Propriety and the Supreme Court

 

Much to the consternation of Chief Justice John Roberts and other justices, the public's opinion of the Supreme Court has sunk to an historic low. This loss of public favor is attributable, in large measure, to the nature of the Court's recent decisions, which appear to be politically and religiously driven. While little can be done to alter that dynamic, other than to appoint more open-minded justices, there are measures which can and should be taken to dissipate the "stench" which now envelops the Court.

Most importantly, the justices should have no connection with or participation in events sponsored by the Court's Historical Society which raises money from unidentified donors who pay to meet the justices even as they have cases pending before the Court. At the very least, the identity of the donors should be made public.

The justices should be subject to the same code of ethics which governs the conduct of all other federal judges and they should not be absolved from the need to recuse themselves from matters in which their spouses may have an interest.

All of the seats in the courtroom should be available to the public and none should be reserved for the privileged few. Finally, the proceedings should be regularly televised so that all may observe the arguments made to the Court and the responses made by individual justices.

Santos Investigation

 

Congressman elect George Santos says he is the victim of a smear perpetrated by the New York Times which has exposed the myriad myths he told the public as the basis for his campaign for the House.
The statement put out by Mr. Santos, in response, does not deny the truth of the Times’ revelations. Instead, he says he will make a further response in the near future and relies on his intent to keep his campaign promises.
One can only surmise that Mr. Santos, in effect, is complaining that he has been smeared by the truth.

Case Will Test States' Control Over Elections

 Start with the given that the framers of the Constitution did not trust the populace to elect presidents, so they delegated that authority to electors chosen by state legislatures (which were also, for the same reason, empowered to select senators). We have come a long way since that originalist disdain for the wisdom of the common man (women were not even in the equation).

Now the People determine the occupant of the presidency, though not necessarily by a majority, given the peculiarities of the Electoral College. But perhaps not for much longer should the Supreme Court adopt the almost universally reviled, at least in legal circles, notion that state legislatures have almost unchecked power to oversee federal elections. The argument fostered by election deniers and Republicans bent on extreme gerrymandering, is that state legislatures are free to ignore state courts, state constitutions and governors' vetoes in their drawing of districts and oversight of elections. The likely result of this assault on democratic principles, if it succeeds, will be to enable state legislators to reject the choice made by voters and substitute their own slate of presidential electors. Should the Supreme Court sanction such a return to colonial era methodology, our fragile democracy surely will be ended.

Justices Weigh Religion Rights Vs. Bias Laws

 The conservative majority of the Supreme Court seems poised to strike down a Colorado law that forbids discrimination based on sexual orientation. The conservative justices seem inclined to allow businesses that offer services involving expression, as distinguished from the sale of goods, to refuse to serve gay couples. 

The justification for allowing such discrimination is the protection of free speech based upon religious conviction. If the court so decides, it will have gotten it wrong on two counts. Free speech, in the guise of denied service, is cabined when a person or business offers wares or services to the public. An offer to sell must be made without invidious discrimination.

Excusing such discrimination, as an exercise of religious liberty, is neither acceptable in a free society nor protected by the Constitution. Persons of true faith would not harbor such intolerance and a claim of religious entitlement cannot be upheld when its exercise violates the protected rights of others. 

A Skeptical Supreme Court Seems Poised to Overturn Public Corruption Rulings

 

The Supreme Court seems poised to restrict, once again, the ability of federal prosecutors to hold accountable state officials engaged in corrupt activities.
Not long ago, the Court overturned the conviction of then Virginia governor Bob McDonnell, who accepted lavish gifts in exchange for arranging meetings for his benefactor with other public officials. The Court held that Mr. McDonnell’s action was not the kind of formal and concrete government activity necessary to constitute a corrupt bargain.
How can we expect a court whose members believe it appropriate to accept expensive trips, dinners and other benefits from lobbyists and find it unnecessary to recuse themselves from cases in which spouses have an interest, to uphold convictions for conduct which mirrors their own?

Carnage Leaves Empty Chairs at Thanksgiving

 

When, as happens daily, there is a mass shooting, gun worshipers condemn the senseless slaughter and recite the obligatory "thoughts and prayers" litany. Then, right-wing media invariably attacks those who demand sensible gun control laws, like banning assault rifles whose only purpose is to inflict maximum carnage. The likes of Sean Hannity and Tucker Carlson and their ilk, target the public figures and victims who call for reform of the murderous gun culture which is twenty-first century America. The real villains, they charge, are left-wing radicals who rush to use every tragedy as an opportunity for political gain.

There is nothing more infuriating than to hear rational action turned upside down. When a problem continuously manifests itself, solutions must be found. Responding to mass shootings by proposing more effective gun regulation is the logical and humane reaction. Impeding measures to preserve life and condemning those who press for their adoption is the real outrage.

Roberts's Early Court Agenda: A Study in Disappointment

 The aspiration of Chief Justice John Roberts, to preserve the legitimacy of the Supreme Court as a venerated institution and to safeguard the credibility of its decisions, has been seriously undermined by the majority of justices currently serving on the Court. Chief Justice Roberts's disappointment can be traced to two overarching factors.

The conservative justices, despite their earlier assurances, have abandoned their respect for precedent, a practice which is the essence and the bedrock of any worthy judicial system. That same conservative majority also ignores the time-honored mandate of the Court, to decide only issues raised by the litigants and to decide them as narrowly as practicable. 

This Court has an obvious agenda which it pursues by reaching out for issues beyond the scope of cases being considered, the very essence of judicial activism, and then promulgates decisions that unnecessarily overturn firmly rooted constitutional protections.

When the public perceives that the Court's decisions are detached from enduring legal principles and seem only to reflect the political preferences of individual justices, respect for the Court is shattered and the rule of law is put in dire danger.

Why Aren't Democrats Trouncing These Guys?

 David Brooks accurately reports that America is deeply divided between the college-educated and those who are not, between the working class and higher achievers. He observes that the feelings between the two classes have hardened and become more antagonistic.

While Mr. Brooks recognizes that the working class has moved to the Right and supports Republican candidates, he overlooks a glaring anomaly. In modern times the Republican party has always been and continues to be the party of the wealthy and corporations, representing the antithesis of the working class. Yet, somehow, that party has successfully misled workers, especially white workers, to believe that it champions their interests and beliefs.

This sleight-of-hand has been perpetrated by appealing to and encouraging the basest prejudices of the working class, by paying lip service to its cultural preferences and by using as a facade the likes of Donald Trump, a privileged scion who masquerades as kindred and who gives voice to and approval of their thinly veiled hostility and anger. Perhaps workers will rethink their embrace of Republicans when they awaken to the loss of their social security and medical coverage.

Justices Dubious of Race as Factor

 

If you start from the premise that all persons are being treated equally, regardless of race, then any form of racial distinction, whether discriminatory or preferential, would (and should) be a violation of equal rights guaranteed by the Constitution.
But this country has a long history of treating Black persons unequally and that legacy, which persists today, has disadvantaged members of that race. Therefore, measures which are calculated to overcome those disadvantages are remedial and should not be deemed constitutional violations until such time as the ideal of equality for all has been achieved.
Despite disingenuous declarations by some of the justices, when the court gutted the Voting Rights Act, we have not yet reached that goal.

Putin Says Western Elites Are the Enemy

 If ever there was a question, about whether there was an affinity between Vladimir Putin and the Trumpist movement in the United States, any doubt was extinguished by Putin’s speech at a conference in Russia on Thursday. Echoing the racist canards of the MAGA crowd and other autocratic leaders in the West, Putin declared that they had a common enemy, namely Western elites. Dripping with antisemitism, and using the dog whistles of the ultra-right, he identified these elites as aggressive, cosmopolitan neoliberals who are trying to impose their “pretty strange values on everyone else “. Putin contrasted these “common enemies “with those in the West who follow traditional, Christian values.

Trump and his following may decry evidence of collusion with Putin, in past elections and current rhetoric, but the handwriting is on the wall. There is a growing coalescence in both the West and the East to find scapegoats for unpopular policies and a justification for abandoning democratic government.

Alito Says Roe Leak Altered Atmosphere

 

The interview of Supreme Court Justice Samuel Alito, as recounted by Adam Liptak (10/26, A22), confirms that Justice Alito is a hypocrite who invokes constitutional shibboleths to camouflage his activist approach to judging. His record on First Amendment cases is revelatory. He is a strong proponent of free speech when that protection benefits corporations and the wealthy (Citizens United) and a dissenter when that right is relied upon by persons or organizations he disfavors. 

He professes to be offended by attacks on the Court's integrity even as he regularly spurns precedents, contrary to assurances given at his confirmation hearing, and reaches to adjudicate issues not requiring judicial scrutiny to advance his political and religious agenda. Justice Alito is a radical jurist whose invocation of originalism is dishonest and intellectually disingenuous; he has undermined the Court's credibility and weakened respect for the rule of law, adding to the growing threat to our democracy.

Russia Analyst Behind Dossier Wins Acquittal

 

So, Igor Danchenko, the source of the infamous Trump dossier, has been acquitted by a jury of lying to the FBI. The greatest scandal in US history, as described by Sean Hannity of Fox News, has ended with a whimper, not a bang. Special Counsel John Durham, appointed by former Attorney-General William Barr to unearth Deep State corruption of historic proportion, has found virtually no wrong-doing and, as to the two minor cases he did bring, he has struck out each time. President Obama, Hillary Clinton and James Comey can now rest easy; they will not, as forecast, be going to jail.

The Latino Vote

 The apparent erosion of Latino support for Democrats, evidenced by the trend in recent polls, is most disturbing as that vote is likely to determine the direction and even the continued existence of our democracy for generations.

What is especially troubling is the indication that Latino men, whose reservations about Democrats had been rooted in their aversion to what they identified as socialist tendencies reminiscent of the policies their families fled, now seem increasingly attracted to the autocratic approach manifested by Republicans which mirrors the dictatorial evils they formerly rejected.
Republicans have been promoting this tendency by appealing to racial differences between Black and Brown and focusing on the influx of new immigrants which, they suggest, threatens the economic well-being and social acceptance of Latino-Americans.
How Democrats respond to this phenomenon is likely to be of cosmic significance, and still to be developed, and will undoubtedly determine this country’s future.

Judge Overrules Special Master

 Judge Aileen M. Cannon has further demonstrated her lack of fitness to serve on the federal bench. First, she ruled that a special master must be appointed to review the documents seized at former president Donald Trumps's Mara Lago estate and stayed the Justice Department's investigation of their removal and retention, a decision that has been roundly criticized in legal circles and partially reversed by an appellate court. Judge Cannon appointed as special master Judge Raymond Dearie, the candidate recommended by Mr. Trump's lawyers.

When it became apparent that Judge Dearie, a senior federal district judge, was acting decisively and with dispatch, disappointing the Trump legal team's expectations and strategy for delay and obfuscation, Judge Cannon intervened to tether Judge Dearie and slow him down. By patently putting her thumb on the scales of justice, to advantage the man who appointed her, Judge Cannon is bringing disrepute to the federal judiciary and undermining the rule of law.

The Justice Department should consider appealing this latest travesty; failing that, Judge Dearie should consider issuing a noisy resignation as special master.

Republicans Eye a New Constitution

 

The American constitution, the world's oldest, is justly venerated as the touchstone of a democratic society. Together with certain of its amendments, it enshrines and protects many basic human rights and civil liberties. As a symbol, it remains a grand and inspiring work of political genius. As a working document, interpreted by an originalist Supreme Court, it is a straitjacket that impedes changes required by an evolving reality.

Oddly, the pressure to rewrite the constitution is coming from both the Left and the Right and many progressives and conservatives share a concern that a new constitution will wipe away the protection and advantages each side prizes. Recent legislative actions and inactions and decisions of the Supreme Court have made transparent the need for a major overhaul of our founding document. The dilemma posed is how to accomplish this without putting in jeopardy the bedrock principles of a democracy and risking the adoption of a document that is nationalistic, homophobic, gender-biased, religiously slanted and gun-centered.

The bottom line is that a new constitution must be adopted by a broad spectrum of the American people, not by a vote of states which may constitute a majority but represent less than a majority of the electorate. Indeed, the phenomenon of lightly populated states wielding disproportionate influence over national priorities is one of the defects of our electoral system that should be remedied by a new constitution.

Simmering Feud Peaks in Search of Trump's Home

 

The court-approved search of the estate used by former president Donald Trump as a home and backdrop for his political machinations, for documents belonging to the government and wrongfully taken by Mr. Trump has triggered a not unexpected backlash by his aroused base. Though the decision to conduct the search was striking it was perfectly lawful, consistent with actions taken by the Department of Justice in the past against other high ranking public officials who disregarded the law governing document handling and furthers the important principle that no one is above the law.
While the search certainly has political implications and is fair game for criticism on that score by Trump allies, what is especially troubling is the irresponsible rhetoric of Republican public officials, who use false assertions and unwarranted assumptions to fan the dangerous anger erupting within that segment of Trump’s following that perpetrated the assault on the nation's capital. These undisguised calls for war are bound to move the violent fringe to act out in ways that will wreak havoc and further strain the rule of law already close to breaking.

Chief Justice Roberts Should Retire

 

Pamela Paul’s suggestion, that Chief Justice Roberts, by retiring, would help the Supreme Court move toward positions that more broadly reflect the opinions of most Americans, rather than those of an extremist faction, is naive and nonsensical. Granted his replacement by a liberal Chief would tip the ideological balance on the court a little to the left. But the remaining five Justices, constituting the ultra-conservative majority, would still be firmly entrenched and will continue their march toward dismantling the rule of law, protecting the rich and corporate citizenry, the ultra-religious and the gun-crazed segment of society. Only expanding the court or imposing fixed terms will prevent the current constitutional death spiral from continuing into the foreseeable future.

Police Say Unarmed Black Man in Traffic Stop Was Shot 60 Times

 This country has been afflicted by an epidemic of police shootings stemming from routine traffic stops. Many states and localities have responded by placing limits on the police practice of pursuing fleeing motorists. The sensible rule adopted in these jurisdictions is that pursuit should not be initiated if the risk of harm to the police or others outweighs the risk posed by failing to effect the stop. So, for example, a broken taillight does not warrant a high-speed chase that may result in traffic fatalities or the gunning down of the motorist.

Unfortunately, this sound restriction on police response has not been universally adopted or regularly adhered to. As a consequence, the nation continues to suffer a plethora of these tragic and unnecessary shootings.

Police Say Unarmed Black Man in Traffic Stop Was Shot 60 Times

 This country has been afflicted by an epidemic of police shootings stemming from routine traffic stops. Many states and localities have responded by placing limits on the police practice of pursuing fleeing motorists. The sensible rule adopted in these jurisdictions is that pursuit should not be initiated if the risk of harm to the police or others outweighs the risk posed by failing to effect the stop. So, for example, a broken taillight does not warrant a high-speed chase that may result in traffic fatalities or the gunning down of the motorist.

Unfortunately, this sound restriction on police response has not been universally adopted or regularly adhered to. As a consequence, the nation continues to suffer a plethora of these tragic and unnecessary shootings.

The 14th Amendment and Fetal Rights

 

Erika Bachiochi's erudite-sounding defense of a ban on abortion, as the protection of a separate, vulnerable person dependent on the care of its host, fails to consider all the ramifications of unintended pregnancy. 

For one, pregnancy may be the result of rape, a brutal tactic often employed in war to dishearten and impair an enemy population. These pregnancies are war crimes akin to the random planting of landmines and the notion that a rape victim has some moral or legal obligation to nurture and complete the intended crime is simply unconscionable. 

The originalist argument, that the drafters of the 14^th Amendment intended to protect unborn life, is equally flawed. Even if true, and that is disputable, the drafters were all 19^th century men, hardly exemplars of those who would protect women's rights.

Roe v. Wade is Overturned

 What voters must remember, and what historians will surely highlight, is that a hijacked Supreme Court made this most consequential decision. But for the Republicans' chicanery in denying President Obama his right to appoint a Justice and the precedent- shattering rush to allow a defeated President Trump to name Justice Ginsberg's successor, there would not have been an ultra-conservative majority of Justices willing to destroy a "super-precedent" and to return women to the health hazards and diminished status of fifty years ago.

This unconscionable decision by an illegitimate court mandates a remedy that should include altering the structure of the court or imposing term limits on Justices. It should also impel voters to insure that, going forward, there will be a Senate majority committed to upholding the rule of law.

Don't Add Limits on Firearms. Hold Gun Makers Liable.

 

The column by Todd Tanner is illogical, self-contradictory and unhelpful. His extensive quoting of Charlton Heston's gun worshipping speech to the National Rifle Association is stomach-turning and revealing.

First, Mr. Tanner poses the prospect of an oppressive federal government as justification for the glut of firearms, especially military grade, awash in our society. While he rejects laws that would limit or control sale or possession of guns (after all, our farmers must be well-armed to resist tyranny) he proposes that the manufacturers of all this weaponry be made susceptible to liability for their production of arms that are misused to slaughter innocents.

Holding gun makers liable, especially for their irresponsible promotion of sales to youngsters, may be part of the solution but it can hardly be the sole means of stemming the tidal wave of mass murder happening only in this country. And since Mr. Tanner seems to favor a fully-armed citizenry, ready to preserve liberty threatened by government oppression, it would seem self-defeating to punish arms makers for fulfilling their civic duty.

A Modest Proposal for Gun Safety

 

I’d like to offer a modest proposal to address the issues of mass shootings and the need for gun safety, a solution that should satisfy the originalist members of the Supreme Court and true advocates of the Second Amendment.
The federal government should agree to provide to every family unit in America such arms as are consistent with the understanding of the framers of the Constitution, namely a muzzle-loading,single-shot long gun or pistol.
The provision of these weapons should be conditioned upon the required surrender of any weaponry not encompassed by the vision of the framers. Further, the person in each family responsible for keeping and bearing the weapons must agree to enlist in a Militia where the handling and use of the arms may be well regulated in order to insure the security of a free State.

Acquittal Deals Blow to Inquiry Urged by Trump

 

The acquittal of lawyer Michael Sussmann, on a charge that he lied to the FBI about whether he was representing a client or acting on his own when he passed on information concerning a possible Trump-Russia connection, brings a fitting end to a legal travesty.

Special counsel John Durham, appointed by the Trump administration to find evidence of a deep state conspiracy, dreamed up and promoted by Fox News anchors, has sullied his reputation by bringing the flimsiest of charges while using the case as a springboard to make broader, baseless allegations about the non-existent conspiracy calculated to please Mr. Trump and his following.

It took the jury just six hours to render a not guilty verdict and, thus, deliver a deserved rebuke to a politically driven prosecution.

Gun Legislation

 Gun apologists continuously distort the facts to justify their opposition to reasonable gun safety. The greatest untruth is that banning military-style assault rifles does not help prevent mass shootings. Put aside the self-evident fact that automatic or semi-automatic weapons with large ammo capacity fire rapidly and repeatedly without constant need to reload thus greatly expanding the opportunity to inflict maximum carnage.

The facts are that during the ten years an assault rifle ban was in effect in the United States mass shootings decreased; since the ban was allowed to expire, in 2004, these atrocities have spiked. Since Australia enacted a ban, adopted strict gun control laws and bought back and destroyed assault weapons, that country has had almost no mass shootings.

The gun lobby and its legislative acolytes simply refuse to acknowledge these facts or draw any lessons from them. Instead, it persists in spreading falsehoods behind which it promotes a campaign of more gun sales resulting in more mass casualties.

Mass Shooting-Uvalde

 

The police waited an hour to breach the classroom and take out the killer while children lay bleeding to death.  Why? Because they were outgunned by an 18-year-old armed with a military assault rifle and over 600 rounds of ammunition. 

Can anyone imagine a clearer case for banning such weapons and preventing the accumulation of such a stockpile?

Justices Cut Challenges On Counsel

 

According to Justice Clarence Thomas and the other five conservative justices of the Supreme Court, a person may be executed notwithstanding the utter failure of his defense counsel to perform competently. The Constitution guarantees an accused the right to counsel; being defended by an attorney who fails to provide a bare minimum of competent representation is tantamount to having no counsel at all.

Nevertheless, the Supreme Court majority values "finality" over the protection of a constitutional right and now forecloses federal judges from obtaining facts beyond the trial record, facts which should have been developed by competent counsel, when weighing whether an injustice has occurred. Requiring a reviewing federal court to rely upon an incomplete record and refrain from learning all relevant facts, is an abdication of the judicial function and an insult to the Constitution. 

Court Decides for Cruz On Campaign Finance

 

Apparently, the Supreme Court has learned nothing from the fallout of its ruling in Citizens United, the case which equated giving money to politicians with free speech and empowered the wealthy and corporations to wield disproportionate influence in the governing of this nation. 

Now, in an opinion by Chief Justice John Roberts, speaking for its six conservative members, the court has struck down a law which put a monetary cap on the amount a candidate can be repaid on a loan he made to his campaign from post-election donations. Starkly restated, a donor can say, " now that you have won the election, using your own money as you have a right to do, I will put the money back in your pocket in the hope and expectation that you will remember my generosity as you perform your official duties."

Incredibly, Justice Roberts said that scenario does not smack of the appearance of corruption sufficient to justify campaign finance limits.

Roe v. Wade Leaked Draft

 

Apparently, the Supreme Court is about to overturn Roe v. Wade, thus terminating the right of a woman to abort a pregnancy, a right established fifty years ago and subsequently reaffirmed by the court. The leaked draft of an opinion, written by Justice Samuel Alito and joined in by at least four of the other conservative justices, disparages Roe as "wrongly decided". The opinion relies on the absence of any reference in the Constitution to a right to abortion and concludes that access to abortion remains a contentious, political issue best left to state legislatures.

This putative decision effectively rejects the existence of a constitutional right to privacy, a right recognized for decades and which underlies other bedrock decisions of the Supreme Court. Other recognized rights not explicitly mentioned in the Constitution but found to be supported by due process, equal protection and/or privacy rights, guaranteed by or implicit in the Bill of Rights  amendments to the Constitution, are now at risk of being abrogated by this court.

Thus, the right to contraception, based upon marital privacy, the right to engage in consensual same sex and the right to same sex marriage are all subject to challenge on the same ground relied upon by the current court; that these rights are not explicitly mentioned in the Constitution and, therefore, should be left to regulation by the states.

The Supreme Court is ushering in a theocratic era in which the liberties of citizens will be subject to the religious convictions of a majority of the legislators in the states where they live. Does anyone believe that this is the democratic republic envisioned by the Founders?

Tucker Carlson-American Nationalist

 

Hey Tucker. What a hatchet job the NY Times has done on you. Pouring over years of telecasts, interviewing scores of people, quoting your own words, laying out all those nasty facts. Talk about conspiracies, they're clearly out to destroy you and all because you speak up for the threatened white man and all other legacy Americans who just want to live in a country that looks like the one they grew up in. 

I hope you don't give the Times the satisfaction of knowing it nailed you by denying and attacking its reporting. Show what a man you are by admitting that the piece accurately describes what you stand for and what you are promoting. That would tick off your detractors and make your followers very happy.

Supreme Court Hears Case on Whether Miranda Warning Is a Right

 

The Supreme Court is considering whether the well-known case of Miranda v. Arizona created a constitutional right or something less. That case held that the police were required to give certain warnings to a suspect in custody before interrogation. In the absence of such warnings (the right to remain silent among them), any admission obtained from a suspect would be inadmissible at trial.

The conservative justices seem to be toying with the notion that Miranda established a constitutional rule, not a constitutional right. That is a distinction without a difference. It simply defies common sense and sound legal construction to suggest that a procedure required by the Constitution does not confer a constitutional right.

If the court adopts that reasoning, it will put in motion a steady erosion of the protection afforded an accused under the Constitution.

Governor's Proposal To Modify Bail Law

 The changes to the bail reform law, proposed by Governor Kathy Hochul, are sensible and needed and will preserve the benefits of bail reform while remedying the law's unintended downside.

As a retired Criminal Court judge, former prosecutor and charter participant in the Manhattan Bail Project (which promoted pretrial release without bail), I have long denounced the misuse of bail to incarcerate poor people, more often persons of color, and have advocated and successfully utilized pretrial release without bail in most cases.

However, New York is alone, and wrong, in limiting the factors a judge may consider in weighing bail decisions to a single criterion, the likelihood of a released defendant's return to court when required. By denying judges the discretion to hold persons whose release would pose a danger to the community by reason of propensity for violence, serious mental issues and repeated acts of violence, with or without weapons, the courts are stripped of an essential, judicial power and the public is exposed to unacceptable and unnecessary risk.

The governor's proposal not only addresses identified shortcomings in existing law; it makes welcome additions to funding for pretrial, mental health and employment services, so that persons held can be sooner released safely and keep those persons already released from reoffending.

Senate Hearing on Nomination of Judge Jackson

 Sen. Lindsey Graham's prosecutorial inquisition of Judge Ketanji Brown Jackson, disrespectful in tone, contemptuous in manner and unfair in blocking the judge's attempts to respond, was unwarranted, reckless, and unworthy of a senator and the process of judicial selection. After first professing offense at earlier attempts by Democrats to block the judicial nomination of Judge Janice Rogers Brown, a Black woman, and reenacting his out-of-control rant, last performed at the Kavanaugh hearing, Sen. Graham then disgraced himself and the process by using the occasion to make direct appeals to his rightwing base and by launching long, angry and accusatory tirades at Judge Jackson while refusing to allow her to complete her answers.

One can only hope that fair-minded viewers will see the parallels between the despicable treatment of this Black woman and the disparagement of Anita Hill by this same Senate committee more than 30 years ago.

Jackson's Record as Defender Likely Target of Senators

 

A host of Republican senators, many of them lawyers who should well understand the duty of an attorney, especially when appointed by the court, to effectively defend an accused, plan to attack Judge Ketanj Brown Jackson at the hearing on her Supreme Court nomination, for her brief tenure as a public defender.

The hypocrisy of these senators knows no bounds. Though they profess to be champions of constitutional rights and the rule of law, when it comes to the defense of indigent criminal defendants by women attorneys of color, they opt to punish the defenders of those rights for daring to accept their court-assigned clients and to represent them to the best of their ability.

It is troubling that these same senators raise no such objections to judicial nominees whose careers may have been spent soliciting the lucrative cases of corporations charged with serious criminal violations which affect the public at large.

New William Barr Book Hits Trump, Excuses Self

 

Based upon accounts of William Barr's new book, "One Damn Thing After Another: Memoirs of an Attorney General", one thing seems clear; Barr was more evil than the man, Donald Trump, whom he criticizes. According to Barr, Trump "was off the rails" after he lost the election and has neither the temperament nor persuasive powers to be a good leader. Barr, on the other hand, knowingly did Trump's bidding until nearly the very end of the president's term notwithstanding the illegal, immoral and undemocratic character of the demands made by the unhinged president.

Barr tries to brush aside his own violations of the rule of law and his undermining of the independence of the Department of Justice, which he treated as an arm of Trump's political machine. His distortion of the Mueller Report, unseemly intervention on behalf of Roger Stone and his inexplicable dismissal of the case against Michael Flynn, despite the latter's guilty plea, are all swept away without adequate explanation or legal justification. Only when it became apparent that Trump had totally lost it and made demands on Barr that threatened to involve him in patently criminal activity, did Barr resist and incur the wrath of his master. He slipped quietly away and now, with a book to sell, he re-emerges as a self-proclaimed guardian of good government. 

Please spare us the absurdity Mr. Barr. Your belated critique of Donald Trump, and self-serving defense of your own unethical behavior are too much to stomach. 

2 Manhattan Prosecutors Quit Over Trump Inquiry

 

After less than two months in office it is reported that New York County District Attorney Alvin Bragg has overridden the judgment of his senior staff and decided not to pursue the pending criminal investigation against the Trump organization and Mr. Trump. Two Assistant DAs heading the investigation, each of whom have been involved for many months and have special expertise in such matters, reportedly have resigned in protest.

While one should not make judgments from afar and without knowing all of the facts, the decision by Mr. Bragg is startling and seems to fly in the face of mounting evidence that Trump and his company criminally gamed  the system to reduce taxes and obtain bank loans. 

The Manhattan DA’s office has long had a reputation for excellence and non-partisanship. If that reputation is to be preserved Mr. Bragg must speedily, and convincingly,  explain the basis for his decision.

Supreme Court Will Revisit Free Speech/Gay Marriage

 Once again, the ultra-conservative members of the Supreme Court will have an opportunity to permit so-called religious liberty to override a state law prohibiting gender discrimination. A web designer in Colorado intends to announce that she will not provide her otherwise publicly available service to same sex marriages because of her religious convictions. A state law prohibits such discriminatory messaging by businesses open to the general public.  

Although the court has limited the issue to one involving free speech, it seems likely that the justices who have made clear they want to overturn existing precedent, will seize the opportunity to exalt religious beliefs over the right to be protected from discrimination.

None other than the late Justice Antonin Scalia wrote the opinion upholding a neutral state law of general applicability against a First Amendment challenge which alleged a violation of the right of free exercise of religion. Justices Alito, Thomas and Gorsuch believe that case was wrongly decided and should be reversed. What these justices seem unable to grasp is that the free exercise of religion should not be permitted to invade the statutory and constitutional rights of others. A secular society can not conform its laws to the dictates of a particular religion. That would be tantamount to living under Sharia law.

Court Ruling on Drilling

 The decision, by a Trump-appointed federal judge in Louisiana, (2/21, A11) which holds that using the “social cost of carbon “in weighing the impact of drilling for gas and oil on federal property is unconstitutional because that metric had not been authorized by Congress, is a judicial disgrace.

Agencies of the federal government are authorized to make rules. Courts have long recognized that authority and have generally deferred to the expertise of those agencies when reviewing their decisions.
The judge in this case put politics before precedent and bought into the notion that the economic benefits to states, of drilling for gas and oil on federal land, somehow outweighs the damage done by carbon use to the survivability of the planet. The court invented a nonexistent constitutional right to justify its indefensible ruling. If the Supreme Court upholds this judicial activism, it will forfeit any remaining public confidence it may still retain

The Supreme Court Is on the Wrong Path

 

Professor Adrian Vermeule, in his essay, "The Supreme Court Is on the Wrong Path" (2/2; SR2) wistfully longs for a time when the Justices of the Supreme Court interpreted the law in the service of the "common good". If ever there was such a time, which is doubtful, the Court recently, in the Professor's view, has strayed from that path.

No one should dispute Prof. Vermeule's contention, that the overarching purpose of the law is to promote the general welfare or the common good. And he is right to argue that originalist judges sacrifice that goal to a pointless obeisance to ancient views of justice in their search for contemporary meaning and often deviate from that practice when it better serves their favored result.

But Prof. Vermeule does a disservice to progressive judges when he suggests that their decision-making prompts division rather than common good. Indeed, all but one of the cases marshaled by Prof. Vermeule, as examples of bad judgment, expose the foibles of originalism, not progressivism.

While it may be possible to define common good in general terms, as does Prof. Vermeule, it is far less susceptible of a commonly accepted application. As the old saying goes, one man's meat is another man's poison. Still, it would seem the reasoning of progressive judges is far more consistent with the promotion of basic values than the stilted perspective of originalists.

The Courts and Racial Injustice

 

The latest indicator of the racially benighted status of the criminal justice system in the United States is the wildly disparate sentences handed out to persons convicted of voter fraud. Four white men who voted in the names of deceased relatives received sentences ranging from probation (three cases) to three days incarceration. These men knowingly violated the law, and one even used his crime as a pretext to further his campaign for voter suppression.

Other persons, mostly of color, were sentenced to years in jail for mistakenly believing, in good faith, that they were entitled to cast a vote. If these outrageously unwarranted prison terms are not overturned, or substantially reduced by appellate courts or the governors of the involved states, the stain of this injustice will undermine public confidence in the judiciary for years to come.

Justices Seem Skeptical of Boston's Refusal to Fly Christian Flag

 The Supreme Court seems inclined to require the City of Boston to fly a Christian flag in front of City Hall because it has allowed other groups to temporarily fly flags on the City's flagpole symbolizing their organizations. (1/19, A18) The justices appear to subscribe to the notion that this is a freedom of speech rather than an establishment of religion issue under the First Amendment.

Justice Amy Coney Barrett would allow a city to "get behind" an idea of which it approves and prohibit those it abhors; yes to the cross, no to a swastika. 

That analysis is simply wrong. Yes, a government should be required to allow equally the use of its facilities to express a variety of ideas, even those that are controversial, and be permitted to bar such use by patently undemocratic hate groups. That comes within the free speech provisions of the First Amendment.

But, when it comes to religious symbolism, the Establishment Clause of the First Amendment is implicated. A government is not permitted to take any action which smacks of endorsing, or "getting behind" a particular or, indeed, any religion. That's what separation of Church and State was intended to prevent.

Biden-Cheney in 2024?

 

Thomas Friedman is right to warn that America is facing an existential moment and that drastic measures may be required to save our democratic form of government. He suggests that drawing five to ten percent of Republican voters away from Trump would assure his defeat and keep democracy safe.

However, his suggestion, that America temporarily adopt the current Israeli model of a cross-ticket, fusion government, such as a Biden- Cheney slate in 2024, misses the mark. That tactic is neither necessary nor doable here. Israel was able to create a unity government because the leaders of the opposing factions agreed to switch roles after two years, each serving for a time as Prime Minister. That would not be constitutionally permissible in the United States.

There is already a growing minority of Republicans who put country above party and are ready to support a Democratic candidate. While these "never Trumpers" like those who formed the Lincoln Project should be courted and commended, Liz Cheney backers are not going to vote for Trump regardless of whether she is a nominee. Besides, there already exists a majority of Democratic voters. The imperative is to get them out to vote. Pairing the Democratic nominee with a conservative Republican would likely depress rather than galvanize Democratic turnout.

Do We Have the Supreme Court We Deserve

 

The column by Linda Greenhouse makes the reader focus on the changing approach of the justices to the role of the court. Ms. Greenhouse makes clear that unlike its predecessors, the current majority exhibits little regard for precedent and an increased willingness to do the political bidding of its appointor. A court of last resort and national scope, as is the Supreme Court, must achieve a delicate balance between respect for settled law and the flexibility to adapt to a changing world.

Rather than rely upon the broadening of wisdom and understanding, hoped for qualities as justices mature, a surer way would be to make appointments for a fixed term, say fifteen years, on a staggered basis, with a turnover of three justices every five years.

While such a mechanism may not insure respect for precedent ( for that we would have to rely upon a judge’s ingrained training and the presence of the longer serving justices ) but it would increase the likelihood that a fresh approach, one more in sync with the popular will, would be brought to the decision-making process.