66

Anita Hill Redux

Advisor:  And so far, the only negative thing we’ve found is from some guy who dated her when she was sixteen.

BURNS:  Ah. And?

Advisor 3:  He, uh, he felt her up.

BURNS:  Bah! Not good enough!

The SimpsonsTwo Cars in Every Garbage and Three Eyes on Every Fish (1990)

Well, the attempted high tech lynching of Judge Brett Kavanaugh proceeds apace.  His anonymous accuser has come forward.  She is Christine Blasey Ford, a Professor of Clinical Psychology at Palo Alto University in California.  Here is the letter she wrote to Senator Feinstein:

July 30 2018
CONFIDENTIAL
Senator Dianne Feinstein
Dear Senator Feinstein;
I am writing with information relevant in evaluating the current nominee to the Supreme Court.
As a constituent, I expect that you will maintain this as confidential until we have further opportunity to speak.
Brett Kavanaugh physically and sexually assaulted me during high school in the early 1980’s. He conducted these acts with the assistance of REDACTED.
Both were one to two years older than me and students at a local private school.
The assault occurred in a suburban Maryland area home at a gathering that included me and four others.
Kavanaugh physically pushed me into a bedroom as I was headed for a bathroom up a short stair well from the living room. They locked the door and played loud music precluding any successful attempt to yell for help.
Kavanaugh was on top of me while laughing with REDACTED, who periodically jumped onto Kavanaugh. They both laughed as Kavanaugh tried to disrobe me in their highly inebriated state. With Kavanaugh’s hand over my mouth I feared he may inadvertently kill me.
From across the room a very drunken REDACTED said mixed words to Kavanaugh ranging from “go for it” to “stop.”
At one point when REDACTED jumped onto the bed the weight on me was substantial. The pile toppled, and the two scrapped with each other. After a few attempts to get away, I was able to take this opportune moment to get up and run across to a hallway bathroom. I locked the bathroom door behind me. Both loudly stumbled down the stair well at which point other persons at the house were talking with them. I exited the bathroom, ran outside of the house and went home.
I have not knowingly seen Kavanaugh since the assault. I did see REDACTED once at the REDACTED where he was extremely uncomfortable seeing me.
I have received medical treatment regarding the assault. On July 6 I notified my local government representative to ask them how to proceed with sharing this information . It is upsetting to discuss sexual assault and its repercussions, yet I felt guilty and compelled as a citizen about the idea of not saying anything.
I am available to speak further should you wish to discuss. I am currently REDACTED and will be in REDACTED.
In confidence, REDACTED.
A few observations:
1.  She told no one about this at the time this allegedly occurred.  No complaint was made to the police.
2.  She does not recall the date, other than it occurred sometime in the early 1980’s.
3.  She cannot recall the address of the house.
4.  She first mentions this when she and her husband were in couples therapy in 2012.
5.  The notes of the counselor indicate that four boys were involved and no mention is made of the name Kavanaugh.  (Ford claims that the counselor was mistaken and her husband says that she mentioned the name of Kavanaugh at the time.)
6.  On the date of the incident she claims to have drunk only one beer, but she can’t recall how she got home that evening.
7.  She scrubbed her social media postings prior to coming forward.  Apparently she is a Democrat, contributed to Bernie Sanders in 2016 and has been a critic of the Trump administration.
8.  She claims that writer Mark Judge, a friend of Kavanaugh was present.  He denies that what she is alleging is true.
9.  Her parents were involved in a foreclosure action in 1996, as the Defendants, in Maryland case 156006V .  The Judge on the case was Martha Kavanaugh, the mother of Brett Kavanaugh.  The case was dismissed by the Plaintiff early in 1997.
Docket Date: 02/04/1997 Docket Number: 10
Docket Description:
Docket Type: Ruling Status: Granted
Ruling Judge: KAVANAUGH, MARTHA G
Reference Docket(s): Motion: 9
Docket Text: ORDER OF COURT (KAVANAUGH, J./RICE, M.) THAT THE VOLUNTARY MOTION TO DISMISS IS HEREBY GRANTED WITH PREJUDICE AND THAT THE BOND FILED BY HARRY J. KELLY AS TRUSTEE SHALL BE RELEASED AND RETURNED FILED. (COPIES MAILED (

Needless to say this is a very weak accusation.  However, we are currently engaged in a national hysteria called the Me Too movement, and the Democrats will attempt to use this to torpedo the Kavanaugh nomination.  Failing that they will use this as a campaign issue against the Republicans, part of their War on Women meme.  That the reputation of a very good man will be dragged through the mud over an allegation that gives every sign of being false is of course of no consequence to them.

7

Zina Bash and Leftist Insanity

One of the hilarious aspects of the concluded Kavanaugh hearings was the contention by very loosely wired Leftists on social media that Zina Bash, a former law clerk of Brett Kavanaugh, who sat behind him during the hearings, was giving a white power signal, which leftists contend is the “OK” hand sign.  The ancestry of Mrs. Bash consists of Mexicans and Jews who fled from the Holocaust.  The next day Mrs. Bash, obviously a woman of spirit, engaged in a little trolling.

 

 

My favorite comment about this exercise in Leftist insanity was made by a normal man, who remarked that he had noticed Zina Bash, who is a rather attractive lady, but he hadn’t been paying any attention to her hands.

However, perhaps I have been too harsh on the Left.  There are examples of notorious race-baiters using the “OK ” symbol:

 

11

Street Theater

The first two days of the Kavanaugh hearing have been periodically interrupted by deranged, and I do not use that term lightly, protesters.  Why the room has not been cleared of spectators is anyone’s guess.  I assume the Democrats, at least initially, welcomed these protests while Republicans doubtless think there is political mileage in having the nation see just how loosely wired the far left tends to be.  Confirmation hearings of Supreme Court nominees have become increasingly useless over the past thirty years, as the partisan alignments of the parties have hardened, and inquiry into a nominee’s qualifications has descended into endless political posturing.  However, at least in theory, this is important work that the elected members of the Senate are about.  To allow this work to be interrupted by every fool who wishes to get some vanity air time, some of the protestors were taking selfies, is a debasement of our Republic.  The hearing room should be cleared of spectators, and Congress should enact a law making protests in a hearing room during a Congressional hearing a low-level Federal felony.  Currently such disruption is a misdemeanor.  If people want to engage in this type of street theater at Congressional hearings, a higher price needs to be paid.

7

It’s Kavanaugh

President Trump has nominated Judge Brett Kavanaugh, a veteran of 12 years on the Federal DC Circuit Court of Appeals, the most important of the Federal appellate courts below the Supreme Court, due to the nature of the cases that arise in the seat of the Federal government.  A Catholic, he has a long judicial paper trail which will be mined by both opponents and proponents.  Go here to read his dissents and concurrences.  A good, solid pick.  I get the impression that he is a man deeply rooted in faith and family.  He is familiar with DC, having spent most of his career there, and unlikely to go native as a result.  I largely voted for Trump hoping against hope that he would do a good job picking Federal judges and justices, and he is amply repaid my confidence in him.

 

3

Beauty Contest

News that I missed, courtesy of The Babylon Bee:

 

WASHINGTON, D.C.—Bowing to public pressure, Donald Trump has agreed to remove a popular mainstay of the Supreme Court nomination process: the swimsuit competition.

“This is long overdue,” said law professor Edgar Ford. “It’s time to put out the message that judges of all shapes and sizes can rule on Constitutional issues. Not just those who look good in a bikini.”

The swimsuit competition has been considered controversial ever since it caused the otherwise-qualified Robert Bork not to get a seat at the Supreme Court in 1987. More recently, the swimsuit competition was why the Republicans wouldn’t even consider Barack Obama’s nominee Merrick Garland, instead waiting for the election of Donald Trump, whom supporters consider to have a better eye for such things.

It will be a new era selecting a Supreme Court Justice without the swimsuit competition, and Trump made it clear he made this choice grudgingly. “People don’t want it anymore, so I got rid of it,” Trump told the press. “But let’s not pretend people like Supreme Court Justices for their personalities.”

Go here to read the rest.  Images of some of the current Justices in bikinis just flashed through my brain.  Time for another mind wipe!

18

Supreme Court Justice Anthony Kennedy Retires

I go to Bankruptcy Court and news breaks out!  Anthony Kennedy, the key swing vote on the Supreme Court, is retiring effective at the end of July.  Trump gets another nomination to the Supreme Court and the Democrats go crazy.  This will be a major fight and put the Supreme Court front and center as an issue in the Senate races this Fall.  The Trump Court may be Trump’s longest lasting legacy.  More as I have time to breath after the law mines shut down today.

5

Two Big Ones From the Supremes

The Lunch Whistle has blown at the law mines.  Two big wins from the Supreme Court for the Administration and the pro-life movement.

 

First, for the Administration, the Court upheld Trump’s travel ban 5-4.  Go here to read the 92 page ruling.  (Judicial bloat is really getting out of hand.)

For Pro-lifers, the Court signaled the death knell for the attempt by California to compel pro-abort messages from pro-life crisis pregnancy centers.  Go here to read the text  of the decision written by Justice Clarence Thomas.

These decisions would have gone the opposite way without Gorsuch on the Court.  Elections do matter.  More later in the week after I have had an opportunity to read the decsions.

4

Trump Largely Wins One In the Supreme Court

 

In an unsigned opinion today the Supreme Court lifted stays imposed by lower courts on President Trump’s travel ban on travel for 90 days from Sudan, Syria, Iran, Libya, Somalia and Yemen, except for nationals of those countries who have a connection with the US, for example through relatives, etc.  The ban itself will be argued before the Court in the fall, by which time the 90 days would have expired in any case.  Justices Thomas, Gorsuch and Alito joined in a dissent written by Thomas which argued that the injunctions should have been lifted in toto.  Go here to read the decision.

21

Nuke Them Till They Glow

 

The Democrats have decided to filibuster the nomination by President Trump of Judge Neil Gorsuch to the Supreme Court.  There never has been the use of a filibuster to block a Supreme Court nomination in our nation’s history except for the case of LBJ who nominated Justice Abe Fortas, former Johnson mouthpiece, to be the Chief Justice in 1968.  His nomination fell to a bipartisan filibuster after it became known that Fortas, while on the Court, served as a Johnson adviser and, in effect, as an unofficial member of Johnson’s cabinet.  It didn’t help that, as in the case of the man who nominated him, Fortas was suspected of being a crook, a suspicion which was proved in 1969 when public outcry forced Fortas to resign from the Supreme Court.

The filibuster is a creature of the Senate rules, and like any rule in the Senate may be changed by simple majority vote.  Ridding the Senate of the filibuster is called the nuclear option.  The Senate went nuclear on November 21, 2013 when former Majority Leader Harry Reid, tiring of Republicans filibustering Obama’s lower court nominees, as the Democrats had the lower court nominees of Bush, pulled the nuclear trigger on November 21, 2013 to get rid of the filibuster in regard to lower court appointees. Continue Reading

8

Trump Picks Gorsuch

 

Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but
a carefully drafted text judges are charged with applying according to its original public meaning.

Judge Neil Gorsuch, concurring opinion, STEPHAN CORDOVA, Plaintiff – Appellant v. CITY OF ALBUQUERQUE, et al, Defendants-Appellees

President Trump hit a homerun with his choice of Neil Gorsuch, currently an appellate judge on the US Tenth Circuit.  Universally recognized as brilliant, he writes in a clear and concise manner that makes his decisions understandable by laymen who have not wasted three years of their life in law school.  Currently 49 years old, when he was appointed by President Bush to the 10th Circuit he was approved by the Senate unanimously.

 He is an originalist who believes that the text of the Constitution must be interpreted as the words were commonly understood at the time the portions of the Constitution were adopted.  He is noted as a friend of religious liberty and, in his extra-judicial writings, as a defender of innocent human life.  The quote above and the quote below indicate that he understands the role that our courts should play in our Republic:

“American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education,” he wrote. “This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”

Continue Reading

10

Scalia’s Greatest Hits

 

 

Most judicial writing is so bad, riddled with jargon and bloviation, that only people paid to do so would ever bother to read it.  The late Justice Antonin Scalia was the exception to this rule.  His writing was vibrant, free from both cant and jargon, and often extremely amusing.  Bruce T. Murray at Sage Law.US has compiled some of Justice Scalia’s greatest hits:

“Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute. Avant-garde artistes such as respondents remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures aimed at the suppression of dangerous ideas.”
National Endowment for the Arts v. Finley, 525 U.S. 569 (1998) (Scalia, J., concurring)

“All the provisions of the Bill of Rights set forth the rights of individual men and women – not, for example, of trees or polar bears.”
Citizens United v. FEC, 558 U.S. 310, 391-392 (2010)

“If forbidding peaceful, nonthreatening, but uninvited speech from a distance closer than eight feet is a ‘narrowly tailored’ means of preventing the obstruction of entrance to medical facilities (the governmental interest the State asserts), narrow tailoring must refer not to the standards of Versace, but to those of Omar the Tentmaker.
Hill v. Colo., 530 U.S. 703, 749 (2000) Continue Reading

23

Justice Antonin Scalia: Requiescat in Pace

 

 

A very sad day.  Supreme Court Justice Antonin Scalia has died:

 

 

Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.

Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.

According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.

U.S. District Judge Fred Biery said he was among those notified about Scalia’s death.

“I was told it was this morning,” Biery said of Scalia’s death. “It happened on a ranch out near Marfa. As far as the details, I think it’s pretty vague right now as to how,” he said. “My reaction is it’s very unfortunate. It’s unfortunate with any death, and politically in the presidential cycle we’re in, my educated guess is nothing will happen before the next president is elected.”

 

Go here to read the rest.  Republicans in the Senate should refuse to confirm anyone nominated to his seat and hope that the next President will be a Republican.

 

A devout Catholic, Justice Scalia was an ardent and eloquent  defender of the Constitution.  A small sample of his brilliance and his passion: Continue Reading

16

Judicial Retention Elections for Supreme Court Justices

tyranny3

 

A good idea from Senator Ted Cruz (R.Tx.):

Yet we are a people who believe, in the words of our Declaration of Independence that “when a long train of abuses and usurpations . . . evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.” In California, the people said enough is enough in 1986, and removed from office three activist justices who had repeatedly contorted the state constitution to effectively outlaw capital punishment, no matter how savage the crime. The people of Nebraska likewise removed a justice who had twice disfigured that state’s constitution to overturn the people’s decision to subject state legislators to term limits. And in 2010, the voters of Iowa removed three justices who had, like the Supreme Court in Obergefell, invented a constitutional right to same-sex marriage.
Judicial retention elections have worked in states across America; they will work for America. In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.

Continue Reading

25

Endless Debates

 

 

The New York Times hilariously believes that by agreeing to take up the question of gay marriage, the Court will resolve the issue, the Times assuming, as I do, that the Court is likely to strike down all laws against gay marriage and impose it by judicial fiat.

Such judicial interventions in the governance of this country in regard to hotly contested questions tend to be the starting of debates and not the ending of them.  This week on January 22, we will be observing the 42 anniversary of the decision of Roe v. Wade which sought to resolved the abortion issue.  The fight about abortion continues unabated, the Court’s pro-abortion rulings notwithstanding.  In a democracy, attempts by nine unelected lawyers in black robes to resolve questions of great moment tend not to work in the absence of political power and consensus to support the decision.  Mollie Hemingway at The Federalist reminds us that the Court has a long history of inflaming, rather than ending, debates in this nation:

In “Abuse of Discretion,” Clark Forsythe’s comprehensive look at how Roe v. Wade came to be, he notes that advocates of legalized abortion polled a very general question about whether abortion “should be between a woman and her physician.” Four months before the first arguments in Roe v. Wade were made, such a question got 64 percent affirming it in a Gallup poll, perhaps because the wording was so vague. (This is a bit of an aside, but Forsythe notes that abortion is almost never between a woman and her physician. Fewer than 5 percent of abortions are performed by a woman’s regular OB-GYN and almost all are performed by a stranger.)

You’d have to be living in a New York Times bubble to think that Roe v. Wade was either a limited decision or would end debate. In many ways, that decision is what led to many more people thinking deeply about abortion for the first time. And when they did begin thinking deeply about the topic, it frequently benefited the pro-life movement.

In another abortion decision years later, some justices signed onto some serious wishful thinking about court decisions settling the question of whether there is a right to kill an unborn child. Scalia’s dissent in Casey speaks to this and offers yet another example when the court thought it was settling another contentious issue (and that one’s a doozie):

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

I’ll give the New York Times this much: Whatever the Supreme Court decides on same-sex marriage, I bet it will end the debate at least as much as Dred Scott ended the debate about slavery, Roe ended the debate about abortion, and Casey ended the debate about abortion. Continue Reading

4

Prayer and the First Amendment

Bravo to Roy Costner IV!  Valedictorian of his class at Liberty High School in Liberty, South Carolina, he tore up his approved speech which did not mention God, and spoke about his Christian faith, reciting the Paternoster:

After speaking for a bit, the senior cut to the quick.

“Those that we look up to, they have helped carve and mold us into the young  adults that we are today,” Costner said in his speech. “I’m so thankful that  both my parents led me to the Lord at a young age. And I think most of you will  understand when I say…”

Costner then proceeded to recite a full-length version of the Lord’s Prayer,  the pivotal Christian prayer that is attributed to Jesus in the both the Gospel  of Luke and the Gospel of Matthew.

The audience members began to cheer tentatively and then heartily once they  realized what Costner was saying. The applause eventually became so loud that it  drowned out Costner’s voice.

At the end of the prayer, after Costner says, “Amen,” the audience breaks  into another round of wild applause.

Go here to The Daily Caller to read the rest.  The absurdity of Federal judges acting as censors of student speeches at commencement stems from a 6-3 decision of the Supreme Court in Santa Fe Independent School District v. Jane Doe (2000) in which the majority banned student led prayer at football games as an establishment of religion.

Chief Justice Rehnquist wrote a scathing dissent that began:

CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.

The Court distorts existing precedent to conclude that the school district’s student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court’s opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.” Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789-1897, p. 64 (J. Richardson ed. 1897). Continue Reading

30

A Ravenclaw, not a Gryffindor (Updated)

For those conservatives tenaciously clinging to the idea that Chief Justice John Roberts is playing some masterful game of chess that will end only with the liberals on the Court, in Congress, and in the White House brought to their knees in humiliating defeat, well, I’m not even sure the Chief is up for a rousing game of checkers. According to Jan Crawford’s piece, Roberts’ change of heart was motivated in large part to concerns over media pressure. So, the Chief Justice of the United States, according to this report, was cowed into upholding Obamacare because he was afraid of how the Court – and especially he – would look.

It has been rightly pointed out that Crawford relied on two anonymous sources, and therefore this story should be taken with some fine grains of salt. It’s certainly a plausible story, but an unconfirmable one.

Fine. It is possible that the Chief Justice wasn’t cowed by media or executive pressure. But even if the Chief Justice was not particularly pressured to decide in favor of Obamacare, it’s not beyond reason to suggest that he was still concerned about the institutional prestige of the Court, as well as a respect for the other two branches of government. Thus he concocted a rather far-fetched legal argument in order to justify declaring as constitutional a statute he knew at heart was not constitutional. So the more charitable interpretation of Roberts’ behavior is not that he’s a coward, but rather an activist who decided to rewrite a statute from the bench in order to avoid embroiling the Court in a partisan political battle.

There is a third option: John Roberts legitimately believed in the argument he made about the statute’s constitutionality.

Which is the option in which the Chief Justice looks like a chess playing genius again?

The title of the post, by the way, comes from my wife’s suggestion that President Bush nominated a Ravenclaw when he should have nominated a Gryffindor. It’s certainly more logical than anything I heard the Chief Justice say last week.

Update: It occurs to me that there is a fourth avenue of “defense,” and that is Roberts made a brilliant political calculation by forcing Obama to defend the health care law as a tax. Put aside the question of whether or not that would be an astute political maneuver. If that were indeed Roberts’ intention, than that hardly speaks well as to his character as Chief Justice. If he decided to uphold the law only to enable its use as a partisan club against the president, then the Chief Justice would have engaged in behavior that would justify his removal from the bench. So his defenders might want to think twice about that line of attack, at least insofar as they posit that he willfully engaged in such politicking.

By the way, if you’re still unsure of what to think of John Roberts’ thought process, look who was helping him along and now has his back.

Kmiec, a rare conservative supporter of Obama in 2008 who served as his ambassador to Malta, said he thinks Roberts sought out Justice Anthony Kennedy’s vote but didn’t spend much time trying to sway Justices Antonin Scalia, Clarence Thomas and Alito. Roberts, he said, probably didn’t worry about being punished by the conservatives.

“Roberts is a bigger man than that,” Kmiec said. “He might smile and recognize that was what they were doing, but he’d also just appreciate that was their way of making a statement. But he’d not chase the tail of the dog to try to turn it around.”

Kmiec, who served a resource to Roberts as he lined up his current two-week teaching trip to Malta, said he thinks Roberts would prefer that the story of the court’s internal deliberations get out “rather than keeping it so secret that it’d have caused some hard feelings among the chambers.”

“I think he knows in his heart that he’s reached a good decision for the well-being of the court and I don’t think he’s earned any long-term enmity of the conservatives,” Kmiec said. “If anything, this will give him more bargaining ability for years to come on both sides.”

Well if he’s got Doug Kmiec on his side, what more can a man ask for than that?

22

Of Kidney Stones, the Obamacare Decision and Election 2012

 

 

I was primed today for the Obamacare Decision.  I made certain that I had no court hearings today, and my appointments were not starting until 10:00 AM.  Alas my third kidney stone decided to make its appearance at 7:00 AM.  By 9:00 AM I was suffering from truly memorable pain.  I stayed home from the law mines and had my secretary reschedule all my appointments except the 2:00 PM which was in the nature of an emergency.  Nursed by my wife, and my doctor who opened his office early for me, God bless him, I soon had in my system very strong painkillers and Flowmax.  By 1:30 PM I still felt like bayonets were probing my nether regions, but duty is duty and my wife drove me to my office for the 2:00 PM appointment.  By the end of it at 3:00 PM I was feeling semi-human, the pain killers and the Flowmax working their magic.

As for the Obamacare decision, a plain text copy of the decision may be read here, the majority opinion by Chief Justice Roberts is both brilliant and wrong.  His exposition of how th individual mandate violates the Commerce Clause is magnificent.  His transformation of the mandate into a tax was clever and wrong.  The idea that something is a tax if it is used as a penalty to compel behavior is imaginative and absurd.  Go here to read an examination of the decision shorn of legal gobbledygook.  Lost in the hubbub over this part of the decision is that Roberts had a majority of the court rule that states could refuse to take part in the Medicaid expansion, a key part of Obamacare, and that Congress could not punish them by taking away all their Medicaid money.  Go here to read an analysis of that portion of the decision. Continue Reading

1

ObamaCare Ruling Watch

 

 

When the decision of the Supreme Court is released tomorrow at 9:00 AM Central Time I will do my best to link to the decision and have some commentary, work permitting in the law mines.  Now of course we can only guess what will happen.  Few things are more futile than attempting to guess what a court will do, but it is fun!  I share in the conventional wisdom that the Court will likely strike down the mandate but uphold the rest.  From a political standpoint, although it would be a travesty under the Constitution, I would prefer that the Court uphold the whole thing, since I think it would ignite a firestorm among conservatives and lead to a devastating defeat for Obama in the fall.  Well, we will see what happens tomorrow.

28

Obama Bullies Supreme Court

Obama gave us a preview today of the tactics he will use if the Supreme Court rules against ObamaCare.

In his first public comments about the case since the justices took it up last week, Mr. Obama appeared to be framing the political argument he would make should he have to face voters this fall after a loss at the high court.

“For years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law,” he said at a news conference. The health-care case is a good example of just that, he said. “And I’m pretty confident that this court will recognize that and not take that step.”

White House officials have said they were reluctant to appear to lobby the Supreme Court, which is partly why the president didn’t speak out on the case until after it was argued before the court last week. Continue Reading

3

Third and Final Day of Oral Argument on ObamaCare

 

 

Day 3 of oral argument on ObamaCare.  Go here to read the transcript.  Go here to listen to an audio recording of the oral argument.   Go here for audio highlights of the oral argument.

A very long day in the Supreme Court today with the severability argument this morning, and the expansion of medicaid under ObamaCare in the afternoon. Continue Reading

19

Day 2 of Oral Argument on ObamaCare: Train Wreck For the Administration

 

Day 2 of oral argument on ObamaCare.  Go here to read the transcript.  Go here to listen to an audio recording of the oral argument.  Today’s argument focused on the constitutionality of the individual mandate and the argument did not seem to observers to go well for the Obama administration.   Jeffery Tobin, CNN’s legal analyst, put it succinctly:

This was a train wreck for the Obama administration,” he said. “This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong… if I had to bet today I would bet that this court is going to strike down the individual mandate.”

Toobin added that he felt that U.S. Solicitor General David Verrilli simply wasn’t prepared for the conservative justices.

“I don’t know why he had a bad day,” he said. “He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices.”

Toobin also said he thought Justice Kennedy, the perennial swing vote, was a “lost cause” for supporters of the health care reform law. Continue Reading

Transcript of First Day of ObamaCare Oral Argument

 

 

I would caution everyone from reading too much into the questions asked by the Justices on the first of three days of oral argument, but it was an interesting day of oral argument.  Go here to read the transcript.  Go here to listen to an audio recording of the oral argument.  My thoughts on the first day I will post this evening. Continue Reading

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One of Our Black Robed Masters at Work

Fred Biery, a Bill Clinton appointee, is a Federal District Judge down in Texas.  In order to satisfy two village atheist parents of a student who contend that their 18 year old “child” will be irreparably damaged if any prayer escapes any lips during his high school commencement ceremony, Biery has banned all prayer at the high school commencement of the Medina Valley Independent School District on Saturday.  This includes the Judge censoring the speech of the valedictorian of the graduating class, Angela Hildebrand, a Catholic, who wished to say a prayer in her speech.

Chief U.S. District Judge Fred Biery’s order against the Medina Valley Independent School District also forbids students from using specific religious words including “prayer” and “amen.”

The ruling was in response to a lawsuit filed by Christa and Danny Schultz. Their son is among those scheduled to participate in Saturday’s graduation ceremony. The judge declared that the Schultz family and their son would “suffer irreparable harm” if anyone prayed at the ceremony.

Texas Attorney General Greg Abbott said the school district is in the process of appealing the ruling, and his office has agreed to file a brief in their support.

“Part of this goes to the very heart of the unraveling of moral values in this country,” Texas Attorney General Greg Abbott told Fox News Radio, saying the judge wanted to turn school administrators into “speech police.”

I’ve never seen such a restriction on speech issued by a court or the government,” Abbott told Fox News Radio. “It seems like a trampling of the First Amendment rather than protecting the First Amendment.”

Judge Biery’s ruling banned students and other speakers from using religious language in their speeches. Among the banned words or phrases are: “join in prayer,” “bow their heads,” “amen,” and “prayer.”

He also ordered the school district to remove the terms “invocation” and “benediction” from the graduation program.

“These terms shall be replaced with ‘opening remarks’ and ‘closing remarks,’” the judge’s order stated. His ruling also prohibits anyone from saying, “in [a deity’s name] we pray.”

Should a student violate the order, school district officials could find themselves in legal trouble. Judge Biery ordered that his ruling be “enforced by incarceration or other sanctions for contempt of Court if not obeyed by District official (sic) and their agents.”

The Texas attorney general called the ruling unconstitutional and a blatant attack from those who do not believe in God — “attempts by atheists and agnostics to use courts to eliminate from the public landscape any and all references to God whatsoever.”

“This is the challenge we are dealing with here,” he said. “(It’s) an ongoing attempt to purge God from the public setting while at the same time demanding from the courts an increased yielding to all things atheist and agnostic.”

Continue Reading