It is inefficacious because conduct unaccompanied by an awareness of the factors making it criminal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future, nor does it single him out as a socially dangerous individual who needs to be incapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy. Consequently, on either a preventative or retributive theory of criminal punishment, the criminal sanction is inappropriate in the absence of mens rea.23
A dramatic illustration of the problem was presented in Thorpe v. Florida (1979).24 John Thorpe was confronted by a thief who brandished a gun. Thorpe got into a scuffle with the thief and wrested the gun away from him. When the police arrived on the scene, Thorpe was arrested and prosecuted under a law that made it illegal for any felon to possess a firearm. Thorpe tried to challenge the application of that law by pointing to the extenuating circumstances of his case. The appellate court acknowledged the "harsh result," but noted that the law did not require a vicious will or criminal intent. Thus, self-defense was not "available as a defense to the crime."25
True, Thorpe was a state case from 1979. The point here is simply to show the drift of our law. As Judge Benjamin Cardozo once quipped, once a principle or precedent gets established, it is usually taken to the "limit of its logic." For a more recent federal case, consider what happened to Dane Allen Yirkovsky. Yirkovsky was convicted of possessing one round of .22 caliber ammunition and for that he received minimum mandatory 15-year sentence.26 Here are the reported circumstances surrounding his "crime."
In late fall or early winter of 1998, Yirkovsky was living with Edith Turkington at her home in Cedar Rapids, Iowa. Instead of paying rent, Yirkovsky agreed to remodel a bathroom at the home and to lay new carpeting in the living room and hallway. While in the process of removing the old carpet, Yirkovsky found a Winchester .22 caliber, super x, round. Yirkovsky put the round in a small box and kept it in the room in which he was living in Turkington's house.
Subsequently, Yirkovsky's ex-girlfriend filed a complaint alleging that Yirkovsky had [some of] her property in his possession. A police detective spoke to Yirkovsky regarding the ex-girlfriend's property, and Yirkovsky granted him permission to search his room in Turkington's house. During this search, the detective located the .22 round. Yirkovsky admitted to police that he had placed the round where it was found by the detective.27
The appellate court found the penalty to be "extreme," but affirmed Yirkovsky's sentence as consistent with existing law.28
Strict liability laws should be abolished because their very purpose is to divorce a person's intentions from his actions. But if the criminal sanction imports blame—and it does—it is a perversion to apply that sanction to self-defense and other acts that are not blameworthy. Our criminal law should reflect the old Latin maxim, actus not facit reum nisi mens sit rea (an act does not make one guilty unless his mind is guilty).29
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D. Vicarious Liability
Everyone agrees with the proposition that if a person commands, pays, or induces another to commit a crime on that person's behalf, the person should be treated as having committed the act.30 Thus, if a husband hires a man to kill his wife, the husband is also guilty of murder. But it is another matter entirely to hold one person criminally responsible for the unauthorized acts of another. "Vicarious liability," the legal doctrine under which a person may be held responsible for the criminal acts of another, was once "repugnant to every instinct of the criminal jurist."31 Alas, the modern trend in American criminal law is to embrace vicarious criminal liability.
Vicarious liability initially crept into regulations that were deemed necessary to control business enterprises. One of the key cases was United States v. Park (1975).32 John Park was the president of Acme Markets Inc., a large national food chain. When the Food and Drug Administration found unsanitary conditions at a warehouse in April 1970, it sent Park a letter demanding corrective action. Park referred the matter to Acme's vice president for legal affairs. When Park was informed that the regional vice president was investigating the situation and would take corrective action, Park thought that was the end of the matter. But when unsanitary warehouse conditions were found on a subsequent inspection, prosecutors indicted both Acme and Park for violations of the Federal Food, Drug and Cosmetic Act.
An appellate court overturned Park's conviction because it found that the trial court's legal instructions could have "left the jury with the erroneous impression that [Park] could be found guilty in the absence of 'wrongful action' on his part" and that proof of that element was constitutionally mandated by due process.33 The Supreme Court, however, reversed the appellate ruling. Chief Justice Warren Burger opined that the legislature could impose criminal liability on "those who voluntarily assume positions of authority in business enterprises" because such people have a duty "to devise whatever measures [are] necessary to ensure compliance" with regulations.34 Thus, under the rationale of Park, an honest executive can be branded a criminal if a low-level employee in a different city disobeys a supervisor's instructions and violates a regulation—even if the violation causes no harm whatsoever.35
In 1994, Edward Hanousek was employed as a roadmaster for a railroad company. In that capacity, Hanousek supervised a rock quarrying project near an Alaska river. During rock removal operations, a backhoe operator accidentally ruptured a pipeline—and that mistake led to an oil spill into the nearby river. Hanousek was prosecuted under the Clean Water Act even though he was off duty and at home when the accident occurred. The case prompted Justice Clarence Thomas to express alarm at the direction of the law: "I think we should be hesitant to expose countless numbers of construction workers and contractors to heightened criminal liability for using ordinary devices to engage in normal industrial operations."36
Note that vicarious liability has not been confined to the commercial regulation context.37 Tina Bennis lost her car to the police because of the actions of her husband. The police found him in the vehicle with a prostitute.38 Pearlie Rucker was evicted from her apartment in a public housing complex because her daughter was involved with illicit drugs. To crack down on the drug trade, Congress enacted a law that was so strict that tenants could be evicted if one of their household members or guests used drugs. The eviction could proceed even if the drug activity took place outside the residence. Also under that federal law, it did not matter if the tenant was totally unaware of the drug activity.39
Further, in some jurisdictions, the drivers of vehicles are exposed to criminal liability if any passenger brings contraband—such as a marijuana joint—into an automobile even if there is no proof that the driver was aware of the contraband's existence.40
III. Conclusion
The federal criminal code has become so voluminous that it not only bewilders the average citizen, but also the most able attorney. Our courthouses have become so clogged that there is no longer adequate time for trials. And our penitentiaries are now operating well beyond their design capacity—many are simply overflowing with inmates. These developments evince a criminal law that is adrift. To get our federal system back "on track," Congress should take the following actions:
Discard the old maxim that "ignorance of the law is no excuse." Given the enormous body of law presently on the books, this doctrine no longer makes any sense.
Minimize the injustice of vaguely written rules by restoring traditional legal defenses such as diligence, good-faith, and actual knowledge.
Restore the rule of lenity for criminal cases by enacting a statute that will explicitly provide for the "strict construction" of federal criminal laws.
Abolish the doctrine of strict criminal liability as well as the doctrine of vicarious liability. Those theories of criminal liability are inconsistent with the Anglo-American tradition and have no place in a free society.
As noted earlier, these reform measures should be only the beginning of a fundamental reexamination of the role of the federal government, as well as the role of the criminal sanction, in American law.
1 For a detailed discussion of these issues, see Task Force on Federalization of Criminal Law, The Federalization of Criminal Law (Chicago: American Bar Association, 1998); John Baker, "Measuring the Explosive Growth of Federal Crime Legislation," (The Federalist Society for Law and Public Policy Studies (May 2004)); John Baker, "Nationalizing Criminal Law: Does Organized Crime Make It Necessary or Proper?" Rutgers Law Journal 16 (1985): 495; Brian Walsh, "Doing Violence to the Law: The Over-Federalization of Crime," Federal Sentencing Reporter 20 (June 2008): 295; Erik Luna, "The Overcriminalization Phenomenon," American University Law Review 54 (2005): 703.
2 Henry M. Hart, Jr., "The Aims of the Criminal Law," reprinted in In the Name of Justice (Washington, D.C.: Cato Institute, 2009), p. 6.
3 United States v. International Minerals & Chemical Corp., 402 U.S. 558 (1971) (Stewart, J., dissenting).
4 See Timothy Lynch, "Ignorance of the Law: Sometimes a Valid Defense," Legal Times, April 4, 1994.
5 Hart, "The Aims of the Criminal Law," p. 19.
6 United States v. Wilson, 159 F.3d 280 (1998).
7 Ibid., p. 296 (Posner, J., dissenting).
8 Ibid. The Wilson prosecution was not a case of one prosecutor using poor judgment and abusing his power. See, for example, United States v. Emerson, 46 F.Supp. 2d 598 (1999).
9 See, generally, Ronald A. Cass, "Ignorance of the Law: A Maxim Reexamined," William and Mary Law Review 17 (1976): 671.
10 Connally v. General Construction Company, 269 U.S. 385, 393 (1926) (internal quotation marks omitted).
11 Papachristou v. City of Jacksonville, 405 U.S. 156, 162-163 (1972).
12 James Madison, "Federalist Paper 62," in The Federalist Papers, ed. Clinton Rossiter (New York: New American Library, 1961), p. 381.
13 See Robert A. Anthony, "Unlegislated Compulsion: How Federal Agency Guidelines Threaten Your Liberty," Cato Institute Policy Analysis no. 312, August 11, 1998.
14 William L. Gardner and Adam H. Steinman, "'Knowing' Remains the Key Word," National Law Journal, September 2, 1991, p. 28.
15 Quoted in William P. Kucewicz, "Grime and Punishment," ECO (June 1993): 54.
16 Pennsylvania has protected its citizens from overzealous prosecutors with such a law for many years. See 1 Pa.C.S.A. 1208.
17 Wayne R. LaFave and Austin W. Scott Jr., Criminal Law, 2nd. ed. (St. Paul, MN: West Publishing Co., 1986), pp. 193–94.
18 Quoted in Morissette v. United States, 342 U.S. 246, 250 n. 4 (1952).
19 Utah v. Blue, 53 Pac. 978, 980 (1898).
20 Morissette v. United States, 342 U.S. 246, 251 (1952).
21 Richard G. Singer, "The Resurgence of Mens Rea: III—The Rise and Fall of Strict Criminal Liability," Boston College Law Review 30 (1989): 337. See also Special Report: Federal Erosion of Business Civil Liberties (Washington: Washington Legal Foundation, 2008).
22 Lambert v. California, 355 U.S. 225, 228 (1957).
23 Herbert Packer, "Mens Rea and the Supreme Court," Supreme Court Review (1962): 109. See also Jeffrey S. Parker, "The Economics of Mens Rea," Virginia Law Review 79 (1993): 741; Craig S. Lerner and Moin A. Yahya, "'Left Behind' After Sarbanes-Oxley," American Criminal Law Review 44 (2007): 1383.
24 Thorpe v. Florida, 377 So.2d 221 (1979).
25 Ibid., p. 223.
26 See United States v. Yirkovsky, 259 F.3d 704 (2001).
27 Ibid., pp. 705-706.
28 In my view, Congress should not stand by secure in the knowledge that such precedents exist. Justice Anthony Kennedy has made this point quite well: "The legislative branch has the obligation to determine whether a policy is wise. It is a grave mistake to retain a policy just because a court finds it constitutional…. Few misconceptions about government are more mischievous than the idea that a policy is sound simply because a court finds it permissible. A court decision does not excuse the political branches or the public from the responsibility for unjust laws." Anthony M. Kennedy, "An Address to the American Bar Association Annual Meeting," reprinted in In the Name of Justice (Washington, D.C.: Cato Institute, 2009), p. 193.
29 See Wayne R. LaFave and Austin W. Scott Jr., Criminal Law, 2nd. ed. (St. Paul, MN: West Publishing Co., 1986), p. 212.
30 Francis Bowes Sayre, "Criminal Responsibility for the Acts of Another," Harvard Law Review 43 (1930): 689, 690.
31 Ibid., p. 702.
32 United States v. Park, 421 U.S. 658 (1975). Although many state courts have followed the reasoning of the Park decision with respect to their own state constitutions, some courts have recoiled from the far-reaching implications of vicarious criminal liability. For example, the Pennsylvania Supreme Court has held that "a man's liberty cannot rest on so frail a reed as whether his employee will commit a mistake in judgment." Commonwealth v. Koczwara, 155 A.2d 825, 830 (1959). That Pennsylvania ruling, it must be emphasized, is an aberration. It is a remnant of the common law tradition that virtually every other jurisdiction views as passe´.
33 United States v. Park, 421 U.S. 658, 666 (1975).
34 Ibid., p. 672.
35 "[T]he willfulness or negligence of the actor [will] be imputed to him by virtue of his position of responsibility." United States v. Brittain, 931 F.2d 1413, 1419 (1991); United States v. Johnson & Towers, Inc., 741 F.2d 662, 665 n. 3 (1984). See generally Joseph G. Block and Nancy A. Voisin, "The Responsible Corporate Officer Doctrine—Can You Go to Jail for What You Don't Know?" Environmental Law (Fall 1992).
36 Hanousek v. United States, 528 U.S. 1102 (2000) (Thomas, J., dissenting from the denial of certiorari).
37 See Susan S. Kuo, "A Little Privacy, Please: Should We Punish Parents for Teenage Sex?" Kentucky Law Journal 89 (2000): 135.
38 Bennis v. Michigan, 516 U.S. 442 (1996).
39 Department of Housing and Urban Development v. Rucker, 535 U.S. 125 (2002).
40 See e.g. Maryland v. Smith, 823 A.2d 644, 678 (2003) ("[T]he knowledge of the contents of the vehicle can be imputed to the driver of the vehicle.").
http://www.cato.org/testimony/ct-tl-20090722.html
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2nd post. Could easily go under "Cognitive Dissonance" or "Health Care," but I put it here as BHO's failure to include tort reform as an element of his health care plan is it's least mentioned glaring failure.
Why John Edwards Is Responsible For More Unnecessary Operations Than “Greedy Doctors”
Posted by Duane Lester on Jul 23rd, 2009 • 761 views Clicks
Last night during his national press conference, President Barack Obama maligned doctors as doing unnecessary operations based on greed, not the best interest of the patient. He said:
“Right now, doctors a lot of times are forced to make decisions based on the fee payment schedule that’s out there. … The doctor may look at the reimbursement system and say to himself, ‘You know what? I make a lot more money if I take this kid’s tonsils out,’” Obama told a prime-time news conference.
The president added: “Now, that may be the right thing to do, but I’d rather have that doctor making those decisions just based on whether you really need your kid’s tonsils out or whether it might make more sense just to change — maybe they have allergies. Maybe they have something else that would make a difference.”
It’s interesting that President Obama discusses unnecessary operations as one of the causes of high health care costs. Do you know what the most often performed operation is in the United States? With heart disease being the number one killer in America, you might think it would be related to that, perhaps bypass surgery or angioplasty.
It’s cesarean section. In 1965, only 4.5 percent of children were delivered via c-section. Today, 31 percent are. That’s a huge increase for a procedure that was once reserved to emergency situations. And as the Los Angeles Times notes, it has resulted in “an explosion in medical bills, an increase in complications — and a reconsideration of the cesarean as a sometimes unnecessary risk.”
What is the reason for the increase? Is it greedy doctors looking for a new summer home? No, it’s something far worse.
John Edwards.
The now disgraced former Senator from North Carolina made his name, and his money, as a trial lawyer. In a 1985 case, he convinced a jury that a doctor’s negligence was responsible for a child’s cerebral palsy. He argued that had the doctor performed a c-section earlier, the girl would not have been disabled. He went so far as to channel the girl in court for the jury:
“I have to tell you right now — I didn’t plan to talk about this — right now I feel her, I feel her presence,” he said in his record-setting 1985 lawsuit on behalf of Jennifer Campbell, born brain-damaged after being deprived of oxygen during labor. “She’s inside me and she’s talking to you. . . . And this is what she says to you. She says, `I don’t ask for your pity. What I ask for is your strength. And I don’t ask for your sympathy, but I do ask for your courage.’ “
The jury awarded the plaintiff $6.5 million. The New York Times reports this verdict led to more lawsuits:
In the decade that followed, Mr. Edwards filed at least 20 similar lawsuits against doctors and hospitals in deliveries gone wrong, winning verdicts and settlements of more than $60 million, typically keeping about a third. As a politician he has spoken of these lawsuits with pride.
“I was more than just their lawyer,” Mr. Edwards said of his clients in a recent essay in Newsweek. “I cared about them. Their cause was my cause.”
The effect of his work has reached beyond those cases, and beyond his own income. Other lawyers have filed countless similar cases; just this week, a jury on Long Island returned a $112 million award. And doctors have responded by changing the way they deliver babies, often seeing a relatively minor anomaly on a fetal heart monitor as justification for an immediate Caesarean.
So what has been the result of the increase in Caesarean section births? Occurrences of cerebral palsy have “remained fairly stable” at about “1.5/1000 births.”
In fact, the incidence of CP seems to be increasing slightly with the increased survival rates of infants born before thirty-two weeks gestation.
Whether or not fetal heart rate monitoring during labor has led to a reduction in cerebral palsy has been researched extensively. The conclusion established by multiple scientific evidence is: Fetal heart rate monitoring during labor does not reduce rates of cerebral palsy, although it does increase the rate of cesarean section.
As the L.A. Times notes, they also lead to unnecessary costs:
As the No. 1 cause of hospital admissions, childbirth is a huge part of the nation’s $2.4-trillion annual healthcare expenditure, accounting in hospital charges alone for more than $79 billion.
Because the average uncomplicated cesarean runs about $4,500, nearly twice as much as a comparable vaginal birth, cesareans account for a disproportionate amount (45%) of delivery costs. Among privately insured patients, uncomplicated cesareans run about $13,000.
and:
The problem, experts say, is that the cesarean — delivery via uterine incision — exposes a woman to the risk of infection, blood clots and other serious problems. Cesareans also have been shown to increase premature births and the need for intensive care for newborns. Even without such complications, cesareans result in longer hospital stays.
If the president is really interested in reducing the occurrences of unnecessary operations, he doesn’t need to create the boogey-man of “greedy doctors.” Greedy doctors don’t remove body parts like tonsils. They implant body parts, like silicone breats. The real culprit here is the trial lawyer, who has helped create a medical world choosing procedures based on the CYA diagnosis method. However, the president’s speech last night was not critical of this, and didn’t emphasize tort reform.
A 2001 article from National Review explains why the president doesn’t see a need for tort reform:
An estimated 50 cents of every dollar awarded to tort plaintiffs gets eaten up by lawyers and courts-and a great deal of that money ends up benefiting Democratic candidates. Over the last decade, the legal profession has led all other groups in campaign contributions-giving a total of $357 million to federal candidates-and 70 percent of its cash goes to Democrats. The 56,000-member Association of Trial Lawyers of America (ATLA) was the top PAC contributor to Democratic federal candidates in the last election cycle; the organization spent $2.6 million, 86 percent of which went to Democrats.
If he were serious about lower costs, this would be the cornerstone of his movement. Instead, he maligns “greedy doctors,” many of whom work 16 hours or more a day trying to help people, and lets the “greedy trial lawyers” off the hook. Remember that next time he accuses the Republicans of bowing down to special interests.
http://www.allamericanblogger.com/8120/why-john-edwards-is-responsible-for-more-unnecessary-operations-than-greedy-doctors/
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BBG:
I particularly liked the Over-criminalization post(s).
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Outside of traffic, or some misd. offenses, i'm opposed to strict liability criminal laws. Intent should be an element of a felony crime.
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When we think about the pace of change in technology, it's usually to marvel at how computing power has become cheaper and faster or how many new digital ways we have to communicate. Unfortunately, this pace of change is increasingly clashing with some of the slower-moving parts of our culture.
Technology moves so quickly we can barely keep up, and our legal system moves so slowly it can't keep up with itself. By design, the law is built up over time by court decisions, statutes and regulations. Sometimes even criminal laws are left vague, to be defined case by case. Technology exacerbates the problem of laws so open and vague that they are hard to abide by, to the point that we have all become potential criminals.
Boston civil-liberties lawyer Harvey Silverglate calls his new book "Three Felonies a Day," referring to the number of crimes he estimates the average American now unwittingly commits because of vague laws. New technology adds its own complexity, making innocent activity potentially criminal.
Mr. Silverglate describes several cases in which prosecutors didn't understand or didn't want to understand technology. This problem is compounded by a trend that has accelerated since the 1980s for prosecutors to abandon the principle that there can't be a crime without criminal intent.
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Associated Press
Boston civil-liberties lawyer Harvey Silverglate
.In 2001, a man named Bradford Councilman was charged in Massachusetts with violating the wiretap laws. He worked at a company that offered an online book-listing service and also acted as an Internet service provider to book dealers. As an ISP, the company routinely intercepted and copied emails as part of the process of shuttling them through the Web to recipients.
The federal wiretap laws, Mr. Silverglate writes, were "written before the dawn of the Internet, often amended, not always clear, and frequently lagging behind the whipcrack speed of technological change." Prosecutors chose to interpret the ISP role of momentarily copying messages as they made their way through the system as akin to impermissibly listening in on communications. The case went through several rounds of litigation, with no judge making the obvious point that this is how ISPs operate. After six years, a jury found Mr. Councilman not guilty.
Other misunderstandings of the Web criminalize the exercise of First Amendment rights. A Saudi student in Idaho was charged in 2003 with offering "material support" to terrorists. He had operated Web sites for a Muslim charity that focused on normal religious training, but was prosecuted on the theory that if a user followed enough links off his site, he would find violent, anti-American comments on other sites. The Internet is a series of links, so if there's liability for anything in an online chain, it would be hard to avoid prosecution.
Mr. Silverglate, a liberal who wrote a previous book taking the conservative position against political correctness on campuses, is a persistent, principled critic of overbroad statutes. This is a common problem in securities laws, which Congress leaves intentionally vague, encouraging regulators and prosecutors to try people even when the law is unclear. He reminds us of the long prosecution of Silicon Valley investment banker Frank Quattrone, which after five years resulted in a reversal of his criminal conviction on vague charges of obstruction of justice.
These miscarriages are avoidable. Under the English common law we inherited, a crime requires intent. This protection is disappearing in the U.S. As Mr. Silverglate writes, "Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations," even as "Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood." Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it. Expect more such prosecutions as Washington adds regulations.
Sometimes legislators know when they make false distinctions based on technology. An "anti-cyberbullying" proposal is making its way through Congress, prompted by the tragic case of a 13-year-old girl driven to suicide by the mother of a neighbor posing as a teenage boy and posting abusive messages on MySpace. The law would prohibit using the Internet to "coerce, intimidate, harass, or cause substantial emotional distress to a person." Imagine a law that tried to apply this control of speech to letters, editorials or lobbying.
Mr. Silverglate, who will testify against the bill later this week, tells me he figures that "being emotionally distressed is just part of living in a free society." New technologies like the Web, he concludes, "scare legislators because they don't understand them and want to control them, even as they become a normal part of life."
In a complex world of new technologies, there is more need than ever for clear rules of the road. Americans should expect that a crime requires bad intent and also that Congress and prosecutors will try to create clarity, not uncertainty. Our legal system has a lot of catching up to do to work smoothly with the rest of our lives.
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"At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous." --Thomas Jefferson
Political Futures
The Kagan Show Hearings"[In her confirmation hearings last week, Elena] Kagan did her best to say nothing, and her best was sufficient unto the day. She reduced the vapid to the insipid, as in an exchange with Sen. Tom Coburn over the limits of the Constitution's Commerce Clause -- written by the Founders to limit the power of the federal government and distorted by liberals, both on the Supreme Court and off, to enable the feds to expand the nanny state without limit. When Mr. Coburn asked whether Congress could enact a law requiring Americans to eat three fruits and three vegetables a day, Mzz Kagan replied: 'That sounds like a dumb law.' Mr. Coburn was trying to get at her view of the Commerce Clause, and got a wisecrack. Mzz Kagan then added that the courts would be wrong to strike down a dumb law just because it was dumb. What's not at all dumb about the question is that President Obama is relying on the Commerce Clause to defend his own dumb idea, the health care 'reform.' But not to laugh. The left is always eager to defend its dumb ideas. ... Since Mzz Kagan has never been a judge, we don't have a judicial record to measure her by, and we must rely on her vague answers to vapid questions and can only surmise, suppose and speculate. She sounds like a reliable liberal, ready to stand up for the law of the nanny, enforced by the rod of the state. We won't know for sure until it's time to bend over." --Washington Times editor emeritus Wesley Pruden
For the Record
"As the great Supreme Court Justice Oliver Wendell Holmes said, his job was 'to see that the game is played according to the rules whether I like them or not.' If the public doesn't like the rules, or the consequences to which the rules lead, then the public can change the rules via the ballot box. But that is very different from judges changing the rules by verbal sleight of hand, or by talking about 'weighing of the constitutional right to bear arms' against other considerations, as Justice Breyer puts it. That's not his job. Not if 'we the people' are to govern ourselves, as the Constitution says. As for the merits or demerits of gun control laws themselves, a vast amount of evidence, both from the United States and from other countries, shows that keeping guns out of the hands of law-abiding citizens does not keep guns out of the hands of criminals. It is not uncommon for a tightening of gun control laws to be followed by an increase -- not a decrease -- in gun crimes, including murder. Conversely, there have been places and times where an increase in gun ownership has been followed by a reduction in crimes in general and murder in particular. Unfortunately, the media intelligentsia tend to favor gun control laws, so a lot of hard facts about the futility, or the counterproductive consequences of such laws, never reach the public through the media. ... The media, like Justice Breyer, might do well to reflect on what is their job and what is the voting public's job." --economist Thomas Sowell
Culture
"[In] the Supreme Court's 5-4 decision ... in the case of Christian Legal Society v. Martinez (UC Hastings) ... [the] court ruled that a public university is not required to subsidize campus groups it considers discriminatory. The Christian Legal Society excludes homosexuals and non-Christians. But isn't the court allowing the university to discriminate against the beliefs of the Christian group, especially if the group is now required to admit people who violate teachings central to its faith and mission statement? In writing for the majority, Justice Ruth Bader Ginsburg said the school's policy, which requires student organizations to be open to everyone to qualify for official status, 'ensures that no Hastings student is forced to fund a group that would reject her as a member.' I wonder if this would apply to a member of CLS if they applied for membership in the gay-lesbian-bisexual-transgender club, or anything else that may come down the pike. Will campus Jewish groups be required to admit Christians? Maybe the football team can bring a discrimination suit against the school for not allowing them to shower with the women's lacrosse team. The court's ruling in the CLS case is no less far-fetched. Student activity fees have long subsidized campus organizations whose beliefs and practices no doubt offend and are counter to the beliefs and practices of other students. The way the legal game is played, the beliefs of Christian groups can be regularly offended, but gay and other groups favored by the secular left enjoy special status from academic elites. This is what passes for pluralism, tolerance and academic freedom on college campuses." --columnist Cal Thomas
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Outside of traffic, or some misd. offenses, i'm opposed to strict liability criminal laws. Intent should be an element of a felony crime.
I didn't know where to put this, perhaps in the comedy section, but it is a true story. Not criminal, but I don't know his "intent".
Good and bad I suppose, but people in America can sue for almost any reason. In some systems, losers pays. An interesting thought...
But I do like some of the comments... :-)
Saun Ellis is in hot water over a wintry problem. A lawsuit has been filed against Ellis by a Seattle Seahawks season ticket holder for an incident on Dec. 21, 2008, when Ellis picked up a large chunk of snow and tossed it at the fan before exiting the field at the end of the game. Robert Larsen filed the suit to the Kings County Courthouse in Seattle on Dec. 16 and is seeking damages stemming from past and future medical expenses, past and future loss of earning, partial impairment of earnings and earning capacity, mental and physical pain and suffering and a slew of other offenses related to the incident, according to the case documents.
"The fan actually caught the snow in the video, and did a dance with it for two minutes...
I'm sure it was tramatic."
"I'm sure his wife hits him harder."
or
"That fan should be incarcerated for being such a wuss. He'll have more than a snowball to worry about."
http://www.fannation.com/truth_and_rumors/view/256210-fan-files-suit-against-ellis-for-snow-throwing-incident?eref=sihp
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I don't get it; I'm a RACIST if I don't want to hire someone with a bad credit history or who is a convicted criminal?
Reporting from Washington — The federal agency that enforces workplace anti-discrimination laws is warning employers they could be sued if they refuse to hire blacks or Latinos because of a bad credit history or a criminal record.
The Equal Employment Opportunity Commission last week sued Kaplan Higher Education Corp., accusing the company of using "a selection criterion for hiring and discharge
http://www.latimes.com/news/nationworld/nation/la-na-employment-discrimination-20101227,0,3410214.story?track=rss&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+latimes%2Fmostviewed+%28L.A.+Times+-+Most+Viewed+Stories%29
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It's almost like a radical leftist got elected president or something.....
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It's almost like a radical leftist got elected president or something.....
"The lawsuit is part of a stepped-up but controversial effort to eliminate "arbitrary barriers" to employment for minorities by the EEOC, which is governed by five commissioners, three appointed by President Obama."
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Aren't whites a minority in California?
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We might be; I don't know. As a minority, maybe whites should be "protected" too, but somehow I don't think it works that way. :-)
By the way, in case you missed it, I was agreeing with you. This is a bit too much even for me.
"five commissioners, three appointed by President Obama"
Next up is housing. Maybe Doug will not be able to exclude a tenant simply because they have a poor credit history and/or
are an ex con. That makes good sense.... :?
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WSJ:
By FLOYD ABRAMS
In 1971, Daniel Ellsberg decided to make available to the New York Times (and then to other newspapers) 43 volumes of the Pentagon Papers, the top- secret study prepared for the Department of Defense examining how and why the United States had become embroiled in the Vietnam conflict. But he made another critical decision as well. That was to keep confidential the remaining four volumes of the study describing the diplomatic efforts of the United States to resolve the war.
Not at all coincidentally, those were the volumes that the government most feared would be disclosed. In a secret brief filed with the Supreme Court, the U.S. government described the diplomatic volumes as including information about negotiations secretly conducted on its behalf by foreign nations including Canada, Poland, Italy and Norway. Included as well, according to the government, were "derogatory comments about the perfidiousness of specific persons involved, and statements which might be offensive to nations or governments."
The diplomatic volumes were not published, even in part, for another dozen years. Mr. Ellsberg later explained his decision to keep them secret, according to Sanford Ungar's 1972 book "The Papers & The Papers," by saying, "I didn't want to get in the way of the diplomacy."
Julian Assange sure does. Can anyone doubt that he would have made those four volumes public on WikiLeaks regardless of their sensitivity? Or that he would have paid not even the slightest heed to the possibility that they might seriously compromise efforts to bring a speedier end to the war?
Mr. Ellsberg himself has recently denounced the "myth" of the "good" Pentagon Papers as opposed to the "bad" WikiLeaks. But the real myth is that the two disclosures are the same.
The Pentagon Papers revelations dealt with a discrete topic, the ever-increasing level of duplicity of our leaders over a score of years in increasing the nation's involvement in Vietnam while denying it. It revealed official wrongdoing or, at the least, a pervasive lack of candor by the government to its people.
WikiLeaks is different. It revels in the revelation of "secrets" simply because they are secret. It assaults the very notion of diplomacy that is not presented live on C-Span. It has sometimes served the public by its revelations but it also offers, at considerable potential price, a vast amount of material that discloses no abuses of power at all.
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Associated Press
WikiLeaks founder Julian Assange at a press conference in Geneva Switzerland, Nov. 4.
.The recent release of a torrent of State Department documents is typical. Some, containing unflattering appraisals by American diplomats of foreign leaders of France, Germany, Italy, Libya and elsewhere, contain the very sort of diplomacy-destructive materials that Mr. Ellsberg withheld. Others—the revelation that Syria continued selling missiles to Hezbollah after explicitly promising America it would not do so, for example—provide a revealing glimpse of a world that few ever see. Taken as a whole, however, a leak of this elephantine magnitude, which appears to demonstrate no misconduct by the U.S., is difficult to defend on any basis other than WikiLeaks' general disdain for any secrecy at all.
Mr. Ellsberg understood that some government documents should remain secret, at least for some period of time. Mr. Assange views the very notion of government secrecy as totalitarian in nature. He has referred to his site as "an uncensorable system for untraceable document leaking and analysis."
But WikiLeaks offers no articles of its own, no context of any of the materials it discloses, and no analysis of them other than assertions in press releases or their equivalent. As Princeton historian Sean Wilentz told the Associated Press earlier this month, WikiLeaks seems rooted in a "simpleminded idea of secrecy and transparency," one that is "simply offended by any actions that are cloaked."
Ironically, this view of the world may aid Mr. Assange in avoiding criminal liability for his actions. The Justice Department is well aware that if it can prove that Mr. Assange induced someone in the government to provide him with genuinely secret information, it might be able to obtain an indictment under the Espionage Act based upon that sort of conspiratorial behavior. But the government might not succeed if it can indict based only upon a section of the Espionage Act relating to unauthorized communication or retention of documents.
Section 793 of the Espionage Act was adopted in 1917 before the Supreme Court had ever declared an act of Congress unconstitutional under the First Amendment. The statute has been well-described by former Supreme Court Justice John Marshall Harlan as "singularly oblique." Its language is sweepingly overbroad, allowing prosecution of anyone who "willfully" retains or communicates information "relating to the national defense" he or she is not "authorized" to have with the knowledge that it "could" damage the United States or give "advantage" to a foreign nation.
On the face of the statute, it could not only permit the indictment of Mr. Assange but of journalists who actually report about or analyze diplomatic or defense topics. To this date, no journalist has ever been indicted under these provisions.
The Justice Department took the position that it could enforce the law against journalists in a case it commenced in 2006 (and later dropped) against two former officials of the American Israel Political Action Committee accused of orally telling an Israeli diplomat classified information they were told by a Defense Department employee. In that case, federal Judge T.S. Ellis III ruled that to obtain a conviction of individuals who had not worked for the government but had received information from individuals who had, prosecutors must prove that the defendant actually intended to harm the U.S. or to help an enemy. Judge Ellis intimated that unless the law were read in that defendant-protective manner, it would violate the First Amendment.
Under that reading of the legislation, if Mr. Assange were found to have communicated and retained the secret information with the intent to harm the United States—some of his statements can be so read—a conviction might be obtained. But if Mr. Assange were viewed as simply following his deeply held view that the secrets of government should be bared, notwithstanding the consequences, he might escape legal punishment.
Mr. Assange is no boon to American journalists. His activities have already doomed proposed federal shield-law legislation protecting journalists' use of confidential sources in the just-adjourned Congress. An indictment of him could be followed by the judicial articulation of far more speech-limiting legal principles than currently exist with respect to even the most responsible reporting about both diplomacy and defense. If he is not charged or is acquitted of whatever charges may be made, that may well lead to the adoption of new and dangerously restrictive legislation. In more than one way, Mr. Assange may yet have much to answer for.
Mr. Abrams, a senior partner in the firm of Cahill Gordon & Reindel LLP, represented the New York Times in the Pentagon Papers case.
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With all the white collar crime in this country what the crazy One thinks is important is to hire and maintain a large civil rights staff at the DOJ, "Democrat Party Of Justice" is to troll for bullying at school. The Prez is a nut.
****DOJ to white male bullying victims: Tough luck
Kerry Picket
Published on March 18, 2011
viral video sensation showing a bullying incident at an Australian school has brought the issue of bullying back into the spotlight. Here in the United States, the Obama administration has made school bullying a federal issue. Last week, President Barack Obama addressed an anti-bullying conference with First Lady Michelle Obama at his side. The administration's anti-bullying campaign has been ongoing since the beginning of Mr. Obama's term. The Department of Justice announced in December 2010 its intention to hold liable school districts that fail to protect students that are bullied.
DOJ’s website states:
The Civil Rights Division and the entire Justice Department are committed to ending bullying and harassment in schools, and the video highlights the Department’s authority to enforce federal laws that protect students from discrimination and harassment at school because of their race, national origin, disability, religion, and sex, including harassment based on nonconformity with gender stereotypes.
The statement later says:
The enforcement of the Equal Protection Clause, Title IV of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972 in school districts is a top priority of the Justice Department’s Civil Rights Division. Additional information is available at the Civil Rights Division’s Educational Opportunities Section website at www.justice.gov/crt/edo/.
Here is the catch. DOJ will only investigate bullying cases if the victim is considered protected under the 1964 Civil Rights legislation. In essence, only discrimination against a victim’s race, sex, national origin, disability, or religion will be considered by DOJ. The overweight straight white male who is verbally and/or physically harassed because of his size can consider himself invisible to the Justice Department.
Apparently, the Justice Department is going by George Orwell’s famous Animal Farm ending: “All animals are equal, but some are more equal than others.”
“We can only take action where we have legal authority,” wrote DOJ spokeswoman Xochitl Hinojosa in a December 2010 e-mail to The Washington Times Water Cooler. She continues:
“As stated in the website below, we are statutorily authorized to initiate suits under Title IV of the Civil Rights Act of 1964, the Equal Educational Opportunities Act of 1974, and under Title III of the American with Disabilities Act. More information on the Civil Rights Act, Equal Educational Opportunities Act, and the ADA can be found here:
http://www.justice.gov/crt/edo/faq.php#3 "
The Justice Department’s anti-bullying initiative is tantamount to bringing hate crime legislation to the public school system. Obviously, not only is the heterosexual white male student out of luck but inner city minority students lose out in this deal too.
If a schoolyard bully is a straight black male and his target is another straight black male where does that leave the victim in the eyes of Attorney General Eric Holder? What about two female students of the same sexual orientation and race? Is the victim in the latter situation considered to be less equal in the eyes of Obama’s Justice Department than a minority student who is picked on by a heterosexual white male student with no disabilities?
Unfortunately, the Justice Department is politicizing its priorities yet again. One must wonder why the administration believes it should be micro managing local school districts bullying problems. When the Justice Department is more interested in making ideological statements through seemingly sugar coated campaigns, no one should feel protected.****
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Last November, Judge Emmet G. Sullivan of the Federal District Court in Washington said that an investigation he ordered into prosecutorial misconduct in the case involving the late Senator Ted Stevens had found “systematic concealment of significant exculpatory evidence.” Judge Sullivan said then that he would make the confidential 500-page report public. It is time to release the report.
Related News
Court-Appointed Investigator Offers Scathing Report on Prosecution of Senator Stevens (November 22, 2011)
Tables Turned on Prosecution in Stevens Case (April 8, 2009) He said in his order that there was a “compelling” public interest in the investigation’s results — which, he noted, Attorney General Eric Holder Jr. acknowledged at a Senate Judiciary Committee hearing in November. He gave the Justice Department and the lawyers representing the prosecutors until Jan. 6 to file any objections to the report. January has come and gone.
The report is expected to show how Justice Department lawyers mishandled their constitutional duty to give defendants all exculpatory evidence that could have made a difference in the outcome of the trial. Judge Sullivan has written that there was “significant, widespread, and at times intentional misconduct.” The full report could provide the details of that illegal concealment. And if the report exonerates any of the prosecutors who were collectively tainted by the judge’s scathing findings, they deserve to have the record corrected.
The Justice Department, which said it does not intend to comment on the report, should be calling for its release. The Stevens debacle stained the department’s reputation and will continue to do so unless there is full disclosure of the investigation. The department issued new guidance for all federal prosecutors on how to handle “criminal discovery” in the wake of the Stevens case. But neither Congress nor the public will be able to tell if those standards are sufficient without a full understanding of what happened in the Stevens prosecution.
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The Justice Department's creative prosecutions under the Foreign Corrupt Practices Act (FCPA) continue to disintegrate, with the latest acquittal of two businessmen giving the Department a legal black eye. At a hearing last week, Justice asked federal Judge Richard Leon for a delay while it considers if the case is still viable.
The 1977 FCPA was intended to prevent American companies from joining the Third World's payoff habits. Over the last five years, however, Justice has begun to stretch the law into a far more blunt instrument. Instead of going after clear violations, the vague statute has become a tool to prosecute or threaten legions of companies.
In the case of the Africa "sting" in January 2010, Justice charged 22 individuals with scheming to pay off Gabon's defense minister for the right to outfit the country's national guard. At the time, Justice boasted that the indictments "represent the largest single investigation and prosecution against individuals in the history of DOJ's enforcement of the Foreign Corrupt Practices Act." Nothing like bragging about a case before it's won.
Using a snitch named Richard Bistrong who was a former target of a Justice investigation and who worked for body-armor supplier Armor Holdings (now a subsidiary of British defense company BAE Systems), prosecutors indicted companies and individuals in the military and police products industry. So far, not so good. The jury's acquittals come on the heels of Judge Leon's December decision to throw out a conspiracy charge.
In December, Los Angeles federal district Judge Howard Matz threw out a jury's bribery conviction of Lindsey Manufacturing after describing government misconduct that included allowing false testimony, submitting false affidavits and failing to comply with discovery obligations.
Houston federal judge Lynn Hughes was similarly skeptical last month about the bribery case against an official at Swiss company ABB, saying in a verbal order that the principal witness "knows almost nothing" and gave answers that were "abstract and vague, generally relating gossip." Ouch.
Justice may not mind these embarrassing failures, considering the cash its prosecutions are bringing in. The government saw a $1.8 billion windfall in FCPA-related fines and penalties from Justice and the Securities and Exchange Commission in 2010 and another $508.6 million in 2011.
According to a report last month by the New York City Bar Association, by April 2011 the five biggest FCPA fines were more than $300 million each, up from a single largest fine of $28.5 million in January 2007. In many cases, companies settle for fines even if they dispute the charge to avoid the reputational risk of an indictment.
The numbers have been growing, with 120 investigations pending in 2009 compared to three in 2002. Enforcement actions have been mounting as well, to 76 in 2010 from 45 in 2009. While companies spend millions on FCPA compliance, their efforts are no defense against future prosecutions, including against foreign subsidiaries and affiliates of which a parent company may have little knowledge.
(Disclosure: Attorney General Eric Holder has said his department is investigating News Corp., our parent company, under the bribery law as part of the phone-hacking scandal in Britain. If Justice tries to portray payments made as part of traditional news-gathering as criminal acts, the list of felons won't stop at the tabloids.)
That trend is causing concern in Congress, even among liberals. At a January 2011 hearing, Minnesota Senator Amy Klobuchar told Assistant Attorney General Lanny Breuer she was concerned that companies are unsure how to comply with the new enforcement regime. While an individual can only be prosecuted for a "willfull" FCPA violation under the statute, there is no similar requirement for companies. The difference expands the scope of corporate criminal liability, even if no one knew particular conduct was wrong.
Ditto the vagaries of who qualifies as a foreign official under the law, a definition which is often extended to include not only "any officer or employee of a foreign government" but also anyone working for "instrumentalities" of a foreign government, a term that has been broadly interpreted.
Because of that vagueness, Ms. Klobuchar said, "in today's China, a nurse could be construed as a foreign official because they work for the state." And what kind of conduct crosses the line? Is hosting a banquet an FCPA violation? How about a gift of mooncakes for lunar new year?
Ms. Klobuchar is working with Delaware Senator Chris Coons to clarify the law, but they face opposition from the organized left. George Soros-backed outfits like Crew and the Open Society Foundation have attacked amendments to the FCPA as an invitation to global corruption.
The bribery law has served a useful purpose over the years in shielding U.S. executives from having to follow Europeans and Japanese in a race to the bottom. No doubt it has cost American companies some business, but it has also taught foreign officials not to expect U.S. payoffs. But the Obama Administration's overzealous prosecution is leading to uncertainty and injustice. Congress and the courts need to curtail this latest antibusiness crusade.
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http://online.wsj.com/article/SB10001424052702304692804577281852966541834.html?mod=opinion_newsreel
By NANCY GERTNER And BARRY SCHECK
On Thursday, a special prosecutor released his report on the botched prosecution on corruption charges of the late Sen. Ted Stevens. It's worth noting the lessons learned from this investigation. Otherwise, wrongful convictions will continue.
The special prosecutor, Henry Schuelke, found that Justice Department lawyers committed ethics violations by the deliberate and "systematic" withholding of critical evidence pointing to Stevens's innocence, but he declined to go further. The reason: There was no court order expressly directing the government lawyers to turn over the evidence. Criminal charges can only be brought when there is a knowing and intentional violation of an order.
In sharp contrast, on Friday, Feb. 17, the chief judge of the Texas Supreme Court convened a court of inquiry to determine whether the former Williamson County district attorney violated state laws by failing to turn over evidence that could have prevented Michael Morton from spending 25 years in prison after his 1987 conviction for a murder that DNA evidence now proves he didn't commit.
The judge in the Morton case could deal directly with the prosecutor's alleged misconduct while the judge in the Stevens case could not. The Texas prosecutor had been expressly ordered by the trial court to turn over the lead investigator's complete report, an order that made certain all exculpatory evidence would be disclosed. The obligations of the Stevens prosecutors, while based on the Constitution and the disciplinary rules of the profession, were not formally embodied in a court order.
The two cases present a simple solution for dealing with prosecutorial misconduct: Thirty days before trial, or at some reasonable time, the trial judge should convene a conference and issue a specific order directing prosecutors to produce all evidence that "tends to negate the guilt of the accused or mitigate the offense," as required by the American Bar Association's ethics rules. This should include the requirement that prosecutors contact the relevant law-enforcement personnel to make certain all such evidence is disclosed as soon as possible.
Enlarge Image
CloseAssociated Press
The late Sen. Ted Stevens (R., Alaska)
.Issuing this order pretrial, at a time when most prosecutors are re-interviewing witnesses and reviewing their file, would encourage a more careful review of their case and their obligations. If prosecutors had a checklist similar to those the medical profession has used to dramatically reduce errors in intensive care units, they would not only discover more exculpatory evidence but develop valuable data about weaknesses in their evidence-gathering and evaluation processes.
This proposal can be implemented tomorrow by every state and federal judge in the nation without the need for legislation. Ultimately, it will benefit prosecutors, defendants and the courts by eliminating any confusion surrounding the disclosure of exculpatory evidence.
The Supreme Court has long held that a criminal conviction will not be reversed for failure to disclose exculpatory or impeaching evidence unless the appellate court finds that the undisclosed evidence was "material," or so important that it "undermines confidence in the outcome of the trial." It can be difficult for a prosecutor, particularly in the heat of battle, to decide before a trial whether undisclosed evidence that appears favorable to the defense will be considered "material" by appellate courts after a conviction.
With this dilemma in mind, decades ago the American Bar Association promulgated an ethics rule which has been substantially adopted in 49 states, Guam and the District of Columbia: Prosecutors are obligated to make timely pretrial disclosure of any evidence they know about that "tends to negate the guilt of the accused or mitigate the offense."
A direct order by a judge to follow the ethics rule and disclose all evidence that "tends to negate guilt" will act as a deterrent to the overzealous prosecutor. Disobedience of a direct court order is contempt, which is an ongoing offense. So contempt prosecutions of unscrupulous prosecutors whose suppression of exculpatory evidence is discovered many years after the act won't be derailed by statute-of-limitations problems (which have been a significant obstacle to prosecuting prosecutors).
Most failures to disclose exculpatory evidence are the result of inadvertence or negligence, and their eventual discovery would not normally result in disciplinary actions, much less criminal charges. The importance of this order would be to hold prosecutors accountable in the most egregious cases—such as Stevens's, in which the special prosecutor found not one but multiple instances where the prosecution "willfully" withheld information pointing to Stevens's innocence.
This simple proposal is not original or heretical. It has been raised in similar forms by many scholars and follows long-standing ABA policy. It does nothing more than provide a concrete way to enforce an ethics rule that our profession assures the public we follow, an ethical rule that protects our most cherished objective—a fair trial.
Ms. Gertner, a former judge of the United States District Court for the District of Massachusetts, teaches at Harvard Law School. Mr. Scheck is the co-director of the Innocence Project, a national organization dedicated to exonerating wrongfully convicted individuals
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http://online.wsj.com/article/SB10001424052702304692804577281852966541834.html?mod=opinion_newsreel
By NANCY GERTNER And BARRY SCHECK
On Thursday, a special prosecutor released his report on the botched prosecution on corruption charges of the late Sen. Ted Stevens. It's worth noting the lessons learned from this investigation. Otherwise, wrongful convictions will continue.
The special prosecutor, Henry Schuelke, found that Justice Department lawyers committed ethics violations by the deliberate and "systematic" withholding of critical evidence pointing to Stevens's innocence, but he declined to go further. The reason: There was no court order expressly directing the government lawyers to turn over the evidence. Criminal charges can only be brought when there is a knowing and intentional violation of an order.
In sharp contrast, on Friday, Feb. 17, the chief judge of the Texas Supreme Court convened a court of inquiry to determine whether the former Williamson County district attorney violated state laws by failing to turn over evidence that could have prevented Michael Morton from spending 25 years in prison after his 1987 conviction for a murder that DNA evidence now proves he didn't commit.
The judge in the Morton case could deal directly with the prosecutor's alleged misconduct while the judge in the Stevens case could not. The Texas prosecutor had been expressly ordered by the trial court to turn over the lead investigator's complete report, an order that made certain all exculpatory evidence would be disclosed. The obligations of the Stevens prosecutors, while based on the Constitution and the disciplinary rules of the profession, were not formally embodied in a court order.
The two cases present a simple solution for dealing with prosecutorial misconduct: Thirty days before trial, or at some reasonable time, the trial judge should convene a conference and issue a specific order directing prosecutors to produce all evidence that "tends to negate the guilt of the accused or mitigate the offense," as required by the American Bar Association's ethics rules. This should include the requirement that prosecutors contact the relevant law-enforcement personnel to make certain all such evidence is disclosed as soon as possible.
Enlarge Image
CloseAssociated Press
The late Sen. Ted Stevens (R., Alaska)
.Issuing this order pretrial, at a time when most prosecutors are re-interviewing witnesses and reviewing their file, would encourage a more careful review of their case and their obligations. If prosecutors had a checklist similar to those the medical profession has used to dramatically reduce errors in intensive care units, they would not only discover more exculpatory evidence but develop valuable data about weaknesses in their evidence-gathering and evaluation processes.
This proposal can be implemented tomorrow by every state and federal judge in the nation without the need for legislation. Ultimately, it will benefit prosecutors, defendants and the courts by eliminating any confusion surrounding the disclosure of exculpatory evidence.
The Supreme Court has long held that a criminal conviction will not be reversed for failure to disclose exculpatory or impeaching evidence unless the appellate court finds that the undisclosed evidence was "material," or so important that it "undermines confidence in the outcome of the trial." It can be difficult for a prosecutor, particularly in the heat of battle, to decide before a trial whether undisclosed evidence that appears favorable to the defense will be considered "material" by appellate courts after a conviction.
With this dilemma in mind, decades ago the American Bar Association promulgated an ethics rule which has been substantially adopted in 49 states, Guam and the District of Columbia: Prosecutors are obligated to make timely pretrial disclosure of any evidence they know about that "tends to negate the guilt of the accused or mitigate the offense."
A direct order by a judge to follow the ethics rule and disclose all evidence that "tends to negate guilt" will act as a deterrent to the overzealous prosecutor. Disobedience of a direct court order is contempt, which is an ongoing offense. So contempt prosecutions of unscrupulous prosecutors whose suppression of exculpatory evidence is discovered many years after the act won't be derailed by statute-of-limitations problems (which have been a significant obstacle to prosecuting prosecutors).
Most failures to disclose exculpatory evidence are the result of inadvertence or negligence, and their eventual discovery would not normally result in disciplinary actions, much less criminal charges. The importance of this order would be to hold prosecutors accountable in the most egregious cases—such as Stevens's, in which the special prosecutor found not one but multiple instances where the prosecution "willfully" withheld information pointing to Stevens's innocence.
This simple proposal is not original or heretical. It has been raised in similar forms by many scholars and follows long-standing ABA policy. It does nothing more than provide a concrete way to enforce an ethics rule that our profession assures the public we follow, an ethical rule that protects our most cherished objective—a fair trial.
Ms. Gertner, a former judge of the United States District Court for the District of Massachusetts, teaches at Harvard Law School. Mr. Scheck is the co-director of the Innocence Project, a national organization dedicated to exonerating wrongfully convicted individuals
I am amazed and horrified that in this day and age we have prosecutors that do such things. Disbarment and prosecution needs to happen in such cases. Prosecutors are ethically required to act in the interest of justice, that means full discovery, including exculpatory evidence.
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MORRISTOWN, N.J. – A New Jersey judge will likely soon decide whether a woman who sent a text message to a male friend can be held liable for a car crash he caused while reading the message.
The Daily Record reports the legal question stems from a lawsuit filed by two Dover residents who were seriously injured when a 19-year-old driver crashed into their motorcycle in September 2009. The driver received three motor vehicle citations and pleaded guilty earlier this year.
The victim's lawyer claims the woman aided and abetted the driver's negligence by texting him when she knew or should have known he was driving.
But her lawyer is seeking to have her dismissed as a defendant, saying she had no control over when the driver would read the message.
Read more: http://www.foxnews.com/us/2012/05/05/nj-judge-to-decide-if-text-sender-liable-for-crash/?test=latestnews#ixzz1u5kLb87t
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The Tort Bar Burns On
A case study in modern robbery: Targeting the red plastic gas can..Article Comments more in Opinion | Find New $LINKTEXTFIND$ ».smaller Larger
Like 19th century marauders, the trial bar attacks any business it thinks will cough up money in its raids. The latest victims are the people who make those red plastic gasoline cans.
Until recently, Blitz USA—the nation's No. 1 consumer gasoline-can producer, based in Miami, Oklahoma—was doing fine. It's a commoditized, low-margin business, but it's steady. Sales normally pick up when hurricane season begins and people start storing fuel for back-up generators and the like.
Blitz USA has controlled some 75% of the U.S. market for plastic gas cans, employing 117 people in that business, and had revenues of $60 million in 2011. The Consumer Product Safety Commission has never deemed Blitz's products unsafe.
Then the trial attorneys hit on an idea with trial-lawyer logic: They could sue Blitz when someone poured gas on a fire (for instance, to rekindle the flame) and the can exploded, alleging that the explosion is the result of defects in the can's design as opposed to simple misuse of the product. Plaintiffs were burned, and in some cases people died.
Blitz's insurance company would estimate the cost of years of legal battles and more often than not settle the case, sometimes for millions of dollars. But the lawsuits started flooding in last year after a few big payouts. Blitz paid around $30 million to defend itself, a substantial sum for a small company. Of course, Blitz's product liability insurance costs spiked.
In June, Blitz filed for bankruptcy. All 117 employees will lose their jobs and the company—one of the town's biggest employers—will shutter its doors. Small business owners have been peppering the local chamber of commerce with questions about the secondary impact on their livelihoods.
The tort-lawsuit riders leading the assault on Blitz included attorneys Hank Anderson of Wichita Falls, Texas; Diane Breneman of Kansas City, Missouri; and Terry Richardson of Barnwell, South Carolina. All told, they've been involved in more than 30 lawsuits against Blitz in recent years.
The rest of the plastic-can industry can't be far behind, so long as there's any cash flow available. The American Association for Justice's (formerly the Association of Trial Lawyers of America) annual conference in Chicago this month will feature, with a straight face, a meeting of the "gas cans litigation group."
The Atlantic hurricane season started June 1, and Blitz estimates that demand for plastic gas cans rises 30% about then. If consumers can't find the familiar red plastic can, fuel will have to be carried around in heavy metal containers or ad-hoc in dangerous alternatives, such as coolers.
Trial lawyers remain a primary funding source for the Democratic Party, but stories like this cry out for a bipartisan counter-offensive against these destructive raids that loot law-abiding companies merely because our insane tort laws make them vulnerable.
A version of this article appeared July 23, 2012, on page A12 in the U.S. edition of The Wall Street Journal, with the headline: The Tort Bar Burns On.
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"Financier Bradley Birkenfeld went to prison after helping clients avoid taxes. But he also got $104 million for blowing the whistle."
http://www.latimes.com/business/la-fi-whistleblower-20120912,0,2889365.story
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Apparently their "footlongs" come up short. I wonder why people can't sue government sponsored lotteries. They advertise you win a million, two million, 100 million. Then for those who do win most if it is confiscated even before they get the check. To me this is fraudulent advertising.
http://www.mercurynews.com/business/ci_22433584/subway-sued-over-footlong-sandwiches-that-came-up
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Payback for a Downgrade?
The feds sue S&P but not Moody's for pre-crisis credit ratings. .
WSJ
Now, this is awkward. One agency of the federal government is suing a company for fraud while another agency continues to endorse it.
On Monday in Los Angeles, the Department of Justice sued Standard & Poor's and its parent McGraw-Hill for $5 billion. The claim is that S&P committed civil fraud when it issued high credit ratings on mortgage-related securities prior to the financial crisis of 2008. Sixteen states and the District of Columbia have piled on the suit.
No doubt investors who relied on the opinions of S&P and the other big credit-rating agencies, Moody's and Fitch, suffered terrible losses during the crisis. That was in part because the federal government forced investors to rely on them. Longstanding rules at the Securities and Exchange Commission and other agencies required institutions to hold assets graded highly by these government-approved rating agencies.
And to this day, more than two years after the Dodd-Frank law ordered their repeal, SEC rules still force institutions to follow the advice of these government-anointed credit raters. Therefore the more appropriate defendant for Monday's lawsuit would be the SEC. But as a modest first step before suing a company for $5 billion, shouldn't the government at least stop mandating its products?
Related Video
Assistant editorial page editor James Freeman on the Justice Department's suit against ratings agency S&P. Photo: White House
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We've long argued that the government should not endorse any company's opinions about credit risk, which at the end of the day is all a credit rating is—an opinion. And for that reason the government will not have an easy time making a fraud case.
Justice quotes internal emails from S&P personnel suggesting that, in its desire to win rating assignments from the investment banks that created securities, S&P was too generous in handing out high grades. For its part, S&P said in a Tuesday statement, "Claims that we deliberately kept ratings high when we knew they should be lower are simply not true."
If a publisher deliberately misleads, it loses its First Amendment protection. S&P concedes "there was robust internal debate" inside the firm but says it "applied the collective judgment of our committee-based system in good faith."
Some of the emails in the government suit do look bad, at least as presented in the lawsuit and just like a lot of the rating-agency internal emails that the SEC released in a 2008 report. In fact, some of the same internal S&P messages from that five-year-old report are now reprinted in the new lawsuit.
So why wasn't a federal case made in 2008 or 2009 or 2010 or 2011 or 2012? In the United States it has always been difficult to prosecute publishers of financial opinions for securities fraud. Yes, the SEC has sometimes successfully prosecuted the proprietors of sham newsletters that touted stocks with bogus claims while secretly accepting payments from the companies being hyped.
But everyone already knows the big credit raters get paid to issue their opinions. And courts have often looked askance at broadly using the laws on securities fraud to go after people outside of the business of issuing, underwriting and dealing in securities.
This may be why the SEC, which had been investigating the credit raters, is not part of this week's lawsuit. Justice is instead trying to break new ground by using a 1989 statute intended to prevent bank fraud. Since federally insured financial institutions were among those who relied on credit ratings, argues Justice, S&P can be charged with fraud.
The suit names a specific credit union in California as an alleged victim. In other words, the government that keeps blaming the bankers for the crisis is now painting banks as the victims of rating agencies whose opinions the banks were ordered by the government to follow.
There are other disturbing questions related to the timing and the target of this federal civil prosecution. S&P's attorney Floyd Abrams tells us that "things seemed to rev up in terms of the intensity" of the federal investigation after S&P's historic downgrade of United States credit following Washington's debt-limit fight in 2011.
Meanwhile, a McClatchy Newspapers report says that it was around that time that Moody's, which did not downgrade the government, was dropped from the federal investigation. Ask any investor and he'll likely tell you that Moody's was equally awful in forecasting the mortgage debacle.
Speaking of the debt-limit fight, that's also coincidentally when White House Chief of Staff Jack Lew was aggressively promoting the President's campaign to prevent entitlement reform. Mr. Lew had worked in the heart of Citigroup's subprime investment factory, and the President has not only been willing to forgive and forget. He's even nominated Mr. Lew to become Secretary of the Treasury. But the company that put a shot across the Beltway bow over deficit spending is now the only target of a credit-ratings prosecution.
Why not just take away its government-enforced advantage instead? Both regulators and regulated institutions still yearn for the ability to outsource the tough decisions on credit risk to some certified experts. But it's folly to think that some anointed class can ever be counted on to warn of all potential default dangers.
If prosecutors continue to focus on how the rating process works, they may allow Washingtonians to celebrate downgrade payback, but they won't serve investors or taxpayers. Americans will benefit most when few people care how the rating agencies operate, because their judgments won't be that important.
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Payback for a Downgrade?
The feds sue S&P but not Moody's for pre-crisis credit ratings. .
Almost like some Chicago-style payback.
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Off the top of my head, I can't say that S&P did not fall well short of a due standard of care, but yes this looks like economic fascist payback.
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Off the top of my head, I can't say that S&P did not fall well short of a due standard of care, but yes this looks like economic fascist payback.
Agree on both counts. They went after no one who appraised the homes wrong and no one who fleeced the GSEs but oddly they go after the agency that downgraded Obama's America when, as S&P said in its own defense, the government itself didn't see the collapse coming either.
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Franklin Raines and others at Fannie and Freddie were ACCELERATING gains so as to increase their bonuses, and their paymentw for these fraudulent acts were some very "golden parachutes" (anyone have the numbers handy? GM?)
It is very worth noting that SOME people in the government DID see what was coming (NOT Newt Gingrich :x ) This includes President Bush himself (and others) who warned more than once but lacked the political capital to force the issue.
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http://hotair.com/archives/2013/02/08/doj-lawsuit-against-sp-even-sillier-than-first-thought/
DoJ lawsuit against S&P even sillier than first thought
posted at 8:41 am on February 8, 2013 by Ed Morrissey
I wrote Tuesday about the hypocrisy and perhaps vindictiveness of the Department of Justice’s lawsuit against ratings agency Standard & Poor’s for rating toxic mortgage-backed securities and their derivatives highly before the housing bubble popped. Apparently I wasn’t tough enough on … the DoJ. Bloomberg’s Jonathan Weil explains why the lawsuit isn’t just ill-considered, but downright silly:
Oh, the poor suckers at Citigroup Inc. and Bank of America Corp., fooled about the stench of their own garbage by those sneaky credit raters at Standard & Poor’s.
The U.S. Justice Department made some peculiar allegations in its lawsuit this week against S&P and its parent, McGraw-Hill Cos. According to the government, Citigroup was defrauded by S&P credit ratings on subprime mortgage bonds that Citigroup itself created and sold. Bank of America, too, allegedly was defrauded by S&P in the same way. …
Under the government’s theory, Citigroup and Bank of America paid S&P for ratings that convinced the banks their own CDO offal was rock-solid. And because S&P deceived them into thinking the best of their own rubbish, these banks and other lenders suffered more than $5 billion of investment losses, according to the suit.
No, that’s not a joke. Weil boils the lawsuit’s raison d’être down to this:
For nine of the CDOs, the government’s complaint listed Citigroup as the harmed investor — without mentioning that Citigroup’s investment-banking division had managed the bonds’ offerings. The complaint identified Bank of America as the defrauded CDO investor in two instances, also without mentioning that its securities unit underwrote those bonds.
It’s a novel concept. If only S&P had given honest opinions to Citigroup and Bank of America — which were paying S&P millions of dollars for ratings — then the banks would have realized they were buying ticking time bombs from themselves. And who knows? Maybe they could have found some other hapless chumps to immolate instead, if S&P had told them in time.
Notably, neither Citi nor BofA are suing S&P over this issue, nor are they talking on the record. They aren’t the only victims claimed by the DoJ — M&T Bank is also listed, and they didn’t produce any of the products in which they invested. The fact that none of these entities are pursuing damages from their own bad bets on mortgage-backed securities and their derivatives probably should give a clue as to the validity of the claims being made by the DoJ.
So far, though, it’s just the Obama administration pursuing the rather laughable claim that S&P’s ratings would have made any difference to Citi and BofA on their own products. Combine that up with the fact that this is the only ratings agency that the DoJ has pursued after the financial collapse in 2008, and it’s the most significant one that downgraded US credit while Obama has been President, and the actual raison d’être seems pretty clear.
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http://www.washingtontimes.com/news/2013/apr/2/obama-falls-behind-on-key-federal-courtfaltering-n/
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http://www.dickmorris.com/the-real-battle-dc-circuit-court-confirmations-dick-morris-tv-lunch-alert/?utm_source=dmreports&utm_medium=dmreports&utm_campaign=dmreports
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http://poorrichardsnews.com/post/65069957264/texas-judge-resigns-after-being-caught-texting
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Once again, Senate Democrats took advantage of having "gone nuclear" and ending the filibuster for judicial nominees. In the dark of night Thursday, the Senate confirmed Cornelia Pillard to the DC Circuit Court of Appeals by a vote of 51-44. That makes two additional Obama nominees on the court with the lightest workload, and it gives leftists a 6-4 advantage on the court that hears most challenges to executive actions. On top of that, National Review's Patrick Brennan calls Pillard "probably the most extreme of President Obama's judicial nominees this year." Why? Well, for example, Brennan says she opposed a church's right to be exempt from normal employment-discrimination law in order to decide on a minister. The Supreme Court disagreed with her, 9-0. Beware...
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http://elitedaily.com/news/world/missouri-bar-responds-cease-desist-starbucks-epic-letter-6-check-photos/
From the article:
When one of the largest companies in the United States serves you a “cease and desist” letter, there are various ways to approach it.
One way is to give in to any demands in fear of powerful lawyers and millions or billions of dollars, forgetting whatever you were doing that got you in that predicament in the first place.
The other option is to write a mocking apology letter and send a check for an extremely small amount of cash to prove a point.
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I love the Missouri, Exit 6 bar letter! '[Your brand name] heretofore known as "The F-word" '. 'We weren't trying to use a similar name, we are just poor spelers'. 'We never thought alcoholic beverage consumers would confuse beer with coffee'. Very funny!
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Lawsuit Losers Pay
Animal-rights groups write more checks to Ringling Brothers.
May 16, 2014 6:44 p.m. ET
Animal-rights groups that made phony claims of abused circus elephants continue to pay for their bogus litigation. On Thursday Feld Entertainment, owner of the Ringling Brothers and Barnum & Bailey Circus, announced a legal settlement under which it received $15.75 million from the Humane Society of the United States and other animal-rights groups. This follows a 2012 agreement by the American Society for the Prevention of Cruelty to Animals to surrender $9.3 million to the producer of family-friendly entertainment.
The activist groups aren't settling out of a spirit of generosity. They're paying up because Feld exposed their payments to a former circus employee who offered false testimony. And as Judge Emmet Sullivan of the U.S. District Court for the District of Columbia noted last year, "the plaintiffs were unable to produce any credible evidence that any of them had standing to pursue their claims." He called their lawsuit "frivolous, unreasonable and groundless" and ordered them to pay Feld's attorneys fees. Total settlements of roughly $25 million now cover the costs of a defense that began in 2000 when the activists first lobbed their spurious claims.
On Thursday Feld Chairman and CEO Kenneth Feld said in a statement: "We hope this settlement payment, and the various court decisions that found against these animal rights activists and their attorneys, will deter individuals and organizations from bringing frivolous litigation like this in the future."
We share that hope. The standard business response to harassing litigation is to settle to avoid more costs and bad publicity, rather than trusting the legal system to vindicate the innocent. But the family-run Feld Entertainment shows what companies can do when they have the courage to fight back against abusive litigation.
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Justice Department Ends Role in Controversial Seizure Practice
New Policy Bars Participating in So-Called Federally Adopted Forfeitures
U.S. Attorney General Eric Holder, shown in December, issued new rules limiting the federal role in controversial asset seizures on Friday. ENLARGE
U.S. Attorney General Eric Holder, shown in December, issued new rules limiting the federal role in controversial asset seizures on Friday. David Goldman/Associated Press
By
Devlin Barrett and
Zusha Elinson
Updated Jan. 16, 2015 7:01 p.m. ET
49 COMMENTS
WASHINGTON—The Justice Department will no longer participate in asset seizures by local police agencies that critics say grab cash and other property from individuals without proving they have done anything wrong.
The new policy marks one of the most significant changes to asset forfeiture in decades and will bar the U.S. from participating in some types of seizures that have proven popular among state and local law-enforcement agencies because they provide a windfall of cash to local police.
Attorney General Eric Holder on Friday called the change “the first step in a comprehensive review that we have launched of the federal asset-forfeiture program.’’
The practice, known as federally adopted forfeitures, allowed local law enforcement to retain a greater portion of any seized assets—such as cash or other valuables—than under many state laws. Under “adoptions,” local police agencies would seize property in accordance with federal law and ask the federal government to “adopt” the forfeiture. The U.S. would then sell the assets and return a large chunk of the proceeds to the state or local agency.
While asset seizures were meant to target drug traffickers and other criminals, they have become increasingly controversial as people complained that their money, cars and other property were seized without evidence they had committed any crime.
More Reading
Another Program to Track Calls Is Revealed
Sen. Charles Grassley (R., Iowa), who heads the Senate Judiciary Committee, had urged the Justice Department to end the practice. On Friday, he welcomed the shift, though he cautioned “the devil was in the details’’ of how it would be implemented.
“The rule of law ought to be about protecting innocent people. Too often, we’ve seen just the opposite with civil asset-forfeiture laws. The practice up to this point had perverse incentives,’’ Mr. Grassley said.
The asset-seizure practices of some police departments have come under attack from both libertarians, who view them as an example of overreaching government, and liberal groups, who contend the practice disproportionately targets minority drivers and citizens.
The American Civil Liberties Union also cheered the Justice Department’s decision, saying the past forfeiture practice “is a clear violation of due process that is often used to disproportionately target communities of color,’’ and urged state and federal lawmakers to pass laws to further scale back asset seizures.
Ron Brooks, a retired California state narcotics officer and past president of the National Narcotic Officers’ Associations Coalition, criticized the move, saying it would eliminate a valuable weapon in the fight against drug-trafficking organizations.
Previously
County Sheriff Enjoys Fruits of Forfeitures (8/22/11)
Federal Asset Seizures Rise, Netting Innocent With Guilty (8/22/11)
“While the money is helpful to us, that’s not the reason forfeiture occurs,” said Mr. Brooks, now a consultant. “It occurs because it removes the most critical component of these criminal organizations: the capital to operate,” he said.
Mr. Brooks said the move would deprive local law enforcement of money that it uses for things like police equipment and overtime pay.
In 2010, forfeiture programs confiscated homes, cars, boats and cash in more than 15,000 cases. The total take topped $2.5 billion, more than double the take five years earlier, Justice Department statistics show.
The rule change doesn’t prevent local authorities from using their own seizure laws to confiscate property.
The new policy also doesn’t apply to seizures resulting from joint operations involving federal and local law-enforcement authorities, or stemming from warrants that are issued by a federal judge.
In 2010, agents seized $392,000 in cash belonging to James Lieto, in the right foreground at Granite Check Cashing Service in Peekskill, N.Y. The money was later returned to the innocent bystander in a fraud inquiry. ENLARGE
In 2010, agents seized $392,000 in cash belonging to James Lieto, in the right foreground at Granite Check Cashing Service in Peekskill, N.Y. The money was later returned to the innocent bystander in a fraud inquiry. Jason Andrew for The Wall Street Journal
The two-page instruction signed by Mr. Holder on Friday also will still allow federal authorities to adopt seizures of weapons, explosives and assets that are linked to child pornography. He said that forfeiture is still a “critical law-enforcement tool when used appropriately.’’
Asset forfeiture by law-enforcement agencies has grown since the 1980s and 1990s, largely as a result of the fight against drug traffickers.
Justice Department officials said that when the laws were first applied, few states had their own seizure laws, so using the federal law was an effective way to strip criminals of their profits. Now, however, every state has either criminal or civil forfeiture laws.
It wasn’t immediately clear how much of an affect the federal change would have on state and local police departments, but the move isn’t expected to have much of an impact on federal accounts, since forfeiture adoptions in the past 6 years added up to just 3% of the value of forfeitures in the Justice Department’s Asset Forfeiture Program.
Write to Devlin Barrett at devlin.barrett@wsj.com and Zusha Elinson at zusha.elinson@wsj.com
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94
51
Opinion
Review & Outlook
Another 9-0 Smackdown
Even the liberal Justices conclude the EEOC abused its authority.
ENLARGE
Photo: Getty Images
May 3, 2015 5:34 p.m. ET
89 COMMENTS
Congress in its wisdom often delegates vast powers to the administrative state that stretch to points somewhere beyond the known universe. So congratulations to the Obama Administration’s regulatory cosmonauts for discovering these far-off limits and then managing to exceed even those, earning a unanimous rebuke last week from the Supreme Court.
The 1964 law that created the Equal Employment Opportunity Commission requires this anti-discrimination regulator to use “informal methods of conference, conciliation and persuasion” to resolve disputes with business. After these private negotiations, the commission can either settle or bring litigation. But 50 years later, the EEOC decided to disobey even this vague instruction, sue first, and then dare the courts to stop it.
In 2011 the EEOC rung up the Illinois-based Mach Mining for alleged hiring bias against female coal workers. The commission claimed that the grand total of two letters it sent to Mach a year apart—the first notifying the company of the allegation, the second announcing a lawsuit—had satisfied its “conciliation” obligation. The EEOC then claimed that its dispute-resolution methods, or lack thereof, were not subject to judicial review.
In other words, the commission tried to transform very broad discretion into infinite discretion by its own decree. The goal was to cow accused employers into surrendering behind closed doors and opening their wallets, without any appeal or oversight.
“But no, Congress has not left everything to the Commission,” Justice Elena Kagan dryly wrote for the 9-0 majority (her emphasis). Absent judicial oversight, “the Commission’s compliance with the law would rest in the Commission’s hands alone. We need not doubt the EEOC’s trustworthiness, or its fidelity to law, to shy away from that result.”
The Court held that the EEOC must demonstrate to judges that it “actually, and not just purportedly, tried to conciliate a discrimination charge.” From now on, an EEOC official must submit a “sworn affidavit” testifying to substantive engagement with an employer that a reasonable human could identify as conciliation, rather than nothing.
This standard is more narrow than the intrusion Mach preferred, which was for the courts to fly-speck conciliation procedures much as management-union labor disputes are monitored for good faith. And the EEOC probably does deserve to be put into bureaucratic receivership for its abuses, at least for the duration of this Administration.
But that is not an altogether convincing reading of the overly broad EEOC statute. One solution is for Congress to write better laws. The other is for the Administration to stay within its legal guardrails before it is again humiliated by every member of the High Court.
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12 reasons to worry about our criminal justice system, from a prominent conservative federal judge
By Eugene Volokh July 14 at 5:50 PM
Judge Alex Kozinski — for whom I clerked 20 years ago, who is one of our nation’s most prominent appellate judges and who has long been seen as on balance a libertarianish conservative (appointed by President Reagan) — has recently published an article in the Georgetown Law Journal that says some pretty harsh things about our criminal justice system, and offers some (doubtless controversial) proposals for improving it. You can read the whole article, Criminal Law 2.0, but I also asked Judge Kozinski for permission to serialize the article here, and he graciously agreed. Here is the introduction, which gives 12 reasons to worry about our criminal justice system; I’ll post other parts of the article in the days to come. I’ve added some paragraph breaks and removed the footnotes (which are available in the PDF version), but otherwise this is as Judge Kozinski wrote it:
Although we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial.
Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.
The “ten guilty men” aphorism is just one of many tropes we assimilate long before we become lawyers. How many of us, the author included, were inspired to go to law school after watching Juror #8 turn his colleagues around by sheer force of reason and careful dissection of the evidence? “If that’s what the law’s about, then I want to be a lawyer!” I thought to myself.
But is it? We know very little about this because very few judges, lawyers and law professors have spent significant time as jurors. In fact, much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has been undermined by experience, legal scholarship and common sense. Here are just a few examples:
1. Eyewitnesses are highly reliable. This belief is so much part of our culture that one often hears talk of a “mere” circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races. Eyewitness reliability is further compromised when the identification occurs under the stress of a violent crime, an accident or catastrophic event — which pretty much covers all situations where identity is in dispute at trial. In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases. Yet, courts have been slow in allowing defendants to present expert evidence on the fallibility of eyewitnesses; many courts still don’t allow it. Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony.
2. Fingerprint evidence is foolproof. Not so. Identifying prints that are taken by police using fingerprinting equipment and proper technique may be a relatively simple process, but latent prints left in the field are often smudged and incomplete, and the identification process becomes more art than science. When tested by rigorous scientific methods, fingerprint examiners turn out to have a significant error rate. Perhaps the best-known example of such an error occurred in 2004 when the FBI announced that a latent print found on a plastic bag near a Madrid terrorist bombing was “a 100 percent match” to Oregon attorney Brandon Mayfield. The FBI eventually conceded error when Spanish investigators linked the print to someone else.
3. Other types of forensic evidence are scientifically proven and therefore infallible. With the exception of DNA evidence (which has its own issues), what goes for fingerprints goes double and triple for other types of forensic evidence: “Spectrographic voice identification error rates are as high as 63%, depending on the type of voice sample tested. Handwriting error rates average around 40% and sometimes approach 100%. False-positive error rates for bite marks run as high as 64%. Those for microscopic hair comparisons are about 12% (using results of mitochondrial DNA testing as the criterion).”
Other fields of forensic expertise, long accepted by the courts as largely infallible, such as bloodstain pattern identification, foot and tire print identification and ballistics have been the subject of considerable doubt. Judge Nancy Gertner, for example, has expressed skepticism about admitting expert testimony on handwriting, canines, ballistics and arson. She has lamented that while “the Daubert-Kumho standard [for admitting expert witness testimony] does not require the illusory perfection of a television show (CSI, this wasn’t), when liberty hangs in the balance — and, in the case of the defendants facing the death penalty, life itself — the standards should be higher . . . than [those that] have been imposed across the country.”
Some fields of forensic expertise are built on nothing but guesswork and false common sense. Many defendants have been convicted and spent countless years in prison based on evidence by arson experts who were later shown to be little better than witch doctors. Cameron Todd Willingham may have lost his life over it.
4. DNA evidence is infallible. This is true to a point. DNA comparison, when properly conducted by an honest, trained professional will invariably reach the correct result. But the integrity of the result depends on a variety of factors that are, unfortunately, not nearly so foolproof: the evidence must be gathered and preserved so as to avoid contamination; the testing itself must be conducted so that the two samples being compared do not contaminate each other; the examiner must be competent and honest. As numerous scandals involving DNA testing labs have shown, these conditions cannot be taken for granted, and DNA evidence is only as good as the weakest link in the chain.
5. Human memories are reliable. Much of what we do in the courtroom relies on human memory. When a witness is asked to testify about past events, the accuracy of his account depends not only on his initial perception, but on the way the memories are recorded, stored and retrieved. For a very long time, it was believed that stored memories were much like video tape or film — an accurate copy of real-word experience that might fade with the passage of time or other factors, but could not be distorted or embellished.
Science now tells us that this view of human memory is fundamentally flawed. The mind not only distorts and embellishes memories, but a variety of external factors can affect how memories are retrieved and described. In an early study by cognitive psychologist Elizabeth Loftus, people were shown videos of car accidents and then questioned about what they saw. The group asked how fast the cars were going when they “smashed” into each other estimated 6.5 mph faster than the group asked how fast the cars were going when they “hit” each other. A week later, almost a third of those who were asked about the “smash” recalled seeing broken glass, even though there was none.
This finding has troubling implications for criminal trials where witnesses are questioned long and hard by police and prosecutors before the defense gets to do so — if ever. There is thus plenty of opportunity to shape and augment a witness’s memory to bring it into line with the prosecutor’s theory of what happened. Yet with rare exceptions, courts do not permit expert testimony on human memory.
For example, the district judge in the Scooter Libby case denied a defense motion for a memory expert, even though the key issue at trial was whose recollection of a 4-year-old telephone conversation should be believed. At least one member of the jury that convicted Libby lamented the lack of expert testimony on the subject. And a key witness in that case recently suggested in her memoirs that her memory may have been distorted by the prosecutor’s crafty questioning. Given the malleability of human memory, it should come as no surprise that many wrongful convictions have been the result of faulty witness memories, often manipulated by the police or the prosecution.
6. Confessions are infallible because innocent people never confess. We now know that this is not true. Innocent people do confess with surprising regularity. Harsh interrogation tactics, a variant of Stockholm syndrome, the desire to end the ordeal, emotional and financial exhaustion, family considerations and the youth or feeble-mindedness of the suspect can result in remarkably detailed confessions that are later shown to be utterly false.
7. Juries follow instructions. This is a presumption — actually more of a guess — that we’ve elevated to a rule of law. It is, of course, necessary that we do so because it links the jury’s fact-finding process to the law. In fact, however, we know very little about what juries actually do when they decide cases. Do they consider the instructions at all? Do they consider all of the instructions or focus on only some? Do they understand the instructions or are they confused?
We don’t really know. We get occasional glimpses into the operations of juries when they send out questions or someone discloses juror misconduct, and even then the information we get is limited. But we have no convincing reason to believe that jury instructions in fact constrain jury behavior in all or even most cases. And, because the information we get from inside the jury room is so limited and sporadic, experience does little to improve our knowledge. Looking at 100 black boxes is no more informative than looking at one.
8. Prosecutors play fair. The Supreme Court has told us in no uncertain terms that a prosecutor’s duty is to do justice, not merely to obtain a conviction. It has also laid down some specific rules about how prosecutors, and the people who work for them, must behave — principal among them that the prosecution turn over to the defense exculpatory evidence in the possession of the prosecution and the police.
There is reason to doubt that prosecutors comply with these obligations fully. The U.S. Justice Department, for example, takes the position that exculpatory evidence must be produced only if it is material. This puts prosecutors in the position of deciding whether tidbits that could be helpful to the defense are significant enough that a reviewing court will find it to be material, which runs contrary to the philosophy of the Brady/Giglio line of cases and increases the risk that highly exculpatory evidence will be suppressed. Beyond that, we have what I have described elsewhere as an “epidemic of Brady violations abroad in the land,” a phrase that has caused much controversy but brought about little change in the way prosecutors operate in the United States.
9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt. Juries are routinely instructed that the defendant is presumed innocent and the prosecution must prove guilt beyond a reasonable doubt, but we don’t really know whether either of these instructions has an effect on the average juror. Do jurors understand the concept of a presumption? If so, do they understand how a presumption is supposed to operate? Do they assume that the presumption remains in place until it is overcome by persuasive evidence or do they believe it disappears as soon as any actual evidence is presented? We don’t really know.
Nor do we know whether juries really draw a distinction between proof by a preponderance, proof by clear and convincing evidence and proof beyond a reasonable doubt. These levels of proof, which lawyers and judges assume to be hermetically sealed categories, may mean nothing at all in the jury room. My own experience as a juror certainly did nothing to convince me that my fellow jurors understood and appreciated the difference. The issue, rather, seemed to be quite simply: Am I convinced that the defendant is guilty?
Even more troubling are doubts raised by psychological research showing that “whoever makes the first assertion about something has a large advantage over everyone who denies it later.” The tendency is more pronounced for older people than for younger ones, and increases the longer the time-lapse between assertion and denial. So is it better to stand mute rather than deny an accusation? Apparently not, because “when accusations or assertions are met with silence, they are more likely to feel true.”
To the extent this psychological research is applicable to trials, it tends to refute the notion that the prosecution pulls the heavy oar in criminal cases. We believe that it does because we assume juries go about deciding cases by accurately remembering all the testimony and weighing each piece of evidence in a linear fashion, selecting which to believe based on assessment of its credibility or plausibility. The reality may be quite different. It may be that jurors start forming a mental picture of the events in question as soon as they first hear about them from the prosecution witnesses. Later-introduced evidence, even if pointing in the opposite direction, may not be capable of fundamentally altering that picture and may, in fact, reinforce it.
And the effect may be worse the longer the prosecution’s case lasts and, thus, the longer it takes to bring the contrary evidence before the jury. Trials in general, and longer trials in particular, may be heavily loaded in favor of whichever party gets to present its case first — the prosecution in a criminal case and the plaintiff in a civil case.
If this is so, it substantially undermines the notion that we seldom convict an innocent man because guilt must be proven to a sufficient certainty. It may well be that, contrary to instructions, and contrary to their own best intentions, jurors are persuaded of whatever version of events is first presented to them and change their minds only if they are given very strong reasons to the contrary.
10. Police are objective in their investigations. In many ways, this is the bedrock assumption of our criminal justice process. Police investigators have vast discretion about what leads to pursue, which witnesses to interview, what forensic tests to conduct and countless other aspects of the investigation. Police also have a unique opportunity to manufacture or destroy evidence, influence witnesses, extract confessions and otherwise direct the investigation so as to stack the deck against people they believe should be convicted.
And not just small-town police in Podunk or Timbuktu. Just the other day, “[t]he Justice Department and FBI [] formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all [of the 268] trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.” Do they offer a class at Quantico called “Fudging Your Results To Get A Conviction” or “Lying On The Stand 101”? How can you trust the professionalism and objectivity of police anywhere after an admission like that?
There are countless documented cases where innocent people have spent decades behind bars because the police manipulated or concealed evidence, but two examples will suffice:
In 2013, Debra Milke was released after 23 years on Arizona’s death row based entirely on a supposed oral confession she had made to one Detective Saldate who was much later shown to be a serial liar. And then there is the case of Ricky Jackson, who spent 39 years behind bars based entirely on the eyewitness identification of a 12-year-old boy who saw the crime from a distance and failed to pick Jackson out of a lineup. At that point, “the officers began to feed him information: the number of assailants, the weapon used, the make and model of the getaway car.” 39 years!
For some victims of police misconduct, exoneration comes too late: Mark Collin Sodersten died in prison while maintaining his innocence. After his death, a California appellate court determined that Sodersten had been denied a fair trial because police had failed to turn over exculpatory witness tapes. It posthumously set aside the conviction, which no doubt reduced Sodersten’s time in purgatory.
11. Guilty pleas are conclusive proof of guilt. Many people, including judges, take comfort in knowing that an overwhelming number of criminal cases are resolved by guilty plea rather than trial. Whatever imperfections there may be in the trial and criminal charging process, they believe, are washed away by the fact that the defendant ultimately consents to a conviction. But this fails to take into account the trend of bringing multiple counts for a single incident — thereby vastly increasing the risk of a life-shattering sentence in case of conviction — as well as the creativity of prosecutors in hatching up criminal cases where no crime exists and the overcriminalization of virtually every aspect of American life.
It also ignores that many defendants cannot, as a practical matter, tell their side of the story at trial because they fear being impeached with prior convictions or other misconduct. And, of course, if the trial process is perceived as highly uncertain, or even stacked in favor of the prosecution, the incentive to plead guilty to some charge that will allow the defendant to salvage a portion of his life, becomes immense. If the prosecution offers a take-it-or-leave-it plea bargain before disclosing exculpatory evidence, the defendant may cave to the pressure, throwing away a good chance of an acquittal.
12. Long sentences deter crime. In the United States, we have over 2.2 million people behind bars. Our rate of approximately 716 prisoners per 100,000 people is the highest in the world, over 5 times higher than that of other industrialized nations like Canada, England, Germany and Australia. Sentences for individual crimes are also far longer than in other developed countries. For example, an individual convicted of burglary in the United States serves an average of 16 months in prison, compared with 5 months in Canada and 7 months in England. And the average prison sentence for assault in the United States is 60 months, compared to under 20 months in England, Australia and Finland.
Incarceration is an immensely expensive enterprise. It is expensive for the taxpayers, as the average cost of housing a single prisoner for one year is approximately $30,000. A 20-year sentence runs into something like $600,000 in prison costs alone. Long sentences are also immensely hard on prisoners and cruel to their families, as it’s usually very difficult for a prisoner to re-integrate into his family and community after very long prison sentences.
We are committed to a system of harsh sentencing because we believe that long sentences deter crime and, in any event, incapacitate criminals from victimizing the general population while they are in prison. And, indeed, the United States is enjoying an all-time low in violent crime rates, which would seem to support this intuition.
But crime rates have been dropping steadily since the 1990s, and not merely in the United States but throughout the industrialized world. Our intuition about harsh sentences deterring crime may thus be misguided. We may be spending scarce taxpayer dollars maintaining the largest prison population in the industrialized world, shattering countless lives and families, for no good reason. As with much else in the law, the connection between punishment and deterrence remains mysterious. We make our decisions based on faith.
Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/14/12-reasons-to-worry-about-our-criminal-justice-system-from-a-prominent-conservative-federal-judge/
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True Black Liberalism. This judge should be disbarred and considered for sanctions.
http://www.thegatewaypundit.com/2015/10/black-louisville-judge-dismisses-entire-jury-because-theyre-white-video/ (http://www.thegatewaypundit.com/2015/10/black-louisville-judge-dismisses-entire-jury-because-theyre-white-video/)
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https://www.conservativereview.com/commentary/2016/01/senate-gop-must-not-confirm-any-more-obama-judges
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http://ij.org/new-mexico-abolished-civil-forfeiture-cops-continue-seize-cars-without-charging-owners-crime/
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I don't have an opinion :-o but I wonder why groups seem to be lobbying our representatives behind the scenes over this. Shouldn't we have a say in this? The Marc Levin is not our Mark Levin FYI:
http://www.breitbart.com/big-government/2016/05/15/exclusive-jeff-sessions-shell-groups-trying-to-convince-republican-lawmakers-to-back-prison-sentencing-reductions/
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http://www.theblaze.com/stories/2016/05/16/for-the-record-how-the-government-can-seize-your-money-without-charging-a-crime/?utm_source=Sailthru&utm_medium=email&utm_campaign=Firewire%20HORIZON%205-16-2016%20final&utm_term=Firewire
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http://www.theblaze.com/stories/2016/05/16/for-the-record-how-the-government-can-seize-your-money-without-charging-a-crime/?utm_source=Sailthru&utm_medium=email&utm_campaign=Firewire%20HORIZON%205-16-2016%20final&utm_term=Firewire
You'd think we have a court system to protect these kinds of rights.
Of course half of our politics is based on seizing others people's assets, so it looks and sounds pretty normal when you see it happen. They took his business but the money went to a good cause so it was overall a good thing... ...if ends justify means and if rule of law means NOTHING.
I keep saying, look at how we look like Venezuela. This is nearly the same story as posted there, seizing businesses, jailing owners. We just haven't traveled as far yet down the same path.
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http://www.funnyordie.com/videos/328728bb97/coheed-and-cambria-sing-antonin-scalia-s-dissenting-opinions
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http://rare.us/rare-politics/populist/rand-paul-introduces-the-most-sweeping-reform-of-civil-asset-forfeiture-law-in-decades/
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Having given it a look, I paste this from another thread even though it is Breitbart:
http://www.breitbart.com/big-government/2017/03/21/impartiality-of-federal-judge-who-blocked-trump-eo-may-be-in-question/
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March 24, 2017 7:23 p.m. ET
12 COMMENTS
As liberals howl that Republican states have become redoubts of right-wing radicalism, it’s worth highlighting a civil forfeiture reform backed by the ACLU that Mississippi GOP Governor Phil Bryant signed last week with bipartisan legislative support.
Amid a broader push to rationalize criminal justice, many states are reviewing their civil forfeiture laws that allow law enforcement agencies to seize property they suspect to be related to a crime without actually having to obtain a conviction or even submit charges. Police and prosecutors can auction off the property and keep the proceeds to pad their budgets.
If the defendant is later found innocent, it can take years to repossess the confiscated property. Since the legal expenses may exceed the property’s value, many don’t bother trying. Perverse incentives also create a huge potential for abuse. Prosecutors might agree to reduce charges if defendants don’t contest their forfeited property. Police could seize items with high resale values and then conjure a criminal connection. In 2015 the Mississippi Bureau of Narcotics snatched ATVs, flat-screen TVs, boat motors, 18-wheelers, tablets and even power drills.
Like many states, Mississippi required little accountability by law enforcement. In one case, a woman’s furniture was seized on suspicion that the items were purchased by her boyfriend with drug proceeds. After the charges were dismissed, most of the furniture save a couch were returned. What happened to the couch remains a mystery.
Mississippi’s reforms, which were pushed by the Institute for Justice and had nearly unanimous support in the legislature, would curb the most egregious abuses. Law enforcers would have to obtain a seizure warrant within 72 hours and prosecute within 30 days, so they couldn’t take property while trying to formulate a case. Agencies would also be required to publish a description of the seized property along with its value and petitions contesting the forfeiture to an online public database.
Although agencies won’t have to account for how they spend the forfeiture windfall, the public will finally be able to police misconduct by law enforcement in criminal raids. That’s something even liberals can cheer.
Appeared in the Mar. 25, 2017, print edition
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http://thehill.com/homenews/senate/325515-the-hills-whip-list-where-dems-stand-on-trumps-supreme-court-nominee
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http://www.therecord.com/news-story/7208120-atlanta-family-battling-state-over-right-to-name-daughter-allah/
Two parents with different last names decided they want to name their child "allah" as the last name. So Georgia law prohibits that and of course the ACLU is fighting their "battle" for them.
Suddenly this is advertised by the libs as a stand for the use of the name allah. From what I can tell the issue is not the muslim name but that the parents have chosen a last name that is not duplicative of theirs.
So anyone can name their child with a different last name. So Obama could name his kids the last name of "aloysuis" if he chose to and that according to the ACLU is just dandy
Children would now have completely different last names from the parents.
It is certainly no coincidence the F n libs choose this case to represent since the name chosen is the muslim god name allah.....
To prove my point -
Notice it is not the first or middle names of allah but the parents feel they are special more than anyone else in the history of the US and they should be able to use allah as the last name. I submit that one of them ought to legally change his or her last name to allah then name the kid allah. => problem solved!!!! no case no argument and issue.
More liberal crap
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http://www.scotusblog.com/2017/03/argument-analysis-seemingly-unanimous-unsurprising-view-statutory-term-obtained-limits-forfeiture/
"The law of asset forfeiture has become intricate and complicated since Congress enacted and subsequently amended several forfeiture statutes, beginning in 1970. Some of those complexities were explored in Wednesday morning’s argument in Honeycutt v. United States."
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Fascinating read-- thank you Big Dog.
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WASHINGTON — The Trump administration has sent the American Bar Association into exile, ending the group’s semiofficial role in evaluating candidates for the federal bench.
In a statement on Friday announcing the development, Linda A. Klein, the group’s president, said it had provided prenomination evaluations of potential judicial candidates to every administration since that of Dwight D. Eisenhower, with the sole exception of that of George W. Bush.
The bar association recently gave its highest rating to Judge Neil M. Gorsuch, President Trump’s Supreme Court nominee. The administration and Republican senators have repeatedly relied on the endorsement as proof that Judge Gorsuch deserved to be confirmed.
Donald F. McGahn II, the White House counsel, notified the group of the decision to cut them out of the vetting process in a March 17 letter to Ms. Klein.
“Like previous administrations,” Mr. McGahn wrote, “we will release information regarding each nominee in a manner that provides equal access to all interested groups. But we do not intend to give any professional organizations special access to our nominees.”
Some studies have concluded that the bar association, a private trade group that often takes liberal positions, tends to favor the nominees of Democratic presidents.
In her statement, Ms. Klein said the A.B.A. had conducted “an objective, nonpartisan review of the professional competence, integrity and judicial temperament of those who would have lifetime appointments to our federal courts.”
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Several prominent Republican appointees to federal appeals courts have received critical evaluations. Judges Richard A. Posner and Frank H. Easterbrook, both on the federal appeals court in Chicago; J. Harvie Wilkinson III, on the federal appeals court in Richmond, Va.; and Alex Kozinski, on the federal appeals court in San Francisco, all received mixed ratings.
In an interview on Friday, Judge Kozinski said his ratings had been particularly low. “I don’t see why one group in particular, all locked up by essentially big-firm lawyers, should have this special status,” he said.
Among other nominees of Republican presidents, Justice Clarence Thomas was given a split rating of “qualified” and “not qualified.” Judge Robert H. Bork, whose nomination was rejected by the Senate in 1987, received a curious decision, with the majority calling him “well qualified,” but four members saying he was “unqualified.”
Republicans have had less to complain about recently. Mr. Bush’s two appointees to the Supreme Court, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., both received the group’s highest rating.
“We do not give the ‘well qualified’ rating lightly,” Nancy Scott Degan, an official of the bar association, said last week at Judge Gorsuch’s confirmation hearings. The group had also given its highest rating to Judge Merrick B. Garland, President Barack Obama’s Supreme Court pick, whose confirmation proceedings were blocked by Senate Republicans.
Ms. Degan said the group’s evaluations were limited to candidates’ integrity, professional competence and judicial temperament. Ideology and politics were out of bounds, she said.
Amy Steigerwalt, a political scientist at Georgia State who has studied the A.B.A.’s role in judicial nominations, said she was surprised by the move. “There does seem to be in this administration a backing away from the establishment,” she said.
Ms. Klein of the A.B.A. said her group “will continue to provide its objective evaluations to the Senate Judiciary Committee as part of the judicial confirmation process.”
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http://thehill.com/regulation/administration/328923-sweeping-change-at-doj-under-sessions
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*Another* Brockster judge (the left fifth's column) blocks Trump again:
https://en.wikipedia.org/wiki/William_Orrick_III
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*Another* Brockster judge (the left fifth's column) blocks Trump again:
https://en.wikipedia.org/wiki/William_Orrick_III
I was just going to look up the same thing and see if this was Obama's legacy.
The left's goal is to always continue governing long after they leave office.
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http://thefederalistpapers.org/us/breaking-judge-overturns-another-trump-order-this-is-big
“Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience.” —Alexander Hamilton (1787)
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http://www.hollywoodreporter.com/thr-esq/donald-trump-can-destroy-records-judicial-review-justice-department-tells-court-1046929
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The ‘Resistance’ vs. George Washington
If a president can’t take emoluments, the founders were crooks.
Louis XVI in his coronation robes, painted by Antoine Francois Callet (1741-1823).
Louis XVI in his coronation robes, painted by Antoine Francois Callet (1741-1823). Photo: DeAgostini/Getty Images
By Josh Blackman and
Seth Barrett Tillman
Oct. 15, 2017 6:13 p.m. ET
54 COMMENTS
The Trump administration has been under siege from the left’s self-professed “legal resistance.” Perhaps the highest-profile example involves President Trump himself. Several lawsuits allege that his business interests run afoul of the Constitution’s Foreign Emoluments Clause.
The Justice Department has done a good job defending the president’s actions on most issues—but not on this one. The department still has refused to make its strongest argument: that the Foreign Emoluments Clause does not apply to the president. The Trump administration needs to throw out a 2009 opinion from the department’s Office of Legal Counsel that concluded, without any analysis, that the Foreign Emoluments Clause “surely” applied to President Obama. Instead the department should defend the president’s unitary role in the separation of powers—a position the Constitution supports.
The Foreign Emoluments Clause says that “no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” These lawsuits argue that when foreign dignitaries pay to stay at Trump hotels, they’re putting money in Mr. Trump’s pocket, and such payments constitute an unlawful foreign emolument or a present. But the constitutional clause refers only to persons holding an office under the U.S. The Constitution’s language extends only to appointed positions, not to elected ones.
History backs up this reading. Treasury Secretary Alexander Hamilton set the precedent in 1793: When the Senate requested a financial statement listing the “emoluments” of “every person holding any civil office or employment under the United States,” Hamilton’s comprehensive report excluded all elected offices—the president, vice president and members of Congress—but included appointed positions in all three governmental branches.
George Washington accepted, as a diplomatic gift from France, a framed full-length portrait of King Louis XVI. Thomas Jefferson accepted a bust of Czar Alexander I from Russia. Neither president sought Congress’s consent to keep the gifts.
But for some reason the Trump administration continues to stand by the 2009 opinion, drawn up when Mr. Obama was being awarded the Nobel Peace Prize, which came with a $1.4 million award. The Office of Legal Counsel concluded Mr. Obama could accept the money, but the opinion simply assumed the Foreign Emoluments Clause applied to the presidency. It was taken as a given with no citations either to judicial rulings or to the practices established by Washington and other founders.
We have submitted friend-of-the-court briefs in New York, the District of Columbia and Maryland explaining this argument. At a minimum, the historical record should give Justice pause. But ideally the department would abandon the 2009 opinion and argue in court that the president is not governed by this clause. Mr. Trump’s adversaries are arguing that Washington and Jefferson were crooks.
Mr. Blackman is a law professor at the South Texas College of Law of Houston. Mr. Tillman is a law lecturer at Maynooth University, Ireland.
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Gorsuch Joins Court’s Liberals Over Protections for Criminal Defendants
Case explores whether defendants give up all rights to appeal after entering a plea bargain
By Jess Bravin
Oct. 4, 2017 6:23 p.m. ET
WASHINGTON—Justice Neil Gorsuch, President Donald Trump’s appointee to the Supreme Court, joined liberal colleagues Wednesday in sharply questioning government arguments that criminal defendants forfeit all rights to appeal after entering a plea bargain.
Since his April appointment, Justice Gorsuch’s remarks and votes nearly always have placed him on the court’s right. This week’s arguments suggested, however, that like his late predecessor, Justice Antonin Scalia, Justice Gorsuch’s legal philosophy sometimes may lead him to split with fellow conservatives and back procedural protections for criminal defendants.
Wednesday’s case involved Ronald Class, a High Shoals, N.C., retiree who in May 2013 illegally parked his Jeep Wrangler in a U.S. Capitol lot. Police found the vehicle contained several loaded weapons, including a 9mm Ruger pistol, a .44-caliber Taurus pistol and a .44- caliber Henry rifle. Although he had a North Carolina concealed weapons permit, Mr. Class was arrested under a federal law prohibiting guns on the Capitol grounds.
According to the government’s brief, Mr. Class told Federal Bureau of Investigation agents that “he was a ‘Constitutional Bounty Hunter ’ and a ‘Private Attorney General’ who traveled the nation with guns and other weapons to enforce federal criminal law against judges whom he believed had acted unlawfully.”
Mr. Class later reached a plea bargain with prosecutors and was sentenced to 24 days’ imprisonment and a year of supervised release. Although plea bargains typically restrict appeals from defendants, Mr. Class then sought to have his conviction overturned on several grounds, including that he had a Second Amendment right to take his guns to the Capitol.
A federal appeals court dismissed the appeal in an unsigned order, noting that Mr. Class had told the trial judge he understood the plea bargain required him to forgo all but a few technical forms of appeal. But on Wednesday, an attorney for Mr. Class said that Supreme Court precedents established that defendants retained the right to raise constitutional claims even after pleading guilty.
A Justice Department attorney, Eric Feigin, argued that the government was entitled to assume Mr. Class had waived all appeals. “There’s a serious information imbalance here. Only the defendant knows what kinds of claims he might want to bring after a guilty plea and in what respects he doesn’t intend his guilty plea to be final,” he told the court.
Justice Gorsuch appeared incredulous. “Mr. Feigin, is this information asymmetry problem a suggestion that the government lacks sufficient bargaining power in the plea bargaining process?” he asked.
“No, your honor,” Mr. Feigin said.
Federal and state prosecutors win more than 90% of criminal cases without persuading a jury; defendants nearly always agree to plead guilty under threat of harsher punishment should they be convicted after opting for a trial.
Picking up on a question by Justice Stephen Breyer, Justice Gorsuch suggested that a defendant who pleads guilty admits the factual allegations in an indictment—but not that those actions necessarily are illegal.
“You’re admitting to what’s in the indictment. Isn’t that maybe the most natural and historically consistent understanding of what a guilty plea is?” Justice Gorsuch said.
Justice Gorsuch’s remarks Wednesday followed similar pro-defendant positions he took Monday. That case involved a Filipino with permanent U.S. residency who had been convicted of burglary and who argued that the criteria Congress adopted authorizing deportation of immigrants for committing violent crimes were unconstitutionally vague.
Wednesday’s other case, involving a lawsuit by 16 partygoers alleging they were improperly arrested by Washington, D.C., police, may have been more illuminating about some justices’ personal experiences than their views on constitutional law.
One question involved whether police legitimately could assume from the threadbare décor and detritus on the floor that the partygoers were using a vacant home without permission. Justice Gorsuch, who recently has relocated to the Washington area from Colorado, appeared concerned that could put new tenants in legal jeopardy.
“We all live with folding chairs for a period of time when we move,” he said.
Justice Sonia Sotomayor challenged whether the mess the officers found was legally significant. “What happens during a party? ” she said. “Disarray. So what was different in this disarray from a party? ”
Justice Breyer suggested that the revelers would have no reason to doubt that they lacked the owner’s permission to gather at the house.
“Younger people frequently say, ‘Hey, there’s a party at Joe’s house.’ And before you know it, 50 people go to Joe’s house,” said Justice Breyer, 79 years old. “I would think the people who went over there, whether they knew Joe, heard it secondhand, thirdhand or whatever, are normally, naturally going to think that Joe has a right to the house.”
Justice Kagan questioned whether the alleged presence of marijuana smoke and alcohol indicated criminal activity in the house.
“From the partygoers’ point of view, they just know that Joe is having a big party, and it’s a good time, and—and maybe there will be some liquor and maybe there will be some recreational drugs,” she said.
“There are these parties that once, long ago, I used to be invited to,” she said, to the courtroom’s laughter. “Where you didn’t know the host, but you know Joe is having a party. And can I say that long, long ago, marijuana was maybe present at those parties?” she said.
Decisions in the cases—Class v. U.S., Sessions v. Dimaya and District of Columbia v. Wesby—are expected before July.
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The Citizens United Disaster That Wasn’t
Critics warned that a flood of corporate money would irreparably taint politics. No such thing happened.
Photo: Getty Images
By Floyd Abrams
Oct. 16, 2017 6:56 p.m. ET
101 COMMENTS
When the Supreme Court announced its 2010 decision in Citizens United v. Federal Election Commission, the public condemnation from certain quarters was fierce. The notion that a corporation would spend large sums of money to support or denounce a political candidate struck many Americans as deeply troubling. Some saw the court’s 5-4 ruling, which held that corporate political spending is protected by the First Amendment, as constituting a grave threat to the democratic fabric of society.
“Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests,” Justice John Paul Stevens wrote in a 90-page dissenting opinion. He retired from the Supreme Court at the end of that term and later suggested a constitutional amendment to overturn the ruling.
Many of Citizens United’s harshest critics imagined a nation controlled by multibillion-dollar corporations that would dictate business-friendly legislation to paid-for lawmakers. A New York Times editorial predicted that the ruling would “thrust politics back to the robber-baron era of the 19th century” by allowing “corporations to use their vast treasuries to overwhelm elections.” The Washington Post warned that “corporate money, never lacking in the American political process, may now overwhelm both the contributions of individuals and the faith they may harbor in their democracy.” The San Francisco Chronicle warned that “voters should prepare for the worst: cash-drenched elections presided over by free-spending corporations.”
Since those predictions, two presidential and four congressional elections have come and gone. There’s now solid data, filed with the Federal Election Commission, showing how much money corporations have spent in recent elections. It turns out the apocalyptic forecasts were not just inaccurate but utterly insupportable.
WSJ
It is true that in the wake of Citizens United many groups sprang up that are permitted to spend unlimited sums supporting or opposing candidates and issues. These so-called super PACs have proved themselves a political force. But the money they have spent since 2010 has not come primarily—or even mostly—from corporations.
Super PACs across the political spectrum raised $1.8 billion between Jan. 1, 2015, and Dec. 31, 2016, according to data analyzed by the Center for Responsive Politics. Of that, $1.04 billion came from individual donors and $242 million from unions, trade associations, politically active nonprofits and other organizations. Only $85 million was contributed by business corporations. The table nearby shows the top 20 donors. Among the Top 40 contributors to super PACs during the 2016 election cycle were eight unions and only one corporation.
These numbers do not include donations to campaigns from corporate political action committees. That money comes not from the corporate treasury but from people employed by the company or otherwise connected to it. In any event, corporate PAC donations are on the small side compared with the numbers above—$1.9 million to presidential candidates in 2008 (before Citizens United), $855,348 in 2012 and $942,116 in 2016.
The data suggest two conclusions. The first was summarized by Brooklyn Law School Professor Joel Gora after the 2012 election: “The predicted wave of corporate financial political intervention never materialized. Of all of the super PAC independent expenditure spending that escalated in the 2012 election, very little of it came from corporate contributions.” That remained true in 2016 and probably will into the foreseeable future.
The second is that corporations remain conservative—with a small “c.” Fear of public disapproval limits their appetite for potential controversy, so they do their best to steer clear of high-profile political entanglements. A comment often attributed to Michael Jordan captures this attitude: “Republicans buy sneakers, too.” The unwillingness of large corporations to offend their actual or desired customers is difficult to overstate.
Despite the bombastic rhetoric and dire predictions, corporations and their vast treasuries have not dominated elections post-Citizens United. In fact, corporations have donated a comparatively small percentage of the money spent in political campaigns since 2010. It would be nice if those who expected a darker world would acknowledge that fact.
Mr. Abrams represented Sen. Mitch McConnell in the Citizens United case and participated in oral argument in the Supreme Court. An extended version of this article will appear as a chapter in “The Free Speech Century,” to be published next year by Oxford University Press.
Appeared in the October 17, 2017, print edition.
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new "crime" of the century :
seeking "dirt" on Clinton.
"opposition research" :
seeking "dirt" on Trump (or any Republican for that matter)
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new "crime" of the century :
seeking "dirt" on Clinton.
"opposition research" :
seeking "dirt" on Trump (or any Republican for that matter)
And they are so good at blurring issues. There is nothing wrong with paying for information. The information economy is the world we live in.
It is another matter to pay people to create and spread false information about someone. Is there a law against that, civil penalties? The Dossier, the golden showers, it was because the Obamas (black people?) slept in that bed was too bizarre to be believed be believed by anyone in the first place. His failings are much more simple than that, boobs, pussy, money, power, ego, not necessarily in that order. In a way it kind of vindicates him that the best opposition researchers in the world needed to make stuff up to sell a report. DID THE PEOPLE PAYING FOR THE DOSSIER KNOW IT WAS FALSE? (Or are they dumber than a box of rocks and want to be hired to analyze intelligence...) HRC is, still, sadly, the leader of her party and it was the DNC itself caught red-handed. No political ramifications? No shame?? Just 'hey, that's what we do'.
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The BBC reports that this guy listed investigating paranormal activity on his resume.
http://thehill.com/homenews/senate/360911-republicans-still-backing-trump-judicial-nominee-with-no-trial-experience
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https://www.nytimes.com/2017/11/23/opinion/conservatives-weaponize-federal-courts.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region®ion=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region
The Dems have been legislating through the courts for decades. What she’s upset about isn’t that the courts may be used that way, but that they may be used that way by someone else.
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She is senior counselor to the President - so she cannot say something good or bad about a candidate running for a Senate seat? This can't be serious?
http://thehill.com/homenews/news/362300-us-special-counsel-opening-up-case-file-over-accusation-that-conway-broke-the
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https://www.washingtontimes.com/news/2017/nov/30/trump-judicial-pick-didnt-disclose-disturbing-post/?mkt_tok=eyJpIjoiTldZd1pqRm1aV1psWWpGaiIsInQiOiJHYStpU1Npa29MZ2xCRnlvVlwvVWR0eVI4dTVUc0xsaGZXSlpXcTlEenJjaHhQOVwvbWpZK3JPSlJVb0FPY1JYQlAwcHhsQlc2czlOWHJrQ2pkak5rWVllUHNrcE90cWV2NUFLaTN0blluWHp1VHg3N3NWM2dkeVJKVEI4Tm5PUWxyIn0%3D
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http://thehill.com/homenews/senate/365175-three-trump-judicial-nominees-stumble-with-republicans
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By The Editorial Board
Feb. 21, 2018 7:25 p.m. ET
117 COMMENTS
A unanimous Supreme Court struck a blow for the plain reading of the law on Wednesday, but a pair of dueling concurrences deserve broader attention for what they say about the different methods of legal interpretation on the High Court today.
Justice Ruth Bader Ginsburg wrote for the full Court in rebuking the Securities and Exchange Commission for reinterpreting the Dodd-Frank Act despite the clear text of the statute (Digital Realty Trust v. Somers ). Paul Somers sued Digital Realty Trust , claiming protection as a whistleblower for filing a complaint about a securities violation. He might have sued under the 2002 Sarbanes-Oxley law that protects whistleblowers if they file complaints with the Labor Department within 180 days.
But instead he sued in federal court under Dodd-Frank, which lets whistleblowers who are retaliated against sue and receive double back pay. The problem is that Dodd-Frank defines a whistleblower as someone who provides information about a securities violation to the SEC. Mr. Somers didn’t do that, but the SEC claimed that didn’t matter because Congress intended the law to protect people like Mr. Somers no matter the law’s text.
Citing precedent, Justice Ginsburg rightly wrote that “‘When a statute includes an explicit definition, we must follow that definition,’ even if it varies from a term’s ordinary meaning. This principle resolves the question before us.” She then went on an extended and needless tour of congressional intent that may invite legal mischief down the road.
This drew a highly entertaining concurrence from Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, that agreed with the judgment but rapped Justice Ginsburg’s opinion for attempting to find the “purpose” of a statute primarily in a single “Senate Report.”
Justice Thomas pointed out that the Court is “‘governed by what Congress enacted rather than by what it intended.’” And to prove his point he included a footnote with a hilarious colloquy between former Senators Bill Armstrong and Bob Dole about a Finance Committee report. The exchange is a political “Who’s on First?”
Justice Thomas’s concurrence set off Justice Sonia Sotomayor, the Court’s most left-leaning voice, who wrote her own concurrence defending the Court’s reliance on legislative history, including Senate reports.
It’s a telling exchange. Justice Sotomayor wants the judicial running room of reports and history through which she can drive her political preferences. Justice Thomas wants the Court to follow what the law actually says
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https://www.washingtontimes.com/news/2018/feb/27/judges-use-nationwide-injunctions-block-donald-tru/?utm_source=Boomtrain&utm_medium=manual&utm_campaign=20171227&utm_term=newsletter&utm_content=morning
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for a mug shot:
http://www.nydailynews.com/new-york/women-forced-hijabs-mugs-settle-city-article-1.3845434
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https://www.nationalreview.com/2018/03/nationwide-injunctions-stop-elected-branches-enforcing-law/
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for a mug shot:
http://www.nydailynews.com/new-york/women-forced-hijabs-mugs-settle-city-article-1.3845434
I am so old, I can remember when I was told sharia law would never influence the American legal system.
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https://www.yahoo.com/news/trump-loses-bid-dismiss-accusers-defamation-lawsuit-181859051.html
A political decision form a political judge .
So now Trump is not above the law in a a civil suit from something alleged to have occurred 9 yrs before he is President now right at an election time!
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Same standard was applied to President Bill Clinton.
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"Same standard was applied to President Bill Clinton."
I don't remember details. Paula Jones?
Assuming you are correct I have no leg to stand on then. :-o
Trump! (why God? is this your way at humor? :cry:)
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Right, settled law in the Paula Jones case where he dropped trow in a trooper arranged meeting. His lying under oath led the way to impeachment and disbarment, making him until recently the feminists' favorite leader.
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https://www.judicialwatch.org/press-room/press-releases/judicial-watch-obtains-irs-documents-revealing-mccains-subcommittee-staff-director-urged-irs-to-engage-in-financially-ruinous-targeting/?utm_source=deployer&utm_medium=email&utm_campaign=newswatch&utm_term=members&utm_content=20180627192108
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https://www.politico.com/story/2018/06/27/anthony-kennedy-replacements-supreme-court-trump-679941
next is RBG to make it 7 to 2.
Huff Posts "darkest hour" :-) : Trump must be something right.
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https://www.nationalreview.com/2018/06/anthony-kennedy-retirement-more-originalist-supreme-court/
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https://www.nationalreview.com/2018/07/federal-district-judges-should-not-make-immigration-law-for-whole-country/
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Good to see this very important question getting traction. No surprise that Justice Thomas speaks up about it!
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second post
Some juicy political insider stuff here :evil: :evil:
https://townhall.com/tipsheet/mattvespa/2018/07/10/did-the-trump-white-house-do-some-gradea-trolling-with-kavanaugh-pick-how-they-treated-the-media-yesterday-was-a-clue-n2498893
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Important Message from Wayne LaPierre on Trump's Nomination of Brett Kavanaugh to the U.S. Supreme Court
Dear Second Amendment Supporters,
In the 2016 elections, NRA members and Second Amendment supporters across America made clear that the makeup of the U.S. Supreme Court was an issue of critical importance. Your work and support for President Trump have resulted in the nomination of a second outstanding justice to the court. On Monday, President Trump once again delivered on his promise of nominating constitutionally sound Supreme Court justices. You should be proud of your successful defense and protection of the future of our Second Amendment freedoms.
During his tenure on the U.S. Court of Appeals for the D.C. Circuit, Judge Brett Kavanaugh wrote a strong dissenting opinion in opposition to Washington, D.C.’s ban on commonly owned semi-automatic firearms and registration requirement by applying a historical test consistent with Justice Antonin Scalia’s majority opinion in the Heller decision.
The narrow 5-4 majority that recognized a fundamental, individual right to self-defense in the landmark Heller and McDonald decisions will be secured with Kavanaugh's confirmation. The NRA’s six million members and tens of millions of supporters who voted for President Trump have ensured that the framers’ vision of constitutional freedom will have a strong voice on the court for decades to come.
Chris Cox, executive director of NRA's Institute for Legislative Action (NRA-ILA), along with the entire ILA team stand ready to fight for the confirmation of Judge Kavanaugh, but we need your help.
"NRA-ILA will activate the tens of millions of Second Amendment supporters throughout the country in support of Judge Kavanaugh," said Cox. "Securing his confirmation begins with the NRA's six-million members. We need your help in the coming days to ensure your U.S. senators vote to confirm Judge Kavanaugh. Freedom depends on you."
This is a great opportunity in American history to protect our constitutional freedoms for generations.
Yours in Freedom,
Wayne LaPierre
NRA Executive Vice President
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Washington, June 25. Photo: © Erik Mcgregor/Pacific Press via ZUMA Wire
By Robert McNamara and
David Bookbinder
July 19, 2018 6:28 p.m. ET
41 COMMENTS
Across the country activists are speaking out against the use of eminent domain to construct natural-gas pipelines. Some have climbed trees and refused to come down. The agency in charge of approving these pipelines—the Federal Energy Regulatory Commission, or FERC—is reconsidering how eminent domain, by which the government legally expropriates private property for public purposes, is used.
While we stand with those who stand for individual rights—and enjoy a good tree-climb—protests like these can only go so far. The U.S. is a country of laws, and if a court rules that eminent domain can be used to construct a pipeline, then Americans must respect that ruling. But judges haven’t actually issued many such rulings. Right now FERC presides over a system that strips property owners of their rights without courts getting involved.
When FERC approves the use of eminent domain to build a pipeline, landowners have the right to appeal to a federal court only after they have asked the agency to reconsider its decision and had their request denied. But FERC has developed the habit of granting these requests so that it can draw out the time it spends “thinking” about them. While FERC dawdles, the pipeline companies use eminent domain to snatch thousands of landowners’ properties free from judicial review.
Furthermore, FERC’s approval comes with eminent domain authority, allowing pipeline companies to seize property before seeking other necessary approvals. In one instance, a company seized part of a Pennsylvania family’s property to build a FERC-authorized pipeline only to have the project fall apart when officials in New York refused to grant a permit to build another part of the pipeline. The taking, which also involved cutting down more than 500 of the family’s trees, was ultimately for nothing.
As rotten as these procedural shenanigans are, FERC is guilty of a more consequential deception. Under current law, the agency can approve a pipeline without telling property owners that decisions will be effectively unreviewable unless they file an immediate appeal. When states have behaved this way, federal courts have deemed it unconstitutional. Yet FERC continues to harm eminent-domain victims by failing to inform them how to protect their rights.
No one’s property should be taken without a real chance at judicial review. Property owners who go to court don’t always win, but some do. Property owners in both Pennsylvania and Texas have persuaded state judges to reject pipeline-related property seizures in recent years. Perhaps property owners who’ve been subject to eminent domain expropriations by FERC-approved pipelines would find similar success. The agency should afford them the chance to find out.
Mr. McNamara is a senior attorney with the Institute for Justice. Mr. Bookbinder is chief counsel for the Niskanen Center
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https://thehill.com/homenews/senate/417225-republicans-primed-to-push-through-dozens-of-trumps-court-picks
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https://thehill.com/homenews/senate/417225-republicans-primed-to-push-through-dozens-of-trumps-court-picks
Doing his best to maintain McCain’s legacy of backstabbing.
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There has got to be some solution to this:
https://www.breitbart.com/politics/2018/11/20/donald-trump-unlike-hillary-clinton-ivanka-trump-did-not-delete-private-emails/
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yes go ahead and run in '20 . see how far you get :
https://townhall.com/tipsheet/mattvespa/2018/11/28/sen-jeff-flakes-nauseating-obstructionism-over-protect-mueller-bill-delayed-21-n2536686
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We will know in a few years as we see crime rates go back up and countless new victims .
And Jared the "genius" will look likeJared the "jerk"
The Dems won't care as long as they increase their voter rolls.
That said I don't know enough to have a definite opinion. I am not against giving people second chances but wasn't that what "3 strikes and your out" was kind of about?
https://www.conservativereview.com/news/opponents-of-the-cotton-amendment-to-prison-reform-bill-exposed-the-whole-lie/
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We will know in a few years as we see crime rates go back up and countless new victims .
And Jared the "genius" will look likeJared the "jerk"
The Dems won't care as long as they increase their voter rolls.
That said I don't know enough to have a definite opinion. I am not against giving people second chances but wasn't that what "3 strikes and your out" was kind of about?
https://www.conservativereview.com/news/opponents-of-the-cotton-amendment-to-prison-reform-bill-exposed-the-whole-lie/
Everyone's competing for the prestigious felon vote.
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Charles Kushner pleaded guilty to 18 counts of illegal campaign contributions, tax evasion, and witness tampering. and served time in federal prison. All his political contributions were to Democrats prior to 2016.
[When he got out of prison] he bought the 666 Fifth Avenue building in Manhattan for US$1.8 billion.
I see the point of freeing up space taken by non-violent offenders but that also means going softer on white collar rich guys.
Maybe they should reform the laws before they reform the penalties.
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Roberts votes with liberals:
https://www.marketwatch.com/story/supreme-court-votes-5-4-to-keep-trump-administration-from-enforcing-ban-on-asylum-applications-by-illegal-border-crossers-2018-12-21?siteid=yhoof2&yptr=yahoo
I admit I do not know the Consititutional issues before the Court on this but it goes without saying that Mark
Levin is correct. We the people have not had any say in immigration policy for a long time. The politicians always sell us out, it winds up in Courts and then we are sold out again:
https://www.conservativereview.com/news/levin-heres-just-how-little-influence-we-the-people-have-had-on-immigration-policy/
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Byron is always worth listening to as he has well informed opinions:
https://www.washingtonexaminer.com/opinion/columnists/byron-york-judges-accusations-mar-michael-flynn-sentencing-hearing
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https://www.dailysignal.com/2019/01/16/the-left-attacks-trumps-pick-to-replace-brett-kavanaugh-for-her-smart-college-writings/?mkt_tok=eyJpIjoiTUdWaU5qSTFZbVJqTjJNMiIsInQiOiJTWlU4UWpQckx2ZExyRWpXb0lPTUVrcE9QZVZDcXYrZ2FyY3Nqa3Z1eXNHaXp0WjJcL1BcLzNyajZxTm1iRGRDZm4rXC9ITkt6TGI1cjR4VWZxU1lUczVJWkwwdlRWSlE1ZW1CcE5uRm5Jc2l2NHpYaGhOSVF0dXhJTER0YjdiVWFjQSJ9
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https://www.dailysignal.com/2019/01/16/the-left-attacks-trumps-pick-to-replace-brett-kavanaugh-for-her-smart-college-writings/?mkt_tok=eyJpIjoiTUdWaU5qSTFZbVJqTjJNMiIsInQiOiJTWlU4UWpQckx2ZExyRWpXb0lPTUVrcE9QZVZDcXYrZ2FyY3Nqa3Z1eXNHaXp0WjJcL1BcLzNyajZxTm1iRGRDZm4rXC9ITkt6TGI1cjR4VWZxU1lUczVJWkwwdlRWSlE1ZW1CcE5uRm5Jc2l2NHpYaGhOSVF0dXhJTER0YjdiVWFjQSJ9
Yes. Wait until you see how they go after RBG's replacement.
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" Yes. Wait until you see how they go after RBG's replacement."
I think we are going to have lots of fun driving libs insane when that occurs
Haven't heard anything back from the pathology reports from her surgery .
Should have at least some information .
genetic testing if done might take a while but most of it would certainly be back by now for a national figure.
Results being kept quiet for more than just personal health reasons?
She could live for another while longer but 2 spots in the lung is usually not a good sign.
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https://thehill.com/regulation/court-battles/443211-trump-seeks-to-limit-judges-powers-on-injunctions-after-legal
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https://thehill.com/regulation/court-battles/443211-trump-seeks-to-limit-judges-powers-on-injunctions-after-legal
I thought "Orange MAN BAD" gave Hawaiian judges the power to override anything.
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Apparently Bad Orange Man has other plans :evil:
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https://www.npr.org/sections/thetwo-way/2017/08/01/540903038/u-s-citizen-held-by-immigration-for-3-years-denied-compensation-by-appeals-court?utm_campaign=storyshare&utm_source=facebook.com&utm_medium=social&fbclid=IwAR3cLEuHna2tSsmBasy5JT8dEPPOX6KMaAca914s_sp5MGI3b0hCxiCTPRY
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End Nationwide Injunctions
The Dreamers case shows how willful courts can ruin the chance for political compromise.
By William P. Barr
Sept. 5, 2019 6:37 pm ET
Illustration: Chad Crowe
When a federal court issues an order against enforcement of a government policy, the ruling traditionally applies only to the plaintiff in that case. Over the past several decades, however, some lower court federal judges have increasingly resorted to a procedural device—the “nationwide injunction”—to prevent the government from enforcing a policy against anyone in the country. Shrewd lawyers have learned to “shop” for a sympathetic judge willing to issue such an injunction. These days, virtually every significant congressional or presidential initiative is enjoined—often within hours—threatening our democratic system and undermining the rule of law.
During the eight years of the Obama administration, 20 nationwide injunctions were issued while the Trump administration has already faced nearly 40. Partisans who cheer this trend should realize that someday the shoe will be on the other foot. One can easily imagine the signature policies of a future Democratic administration—say, on climate change, immigration or health care—being stymied by courts for years on end.
The best example of the harm done by these nationwide injunctions is the current litigation over the Deferred Action for Childhood Arrivals program. In 2012, after Congress repeatedly failed to grant legal status to so-called Dreamers, the Obama administration declined to enforce the immigration laws against them. Five years later, the Trump administration announced it would restore enforcement of federal law, prompting Democrats to negotiate in search of a broad solution. Just as a compromise appeared near, a district court judge in San Francisco entered a nationwide injunction prohibiting the Trump administration from ending DACA, thus awarding the Democrats by judicial fiat what they had been seeking through a political compromise.
Far from solving the problem, the DACA injunction proved catastrophic. The program’s recipients remain in legal limbo after nearly two years of bitter political division over immigration, including a government shutdown. A humanitarian crisis—including a surge of unaccompanied children—swells at the southern border, while legislative efforts remain frozen pending Supreme Court resolution of the DACA case.
Under Article III of the Constitution, courts are supposed to apply the law to the parties before them—not to thousands or millions of third parties. The Framers rejected the idea that the courts should act as a “council of revision” with sweeping authority to reach beyond concrete controversies and rule on the legality of actions taken by the political branches. Moreover, the power of federal courts to issue injunctions derives from English practice, which allowed courts to restrain a defendant to the extent necessary to protect the rights of the plaintiffs in the case. Nationwide injunctions are a modern invention with no basis in the Constitution or common law.
Nationwide injunctions are also inconsistent with the mechanism the law recognizes to provide relief to nonparties: a class action, in which class members are bound by the result, win or lose, unless they opt out. Nationwide injunctions, by contrast, create an unfair, one-way system in which the democratically accountable government must fend off case after case to put its policy into effect, while those challenging the policy need only find a single sympathetic judge.
Proponents of nationwide injunctions argue that they are necessary to ensure that the law is uniform throughout the country. But the federal judiciary wasn’t made to produce instant legal uniformity. To the contrary, the system—in which local district courts are supervised by regional courts of appeal—was constructed to allow a diversity of initial rulings until a single, national rule could be decided by the Supreme Court.
This system has many virtues. It prevents a solitary, unelected, life-tenured judge from overriding the political branches and imposing on the nation potentially idiosyncratic or mistaken views of the law. A Supreme Court justice must convince at least four colleagues to bind the federal government nationwide, whereas a district court judge issuing a nationwide injunction needn’t convince anyone.
When the system works as it should, it encourages what one leading jurist has called “percolation”—the salutary process by which many lower federal courts offer competing and increasingly refined views on a legal issue before higher courts definitively resolve it. Allowing a single district court judge to issue a nationwide injunction against the government short-circuits this process. The first judge to issue an injunction effectively nullifies the decisions of all other courts that have already been issued—not only other courts’ decisions, but even those of higher appellate courts in other circuits.
For example, even though the U.S. Circuit Court of Appeals for the District of Columbia—often called the second-highest court in the land—vacated an injunction against the Trump administration’s policy on transgender military service, that decision had no practical effect. Two district judges had enjoined the policy nationwide. The Supreme Court’s intervention was necessary to fix this backward state of affairs.
By short-circuiting the process of percolation, nationwide injunctions cause critical policies to be litigated through a truncated, emergency process. When an important statute or policy is enjoined, the Justice Department must seek emergency relief from higher courts. The alternative is for the government to wait years for an appeals court to overturn the injunction before implementing a statute or policy. As a result, nationwide injunctions threaten to turn every case into an emergency for the executive and judicial branches.
Nationwide injunctions “are legally and historically dubious,” noted Justice Clarence Thomas, concurring in Trump v. Hawaii (2018). “If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.” It is indeed well past time for our judiciary to re-examine a practice that embitters the political life of the nation, flouts constitutional principles, and stultifies sound judicial administration, all at the cost of public confidence in our institutions.
Mr. Barr is U.S. attorney general.
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https://www.forbes.com/sites/nicksibilla/2019/07/10/trump-signs-new-law-to-protect-innocent-small-business-owners-from-irs-seizures/?fbclid=IwAR3QJavPbHrclUDSF82JANXTup-isXmGWNHS1hRg5IpHdoMi8MLxwV3xfBE#23e307cd454b
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https://www.vox.com/policy-and-politics/2019/9/12/20858813/steven-mensashi-ethnonationalism-trump-nominee
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https://abcnews.go.com/International/apple-google-microsoft-dell-tesla-named-lawsuit-deaths/story?id=67795965&cid=social_fb_abcn
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https://www.powerlineblog.com/archives/2020/01/we-now-know-fisa-court-must-go-wsj-edition.php
https://www.theepochtimes.com/fbi-director-deeply-regrets-fisa-court-errors-in-surveillance-of-trump-adviser_3202129.html
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https://www.powerlineblog.com/archives/2020/01/we-now-know-fisa-court-must-go-wsj-edition.php
https://www.theepochtimes.com/fbi-director-deeply-regrets-fisa-court-errors-in-surveillance-of-trump-adviser_3202129.html
And the FBI as well.
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https://www.wsj.com/articles/u-s-targets-drug-pricing-no-poach-deals-for-antitrust-action-in-2020-11579124098?mod=djem10point
U.S. Targets Drug Pricing, No-Poach Deals for Antitrust Action in 2020
Justice Department antitrust chief also promises decision on music licensing, criticizes states’ lawsuit against T-Mobile and Sprint
Assistant Attorney General Makan Delrahim said the Justice Department expects to bring its first-ever criminal case accusing employers of colluding not to poach each other’s workers. PHOTO: LEXEY SWALL FOR THE WALL STREET JOURNAL
By Brent Kendall
Jan. 15, 2020 4:34 pm ET
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WASHINGTON—The Justice Department’s antitrust division is preparing to tackle competition issues in several important markets, including alleged price-fixing in the generic-drug industry, rules for music licensing and purported employer collusion that limits options for sought-after workers.
In an interview with The Wall Street Journal this week, Assistant Attorney General Makan Delrahim, the Justice Department’s top antitrust official, said the department would act on those issues in the next several months. He said it was too soon to predict the outcome of his division’s highest-profile endeavor: an investigation of whether dominant tech firms are stifling competition.
“We’re well into the fairway of gathering data and evidence” on the tech probe, Mr. Delrahim said.
The department’s investigation of Alphabet Inc.’s Google includes a collaboration with state attorneys general, and the Justice Department is staying in touch with the Federal Trade Commission as both agencies probe Facebook Inc., he said. Separately, the department is considering whether Google should be allowed to acquire Fitbit Inc., the wearable fitness-product company.
Mr. Delrahim also said he was closely tracking how the National Collegiate Athletic Association was handling the issue of payment for college athletes, expressing concerns with the group’s restrictions on benefits and compensation.
As Mr. Delrahim bounced between meetings, a sprawling stack of papers dominated his conference room table, signaling what looks like a busy year of enforcement developments.
T-Mobile and Sprint
Among Mr. Delrahim’s most immediate concerns is the New York trial that will decide whether T-Mobile US Inc. can buy Sprint Corp. Thirteen states are challenging the merger even though the department and the Federal Communications Commission approved it after securing a menu of concessions from the carriers.
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Mr. Delrahim said he worries the merger market could suffer if the states prevail. Expert federal agencies found problems with the merger and fixed them, he said.
“I think if the states win, it creates major uncertainty in M&A,” Mr. Delrahim said, adding that he hopes the companies would appeal if they lose.
The plaintiff states, led by California and New York, fired back at the Justice Department’s arguments last week, saying states are independent enforcers and owe no deference to their federal counterparts.
Closing arguments took place Wednesday. Mr. Delrahim took an unexpected turn in the spotlight when the states introduced evidence showing he had exchanged text messages with Charlie Ergen, chairman of Dish Network Corp., as Mr. Ergen was negotiating a deal in which Dish would acquire assets from the merging companies designed to allow it to become a new wireless competitor. Critics questioned whether Mr. Delrahim was too involved in trying to engineer the agreement.
“I was doing my job to ensure consumers benefit in the end,” Mr. Delrahim said. “I was trying to make sure the divestiture buyer in Dish has the greatest chance of succeeding.”
Travel industry case looming
The Justice Department has a direct stake in a different merger trial set to begin Jan. 27 in Delaware. It sued to prevent Sabre Corp., the lead booking service for travel agents, from buying Farelogix Inc., an upstart that the Justice Department says has newer, better flight-booking technology.
Mr. Delrahim said the litigation could be relevant for tech cases because it raises issues about preserving competition through innovation and limiting dominant firms from buying nascent competitors.
“Every case has its own set of facts, but this could have underlying implications,” he said.
Sabre argues the two companies offer complementary products, and combining them will drive faster innovation that serves airlines and travelers.
Charges in generic-drug industry
Mr. Delrahim said the Justice Department is preparing to file new criminal cases against the generic drug industry for allegedly fixing prices. The department has been investigating possible criminal conduct by generic drug companies for years, but federal cases have been slow to materialize.
Two lower-profile companies and two executives have been charged. The most recent case came in December, when Rising Pharmaceuticals was charged with fixing prices on a hypertension drug. The company reached a deferred prosecution agreement in which it accepted responsibility and agreed to pay restitution as well as civil damages.
State enforcers separately have been pursuing civil cases against the industry.
A harder line on employers’ hiring practices
Mr. Delrahim said the division separately expects to bring its first-ever criminal case accusing employers of colluding not to poach each other’s workers.
The antitrust division has pursued several civil cases in recent years against companies that entered into no-poach agreements, especially in the tech sector. When businesses agree not to recruit or hire each other’s workers, it robs employees of opportunities, information and the ability to use competing offers to negotiate better terms, the Justice Department has argued.
Charging a company or executive with a crime for this practice would mark a major escalation of the government’s approach.
“We’ll see a case in the first half of this year,” Mr. Delrahim said.
Monitoring Live Nation, weighing music licensing rules
The antitrust division made news late last year by requiring Live Nation Entertainment Inc. to extend by five years its compliance with a Justice Department settlement imposing restrictions on the concert-promotion giant when it bought Ticketmaster in 2010. A federal judge still needs to approve the extension.
The department alleged Live Nation violated the settlement by strong-arming venues that didn’t want to use its Ticketmaster subsidiary, which the company denies. Mr. Delrahim said the extended settlement has new provisions that will make it easier to monitor and pursue Live Nation if there are future violations.
More music news is likely on the way: Mr. Delrahim said he expects to announce a decision in the next few months on whether to modify or terminate decades-old antitrust settlements dictating how music is licensed for play on radio, television, streaming services or in venues like restaurants. Changes to the rules could help artists and shake up how businesses, broadcasters and streaming services secure rights from songwriters and publishers.
Write to Brent Kendall at brent.kendall@wsj.com
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second post
https://www.nationalreview.com/2020/01/supreme-court-endangered-reputation-democrat-warnings-entirely-political/
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https://thehill.com/opinion/judiciary/487564-judge-attacking-conservatives-spotlights-bias-in-court-system
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I need to look these up:
"Just so the barracks lawyers have the appropriate lead time: 18 U.S. Code § 242 and 18 U.S. Code § 371"
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Manhattan Prosecutor Refuses to Leave Post, Setting Up Showdown With Attorney General
‘I have not resigned, and have no intention of resigning,’ Berman says; Trump plans to nominate SEC Chairman Jay Clayton to succeed Berman
Mr. Berman was appointed to the Manhattan post in January 2018 by then-Attorney General Jeff Sessions, after President Trump personally interviewed him for the job.
PHOTO: MARY ALTAFFER/ASSOCIATED PRESS
By Rebecca Davis O’Brien, Dave Michaels and Sadie Gurman
Updated June 20, 2020 12:35 am ET
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A high-stakes fight over control of the nation’s most prominent federal prosecutor’s office broke out Friday night, as Manhattan U.S. Attorney Geoffrey Berman rejected Attorney General William Barr’s assertion that Mr. Berman had resigned from his post.
Mr. Barr said in an email shortly after 9 p.m. Friday that Mr. Berman, whose office has overseen investigations into President Trump’s closest allies, was stepping down. Two hours later, Mr. Berman responded that he only learned he was “‘stepping down’ as United States Attorney” from the press release issued by Mr. Barr’s office.
“I have not resigned, and have no intention of resigning, my position, to which I was appointed by the Judges of the United States District Court for the Southern District of New York,” Mr. Berman said in a statement released by the office spokesman. “I will step down when a presidentially appointed nominee is confirmed by the Senate. Until then, our investigations will move forward without delay or interruption.”
The exchange—in which a U.S. attorney refused to be fired by his boss, the most powerful figure in American law enforcement—sets up a showdown in the Justice Department several months before a presidential election.
Mr. Trump plans to nominate Jay Clayton, chairman of the Securities and Exchange Commission, as Mr. Berman’s replacement as U.S. attorney for the Southern District of New York, according to a statement issued Friday by the White House. Craig Carpenito, currently the U.S. Attorney in New Jersey, was positioned to serve as acting U.S. Attorney in Manhattan starting July 3, while the Senate considers Mr. Clayton’s nomination, Mr. Barr said.
A 1979 opinion by the Justice Department’s Office of Legal Counsel concluded that the president can remove court-appointed U.S. attorneys like Mr. Berman, but the attorney general lacks that power.
Mr. Berman was initially appointed as a temporary U.S. attorney. His appointment was later made permanent by the Southern District’s chief judge, not through the traditional nomination and confirmation process.
In his email Friday, Mr. Barr praised Mr. Berman, saying “Geoff has done an excellent job leading one of our nation’s most significant U.S. Attorney’s Offices, achieving many successes on consequential civil and criminal matters. I appreciate his service to the Department of Justice and our nation, and I wish him well in the future.”
A Justice Department official said that Mr. Clayton told administration officials he was considering leaving government but was interested in serving as top federal prosecutor in Manhattan and that Mr. Barr agreed it was a good idea.
The official said Mr. Barr also offered Mr. Berman a job leading the Justice Department’s civil division in Washington, after Jody Hunt announced this week he planned to resign, but Mr. Berman declined. Mr. Berman couldn’t be reached for comment on this matter.
Reached late Friday, Mr. Clayton declined to answer detailed questions but said he was “pending confirmation, fully committed to my job at the commission.”
House Judiciary Committee Chairman Jerrold Nadler, (D., N.Y.), said in a tweet Friday night that he would invite Mr. Berman to testify during a Wednesday oversight hearing that had been previously scheduled to examine what Democrats describe as Mr. Barr’s politicization of the Justice Department and interference in criminal cases.
In a statement Friday night, Senate Minority Leader Chuck Schumer (D., N.Y.) wrote that the dismissal “reeks of potential corruption,” adding: “What is angering President Trump? A previous action by this U.S. Attorney or one that is ongoing?”
Mr. Berman was appointed to the Manhattan post in January 2018 by then-Attorney General Jeff Sessions, after Mr. Trump personally interviewed him for the job. At the time, Mr. Berman was a partner at Greenberg Traurig LLP, which was also Rudy Giuliani’s law firm.
That background gave some Democrats reservations about Mr. Berman’s appointment. But those reservations faded, as the U.S. attorney’s office—considered one of the most ambitious, independent and powerful prosecutor’s offices in the country—led investigations into some of Mr. Trump’s closest allies. Those investigations led to the 2018 conviction of Mr. Trump’s former personal lawyer Michael Cohen, and included a probe of Mr. Trump’s inaugural committee and an ongoing investigation into Mr. Giuliani himself.
Mr. Barr’s announcement of Mr. Berman’s departure was met with shock within the Manhattan U.S. attorney’s office, and prompted wide speculation about whether Mr. Berman had been fired.
Reports of tensions between Mr. Barr and Mr. Berman began circulating almost immediately after Mr. Barr was sworn in as attorney general in early 2019. Mr. Barr at the time sought information from the Manhattan federal prosecutor’s office about two cases involving the Trump administration, according to people familiar with the matter. One was an investigation into hush-money payments made to two women who alleged affairs with Mr. Trump, which had led to Mr. Cohen’s guilty plea the year before. The other was an investigation into alleged campaign-finance violations involving associates of Mr. Giuliani.
Mr. Barr expressed skepticism at the time about the prosecutors’ theories about those cases, which created tensions between the offices. Mr. Barr also intervened in other cases involving parties close to the administration. The two offices also clashed over the Southern District’s prosecution of a Turkish bank that allegedly helped Iran evade U.S. sanctions, people familiar with the matter said.
The Manhattan federal prosecutor’s office has also been caught in the middle of a dispute between the Manhattan district attorney’s office and Mr. Trump over the production of the president’s tax returns.
Mr. Barr has also recently shaken up the leadership of the U.S. attorney’s office in the District of Columbia, which is also handling a number of politically sensitive cases involving Mr. Trump’s associates. He installed a close aide to lead the office before installing an acting U.S. attorney there.
Mr. Clayton, a political independent and former Wall Street deals lawyer, took over the SEC in May 2017, following an appointment by Mr. Trump. His priorities have included easing some public-company reporting regulations, reining in fees charged by stock exchanges and passing a sweeping new regulation that restricts stockbrokers’ conflicts of interest, including those tied to sales commissions.
The idea of moving Mr. Clayton to the top federal prosecutor role in Manhattan came together in the past couple of weeks, a person familiar with the matter said. Administration officials asked Mr. Clayton what role he would want during Mr. Trump’s second term, and the SEC chairman responded that he would like to be U.S. attorney for the Southern District of New York, the person said.
Mr. Clayton doesn’t have experience as a federal prosecutor.
While SEC chairman, Mr. Clayton has mostly enjoyed support on Capitol Hill. Many Democrats were initially skeptical of his Wall Street background, but Mr. Clayton has largely avoided the partisan fights over regulations that some preceding SEC chairmen were drawn into.
Mr. Clayton was expected to return to New York by the end of Mr. Trump’s first term. He is widely regarded as a strong manager best known for advising high-profile clients, such as investment banks Lehman Brothers and Barclays PLC during the financial crisis, before he moved into government.
His career before joining the SEC was spent at law firm Sullivan & Cromwell LLP, which has represented Goldman Sachs Group Inc. among other Wall street clients.
During Mr. Clayton’s tenure as SEC chairman, the SEC’s enforcement division has focused on what Mr. Clayton calls “Main Street” investor protection. The agency has produced relatively few cases against Wall Street banks, while cracking down on murky fees charged by investment advisers and brokers that reduce returns for investors and going hard after sellers of cryptocurrency whose deals were considered unregistered securities offerings.
—Aruna Viswanatha contributed to this article.
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One Agency for Antitrust
Encourage competition, but regulatory turf wars are the wrong kind.
By Mike Lee
Nov. 17, 2020 5:56 pm ET
Enforcement of U.S. antitrust laws has been divided for more than a century between the Justice Department and the Federal Trade Commission. We’ve had more than enough time to see that this arrangement doesn’t work. I will soon introduce the One Agency Act to put all federal antitrust enforcement under one roof.
No one would intentionally design the system we have today. Even Justice and the FTC, when helping other nations set up their own competition authorities, don’t advocate separate enforcers. Effective and efficient antitrust enforcement is essential to maintaining free markets and protecting consumers. But the status quo of divided law enforcement undermines these objectives.
Currently, Justice and the FTC work under an arrangement in which each agency must get “clearance” from the other before opening an investigation. This regularly leads to turf battles as lawyers from each agency fight over who gets the case. Jurisdiction over one merger, of body-camera companies, was literally decided by a coin toss.
Every year government lawyers spend hundreds of hours managing these fights, wasting taxpayer money and delaying enforcement of the antitrust laws that protect American consumers. This is no way to run a government. When they aren’t fighting, Justice and the FTC engage in their own form of market allocation, assigning certain industries to each agency. Most health-care cases go to the FTC, while energy cases go to Justice. This avoids waste, but it also creates the risk of different industries receiving different antitrust enforcement. The strength of antitrust enforcement shouldn’t hinge on a coin toss or a backroom deal.
The recent case against Qualcomm is the clearest example of the potential for conflicting enforcement policy. After the FTC won at trial, Justice supported Qualcomm in its successful appeal. Two federal agencies, tasked with enforcing the same laws on behalf of the federal government, argued against each other in court. That is the definition of a broken system.
The One Agency Act would solve these problems by moving all antitrust enforcement to the Justice Department, which is more politically accountable to voters and the only agency that can oversee criminal cases. This will make our antitrust enforcers stronger and more effective, eliminate waste and delays, and ensure the federal government speaks with a single voice on antitrust. This is an obvious good-government solution—a win for consumers and the economy.
Mr. Lee, a Republican, is a U.S. senator from Utah.
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money again talks
https://reason.com/2020/12/02/florida-masseuse-ordered-to-pay-31573-after-soliciting-robert-kraft-to-commit-prostitution/
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money again talks
https://reason.com/2020/12/02/florida-masseuse-ordered-to-pay-31573-after-soliciting-robert-kraft-to-commit-prostitution/
Got off, twice.
At least.
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https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges?fbclid=IwAR1Md9Bvz1hrZkGDZEdMa3VR2GiXx9kwC7FvQoWo_BYRyR8FpnTK2vKpklU#c
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https://populist.press/ted-cruz-sends-private-letter-to-trump-says-he-can-block-biden-on-day-1/
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https://www.npr.org/2020/06/18/829858289/supreme-court-upholds-daca-in-blow-to-trump-administration?fbclid=IwAR32wbU8iWo4mnSBjOzz-v6ZGh5aLPFerAxcGzfbWOpXni9gPnkKxTPRa6E
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https://www.gatestoneinstitute.org/16935/senate-trial-trump
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https://www.washingtontimes.com/news/2021/mar/14/trump-judges-key-stopping-biden-executive-orders-r/?utm_source=Boomtrain&utm_medium=manual&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=ODrFB9xDH9Kt7D2HPspLzcsojY6m8e7Dxo654bbJjo%2BWj1r0wYAqCW1QvCkCezdf&bt_ts=1615761599459
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The legal profession regulates itself—which explains how lawyers get away with practices that pad their own earnings and block nonlawyers from selling competing services at lower prices.
Congress may soon strengthen the antitrust enforcement powers of the Biden administration’s Justice Department. The department should use those powers to eliminate the American Bar Association’s monopoly in determining what constitutes an acceptable legal education and state licensing requirements, which restrict the supply of lawyers.
Prospective lawyers generally graduate from an ABA-accredited three-year law school before taking a state bar examination to obtain a license to practice law. However, many people who are interested in and capable of providing legal services cannot afford the high tuition and opportunity cost of not working for three years and paying to obtain a law degree.
Limits on the supply of lawyers are reflected in prices. A simple contract can run $1,500, which most people cannot afford. One study by the National Center for State Courts found that 75% of civil matters in major urban areas had at least one self-represented party, and these parties are less likely to prevail in court without proper legal help. Others who can’t afford legal assistance end up stuck in horrific circumstances that ought to be criminal matters, such as domestic violence.
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Eliminating both the ABA’s monopoly control of legal education and states’ licensing requirement would allow alternative legal education programs to flourish, including vocational and online courses that could be completed in less than a year and college programs that offer a bachelor’s degree in law. Graduates of those programs could expand the availability of effective, low-cost civil legal services. Three-year law schools would be forced by the new competition to reduce tuition and the time to graduate. More J.D.s would be free to pursue a career in public-interest law if they were less encumbered by law school debt.
My new Brookings book with David Burk and Jia Yan takes an economics look at the legal profession and argues that educational requirements and state bar exams do little in practice to assure a minimum quality of legal services. Market forces have created institutions that accurately inform consumers about the quality, reputation and performance of a plethora of services.
Astute members of the profession are aware that the most advantaged members of society, such as Donald J. Trump and his 3,500-plus lawsuits, are the primary beneficiaries of the system. By eliminating ABA’s monopoly on legal education and licensing requirements, antitrust authorities could help the most disadvantaged members of society benefit from access to justice.
Mr. Winston is a senior fellow at the Brookings Institution and a coauthor of “Trouble at the Bar: An Economics Perspective on the Legal Profession and the Case for Fundamental Reform.”
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Milton Friedman used to rail against the over-licensing cartel requirements in way too many professions like barbers for example. Law and medicine need to innovate too. I would not eliminate private organization credentials like ABA and AMA but I would remove the laws that make competently helping people with any issue a crime.
It is easier for a consumer to know the proficiency of an eBay seller than it is of a doctor or lawyer.
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https://www.washingtontimes.com/news/2021/mar/30/biden-announces-11-judicial-nominees-including-jud/?utm_source=Boomtrain&utm_medium=manual&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=IB07xLOrwcdgoNvTZGLxAedZ4INQ9qdSP9qcUM%2FQ0VDxsHmqKalyqMbOU7ioZvAX&bt_user_id&bt_ts=1617109298595
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Ketanji Brown Jackson
From wikipedia :
" in 1996, Jackson married Patrick G. Jackson, a surgeon.[65] They have two daughters. Jackson is related by marriage to the former U.S. House Speaker Paul Ryan.[65][66] Her husband is the twin brother of Ryan's brother-in-law"
:-o
just another example of the everyone is connected to everyone else in DC
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come to think of it
this reminds of the Kings and Queens of Europe
who intermarry themselves or their children with kings and queens of other country to solidify alliances and influence and wealth
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"Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments." —Alexander Hamilton (1788)
====================
https://patriotpost.us/articles/79070-joe-biden-moves-to-pack-the-supreme-court-2021-04-12?mailing_id=5761&utm_medium=email&utm_source=pp.email.5761&utm_campaign=digest&utm_content=body
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I am quite surprised that this piece seems to bypass the issue of our Constitution creating a federal district so that the federal government not be subject to the whims and vagaries of the politics of a State government.
Nonetheless some excellent points made herein-- among them noting the presumably deliberate overlook of the idea of rolling DV into Maryland.
===================================
Targeting the U.S. Senate
The progressive goal is a House-like body run by big-state majorities.
By The WSJ Editorial Board
April 11, 2021 5:14 pm ET
Between the drive to eliminate the legislative filibuster and the campaign to add new states for partisan advantage, the U.S. Senate hasn’t been under this much political pressure since the passage of the 17th Amendment (on the direct election of Senators) in 1913. The enduring influence and legitimacy of America’s legislative upper house has long distinguished the U.S. from many less stable democracies. But a new majoritarian ideology threatens to upend that achievement.
As early as this week a House committee will advance a partisan and constitutionally suspect bill to add Senators by making Washington, D.C., the 51st state. The Senate’s traditional 60-vote requirement to pass legislation hangs by a thread. A great deal has been written about the merits of both issues, but it’s wrong to see them in isolation. They are political manifestations of a fundamental challenge to the Senate as an institution that is worth understanding—and repudiating—in its own right.
***
Debate over the Senate’s structure—two Senators for each state, regardless of population—is as old as the nation. At the 1787 Philadelphia Convention, delegates from the larger states, especially in the South, wanted Senate seats apportioned according to population. They were outvoted, as smaller states like New Jersey didn’t want to forfeit their influence in the new federal government the Constitution created. The large states’ size would be reflected in the House of Representatives. This Great Compromise was essential to the Constitution’s ratification.
The design became a part of America’s civil religion. As James Madison (a large-stater at the convention) wrote in the Federalist, equal state representation in the Senate would guard “against an improper consolidation of the States into one simple republic.” The ability of states like Florida and New York, or Wyoming and Delaware, to pursue different policies remains a vital outlet for America’s national partisan divisions.
Yet today, like so many other features of the Constitution, the Senate’s equal weighting of states finds itself under siege in the press and academy. “Minority rule” has become a buzzword among pundits calling for smashing the filibuster and expanding the Senate.
A New York Magazine article last year declared that “the Senate’s pro-white bias is a problem the political system is only beginning to absorb.” The Harvard Law Review led a recent issue with an treatise on “the degradation of American democracy,” suggesting that Democrats address the Senate’s “malapportionment problem” through D.C. and Puerto Rican statehood—or else “ignore the constitutional provision mandating two senators for every state.”
You wouldn’t know from such rhetoric that the Senate’s relationship to population has been remarkably stable throughout U.S. history. The 10 smallest states in 2019 represented the same population share (under 3%) as in 1970. The 10 largest ticked to about 54% of the population from 55%.
Nor is there strong evidence of partisan imbalance. The writer Robert Showah has shown that the party breakdown in the House and Senate has become more, not less, aligned in recent years. Democrats now control 50.5% of the Senate, including the Vice President’s tie-breaking vote, and about 51% of seats in the population-weighted House.
The legitimacy of America’s version of bicameralism has rarely been called into question, even as upper houses in Europe have faded. U.S. states were seen as political entities with Madison’s “residuary sovereignty”—to raise their own taxes, establish legal systems, and, recently, chart courses for pandemic response. Their representation in Congress balances the more polarized House.
But nationalization of politics and media has helped open the door to attacks on the Senate’s structure. These attacks encourage a view of the U.S. as “one simple republic,” in Madison’s words, where temporary majorities can dominate at all levels.
Other trends are also at work. The Framers gave the Senate power to confirm executive officials and judges but expected Congress to drive domestic policy. When 20th-century progressives backed an increasingly powerful administrative state and imperial judiciary, the significance of presidential appointments grew, increasing the salience of the Senate in national policy making.
Instead of recommitting to constitutional principles, the progressive remedy is to undermine the Senate as a pretext for enlarging it in what they foresee will be their political interest. Hence the appetite for statehood for D.C. (rather than Maryland retrocession) and admittance of Puerto Rico (though opinion on the island remains sharply divided), and perhaps “East and West Massachusetts,” as an Atlantic article suggested last year.
***
One mystery is why more Senate Democrats don’t fear a filibuster-free Senate under Republican control, given their complaints about the Senate’s structure. A 2013 Yale Law Journal article noted that “whenever one of the major parties holds a consistent advantage in low-population states, the filibuster serves as an underappreciated check on that party’s power to enact its agenda.” Nuking the filibuster in the name of a shallow version of democracy would pave the way for a bare GOP Senate majority to pass far-reaching legislation.
The left today thinks it has a winning argument in denouncing certain institutions as anti-democratic and racist, as part of a larger project to overturn core American principles. The ideological assault on the Senate is ultimately a challenge to the state-federal balance that is a core feature of America’s Constitution.
Federalism, and the political diversity and competition it makes possible, is a source of America’s stability and success. The Senate was designed to protect liberty by checking precisely the kind of opportunistic majoritarianism that now seeks to undo it. The country denatures its upper chamber at its peril.
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https://www.washingtontimes.com/news/2021/may/3/brandon-mitchell-derek-chauvin-juror-who-attended-/?utm_source=Boomtrain&utm_medium=subscriber&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=tRplK9n0JghNn2nTUo2GLvQ%2Fso7gQ4jIpmAD%2B90fFT4%2BJBqsODtDUVFIfq%2FKSjvK&bt_ts=1620091573588
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https://www.yahoo.com/news/federal-judge-ordered-doj-release-173202128.html
I did search
every single judge that has held this seat going back t 1939 as far as I can tell has been a graduate of Harvard Law School
is that not remarkable? is this a good thing?
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https://www.msn.com/en-us/news/politics/how-to-mess-with-texas-anti-abortion-bounty-apply-it-to-gun-sales/ar-AAOjeZG?ocid=winp1taskbar
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https://www.msn.com/en-us/news/politics/how-to-mess-with-texas-anti-abortion-bounty-apply-it-to-gun-sales/ar-AAOjeZG?ocid=winp1taskbar
I know the right to keep and bear arms is the second amendment, where in the bill of rights do I find abortion?
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i get your point, but may I suggest it is non-responsive to the merits and/or validity of the Texas law's enforcement mechanism?
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i get your point, but may I suggest it is non-responsive to the merits and/or validity of the Texas law's enforcement mechanism?
Kind of irrelevant as we are rapidly moving towards kinetic resolutions to these issues.
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All the more reason for us to stay anchored in reason.
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All the more reason for us to stay anchored in reason.
The whole American legal system is rotted through with corruption. Judges for the most part are black robed dictators looking for justification to push their political agendas under a figleaf of legality. See abortion as a perfect example.
Anchor to that ugly truth.
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And now we have a 5.5 to 3.5 advantage in SCOTUS. Good chance Roe will be overruled.
Yes there is a fight coming, but we will inspire our side and the undecided more the better we stay anchored in reason and by so doing will be more worthy of victory and handle victory better if/when we win.
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And now we have a 5.5 to 3.5 advantage in SCOTUS. Good chance Roe will be overruled.
Yes there is a fight coming, but we will inspire our side and the undecided more the better we stay anchored in reason and by so doing will be more worthy of victory and handle victory better if/when we win.
This the same SCOTUS that rubberstamped the 2020 coup?
I can't wait until Roberts decides that the clotshot is a tax.
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Agreed they flinched-- heavy, heavy pressure with the threats to pack the court, which we will see again in spades with the upcoming re-examination of Roe.
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Agreed they flinched-- heavy, heavy pressure with the threats to pack the court, which we will see again in spades with the upcoming re-examination of Roe.
It’s all a sad, sick joke at this point. The American Republic is dead. The rule of law is over and done.
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I don't understand the Texas law's enforcement mechanism. Someone can sue someone for $10,000. Couldn't they do that anyway and not prevail, lack of standing, lack of personal damage. If the aborted fetus sued I might see it, or the father was wronged if the mother aborted without his consent or input. Strange law.
The gun analogy fails with me but I admit Alan Dershowitz is smarter than me on this. The gun caused damage if it hurt someone, not for existing. If you hurt someone with your gun discharge it is already pretty well known you might be sued.
Your take Crafty?
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Doug:
The Texas law is clearly contrary to the law under Roe. Its' cleverness is in how it both discourages abortionists from aborting yet apparently makes it impossible to challenge in court.
So the question presented is, for example, what happens if a state passes a law making gun sellers legally responsible for crimes committed by their customers with an enforcement structure similar to that of Texas?
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Doug:
The Texas law is clearly contrary to the law under Roe. Its' cleverness is in how it both discourages abortionists from aborting yet apparently makes it impossible to challenge in court.
So the question presented is, for example, what happens if a state passes a law making gun sellers legally responsible for crimes committed by their customers with an enforcement structure similar to that of Texas?
Same for automobiles?
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Of course the logic is Kafkaesque both in the case of autos or guns, but that is not the point here. The point here is the meme of this legal strategem to deny practical legal recourse.
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Of course the logic is Kafkaesque both in the case of autos or guns, but that is not the point here. The point here is the meme of this legal strategem to deny practical legal recourse.
Try legally buying a gun in NYC. Nothing new here.
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I still need it explained to me. Here is a Texas law professor trying to do that but seems he doesn't get it either. Who sues whom and why would they prevail? I suppose potential defendant fears 12 pro-life jurors that don't care about standing or injury.
https://www.kxan.com/news/texas/how-texas-new-abortion-law-works-explained-by-legal-experts/
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Don't know that I could do a better job than that article, so I will simply repeat the notion that the concept can be used to make challenging unconstitutional laws (which the Texas law is per Roe) super difficult.
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https://www.independent.co.uk/news/world/americas/steven-bertolino-brian-laundrie-gabby-petito-b1943732.html
investigation by Florida Bar warranted?
something very wrong with this guy
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WT
Biden flips 2nd Circuit to Democratic majority
Robinson is first openly lesbian judge confirmed to federal judiciary
BY ALEX SWOYER THE WASHINGTON TIMES
The Senate confirmed the first openly lesbian judge to a federal circuit court on Monday, flipping the U.S. Court of Appeals for the 2nd Circuit to a majority of Democrat-appointed judges.
Judge Beth Robinson, who previously served on the Vermont Supreme Court, was confi rmed by a 51-45 vote. Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska broke with their party and supported her confirmation.
The makeup of the 2nd Circuit now has seven Democratappointed and six Republicanappointed judges following Judge Robinson’s confirmation. She is President Biden’s third judicial appointment to the 2nd Circuit.
LGBTQ groups cheered the confirmation but said their community continues to be underrepresented in the federal judiciary, calling for a transgender appointment.
“LGBT representation in the courts is critical because judges that more accurately reflect the diversity of our nation give legitimacy to these important institutions, which have such a profound impact on the lives of so many,” said Sharon McGowan, chief strategy officer at Lambda Legal. “Judge Robinson’s lived and professional experiences will be assets in her work to fulfill our nation’s promise of justice.”
Of the 870 federal judgeships, 13 are held by openly LGBTQ jurists, according to Ms. McGowan.
“We are still awaiting our first openly bisexual or transgender judicial nominee,” she said.
Toby Heytens, who served as the solicitor general of Virginia, was confirmed Monday to the U.S. Court of Appeals for the 4th Circuit by a vote of 53-43.
Mr. Biden has had nine circuit court judges and 19 district court judges confirmed since taking office in January.
By comparison, former President Donald Trump and Senate Republicans, which made the federal judiciary a focus in the his administration, had confirmed eight circuit court judges and four district court judges during the same time frame. He also had Justice Neil M. Gorsuch appointed to the Supreme Court less than three months after taking office.
Progressive groups said Mr. Biden’s pace for confirmations will put him ahead of his five predecessors.
“While more work must be done to undo the conservative takeover of our courts, Robinson and Heytens are emblematic of the exceptionally well-qualified judges that President Biden and Senate Democrats continue to confirm to the federal bench,” said Rakim Brooks, president of Alliance for Justice. “They are exactly the kinds of jurists we need.”
But Carrie Severino, president of the Judicial Crisis Network, said comparing the judicial confi rmations between Mr. Trump and Mr. Biden at the start of their administrations is not a fair comparison.
“The pace at which Trump and Biden judges were confirmed at the beginning of the respective administrations is not an applesto- apples comparison, because of the Gorsuch confirmation and the Senate rule in effect until 2019 requiring 30 hours of post-cloture debate for all judicial nominees. That said, Biden has been able to achieve the pace he has thanks to the willingness of moderate Democrats to toe the party line, even on the most radical nominees,” Ms. Severino said.
The Senate confirmed Judge Beth Robinson to a the U.S. Court of Appeals for the 2nd Circuit by a 51-45 vote. She is the first openly lesbian judge appointed to a federal circ
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One suspects Lindsay Graham could have done more about this , , ,
=============================
WT
JUDICIARY
Biden filling federal bench faster than Trump
Senate confirmed 40 nominees this year
BY DAVE BOYER THE WASHINGTON TIMES
President Biden is stocking the federal judiciary with liberal judges at a faster pace than former President Donald Trump filled the bench with conservatives, as he tries to appease a progressive base unhappy that he abandoned a plan to pack the Supreme Court.
The Senate has confirmed 40 of his judicial nominees this year, including 11 judges on the powerful federal courts of appeals. In 2017, the Senate confirmed 19 of Mr. Trump’s judicial nominees, including 12 on the courts of appeals.
Mr. Biden has nominated 73 judges, one more than Mr. Trump in 2017. Among them are 21 former public defenders and 16 former civil rights lawyers.
A major difference is that Mr. Trump appointed Supreme Court Justice Neil M. Gorsuch in his first year, while Mr. Biden has not had a vacancy to fill on the high court. Justice Stephen G. Breyer, 83, has resisted a campaign by progressives urging him to retire, and Mr. Biden’s commission to study changes to the Supreme Court didn’t take a position on adding seats, disappointing liberals.
“He’s disappointed the progressive wing of the party, and he’s not been enthusiastic about adding
seats to the [Supreme] Court,” said Russell Wheeler, a Brookings Institution specialist on the judiciary. “It’s possible that one way he’s thought to placate that wing of the party is to make a lot of nominations of highly diverse nominees. Finding White males among his nominees is not an easy task.”
Mr. Biden’s judicial nominees include 53 women (73% of the total), 20 Black Americans (27%), 15 Hispanics (20%), and 13 Asian American Pacific Islanders (18%).
Women accounted for 24% of Mr. Trump’s judicial nominees over four years, and 16% of his appointees were Black, Hispanic, Asian American or another race or ethnicity, according to the Pew Research Center.
On Thursday, Mr. Biden announced two more nominees for circuit courts. Judge J. Michelle Childs of South Carolina was nominated for the influential Court of Appeals for the District of Columbia Circuit, and is considered a candidate to become Mr. Biden’s first Supreme Court nominee, if and when a vacancy occurs.
Nancy Gbana Abudu, deputy legal director at the Southern Poverty Law Center, would become the first person of color on the Atlanta-based 11th Circuit Court of Appeals.
Carl Tobias, a law professor at the University of Richmond Law School, said Mr. Biden and the razor-thin Democratic Senate majority “have been exceptionally successful in accomplishing what they promised to do: countering Trump’s effects, especially on the appeals courts, of confirming so many extremely conservative judges.”
He called the judges “well qualified, mainstream nominees who are diverse in terms of ethnicity, gender, sexual orientation, ideology and most critically experience.”
“Biden and the Dems have carefully limited the traditional substantial numbers of Big Law and prosecutor nominees, especially by tapping federal public defenders, civil rights attorneys, legal aid lawyers, etc.,” he said.
Part of Mr. Biden’s success in getting his judges confirmed has been to focus on appointments in states with no Republican senators, Mr. Wheeler said.
“He’s sort of picking the low-hanging fruit because he’s going after vacancies where he doesn’t have to wrestle with Republican senators over their progress,” he said. “I think it’s pretty clear, partly because he chaired the [Senate] Judiciary Committee, he’s at home with this stuff.”
Senate Minority Leader Mitch McConnell said recently that Senate Majority Leader Charles E. Schumer, New York Democrat, is respecting the Senate’s tradition of “blue slips,” in which district court nominees don’t get a hearing unless both senators from the particular state agree.
“I think that’s the right thing to do,” the Kentucky Republican told radio host Hugh Hewitt. “That’s been a strong Senate tradition over the years, and so, and we [Republicans] honored the blue slip … at the district court level during the Obama years, and I did during the Trump years.”
Conservatives have raised objections to Biden nominees such as Dale Ho, who was appointed as a district judge for the Southern District of New York, and Myrna Pérez, who was tapped for the 2nd Circuit Court of Appeals.
Mr. Ho, director of the Voting Rights Project at the ACLU, “is best known for fighting the Trump administration on its reinstatement of a question about citizenship on the census,” according to Carrie Severino, president of the conservative Judicial Crisis Network. The administration dropped the proposal in 2019 after encountering a hurdle at the Supreme Court.
In a blog post, Ms. Severino said Mr. Ho “has opposed basic measures to ensure integrity in voting, from voter ID measures to efforts to keep voter rolls up to date.” She also said the liberal advocacy group Demand Justice has Mr. Ho “on its own Supreme Court shortlist.” She noted that White House press secretary Jen Psaki and the president’s point person on judicial nominees, Paige Herwig, both formerly worked for Demand Justice, a liberal group advocating changes to the Supreme Court.
Demand Justice did not respond to a request for comment.
Judge Pérez spent 15 years working at the liberal Brennan Center for Justice, where she was director of voting rights. The Senate confirmed her on Oct. 25 by a vote of 48-43, making her the first Latina on the 2nd Circuit since Justice Sonia Sotomayor joined the Supreme Court in 2009.
During her confirmation hearing, Sen. Ted Cruz, Texas Republican, told her, “As I look at your record, year after year after year of being an extreme partisan advocate, I’m left with the very likely conclusion that if you were confirmed to the bench, you would likewise be a radical activist on the bench.”
The nominee said she would set aside her past advocacy on the bench.
“I am pledging to no longer participate in policy disputes, and instead I will impartially and objectively review the law, apply it to the record before me, and be faithful to the precedent both of the Supreme Court and the 2nd Circuit,” she said.
The Senate on Dec. 13 also voted 50-45 to confirm District Judge Lucy Koh of California for the 9th Circuit Court of Appeals, making her the first Korean American woman to serve as a federal appellate judge. Judge Koh overcame GOP criticism of her ruling in February in Tandon v. Newsom, which denied relief to plaintiffs who challenged California’s COVID-19 restrictions on indoor gatherings by arguing that it prevented Bible studies and prayer meetings at their homes.
Judge Koh ruled that the state’s restrictions were “neutral and generally applicable,” and a 9th Circuit panel upheld her decision. But the Supreme Court on April 9 granted the plaintiffs’ application for a preliminary injunction, pending the 9th Circuit’s disposition of the appeal on the merits. The high court said in part that California was treating secular activities such as hair salons and movie theaters more favorably than at-home religious exercise.
The Senate this month also confi rmed, 50-49, Judge Jennifer Sung, another veteran of the Brennan Center, for the 9th Circuit. During Brett M. Kavanaugh’s nomination to the Supreme Court, she signed a letter to the Yale Law School administration calling him “an intellectually and morally bankrupt ideologue” and claiming that “people will die if he is confirmed.”
During her confirmation, under questioning by Sen. Tom Cotton, Arkansas Republican, Judge Sung said the letter’s statements were “overheated rhetoric, but they were “rhetorical advocacy.”
“If by signing that letter I created the impression that I would prejudge any case or fail to respect the authority of any Supreme Court justice or any of the court’s precedents, then I sincerely apologize,” she said.
Mr. Cotton asked her, “Has anyone died as a direct result of Brett Kavanaugh being confirmed to the Supreme Court?” She repeated her answer that the letter was “rhetorical advocacy only.”
Despite Mr. Biden’s early success on judges, Mr. Trump’s influence on the courts will be felt for decades. He appointed 54 federal appellate judges in four years, one short of the 55 appointed by President Obama in eight years. Further, Mr. Trump “flipped” the balance of several appeals courts to Republicanappointee majorities.
Mr. Trump also swung the Supreme Court to a strong 6-3 conservative majority, appointing Justices Gorsuch, Kavanaugh and Amy Coney Barrett. All of them were age 55 or younger when confirmed to the lifetime terms.
At the start of 2021, Mr. Trump had appointed 28% of the 816 active judges serving in the three main levels of the federal court system.
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“It’s possible that one way he’s thought to placate that wing of the party is to make a lot of nominations of highly diverse nominees. Finding White males among his nominees is not an easy task.”
Mr. Biden’s judicial nominees include 53 women (73% of the total), 20 Black Americans (27%), 15 Hispanics (20%), and 13 Asian American Pacific Islanders (18%).
Women accounted for 24% of Mr. Trump’s judicial nominees over four years, and 16% of his appointees were Black, Hispanic, Asian American or another race or ethnicity, according to the Pew Research Center.
All are a bunch of partisan demo crats
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Biden Pushes for a Progressive Transformation of the Courts
By ANDREW C. MCCARTHY
January 8, 2022 6:30 AM
President Biden has been co-opted by his party’s progressive ideologues, the same woke Left from which he distanced himself in order to get elected. Nevertheless, the razor-thin Democratic majorities in Congress always made it unrealistic that Biden could deliver on many progressive priorities. I’ve maintained that, to stave off potential mutiny, the administration would load the judiciary and the administrative state with hard leftists.
This is clearly playing out on the federal bench.
With no margin for defections in a 50–50 Senate, Democrats exercise rigorous partisan discipline. Vice President Kamala Harris is the tie-breaker, so for the moment they can approve Biden’s judicial nominees with no Republican support (though they typically pick off a handful of votes from GOP moderates, some of whom continue to regard judicial confirmations as if it were still 1950, with nominees expected to shield the law from their political preferences).
The likes of Senators Joe Manchin (D., W.Va.) and Kyrsten Sinema (D., Ariz.) may occasionally stray from the woke reservation, but when it comes to judicial nominations, even (relatively) centrist Democrats reliably vote to approve progressive ideologues. Doing so works for them, for the same reason that nominating them works for Biden: The woke Left is the locus of the party’s passion, energy, and much of its funding.
Democratic senators need progressive support. They live in constant fear of being primaried. (See, e.g., last weekend’s rumblings that New York’s supposedly moderate Senator Kirsten Gillibrand may be vulnerable to a challenge by congresswoman and progressive darling Alexandria Ocasio-Cortez.) The moderate pose may dupe voters who do not follow politics closely, but nothing says “I’m on the team” to the party’s movers and shakers quite like a Democratic senator’s votes to enrobe the lawyer Left — even though the radical stances of these nominees on such matters as “systemic racism,” nonenforcement of immigration laws, criminal-justice “reform,” defunding police, and voting rights for felons and illegal aliens would be shocking to constituents back home . . . if the media covered them.
The Heritage Foundation’s Judicial Appointment Tracker provides two data points worth noting as this midterm-election year gets under way. First, Biden and Senate Democrats are steamrolling through the confirmation process. Second, the nominees in question are extremists who draw record-low support from the opposition party.
In less than a year, Biden has already filled 40 judicial vacancies, more than twice as many as Trump had by this point in his presidency. This includes eleven nominees Biden has placed on the all-important circuit courts of appeal, the rung just below the Supreme Court, which decides many more cases than The Nine do. Trump, who had more appellate vacancies to fill, had appointed a dozen circuit judges by the end of his first year; Biden and Democrats are moving at a faster clip. The administration has already put 75 nominations in the pipeline. To this point, Biden has not gotten a Supreme Court vacancy to fill, but he is rapidly getting district judges appointed. That, too, is momentous because district judges decide many more issues than appellate judges do.
Tellingly, nearly all of Biden’s appointees — 37 out of the 40 — have drawn more than 25 percent opposition in the Senate. No other president’s nominees have been comparably controversial. About two-thirds of Trump appointees drew such opposition, which was nearly unheard of in prior decades.
Why such opposition to Biden’s judges? Consider a case in point: the nomination of Nancy Gbana Abudu to serve on the Eleventh Circuit, which hears appeals from federal district courts in Alabama, Florida, and Georgia.
Abudu is a progressive ideologue who currently serves as deputy legal director of the left-leaning Southern Poverty Law Center. For 15 years, she was with the ACLU, which has effectively become an adjunct of the Democratic Party. There, as the Daily Wire reports, she specialized in “voting rights.” That’s a euphemism for legal challenges to election-integrity safeguards — e.g., laws that require voters to prove their identities and that prevent ballots from being cast by non-Americans, convicted felons, and other legally disqualified voters.
Abudu’s nomination is thus par for the Democratic course: She echoes party demagoguery holding that any effort to promote the rule of law or secure elections against fraud is tantamount to vote “suppression” and a revival of Jim Crow — or even slavery. This, even though voter participation has trended upward following such efforts: After last year’s passage of Georgia’s much-maligned election-reform law, for example, turnout for municipal elections in Atlanta, a majority African-American city, was up 17 percent over 2017, the above-linked Daily Wire report notes.
Naturally, Abudu also spouts the dogma that restrictions on voting by felons constitute “practically the same system as during slavery,” because blacks (particularly young black males) are convicted at higher rates than other demographic groups. That is, you are to airbrush away the stubborn fact that the disproportionately high rate of convictions is driven by disproportionately high rates of offense behavior — the lion’s share of which preys on African-American communities. Instead, you must adopt disparate-impact theory, the progressive voodoo that presumes America is systemically racist and thus rationalizes that more black men are convicted because the criminal-justice system is rigged against them.
That a nominee subscribes to irrational political theories (sadly, it is no longer accurate to describe them as “fringe”) would not be much of a problem if the expectation were that the judicial task is nonideological — i.e., that the law is objectively knowable, and that the jurist simply applies it to the facts of the case without fear or favor. But that is no longer our norm. It is understood — indeed, for all intents and purposes, it is required by the Democrats’ base supporters — that progressive jurists will use litigation as a vehicle to impose progressive policy. The desired result of a case is determined first, and then judges “reason” their way to it, distorting facts and legal principles as necessary.
Though cosmetically appealing, claims that both ideological camps do this are false. What makes a conservative judge conservative is the conviction that the limited role of courts is to decide cases in accordance with what the relevant laws were understood to mean when enacted. Conservative judging is more about who decides than what is decided. The point is not to prevent progressive policy outcomes or implement conservative ones. It is to ensure that judges are staying in their lane — following the law, not making it. If the society wants progressive prescriptions, it is free to have them (subject to any constitutional restrictions), but it must enact those prescriptions democratically. They may not be imposed by the politically unaccountable judiciary.
Progressives, by contrast, expect judges to impose from the bench progressive prescriptions too unpopular to be enacted by legislation. Since the judge is expected to act politically rather than jurisprudentially, a progressive nominee’s political views cannot be seen as beside the point. They are the point. They are why the likes of Abudu are nominated in the first place.
That is why Biden’s nominees are facing Republican opposition, though not as much as they should be. Indeed, we should be evaluating Senate Republicans with the dolorous new normal in mind. It is no longer credible for a Republican senator to defer to Democrats on a judicial nominee as long as she has impressive academic credentials, pertinent experience, and good character. Biden’s nominees are expected to advance the Left’s policy objectives. To be sure, many of them are very bright and highly accomplished, but their legal acumen is of secondary importance. A Republican who approves such a nominee is thus voting for the Left’s policy objectives just as surely as if those objectives were spelled out in Democrat-proposed legislation.
To the extent moderate Republicans and commentators stress the value of a diverse judiciary, that is progressive claptrap. Pace Justice Sonia Sotomayor, the self-described “wise Latina” elevated to the Supreme Court by President Obama because of her “empathy,” the interpretation of law is a discipline, not a gorgeous mosaic. The right answer to a legal question does not hinge on the race, ethnicity, culture, or life experience of the jurist — no more than the answer to a mathematical problem should vary depending on the background of the mathematician. In the political domain of legislation and elections, diversity and empathy may properly factor into policy choices. They should have no bearing on how court cases are decided. Litigation is the province of the law, not “how I feel about” the law.
For now, Biden is outpacing Trump’s appointment rate. As a practical matter, though, it is not possible for a president to transform the judiciary without being reelected.
A federal judgeship is a lifetime appointment, but judges have the option of taking “senior status” — i.e., of vacating their slots (of which there is a finite number, fixed by statute), though they may remain “senior” judges and handle reduced caseloads (think of it as semi-retirement). Consequently, when the presidency changes parties, pressure is brought to bear on veteran judges to take senior status, particularly those who were appointed by the new president’s party. That way, the new president can fill the vacated slots with the party’s rising young legal talent — lawyers can be expected to continue serving as judges long after the appointing president’s term has expired. In the current president’s case, this entails the nudging of Clinton-appointed and older Obama-appointed judges to make way for Biden’s picks.
Inevitably, this means the first rounds of judicial appointments by a new president, even if numerous, tend merely to involve replacing the incumbent party’s old guard with its younger lawyers. Substituting young Democrats for more mature Democrats solidifies the party’s grip on those judicial slots, but it does not transform the judiciary. To do that, a president must replace appointees of the opposition party with nominees of his own — i.e., Biden would need to supplant predominantly conservative judges appointed by Reagan, the Bushes, and Trump with his own progressive appointees. To have a chance of doing that, a president needs to have more longevity than a single four-year term. It really takes eight years (or more, if the party can continue winning the presidency) to outlast a material percentage of life-tenured judges from the opposition party.
Biden and Senate Democrats are off to a fast start. Republicans should be slowing them down by opposing progressive ideologues — not just without apology, but as a strategy to make a big election issue out of radical Democratic appointees who are out of step with mainstream America. In any event, though, the midterms and the 2024 presidential election will determine what the federal courts become in history’s next phase.
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https://media.gab.com/system/media_attachments/files/095/419/475/original/3772f747bc8b070b.png
(https://media.gab.com/system/media_attachments/files/095/419/475/original/3772f747bc8b070b.png)
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The level of ignorance is staggering.
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The level of ignorance is staggering.
Republicans (10) who voted for her include Susan Collins and Lindsey Graham. Principleless.
https://en.m.wikipedia.org/wiki/Sonia_Sotomayor_Supreme_Court_nomination#:~:text=in%20the%20affirmative.-,Full%20Senate,40%20Republicans%20at%20the%20time.
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AMcC makes a constitutionally legit point here-- we looked at this "Do the Feds have police power?" issue rather closely this past semester:
https://www.nationalreview.com/2022/01/a-second-look-at-justice-sotomayors-police-power-comments/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202022-01-10&utm_term=NRDaily-Smart
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AMcC makes a constitutionally legit point here-- we looked at this "Do the Feds have police power?" issue rather closely this past semester:
https://www.nationalreview.com/2022/01/a-second-look-at-justice-sotomayors-police-power-comments/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202022-01-10&utm_term=NRDaily-Smart
Paywalled.
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Thanks for the heads up on the paywall. I will work on being more alert to this:
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A Second Look at Justice Sotomayor’s ‘Police Power’ Comments
By ANDREW C. MCCARTHY
January 10, 2022 2:31 PM
Supreme Court Justice Sonia Sotomayor speaks to attendees during commemorations for International Women’s Day at the 9/11 Memorial and Museum in New York City, March 8, 2019. (Eduardo Munoz/Reuters)
I happen to believe Sotomayor is wrong on the merits. Nevertheless, her argument is not frivolous.
Idon’t agree with Justice Sonia Sotomayor on much, but I cut her lots of slack on the “police powers” debate she had with Ohio solicitor general Ben Flowers. As our Isaac Schorr reported, this came up during Friday’s oral argument on President Biden’s vaccine mandates. Specifically, it arose in the first of the two cases argued, which centered on the Occupational Safety and Health Administration (OSHA) mandate, though it is equally relevant to the second, consolidated case, involving the Health and Human Services (HHS) mandate. (The audio and transcript of the OSHA argument are here and here, and for the HHS argument here and here.)
Critics contending that Justice Sotomayor, the Court’s most extreme progressive, is either conceptually confused or constitutionally illiterate, are relying on this exchange with SG Flowers (here, p. 54-56):
Sotomayor: So, if it’s within the police power to protect the health and safety of workers, you seem to be saying the states can do it, but you’re saying the federal government can’t even though it’s facing the same crisis in interstate commerce that states are facing within their own borders. I’m not sure I understand the distinction why the states would have the power but the federal government wouldn’t.
Flowers: The federal government has no police power if we’re asking about that.
Sotomayor: Oh, it does have power with respect to protecting the health and safety of workers. We have — we have accept [sic] the constitutionality of OSHA. [ACM: I believe she meant, and may even have said, “accepted”.]
Flowers: Yes. I took you to be asking if they had a police power to protect public health. They — they absolutely have the —
Sotomayor: No, they have a police power to protect workers.
Flowers: I would not call it a police power. I think the Commerce Clause power allows them to address health . . . in the context of the workplace.
Sotomayor: Exactly.
It is not that Sotomayor is confused about what “police powers” are, or about the fact that, as originally understood, they are state powers — i.e., the federal government did not have any general regulatory authority over public health, safety, and morals. Sotomayor is saying that in modern times, given how the federal government, including the Court, has expanded federal power via the Commerce Clause, it is anachronistic to refer to “police powers” as if only the states had them, and thus to complain as if the federal issuance of a medical mandate to promote workplace safety or public health is a radical notion.
As Isaac elaborates, the Tenth Amendment illustrates the Framers’ conception, which reserved to the states those powers the Constitution does not explicitly delegate to the federal government. Nothing in the enumeration of Congress’s law-making powers in Section 8 of Article I endows the federal government with authority to regulate public health and safety — at least not directly. (I won’t divert us with a discussion of how Section 8’s Necessary and Proper Clause potentially inflates the enumerated powers.)
Another way of looking at this involves the Framers’ distinction of continued state sovereignty over matters of “internal order” from control by the newly formed central government over interstate and international matters. As Madison explained in Federalist No. 45:
The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.
Justice Sotomayor, to the contrary, was making the “Hasn’t that ship sailed?” point I tried to flesh out in my Friday evening post analyzing the oral argument:
One of the main complaints of the Court’s three progressives (Justices Sotomayor, Elena Kagan, and Stephen Breyer) was that we have long been living in a world in which Congress grants administrative agencies capacious powers, and the agencies routinely use them to regulate commerce in an extensive (I would say intrusive) manner. Moreover, the federal government is a huge player in the economy, and therefore a great deal of commerce that may once have been the realm of private action is now subject to government regulation because it involves taking public money and benefits. So, the progressives ask, why do we suddenly have to justify the way things have been done for decades? Why are we suddenly fretting over federalism, separation of powers, delegation of legislative authority, and so on?
To illustrate, here is Sotomayor during the argument over the HHS mandate (pp. 29–30):
I dare say that I looked at some of the regulations at issue here, not the ones [the Biden administration] passed with respect to Covid but other regulations. Is it fair to say that the vast majority of the regulations across all facilities [that have some involvement with Medicare and Medicaid] relate to health and safety? [A question to which the Justice Department lawyer answered, “I think that’s fair, yes.]
And later, grilling an opponent of the HHS mandate (pp. 65–67):
In terms of clear rules, I’m having a hard time understanding how you can say, yes, they could pass a rule that requires people to wear gloves or they can pass a rule that requires them to isolate individuals who are . . . infected by something, but they can’t pass this rule. . . . If it’s clear enough that they can consider safety and health regulations, why is this particular rule subject to us saying no?
And (pp. 83–84):
I’m having a hard time understanding how and why a rule like this is so substantially different than the volumes of rules that CMS [i.e., the federal Centers for Medicare and Medicaid Services] has with respect to so many issues involving health and welfare. They tell you how high the bed has to be. They tell you how close the hand sanitizers have to be. This is before Covid. They have so many different rules that one could arguably say belonged within the state’s rights[. . . .]
The essence of Justice Sotomayor’s argument is that, whatever “police powers” may have meant in 1787, it would be laughable to suggest that the federal government does not both have and routinely exercise regulatory authority over public-health and safety matters. So laughable that no one challenging the Biden mandates dares say otherwise. Ergo, she observes, those who object to the mandates are left to argue that requiring vaccination during a pandemic is somehow a bridge too far — even though it seems demonstrably more essential than the hundreds of health and safety mandates the government has issued over the last five decades or so, seemingly without controversy.
Now, I happen to believe Sotomayor is wrong on the merits. Nevertheless, her argument is not frivolous, especially if one accepts the reality that the Supreme Court has to grapple with its jurisprudence (particularly on the Commerce Clause and administrative law), as opposed to simply and suddenly announcing, “This is how things must henceforth be done, for the greater good of fidelity to the Framers’ vision of state sovereignty and limited federal power.”
To be clear, I am not speaking here about Sotomayor’s disturbing, thinly veiled political demagoguery about the number of children supposedly suffering serious illness due to Covid, or about the other progressive justices’ similar (though less crude) exaggerations about the degree of danger we currently face and the degree to which the Biden mandates could meaningfully ameliorate it.
What I am saying is that Justice Sotomayor’s theory has force and must be confronted on its own terms. She is contending that, at this stage of our history, after nearly a century of precedent supporting progressive governance, it is constitutionally legitimate for the federal government to exercise what were originally known as police powers. That claim can’t be smirked away with eyes rolling as if the justice has no idea what she’s talking about.
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https://nypost.com/2022/03/29/most-americans-blame-chris-rock-over-viral-will-smith-slap/
Houston - "we have a problem"
when people think it ok to go up and assault and curse out another
like this was a justifiable move..........
Can anyone imagine if a white guy went up there and slapped a black?
they absolutely should have had him arrested and escorted out
and not awarded him an oscar
but alas ..........
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The downward spiral continues.
https://nypost.com/2022/03/29/most-americans-blame-chris-rock-over-viral-will-smith-slap/
Houston - "we have a problem"
when people think it ok to go up and assault and curse out another
like this was a justifiable move..........
Can anyone imagine if a white guy went up there and slapped a black?
they absolutely should have had him arrested and escorted out
and not awarded him an oscar
but alas ..........
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Supreme Court Narrows EPA’s Ability to Regulate Carbon Dioxide Emissions
By Matthew Vadum June 30, 2022 Updated: June 30, 2022biggersmaller Print
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The Supreme Court ruled 6–3 on June 30 that the Clean Air Act doesn’t give the U.S. Environmental Protection Agency (EPA) widespread power to regulate carbon dioxide emissions that a popular theory says contribute to global warming.
Chief Justice John Roberts wrote the court’s majority opinion (pdf) in West Virginia v. EPA, court file 20-1530. Roberts was joined by the court’s other five conservatives. The court’s three liberal justices dissented.
While “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Roberts wrote, quoting a 1992 precedent, “it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d)” of the Clean Air Act.
“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” he wrote.
West Virginia and 18 other states challenged the authority the Clean Air Act provides the EPA.
In 2016, the Supreme Court overturned the Obama-era Clean Power Plan (CPP), which expanded controls over the industry. Next, the deregulation-minded Trump administration reversed course, easing control on the industry with its Affordable Clean Energy Rule (ACE Rule).
On Jan. 19, 2021, the U.S. Court of Appeals for the District of Columbia Circuit struck down the ACE Rule, restoring some of the EPA’s authority in American Lung Association v. EPA (pdf). The court held that the EPA, under Trump, had misconstrued section 7411(d) of the Clean Air Act.
In the new opinion, the Supreme Court reversed the D.C. Circuit decision and remanded the case “for further proceedings consistent with this opinion.”
In Justice Elena Kagan’s dissent, she criticized the court majority for a decision she said “strips” the EPA of the power Congress gave it to respond to “the most pressing environmental challenge of our time,” citing Massachusetts v. EPA (2007).
“Climate change’s causes and dangers are no longer subject to serious doubt. Modern science is ‘unequivocal that human influence’—in particular, the emission of greenhouse gases like carbon dioxide—’has warmed the atmosphere, ocean and land.'”
“Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision maker on climate policy. I cannot think of many things more frightening.”
West Virginia Attorney General Patrick Morrisey, who previously told The Epoch Times that the EPA is trying to transform itself from “an environmental regulator into a central energy planning authority,” praised the Supreme Court.
“For many years, we’ve argued that EPA only had a narrow bit of authority to regulate carbon emissions,” Morrisey, a Republican who brought the appeal, said at a press conference.
“I think that the court today amplified that point. And once again, they also made clear that when you have something this big, something with vast economic and political significance, then that represents an extraordinary question. And that means Congress needs to step in, as opposed to the unelected bureaucrats.
“We know that over the last year and a half, the Biden administration has tried to run roughshod over the American economy with respect to its energy agenda.
“We want to make sure that the Biden agenda is limited by basis of what Congress authorized these agencies [to do],” he said.
“Our founders envisioned” that “Congress and not the unelected bureaucrats” should make decisions “about the major issues of the day.”
“They didn’t want to just have these unelected bureaucrats reach out and try to seize power where it didn’t exist,” Morrisey said.
U.S. Sen. Bob Menendez (D-N.J.) criticized the ruling and the six conservative justices.
“As the devastating impacts of climate change are becoming ever-more present, it is mind boggling and deeply alarming that the Supreme Court today has decided to hamstring the EPA’s authority to regulate greenhouse gases. This ruling not only restricts the agency’s ability to limit air pollution from the second-largest source of emissions in America, it also undermines the landmark Clean Air Act that gave it such authority,” the senator said.
“Make no mistake, with this devastating ruling in West Virginia v. EPA, the conservative majority of the Court continues to take our country backward and more worrisome, it opens the door to far-reaching implications for how other federal agencies generally create regulations to implement existing legislation moving forward.”
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https://www.washingtontimes.com/news/2022/sep/16/supreme-court-rulings-guns-abortion-religious-libe/?utm_source=Boomtrain&utm_medium=subscriber&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=tW0UtSyj3xztvyVBTuHgk6pP%2FVMlx5CqEQH9eQqLv0Of%2FWG84z%2BOGOjNfkeKRREm&bt_ts=1663346540232
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https://theintercept.com/2022/12/16/corporate-rico-environmental-advocate/
The Scorched-Earth Legal Strategy Corporations Are Using to Silence Their Critics
Illustration
Weeks before he was murdered, Victor Hugo Orcasita presented his wife with a letter describing his last wishes.
Orcasita, a union leader, had been pushing for better conditions at his workplace, a mine in northern Colombia owned by a subsidiary of the Alabama-based coal company Drummond. Then the death threats started coming in. He believed that the armed strangers who had started appearing around the mine’s cafeteria would soon make those threats a reality.
“He foresaw his death,” said his widow, Elisa Almarales Viloria.
On March 12, 2001, paramilitary gunmen dragged Orcasita and another union leader, Valmore Locarno, from a company bus as the men returned home from work. The gunmen shot Locarno on the spot and carried Orcasita off in the bed of their pickup truck. His body was found the next day. He’d been shot in the head, his teeth knocked out.
The miners’ union was convinced that Drummond was involved in the murders. They suspected that the company was secretly paying the paramilitary group that executed their leaders. Ultimately, a Drummond food service contractor who ran the mine’s cafeteria was convicted of plotting the murders and sentenced to 38 years in prison.
To make the case that the company was complicit in the killings, the union turned to Terry Collingsworth, a lifelong human rights attorney based in Washington, D.C.
Victims suing multinational corporations for alleged crimes committed abroad face steep odds. Collingsworth has made a specialty of these uphill battles, devoting his career to holding companies accountable in American courts for human rights abuses overseas. In his struggle with Drummond, he collaborated with activist groups, spoke out in the media, and wrote letters to Drummond’s business partners accusing the company of “hiring, contracting with, and directing” the paramilitaries who committed the murders.
Collingsworth’s decision to file suit in the United States made Orcasita’s widow hopeful that justice would prevail. For years, she had felt that justice would be impossible in Colombia due to Drummond’s political clout.
“What we were most excited about was bringing the lawsuit in Alabama,” she said. “There it would not be so easy for them to traffic their influence.”
Collingsworth lost an initial trial in 2007, when a jury found there wasn’t clear evidence tying the company to the crimes. Another of his lawsuits was dismissed for being too similar to the first. But Collingsworth continued to press his case, offering new witnesses with firsthand testimony implicating Drummond.
Then, in March 2015, the case took a surprising turn.
Drummond had returned fire in the legal fight with an unusual accusation. The company charged that Collingsworth — an advocate who recently brought a case before the U.S. Supreme Court — had led a “multifaceted criminal campaign” to extort Drummond into paying a costly settlement. This campaign, Drummond alleged, was in fact a racketeering conspiracy as defined by the Racketeer Influenced and Corrupt Organizations Act, better known as RICO.
Drummond’s charges represent a scorched-earth legal strategy in which corporations are turning the tables on attorneys and advocates who accuse them of wrongdoing. The technique was popularized by the elite corporate law firm Gibson, Dunn & Crutcher, whose clients include a who’s who of America’s most powerful companies. Representing the oil giant Chevron, Gibson Dunn convinced a judge to block one of the largest environmental verdicts ever reached by deploying a novel formula: using the civil provisions of RICO to charge opposing attorneys with racketeering.
Companies that have used RICO against their accusers say they brought the charges on themselves by committing fraud, bribery, and extortion. In Chevron’s case against environmental attorney Steven Donziger, a federal judge agreed; in the case against Collingsworth, a judge ruled that there was enough evidence of malfeasance to allow discovery. Human rights and environmental advocates contend that the true purpose of the cases is to send attorneys and activists a message: Going toe-to-toe with heavyweight corporations can lead to personal ruin.
“Companies with functionally limitless resources can come in and bigfoot like this, and no one can withstand it.”
Legal experts say some plaintiff’s attorneys made themselves vulnerable to RICO claims because they operated at the most aggressive edge of their field, overstepped ethical lines, and by their own admission made mistakes. By shifting the spotlight to these attorneys’ conduct, corporations effectively sidestepped the original allegations against them. Following these victories, other companies adopted similar theories to target advocacy groups directly.
If the goal is to hold attorneys accountable for unethical behavior, RICO is an odd choice. George Washington University law professor and international human rights attorney Ralph Steinhardt noted that RICO is a “very heavy club to swing” when there are more direct penalties, like sanctions, which punish the advocate without invalidating the entire case.
“One wonders why you would bring out the big guns of racketeering to send a message,” he said. “It’s a take-no-prisoners approach that’s intended to distract from whatever good faith allegations there may be.”
Ken White, a former federal prosecutor who specializes in First Amendment law, said responding to alleged misconduct by opposing attorneys with RICO charges is “like going after raccoons knocking over your trash cans with a tactical nuke.”
What’s missing, White says, is a universal mechanism to secure quick dismissals of baseless RICO claims. “Companies with functionally limitless resources can come in and bigfoot like this, and no one can withstand it,” White said.
Climate activists are gathered outside Gibson Dunn office to protest against the Chevron Corp, New York City, June 10, 2021.
Climate activists gather outside the Gibson Dunn office in New York City to protest against Chevron on June 10, 2021.
Photo: Tayfun Coskun/Getty Images
The RICO Playbook
As scientists issue dire warnings about climate change, advocates have turned to the courts and public campaigning to try to impose consequences on companies they accuse of serious attacks on the environment. Energy and extractive industry giants targeted by these efforts have been particularly eager to turn the tables by deploying this no-holds-barred strategy.
One of the world’s biggest oil companies, accused of dumping billions of gallons of toxic waste in the Amazon rainforest, won the first high-profile victory that relied on this approach. Drummond filed RICO charges in response to allegations that it financed the murder of union leaders who threatened the productivity of its coal mines. A pulp and paper company accused of destroying forests and the energy company behind the Dakota Access pipeline followed soon after, bringing RICO claims against environmental campaigners and anti-pipeline protesters.
In each of these cases, the accused racketeers were environmental and human rights attorneys, Greenpeace and other environmental groups, or Indigenous land and water rights activists.
The RICO Act, originally passed in 1970 to help prosecutors go after the mafia, includes civil provisions that allow private parties to allege a racketeering conspiracy. Most civil RICO claims are filed in business disputes, while others have been brought against political groups from anti-abortion protesters to animal rights activists. These suits require a high bar of evidence: They must prove a pattern of at least two “predicate” crimes such as bribery, fraud, or money laundering; that the perpetrators worked together in a criminal “enterprise”; and that the perpetrators acted with criminal intent.
Nonetheless, RICO claims offer powerful incentives to plaintiffs. If a judge allows the case to go forward, the defendants are subject to extensive discovery in which a well-funded corporate law firm can bury them in paperwork. If the company wins and can establish damages, those damages are automatically tripled.
“When we really think about what these suits are about, it’s fear.”
The success of early cases has helped build a body of law that opens the door for even more aggressive uses of the statute. The most recent corporate RICO cases have sought to define common public advocacy techniques such as negative media campaigns that allegedly contained false claims as predicate offenses for racketeering. The financial and reputational costs of defending these claims can make them devastating to their targets even if they ultimately fail.
“These RICO cases are easier to file than they are to win,” Steinhardt said. “Their intimidating purpose is served by their filing or their pendency.”
Deepa Padmanabha, deputy general counsel for Greenpeace USA, said that even though her team was awarded more than $800,000 in legal fees after successfully defeating RICO claims, the cost of defending the case was even higher.
Padmanabha said that two RICO suits would have cost the organization a total of more than a billion dollars if it had lost. The goal of the charges, she believes, was to caution the environmental movement that even the largest organizations were not safe from ruin.
“When we really think about what these suits are about, it’s fear,” Padmanabha said.
Corporate lawyers seem to be betting that the strategy will have staying power. In October 2020, Gibson Dunn announced a new practice in Judgment and Arbitral Award Enforcement, offering its services to creditors or debtors seeking to litigate existing judgments. The practice’s website highlights “its representation of Chevron Corporation in its successful RICO suit” and boasts that the firm “excels at defending companies and individuals against fraudulent arbitration awards and foreign judgments.”
Evan Mascagni, policy director for the Public Participation Project, an organization that fights against abusive lawsuits, said the RICO strategy threatens to overwhelm the legal system by allowing deep-pocketed companies to deploy endless resources to silence critics and defy judgments against them.
“I think if we accept this as a society, as a country, we’re saying we’re going to give incredibly powerful multinational corporations the ability to hijack our legal system,” Mascagni said.
The lawyer of Ecuadorean people affected by Texaco-Chevron, Steven Donziger, speaks during a press conference on March 19, 2014 in Quito.
Steven Donziger speaks during a press conference on March 19, 2014, in Quito, Ecuador.
Photo: Rodrigo Buendia/AFP via Getty Images
A Victory for Chevron
The RICO strategy was most famously deployed in 2011 by Chevron in its bitter legal conflict with attorney Steven Donziger.
At the time, Donziger was the lead lawyer pursuing massive damages against the oil company for toxic pollution in the Ecuadorian Amazon. Chevron inherited the lawsuit when it acquired Texaco, which had allegedly left hundreds of open pits of sludge in the rainforests where it operated, causing cancer deaths, miscarriages, and birth defects among the area’s mostly Indigenous residents. As the prospects of a multibillion-dollar judgment grew higher, Chevron enlisted the help of Gibson Dunn.
In February 2011, Gibson Dunn attorneys filed a civil RICO suit in New York accusing Donziger and his colleagues of running a racketeering conspiracy. They charged that Donziger and his team secretly controlled a key independent expert appointed by the Ecuadorian court to assess pollution damages. By the time of Donziger’s trial, they added the accusation that Donziger had bribed an Ecuadorian judge to allow his team to ghostwrite the judgment against Chevron.
Chevron provided hundreds of thousands of dollars in benefits to Alberto Guerra, the witness who claimed he’d facilitated the bribery and served as a liaison between Donziger’s team and the Ecuadorian judge. The benefits included relocating Guerra and his family from Ecuador to the United States, where the company supplied him with a $12,000 monthly salary. Chevron has said that it relocated Guerra to ensure his safety and that the payments were to compensate him for the cost of providing his evidence.
The company’s case was bolstered by Donziger’s own words, obtained through discovery of materials that included outtakes from a documentary film. In one clip, Donziger discussed the size of a possible judgment against Chevron and speculated that his team could “jack this thing up to $30 billion.” In draft testimony in 2013, Donziger conceded that he “did make errors along the way” but challenged the legitimacy of the proceedings against him.
As the RICO case headed for trial, Chevron made a strategic move. Roughly two weeks before the trial date, it dropped its request for damages and sought only to block enforcement of Ecuador’s $9.5 billion judgment. That meant the case would no longer be heard by a jury but decided solely by Judge Lewis Kaplan, a federal district judge in Manhattan who had ruled in the company’s favor in earlier motions.
In March 2014, Kaplan ruled in favor of Chevron, barring U.S. enforcement of the Ecuadorian judgment and holding that private parties are entitled to seek relief from foreign courts’ decisions under civil RICO — a crucial green light for the strategy that Gibson Dunn had developed.
Kaplan concluded that Donziger’s team had not only secretly written the Ecuadorian court’s ruling, but also submitted false evidence and made hidden payments to the court-appointed expert. “The wrongful actions of Donziger and his Ecuadorian legal team would be offensive to the laws of any nation that aspires to the rule of law,” Kaplan wrote in his opinion.
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Critics have raised questions about irregularities in the case against Donziger. Guerra later changed key details in his testimony, including the nature of the alleged bribe agreement and the dates of trips in which he claimed to have worked on the case. Computer analysis also showed the judge in question had a running draft of the judgment saved on his hard drive for months, undermining the ghostwriting claim. Still, the case set in motion a stunning downfall for Donziger. The one-time star of the environmental bar ended up serving time in federal prison on contempt charges stemming from his refusal to comply with orders from Kaplan after the RICO decision. Meanwhile, Chevron avoided paying the multibillion-dollar judgment for the toxic sludge that remains in the Ecuadorian Amazon.
In an emailed statement, Gibson Dunn noted that an arbitration panel established through a trade agreement between the United States and Ecuador found that Texaco, Chevron’s predecessor, had complied with a pollution remediation plan approved by the Ecuadorian government, releasing the company from liability. Critics contend that the remediation plan failed to clean up the damage and did not cover claims by private plaintiffs.
In response to questions about Guerra, the firm said Donziger exaggerated the importance of his testimony and pointed to Kaplan’s statement that he would have “reached precisely the same result in this case even without the testimony of Alberto Guerra.” Gibson Dunn added that Kaplan’s RICO ruling, which was unanimously affirmed by a panel of judges on the 2nd U.S. Circuit Court of Appeals, showed that the firm’s advocacy had uncovered serious wrongdoing.
“As for Gibson Dunn’s work successfully exposing fraud by unscrupulous lawyers like Mr. Donziger who seek to rip off vulnerable people in weak legal systems overseas based on lies, this is laudable work vindicating the rule of law,” William Thomson, a partner at Gibson Dunn who was part of its Chevron team, wrote in the statement.
Donziger maintained that his contacts with the Ecuadorian expert were legal and appropriate under Ecuadorian law, and that the ghostwriting charges were fabricated.
“Chevron used a civil racketeering case and false witness testimony from a person who is an admitted liar to try to criminalize me,” Donziger told The Intercept and Type in a written statement. “They wanted to use this bogus RICO case to try to get people to forget about the human devastation Chevron caused in Ecuador.”
Undated photo of a open air coal mine in La Guajira province, Colombia.
An open-air coal mine in Colombia’s La Guajira Department.
Photo: Jeffrey Tanenhaus
Witnesses in Dispute
About a year after Kaplan blocked the Ecuadorian judgment against Chevron, Drummond filed RICO charges against Collingsworth.
Although the company had already prevailed against several of his lawsuits, Collingsworth forged ahead with new legal actions, adding witnesses who offered firsthand testimony alleging that the coal company was complicit in the union leaders’ murders.
One of these witnesses was an imprisoned former paramilitary commander called El Tigre, or the Tiger, who testified that Drummond provided regular payments to his unit. Another key witness was Jaime Blanco, the food contractor who was ultimately convicted of the murders, who said Drummond used his company as a conduit to funnel money to the paramilitaries and directed them to commit the murders.
Collingsworth made payments to El Tigre’s family members and helped arrange financing for Blanco’s legal defense when he agreed to testify. He said the funds he provided to El Tigre’s family were security payments to help the family relocate in order to avoid violent retaliation by the paramilitaries, Autodefensas Unidas de Colombia, which the U.S. State Department designated as a terrorist group in 2001. In response to a court order, Collingsworth disclosed similar payments to relatives of three ex-paramilitary witnesses, but he failed to include the payments to El Tigre and two other ex-paramilitaries, as well as his arrangement with Blanco.
Drummond’s media office did not respond to multiple phone calls and emails requesting comment for this story, and attorneys for Drummond declined to comment.
Colombian authorities have backed up key elements of Collingsworth and El Tigre’s account. In December 2020, the Colombian Attorney General’s Office charged the current and former presidents of Drummond’s Colombian subsidiary with conspiracy in the union leaders’ murders. The 149-page charging document included a summary of a forensic analysis that found evidence of more than $3.7 million in overpayments from the subsidiary to Blanco’s company, bolstering allegations that Drummond had financed the paramilitaries.
Prosecutors also noted that numerous witnesses who did not receive security payments had testified to the same facts. The accounts of El Tigre and other disputed witnesses, they wrote, were “in harmony with and verified by other forms of proof.”
This fall, prosecutors named Drummond’s Colombian subsidiary as a “civilly responsible third party” in the case of the union leaders’ murders.
Though its Colombian subsidiary is now in the crosshairs of prosecutors, Drummond has had more success against Collingsworth in the United States.
In 2015, Drummond filed a civil RICO suit charging that Collingsworth had bribed El Tigre, Blanco, and other witnesses to falsely testify that Drummond was involved in the murders, as part of a racketeering conspiracy to strong-arm the coal producer into paying a hefty settlement. The company pointed to inconsistencies in their testimonies, noting previous statements in which they denied that Drummond had worked with the paramilitaries before they became witnesses for Collingsworth.
The case, which focused on the undisclosed payments to witnesses, was heard by a federal judge who had ruled in Drummond’s favor in earlier litigation with Collingsworth, Judge R. David Proctor of the Northern District of Alabama.
Collingsworth said in court filings that the omissions were an “inadvertent disclosure error” resulting from miscommunication with his co-counsel in Colombia. He said he had failed to include the payments in an initial disclosure and then recycled his answer repeatedly before realizing his error. He also apologized to the judge for making a “terrible mistake” in not revealing his arrangement with Blanco, which he had previously deemed to be outside the scope of required disclosures.
“Sitting here now, boy, I wish I had just disclosed it,” Collingsworth said in a phone interview. “Because it wasn’t hiding the truth or changing the testimony.”
The real question, Collingsworth said, is whether the payments to the witnesses in Colombia were ethical and necessary for their safety. The security arrangements were needed for them to testify truthfully without endangering their families, he said, noting that he reviewed all arrangements in advance with ethics lawyers and turned down witnesses who sought to exchange testimony for cash. He fiercely defends his decision to help relocate the families of former paramilitaries and submitted testimony supporting the need for security payments by expert witnesses including Javier Peña, the former Drug Enforcement Administration agent who led the mission that killed cartel leader Pablo Escobar and inspired the Netflix series “Narcos.”
“It was morally necessary to protect these families from one of the most brutal groups that roamed the earth,” Collingsworth said.
In December 2015, Proctor ruled that Drummond’s RICO case could go forward, finding that Collingsworth’s explanation for the undisclosed payments was “as weak as it is incredible.” He held that there was probable cause to believe that Collingsworth had bribed witnesses and suborned perjury, opening the door to the extensive discovery process that Chevron had effectively used against Donziger.
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It was the beginning of years of legal wrangling that Collingsworth said drained the resources of his small human rights firm.
Collingsworth said he has spent some 2,000 hours — what a lawyer usually bills in a year — defending against Drummond’s charges. Even more damaging, he said, has been the impact on his professional reputation, which he says has deprived him of business opportunities and revenue.
“I have had colleagues who are in law firms tell me that they can’t collaborate with me until these charges are completely resolved in my favor, because they don’t want to be accused of associating with someone who bribes witnesses,” Collingsworth said.
Steinhardt, the human rights law professor, said the facts of the case aren’t black and white, but the charges against Collingsworth are disproportionate. “He isn’t a racketeer,” Steinhardt said.
A protester holds a poster during a demonstration outside the Constitutional Court, called by the Union of Persons Affected by Texaco, to mark the 23 years of legal battle against the oil company, in Quito, Ecuador, Wednesday, Nov. 9, 2016.
A protester holds a poster outside the constitutional court in Quito, Ecuador, on Nov. 9, 2016, at a demonstration marking 23 of the legal battle over Texaco’s pollution.
Photo: Dolores Ochoa/AP
A Chilling Effect
The success of these cases paved the way for increasingly aggressive uses of civil RICO.
Around 2012, Greenpeace and other environmental groups launched a protest campaign against Resolute Forest Products, accusing the forestry company of destroying boreal forests in Canada. Several years later, Greenpeace and others began another campaign targeting Energy Transfer Partners (now part of Energy Transfer LP), the company behind the Dakota Access pipeline. This campaign charged, among other things, that the company was threatening Indigenous communities’ water supply and sacred sites. Greenpeace and its allies rallied their members, drove media coverage, and urged the companies’ business partners to sever ties unless the companies changed course.
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The two companies filed RICO charges against Greenpeace and the other groups in 2016 and 2017. Both were represented by the firm Kasowitz Benson Torres, whose founding partner Marc Kasowitz was a longtime personal attorney for Donald Trump and filed a defamation case against one of Trump’s critics. (First Look Institute, the nonprofit that publishes The Intercept, is involved in litigation with Energy Transfer, represented by the Kasowitz firm, over records related to the Dakota Access pipeline.)
Michael Bowe, the former Kasowitz partner who brought the RICO cases, told Bloomberg in August 2017 that he was in contact with other companies considering similar actions and “would be shocked if there are not many more.” He anticipates an increase in these actions, he wrote in response to questions from Type and The Intercept, because “the online nature of activism and speech generally makes it easier and more common to widely disseminate false claims and inflict great harm.”
“The claims against Greenpeace and others are … essentially saying, ‘Your activism is racketeering.’”
The cases against Greenpeace took the RICO strategy well beyond the arguments made by Chevron and Drummond. They argued that common advocacy techniques such as naming-and-shaming campaigns and fundraising amounted to RICO offenses if the campaigns included false allegations. Greenpeace’s campaign against Resolute included an inaccurate claim that Resolute had logged in protected forests, which Greenpeace later retracted, saying it had made a mistake. Resolute accused Greenpeace of intentionally fabricating the claim in order to extort the company, calling the organization a “global fraud” that existed to maximize donations rather than protect the environment.
“The claims against Donziger aren’t claims against environmentalism as it operates,” said Joshua Galperin, an environmental law professor at Pace Law School. “But the claims against Greenpeace and others are much more broad, essentially saying, ‘Your activism is racketeering.’”
Bowe disputed this characterization. “The case is not about activism, it is about lies,” he wrote. “Legitimate activism is truthful.”
Krystal Two Bulls, an organizer who participated in the Standing Rock protests against the Dakota Access pipeline, was added as a defendant in the racketeering suit brought by Energy Transfer in 2018, after a judge found that the initial complaint was too vague to support RICO claims. The company charged that Two Bulls, a media liaison for a group of protesters called Red Warrior Camp, had sought to “provide cover for their illegal activities” by issuing public calls to action on the group’s behalf. They accused Red Warrior Camp of being a “front for eco-terrorists” who engaged in violent attacks on construction sites. News reports state that while members of the camp occupied private land to block pipeline construction, police and security guards carried out much of the violence — using water hoses, rubber bullets, and tear gas against protesters.
Two Bulls, a U.S. Army veteran and a member of the Oglala Lakota and Northern Cheyenne, was shocked when she learned she had been charged with racketeering.
“I remember thinking, what am I supposed to do with this?” she said. “I have no lawyer. I have no money for a lawyer.”
“I started to censor myself.”
Two Bulls was represented pro bono by the nonprofit law firms Center for Constitutional Rights and EarthRights International. She considers herself lucky that colleagues in the environmental movement connected her with these lawyers but recalls a heavy weight on her shoulders while the charges were pending. She felt like her presence was a liability to her fellow activists.
“It made me second guess myself and the spaces I entered,” Two Bulls said. “I started to censor myself in the things I was saying.”
Laura Lee Prather, a partner at Haynes Boone who specializes in First Amendment law, said civil RICO claims often lead to extended litigation because they depend heavily on the facts of the case. Defamation charges can be thrown out if the defendant can affirmatively show their statements were true. By contrast, a civil RICO claim usually requires a more complex defense.
“Civil RICO is much more difficult to have a court feel comfortable dismissing at any early stage,” Prather said.
Federal judges in California and North Dakota dismissed the RICO claims in both cases almost a year and a half after they were filed. In the Resolute case, the judge ruled that the company failed to prove that Greenpeace’s fundraising claims had directly caused the alleged harm it suffered. He later ordered the company to pay more than $800,000 of Greenpeace’s legal costs.
Resolute noted that other charges it has brought against Greenpeace, alleging defamation and unfair competition, were allowed to proceed and are still before the courts. “The long-running dispute with activists has been about standing up for our communities to defend our sustainable practices against misrepresentation,” Resolute spokesperson Seth Kursman said in a statement.
In the case of Energy Transfer, the judge ruled that the company failed to prove that the various actors involved in the Standing Rock protests were a coordinated “RICO enterprise.”
“While there is a common purpose among defendants — they all oppose the Dakota Access Pipeline — there is no ongoing organization, no continuing unit, and no ascertainable structure apart from the alleged RICO violations,” U.S. District Judge Billy Roy Wilson wrote in February 2019. “That is far short of what is needed to establish a RICO enterprise.”
Energy Transfer did not respond to email or telephone inquiries. A week after its RICO charges were dismissed, the company filed charges in North Dakota state court, accusing Greenpeace, Two Bulls, and others of trespass, defamation, and civil conspiracy for their role in the Standing Rock protests. The litigation is ongoing.
Defiant Dakota Access Pipeline water protectors faced-off with various law enforcement agencies on the day the camp was slated to be raided, on Feb. 22, 2017, North Dakota.
Dakota Access pipeline protesters face off with various law enforcement agencies on Feb. 22, 2017, in North Dakota.
Photo: Michael Nigro/Pacific Press/LightRocket via Getty Images
Protecting the Protest
The RICO attacks on Greenpeace and its allies alarmed civil society organizations, which feared that the cases would deter advocacy groups from speaking out against big corporations. In 2018, a coalition of organizations founded Protect the Protest to combat lawsuits meant to silence free speech, which are known as strategic lawsuits against public participation, or SLAPPs. These lawsuits can include RICO claims but have also proliferated in other ways. Telltale signs of a SLAPP, according to the coalition, are claims that target activities protected by the First Amendment, seek to exploit a power imbalance, and threaten to bankrupt defendants.
“Civil society is not just going to lay down and take this,” said Marco Simons, the general counsel for EarthRights International and a member of the coalition.
Simons believes the coalition’s recent work calling attention to the Greenpeace lawsuits has, for the time being, discouraged companies from attempting more RICO suits that broadly target activism. But Protect the Protest is still seeking more permanent solutions.
The coalition aims to crack down on these suits by promoting anti-SLAPP laws, which provide fast-track procedures for dismissing SLAPPs and shifting their legal costs to the party that filed them. More than half of U.S. states have some version of an anti-SLAPP law.
Ken White, the former prosecutor, said that state anti-SLAPP laws have been highly effective, both in deterring abusive lawsuits and providing a defense mechanism for their targets. But RICO is a federal law.
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In September, Rep. Jamie Raskin, D-Md., introduced the SLAPP Protection Act of 2022, a federal bill that, like the state laws, would provide an expedited process for getting SLAPPs thrown out. Raskin singled out the fossil fuel industry for abusing the “legal system by deploying costly, protracted, and meritless lawsuits to target activists.”
A law providing a uniform standard for dismissing such lawsuits across federal courts would make it “much harder to abuse the system,” White said.
As advocates search for solutions, Drummond is pressing ahead with its RICO case against Collingsworth. The company subpoenaed VICE Media last year for raw audio recordings from a podcast about the union leaders’ murders. On March 7, Proctor, the judge, ruled in Drummond’s favor, ordering VICE to turn over recordings of its interviews with Collingsworth, Blanco, and another witness.
Collingsworth said that he doesn’t fear losing in court, but the looming racketeering charges have taken a toll psychologically.
“There is a question mark over my name.”
“It has caused me emotional turmoil because some people view me differently,” he said. “There is a question mark over my name.”
The coming months are expected to bring new developments in his legal battle with the coal company. Attorneys will take depositions from witnesses in Colombia for Drummond’s RICO suit and a more recent suit brought by Collingsworth. Meanwhile, Colombian prosecutors have resumed work in their case against the current and former presidents of Drummond’s Colombian subsidiary, seeking testimony from a former paramilitary leader in October. The defendants have appealed the decision to charge them with conspiring in Orcasita’s and Locarno’s murders, and the appeal must be decided before the case can go to trial, according to Ivan Otero, Collingsworth’s co-counsel in Colombia.
More than 21 years after her husband’s murder, Elisa Orcasita is still skeptical of Colombian justice but is hoping for a clean trial.
“We pray to God that there’s no more buying of anything, no more influence of anything,” she said. “That’s what we hope for as victims.”
This story was produced with support from the Fund for Constitutional Government and the H.D. Lloyd Fund for Investigative Journalism.
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https://www.msn.com/en-us/money/markets/the-unusual-5-4-decision-that-united-neil-gorsuch-and-ketanji-brown-jackson/ar-AA186ROu?ocid=msedgntp&cvid=ac8c64c28101401d98245d4e6824d32b&ei=36
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https://www.msn.com/en-us/news/politics/brett-kavanaugh-s-surprising-dissent-in-scotus-ruling-cheered-by-liberals/ar-AA19aei8?ocid=msedgntp&cvid=6340d5812c844672a5d8f66977cb3af1&ei=7
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https://www.nationalreview.com/2023/05/the-left-wing-assault-on-the-supreme-court/?lctg=547fd5293b35d0210c8df7b9&utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Saturday%202023-05-08&utm_term=NRDaily-Smart
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https://www.politico.com/minutes/congress/06-7-2023/carter/
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This seems like a very good resource. I will be checking it out.
https://howappealing.abovethelaw.com/
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Well funded prosecutors in Democratic cities where juries are happy to convict political opponents for wrong think bode interesting times ahead:
https://x.com/molmccann/status/1715026027397648550?s=61&t=L5uifCqWy8R8rhj_J8HNJw
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I agree with the main point about the coercive power of prosecutions and the nature of some juries in some jurisdictions, but for me there came a point where Sidney Powell was spewing out some seriously specious claims to grift fund raising. She did much damage to the cause of electoral integrity.
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I agree with the main point about the coercive power of prosecutions and the nature of some juries in some jurisdictions, but for me there came a point where Sidney Powell was spewing out some seriously specious claims to grift fund raising. She did much damage to the cause of electoral integrity.
Yes and also (if I have this right) there was one real incident of illegality in Georgia, breaking into a voting machine (with good intentions?) and according to the charges and plea she was involved with that.
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Mike Lindell also in same boat
sounds like he is bankrupt.
won't miss his commercials but not the way I would have preferred to see then stop or at least become rare.
I am not sure what is going on with Rudi...........
but he sounds like he is losing a lot too.
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I think this case was a tremendous travesty—as I understand it Chauvin was following his training—so it’ll be interesting to see how this plays out.
https://www.dailywire.com/news/derek-chauvin-attorney-talks-u-s-supreme-court-appeal-every-juror-had-a-stake-in-outcome-of-trial?fbclid=IwAR1lLw3-DST7jbVTydsT2XwbvyD0sjthEOwYRdfroWFo0iyIUCwRYJbdq2s
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Those are sound points, but OTOH what we all saw on the tape was quite reprehensible.
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Those are sound points, but OTOH what we all saw on the tape was quite reprehensible.
My brother had some connection to a person who participated the first autopsy. I can't remember the details (jury didn't see that one) but it didn't show the 'right' cause of death so others kept at it until it did.
On the forum, G M showed us that hold was in the manual. I hadn't seen that, never saw that pointed out anywhere else. That doesn't mean he used the hold correctly.
There were other causes of death:
Multiple times the fatal dose of fentanyl
covid,
Pre-existing health issues (heart issues?)
In the film, the longer film, we see that the earlier officers were not able to handle him, other methods didn't work. They deferred to a more senior officer when he arrived. (Hard for a junior officer who failed to subdue him tell Chauven to lay off.)
Crafty pointed out at that time (my recollection), Chauvin didn't have to keep that hold all that time while he was down. Very unlikely he could get back up.
I concluded the 'mistake' (criminal act?) (negligent act that led to the death?) was to hold him that way for that long. SO the 'crime' occurred not in subduing him but a minute or some other time later when he didn't lay off.
Jury said "murder" so now it's murder. But the jury did not hear/see everything, and they were under UNBELIEVABLE pressure to return that verdict, or be 'doxxed', lose their lives, their families and certainly restart the riots that burned the town..
As mentioned, everyone saw the video. I know that at least locally, you weren't allowed to hold or express a different view.
Not relevant to the criminal trial:
George Floyd, prior to the hold and to his death, was no hero. For one thing he had no problem holding a woman at gunpoint and threatening her with her life while her riches were stolen.
You aren't allowed to remain drunk (high in this case) in the driver's seat with the keys in the ignition on a city street. Those cops would have ordered any one of out of that car and taken us in.
Heather MacDonald published a piece at the time that the whole premise of blacks and police is false.
This started because he was committing a crime and .
There never was anything in the incident or the case to do with race.
Glad I wasn't in the jury.
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In the aftermath, 1600 building were burned or vandalized in the Twin Cities alone, plus Portland, plus the occupation in Seattle, plus Denver, and so on.
What did people think of the trial of the people who burned the Minneapolis Police 3rd Precinct building to the ground, and burned a federal building there (U.S. Post Office)? Remember it's a federal crime to tamper with just an envelope in the mail? Oh that's right, no one was ever charged.
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https://www.americanthinker.com/blog/2023/10/fact_check_george_floyd_wasnt_murdered.html
I disagree with the conclusion of this article.
Clearly Floyd perished due to the positioning held for too long and too hard.
He was clearly saying he could not breath, witness pleaded with Chauvin to let up and even one of the police officers could be heard suggesting to turn him on his side.
Though there probably were contributing factors - health, drugs in system etc.
https://www.nbcnews.com/news/us-news/derek-chauvin-be-sentenced-murder-death-george-floyd-n1272332
I agree with Crafty - Floyd was clearly guilty of something though the charge perhaps could have been different. That I would leave to lawyers.
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"(Chauvin) was clearly guilty of something though the charge perhaps could have been different. That I would leave to lawyers."
Right. I'm no expert but there is a big difference between causing another person's death through reckless behavior and murder with intent.
Those lawyers we trusted it to, the lead was Keith Ellison. He had no interest other than follow the facts and the law... Oops.
The Supreme Court would be crazy to re-open this.
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"Crafty pointed out at that time (my recollection), Chauvin didn't have to keep that hold all that time while he was down. Very unlikely he could get back up. I concluded the 'mistake' (criminal act?) (negligent act that led to the death?) was to hold him that way for that long. SO the 'crime' occurred not in subduing him but a minute or some other time later when he didn't lay off."
Yes.
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https://thecivilrightslawyer.com/2023/10/31/breaking-4th-circuit-denies-judicial-immunity/
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The good new is she’ll fit right in around the White House:
https://townhall.com/tipsheet/leahbarkoukis/2023/11/16/biden-judicial-nominee-didnt-know-basic-legal-terms-n2631273?fbclid=IwAR2ZMcP30ZhKm4k3vm7bf9uIZmbC__Lk_4Q5rdj0MUP0IPeijwBCIW2ArDA
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Oy vey.
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… right here:
https://pjmedia.com/rick-moran/2024/01/24/woman-smokes-pot-stabs-boyfriend-108-times-receives-probation-n4925799
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Perhaps better here :-D
https://firehydrantoffreedom.com/index.php?topic=2805.50
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No More Justices at the State of the Union
John Harlan thought it unconstitutional for him to attend. Biden proved him right.
By Nathan Lewin
March 10, 2024 4:05 pm ET
I served as a law clerk for Justice John Marshall Harlan in 1961-62. John F. Kennedy was scheduled to deliver his first State of the Union address on Jan. 11, 1962. Harlan informed his clerks he wasn’t attending because he thought it violated the separation of powers for a Supreme Court justice to participate in a task that the Constitution assigned to the executive and legislative branches.
I had enormous respect for Justice Harlan but thought he was taking formalism too far. What was the harm if a justice appeared at this demonstration of national unity? Last week President Biden conclusively proved Harlan right by scolding and threatening the six sitting justices who chose to attend the event.
Article II of the Constitution enumerates the duties of the president. Section 3 begins: “He shall from time to time give to the Congress Information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.”
The words “to the Congress” are extraneous if the purpose of this report is purely informational. Only if the provision contemplates collaboration between the president and lawmakers are these words meaningful. This reading deliberately excludes the judiciary from the process of delivering or receiving information on the State of the Union.
It would surely be improper for a justice to speak in support of or in opposition to proposed legislation at a session of the Senate or House. Nor would any justice attend a publicized meeting of the president and his cabinet to discuss national or foreign policy. Justices Felix Frankfurter and Abe Fortas took pains to keep secret any advice they privately gave to Presidents Franklin D. Roosevelt and Lyndon B. Johnson.
Justices Antonin Scalia, Clarence Thomas and Samuel Alito all stopped attending State of the Union addresses. This year Justice Amy Coney Barrett sat the event out. The six who attended (wearing their judicial robes) sat awkwardly with hands folded as Mr. Biden excoriated them for overturning Roe v. Wade and vowed to nullify the decision if voters choose his political party. In singularly demeaning style, the president taunted the court with hoist-on-your-own-petard language from Justice Alito’s majority opinion.
In 1962 Kennedy had the good sense and respect not to address legal controversies that were before the high court. The justices had heard oral argument in October 1961 on legislative reapportionment, and the Kennedy administration had taken a controversial position (which resulted in the landmark ruling of Baker v. Carr). Civil-rights sit-in cases were before the court, as were major antitrust and religious-liberty disputes. The Kennedy administration had legal positions on these issues, which it expressed in pleadings filed in court.
In 1962 it was beyond anyone’s imagination that the president would reprimand the court in a State of the Union address. Harlan chose to stay away anyway. All the court’s current members should follow his example.
Mr. Lewin is a Washington lawyer with a Supreme Court practice.
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… to defeat Mississippi’s claim of costal land ownership. Tickles my fancy that a citizen beat the state by reaching back so far into the historic record:
Private Landowner in Mississippi Beats State Based on Interpretation of "1784 Spanish Land Grant"
The Volokh Conspiracy / by Eugene Volokh / Apr 11, 2024 at 2:49 PM
From last week's Mississippi Supreme Court decision in State v. Aldrich (opinion by Justice David Ishee):
This case is a dispute over roughly one acre of Mississippi coastal land. In short, John Aldrich and the State disagree over whether the subject property is Aldrich's or State-owned tideland…. [T]he primary source of conflict is the map the secretary of state published in 1994 that demarcated the boundaries between private property and Public Trust Tidelands.
Via the map, the secretary designated the subject property as State-owned tideland. Aldrich disagreed with the designation however, leading him to challenge the relevant boundary in Harrison County Chancery Court in 1998. The State then filed a counterclaim, alleging it held fee simple title to the property.
Following more than two decades of inactivity and extended bursts of litigation to be detailed below, the chancellor eventually found in Aldrich's favor in 2022, vesting title in him and adjusting the tideland boundary. Throughout the proceedings, the chancellor made five consequential findings, all of which the State labels as error on appeal. Four of them present issues that can be routinely resolved. The outlier, however, poses a unique issue.
Specifically, the chancellor found that a 1784 Spanish land grant, which is the root of Aldrich's deraignment of title, negated the State's claim to fee simple title. This finding carries considerable weight, as it calls into question which lands passed from the federal government to Mississippi upon statehood. This case therefore requires careful historical analysis that balances the interests of private landowners with those of the State. Upon review, however, we find no error and affirm the chancery court's decision….
The 1783 Treaty of Paris, the 1795 Treaty of San Lorenzo, the 1800 Treaty of St. Ildefonso, and the 1803 Treaty of Paris also come up, as does "[t]he deposition of oyster shells and dredge spoils."
The post Private Landowner in Mississippi Beats State Based on Interpretation of "1784 Spanish Land Grant" appeared first on Reason.com.
https://reason.com/volokh/2024/04/11/private-landowner-in-mississippi-beats-state-based-on-interpretation-of-1784-spanish-land-grant/
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From nothing more than reading the article off the top of my head I would say this is correct.
https://twitchy.com/samj/2024/04/25/weinstein-rape-charges-overturned-n2395511