Judiciary Archives

Rusty Nails (SCO v. 7)

Is there a turn in the tide regarding gun rights? As a result of the recent Supreme Court ruling on 2nd Amendment rights, a DA in Wisconsin will not prosecute certain state laws restricting the use or carrying of firearms. Some of the laws he will not prosecute include:

prohibiting uncased or loaded firearms in vehicles;  prohibiting the carrying of concealed weapons, including firearms;  prohibiting the possession of firearms in public buildings;  and prohibiting the possession of firearms in establishments where alcohol may be sold or served.


Besides not letting them learn to read, black slaves couldn’t own guns either. Justice Clarence Thomas likens restrictions to the 2nd Amendment to tactics used by racists. From his opinion on the McDonald v. Chicago suit,

Militias such as the Ku Klux Klan, the Knights of the White Camellia, the White Brotherhood, the Pale Faces and the ’76 Association spread terror among blacks. . . . The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence.

By the way, Otis McDonald, of McDonald v. Chicago, is black.


And lastly, regarding the 2nd Amendment, a cogent and well thought out argument. Excerpt,

In no other country, at no other time, has such a right existed. It is not the right to hunt. It is not the right to shoot at soda cans in an empty field. It is not even the right to shoot at a home invader in the middle of the night.

It is the right of revolution.

Written not by a Tea Partier or Right-wing Gun Nut, but by a very liberal author at Daily Kos.


Well, if we can’t ban gunsmoke, then how about… smoke?

Under the new law, smoking is prohibited in indoor and outdoor areas frequented by the public, including sidewalks, parking garages, bars, restaurants, stores, stadiums, playgrounds and transit centers. Lighting up outside is also banned in places that are within 20 feet of indoor areas.


There won’t be any smoke around our family meal, though. In Family Meal as Therapy, we read,

…there is something about a shared meal–not some holiday blowout, not once in a while but regularly, reliably–that anchors a family even on nights when the food is fast and the talk cheap and everyone has someplace else they’d rather be. And on those evenings when the mood is right and the family lingers, caught up in an idea or an argument explored in a shared safe place where no one is stupid or shy or ashamed, you get a glimpse of the power of this habit and why social scientists say such communion acts as a kind of vaccine, protecting kids from all manner of harm.

At risk to my standing at my place of employment, I make it a point to have dinner with my family. It matters.


What about Jeremiah 29:10? Never read a Bible verse; especially Jeremiah 29:11.

A Trend in Obama SCOTUS Nominees?

When Sonia Sotomayor was questioned by the Senate before her confirmation as a Supreme Court justice, she sounded positively conservative.  As Don Surber notes:

A year ago, as senators were deciding whether to confirm her appoinment, Democratic Senator Patrick Leahy asked: “Is It Safe To Say That You Accept The Supreme Court’s Decision As Establishing That The Second Amendment Right Is An Individual Right? Is That Correct?”

Then-Judge Sotomayor replied: “Yes, Sir.”

NewsBusters has the video.

However, she voted against individual gun rights a couple of days ago.

In her dissent against the finding that the city of Chicago’s ban on handguns is unconstitutional, Justice Sonia Sotomajor said: “I Can Find Nothing In The Second Amendment’s Text, History, Or Underlying Rationale That Could Warrant Characterizing It As ‘Fundamental’ Insofar As It Seeks To Protect The Keeping And Bearing Of Arms For Private Self-Defense Purposes.”

It does establish "an individual right" but doesn’t protect "private self-defense purposes".  Right.  I’m not a constitutional law scholar, but what tortured reasoning can you have in mind when you agree with the first statement, and then make the second statement?  Or is it just out and out lying? 

And now Elena Kagan is in front of the Senate, and Paul Mirengoff notes, "As with Sotomayor’s articulated vision, Kagan’s could have come from the lips of John Roberts."  Is this what we can expect from Obama nominees now and in the future; not just a resistance to being pigeon-holed, but being completely evasive to the point of mischaracterizing their own views? 

I hate to have to wind up with two justices that are not at all what they sold themselves to be in order to find out how true this may be, but this does point out how important elections are.  The enduring legacy of Obama, besides the enormous debt we’ll be saddled with, are Supreme Court justices that are entirely, 100% political, willing to say whatever it takes to get their job.

A SCOTUS Ruling Question

So, minors can’t be given a life sentence. A kid under 18 commits a completely heinous and extensive serious of assaults and he’s by law now going to be out again at some point? Do you think that’s a good idea?  He just has to “not kill” his victims, say he “just” rapes girls and amputates their arms and legs. Still think he shouldn’t get a life sentence? Is that a useful or meaningful restriction? 

Ninth Circuit Court of Appeals Rules "Under God" Constitutional

Yes, that 9th Circuit.  The same one that ruled it unconstitutional before.

A federal appeals court upheld the use of the words "under God" in the Pledge of Allegiance and "In God We Trust" on U.S. currency, rejecting arguments Thursday that the phrases violate the separation of church and state.

The San Francisco-based 9th U.S. Circuit Court of Appeals panel rejected two legal challenges by Sacramento atheist Michael Newdow, who said the references to God are unconstitutional and infringe on his religious beliefs.

The same appeals court caused a national uproar and prompted accusations of judicial activism when it decided in Newdow’s favor in 2002, ruling that the pledge violated the First Amendment prohibition against government endorsement of religion.

But here’s the thing.  The last time he tried this, it went to the Supreme Court which simply said he had no standing.  So they never really dealt with the salient issue.

Now, the 9th Circuit takes up the exact same issue, and, lacking some SCOTS precedent to fall back on, rules in the opposite direction. 

Apparently, it’s all due to the luck of the (judicial) draw; it depends on which 3 judges you get.  Although…

In a separate 3-0 ruling Thursday, the appeals court upheld the inscription of the national motto "In God We Trust" on U.S. coins and currency, citing an earlier 9th Circuit panel that ruled the phrase is ceremonial and patriotic and "has nothing whatsover to do with the establishment of religion."

I’d say, neither does "under God" in the pledge; it’s a statement of historical fact.  Still, "In God We Trust" gets a 3-0 unanimous decision while "under God" goes 2-1.  The 9th Circuit Court of Appeals richly deserves it’s position as the most overruled appeals court in the country.

Hat Tip: Stop the ACLU

Considering the TSA and the Anti-Martyr Problem

Well, the TSA objective of making transportation safe is back on the front-burner. Now the TSA screening is a poor seive. It is a largely static target and is very costly, the largest cost of course is in the lost time that travellers endure in negotiating long security lines. Furthermore, it is likely that much of their efforts are counter-productive. For example, making box-cutters freely available and common on flights would make it harder, not easier, for a terrorist or terrorists to hijack a flight. The “rules” of engagement with those who would interfere with the operation and direction of airplane do not get time to negotiate or to “make demands” known like they might do in the 20th century. Once a person is identified as hostile (a prospective anti-martyr) that person is quickly neutralized by his fellow passengers. The age of passive passengers has past once the 9/11 event occurred.

However TSA has a purpose. It is visible and reactive. It can take the appearance of being the primary and front line defence in a strategy to identify and interdict prospective anti-martyrs. War and espionage (to which this anti-martyr interdiction campaign is related) is in part one of misdirection. To that end, the TSA screeners take a very public and obvious role. They (might) be the public and obvious strategy which is a counterfeit. If indeed the TSA plays such a role, we as the voting public will not know that for as soon as it is common and public knowledge that the TSA is a large noisy feint … then their will be an outcry to remove it and an alternate deception will be harder to enact. Read the rest of this entry

On the New York Show Trial

Apparently we are heading to a New York show trial of a infamous Guantanamo Bay resident. Some years earlier, a famous essay by Hannah Arendt to whit, Eichmann in Jerusalem: A Report on the Banality of Evil, which highlighted another show trial. In that former trial, to the discerning observer if not to the general audience, political ethics and the public/personal normative framing were highlighted. The prospects seem low, especially given the pre-trial protestations of an assurance of a guilty verdict by Mr Holder, of any such public debate and discussions about political ethics on the public stage. Earlier I queried an interlocutor in conversation over up-coming civil show trial what was his evaluation of the considerations involved in the detainment, processing, and treatment of illegal combatants. Read the rest of this entry

The Biggest Problem With Civilian Trials for Terrorists

No, it’s not that our Federal court system can’t handle a case like this. 

No, it’s not that New York can’t handle it (though we are about to open old wounds). 

No, it’s not that Barack Obama is doing it.

No, it’s not even that we conferring constitutional rights to someone who was neither a citizen or living here at the time of the crime (though that is a big issue).

James Galyean, a former federal prosecutor and former counsel on the US Senate Judiciary Committee, spells it out.

The criminal justice system is not the proper place to determine his fate. Our criminal courts provide protections to our citizens that should not be provided to a terrorist, and may actually damage national security.

Just think about the discovery requirements that could be placed on prosecutors. For instance, in the trial of the 1993 World Trade Center bombers, prosecutors were required to turn over to defense lawyers a large amount of intelligence information. Documents from that discovery production, which were never supposed to be provided to anyone outside the defense team, were later found in an al-Qaeda hideout. Let me say that again, confidential documents from a trial in New York were later found in the hands of al-Qaeda.

Now consider that KSM was captured in a lightening raid in Pakistan. The intelligence that led to that capture has been the subject of a number of reports. However, al-Qaeda would love to know for sure where that information came from and how it was obtained. In addition to that, they may be able to learn a number of other things from discovery in this trial.

Emphasis his.  And he also notes that even military tribunals have their hands tied

The Obama Administration just approved new rules for military commissions. The President’s new rules make obtaining a conviction much more difficult, maybe impossible in some cases. The new rules require that a defendant be allowed access to any classified information used against him. This may prevent a number of trials from going forward if the military decides it cannot afford to “burn” the method or source of the information. And since the new rules are now the President’s rules, it would be his fault if the terrorist were not convicted, or perhaps not even tried.

But you know he’ll still blame Bush. 

Citizen Khalid

Khalid Sheikh Mohammed, self-proclaimed mastermind of the 9/11 attacks, is being promoted to, what amounts to, full citizen of the United States of America for purposes of standing trial, in civilian court, for his war crimes.  He’ll get all the rights and privileges afforded citizens, and even just residents living under the laws of our land, even though he has never been either of those. 

Nazis are rolling over in their graves.  No doubt John Kerry, who called the war on terror a "law enforcement" issue is feeling vindicate today.  (He’s still wrong.)

Democrats promptly erected straw men to defend this decision by the President.

Senate Judiciary Committee chairman Patrick Leahy, D-Vt., said the federal courts are capable of trying high-profile terrorism.

”By trying them in our federal courts, we demonstrate to the world that the most powerful nation on earth also trusts its judicial system a system respected around the world,” Leahy said.

But nobody’s saying that the federal courts aren’t capable.  What they are saying is that there are other ways to deal with this without the detrimental consequences.

Republican Sen. Jon Kyl of Arizona called bringing Mohammed to New York ”an unnecessary risk” that could result in the disclosure of classified information. Kyl maintained the trial of Omar Abdel Rahman, the so-called ”blind sheik” who was tried for a plot against some two-dozen New York City landmarks, caused ”valuable information about U.S. intelligence sources and methods” to be revealed to the al-Qaida terrorist network.

Making 9/11 that much more easier to plan.  And we’re putting the master planner on trial.  We’re throwing caution to the wind because of the President’s reckless promise to close Guantanamo within a year (which hasn’t been going so well, and people are losing their jobs over it).

And if you thought that the OJ Simpson trial was a circus, just wait until the KS Mohammed one.  "If he was waterboarded, he must be exonerated!"  OK, I’m no Johnny-Cochran-caliber poet, that’s for sure.

H1N1, Vaccinations (and Abortion)

H1N1 vaccinations are a subject for debate. One might ask, will they be required of students? Or of other organizations. “H1N1 required” pulls up a list of links. If I was more playfully disposed, I think this might be an interesting venue to push the argument in a real legal challenge by refusing to disclose vaccination (or not) of myself or (more likely) my children. Vaccinations of a variety of sorts are required for school attendance. Where and why the challenge? Because the abortion “right to privacy” is exactly the same right that is not protected by the school system (and thereby the government’s) right to demand vaccination.

Now normally I get a flu shot and will likely get the H1N1 and the seasonal flu shot this year … and so will my kids. But that in itself is irrelevant to a challenge. Typically with vaccination requirements the parent is required to prove vaccination with a doctors affidavit. This is the part I would refuse. If abortion is legal, it should not be legal for the government to require vaccination. The argument is the same. Abortion is therefore legal because a woman has a right to the disposition of  her body. Vaccination is programming of our immune system and clearly part of your body. Requirement of vaccination therefore is just in this case the state violating that right that abortion establishes.

In prior discussions on this point, the argument was put forth against it, that abortion and vaccinations differ in that getting a vaccination is for the public good and is not very harmful to the recipient. I’m not sure what bearing that has on the argument, but one might point out that children too are required for the next generation and are in general public good.

Additional thoughts on Sotomayor’s selective judicial bias

From Dawn Eden, regarding Sonia Sotomayor’s thinking on stare decisis which, apparently, varies depending on whether or not the ruling has to do with abortion. Eden states,

As I wrote when liveblogging this exchange, apparently, when the subject is antitrust law, Sotomayor is perfectly comfortable with admitting that new information must be taken into account. But when the subject is abortion law, she doesn’t want to even discuss whether a change in “factual findings” is relevant.

Using Obama’s Judicial Standard on His Nominee

Yesterday, Senator Orrin Hatch, who has voted on 11 Supreme Court nominees, had very good opening remarks in the Sotomayor confirmation hearing.  His whole speech is worth reading (or watching, if you prefer), but I’d like to highlight a section where he notes that Senator Obama seemed to have a different standard for judicial nominees than he has today.  Senator Hatch pointed this out.

I have also found guidance from what may seem to some as an unusual source. On June 8, 2005, then-Senator Barack Obama explained his opposition to the appeals court nomination of Janice Rogers Brown, an African-American woman with a truly compelling life story who then served as a Justice on the California Supreme Court. Senator Obama made three arguments that I find relevant today.

First, he argued that the test of a qualified judicial nominee is whether she can set aside her personal views and, as he put it, “decide each case on the facts and the merits alone….That is what our Founders intended….Judicial decisions ultimately have to be based on evidence and on facts. They have to be based on precedent and on law.”

Second, Senator Obama extensively reviewed Justice Brown’s speeches off the court for clues about what he called her “overarching judicial philosophy.” There is even more reason to do so today. This is, after all, a nomination to the Supreme Court of the United States.

Judge Sotomayor, if confirmed, will help change the very precedents that today bind her as a U.S. Circuit Judge. In other words, the judicial position to which she has been nominated is quite different than the judicial position she now occupies.

This makes evidence, outside of her appeals court decisions, regarding her approach to judging more, not less, important. Judge Sotomayor has obviously thought, spoken, and written much on these issues and I think we show respect to her in taking that entire record seriously.

Third, Senator Obama said that while a nominee’s race, gender, and life story are important, they cannot distract from the fundamental focus on the kind of judge she will be. He said then, as I have said today, that we should all be grateful for the opportunity that our liberty affords for Americans of different backgrounds.

We should applaud Judge Sotomayor’s achievements and service to her community, her profession, and her country. Yet Senator Obama called it “offensive and cynical” to suggest that a nominee’s race or gender can give her a pass for her substantive views. He proved it by voting twice to filibuster Judge Janice Rogers Brown’s nomination, and then by voting against her confirmation. I share his hope that we have arrived at a point in our country’s history where individuals can be examined and even criticized for their views, no matter what their race or gender. If those standards were appropriate when Senator Obama opposed Republican nominees, they should be appropriate now that President Obama is choosing his own nominees.

But today, President Obama says that personal empathy is an essential ingredient in judicial decisions. Today, we are urged to ignore Judge Sotomayor’s speeches altogether and focus only on her judicial decisions. I do not believe that we should do that.

Indeed, Sen. Hatch continues on to note other double standards that Senator Obama applied, based, one can only imagine, solely on the way the judge is expected to rule on particular cases.  Democrats have politicized this process (just ask Robert Bork or Clarence Thomas), but Republicans, like Senator Lindsey Graham, have been much more fair (just ask Ruth Ginsberg), and indeed, as he said, "Now, unless you have a complete meltdown, you’re going to get confirmed." 

When George W. Bush was elected, Republicans defended his policy decisions, in part, with the phrase, "elections mean things".  If the country votes in a President, they vote in his policies and, if the occasion presents itself, Supreme Court nominees.  And so Graham also said, "But President Obama won the election and I will respect that."  Not as a rubber stamp, but the President does get the benefit of the doubt.  Republicans are being consistent in this, and in doing so are trying to hold back or reverse the politicization of the process that Democrats have pushed.

While watching Fox News cover the hearings, as each speaker began their remarks, you saw some information about them; personal information (age, service in politics, etc.), what they’ve said about Sotomayor, and how they voted in past Supreme Court nominees.  It was interesting to see how many Republicans voted for every nominee they ever saw, including Hatch’s 11 Yes votes, but how so many Democrats haven’t yet voted Yes.  In confirming Sotomayor, the Republicans will once again lead by example, hoping perhaps that the Democrats will see this and act likewise when the situation is reversed.  History does not seem to indicate that this will happen, but you can always hope.

On the Nomination to the High Court

Back when Mr Bush was nominating people for President, I made what I felt was a strong argument that the Senate should have readily nominated his appointees. I stand by this argument now that the other party is now in the White House. I based this argument on Mr Hamilton’s Federalist Paper #76. Mr Hamilton notes:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

He also notes just prior, mentioning consequences of what might occur if the Senate took too active a role in vetting and selecting nominees.

Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. […] And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations. [emphasis mine]

In view of the last two decades of despicable SCOTUS and other similar interviews, Mr Biden and his parties behavior during the Thomas hearings comes to mind, a rejoinder to Mr Hamilton might be, “D’ya think? They might put considerations of party before who might be fit for the station.”

Mr Hamilton suggests the Senatorial advise/consent be exercised to insure the nominee free from “unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” If Ms Sotomayor is free from these issues, my view would be to approve her to the position.

Policy-Making Judges

Should a court be where "policy is made"?  I thought that’s what we had elected representatives for.  But Obama’s pick for the highest court in the land, Judge Sonia Sotomayor, seem to think so.  (Well, until she realizes she’s being recorded, and then she gives a wink and a nod to the audience.)  Another liberal judge who thinks it’s his or her job to form the law rather than interpret it.

And from this article about the pick comes this wonderful line:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” said Judge Sotomayor, who is now considered to be near the top of President Obama’s list of potential Supreme Court nominees.

If she were a Republican, that would have been labeled "racist".  But she doesn’t stop there.

“Whether born from experience or inherent physiological or cultural differences,” she said, for jurists who are women and nonwhite, “our gender and national origins may and will make a difference in our judging.”

Her remarks came in the context of reflecting her own life experiences as a Hispanic female judge and on how the increasing diversity on the federal bench “will have an effect on the development of the law and on judging.”

Blind justice will now be peeking, if Sotomayor is confirmed.  I continue to think that these kinds of judges still don’t recall that Brown v. Board of Education was decided by nine white guys.  Unanimously. 

And I’d like to note that my objections to this court pick have absolutely nothing to do with her gender or national origin.  It is the Left that is overly hung up on this, as I noted in this post during the confirmation of John Roberts.  And Sotomayor, in bringing this up, is not only overly emphasizing this irrelevant point, but setting up opponents to be tarred as "racists". 

The whole idea that one’s race or gender, in and of itself, should alter one’s view of the law in this day and age, is saddening, frankly.  The fact that we have an African-American President is not the beginning of racial reconciliation and equality, it is one of the culminating events of it.  It shows we have a majority in this country that doesn’t care much your color as long as they approve of your character.  That’s "The Dream".  No, we are have not been perfected in this, but we are not perfect in anything.  There are always problems.  There are always improvements to be made.  But as a nation, I think we can hold our heads up high on this matter. 

However, Judge Sotomayor thinks white guys, over half a century after Brown v. Board of Education, still can’t judge fairly.  Thanks for your vote of confidence.

Our Innumerate President

Via the Corner, Ed Whelan notes two instances in which President Obama previously said,

[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult.

OK. What is that man talking about? A quick look at some, you know, actual statistics shows that the agreement is just a little less. Ms Ginsberg agreed with Mr Scalia less than 15% of the time and Mr Thomas less than 10%. A far cry from 95%.

So, remind me why is this man touted for his “high intelligence?” He’s either bright … and a bald faced liar … or he’s innumerate. Pick one.

Some Random Thoughts

One thing that comes to mind when issues regarding increased influence by the government in healthcare. Today there are no public hayrides. Why? Because somewhere someone decided they could sue if some rambunctious teenage got hurt during the ride … which mean insurance was required … which meant no more hayrides. How much public interest in health care of this sort not give increased impetus to control risk or other behavior deemed not necessary if that activity has but the smallest negative impact on public health and subsequently public insurance rates. Hayrides are harmless romantic fun that were once common in the New England autumn. Now they are only a private affair hidden from any organized groups that might be subject to suit.

There is a notion among so many today, and my impression is that this idea is found more on the left than the right, that if someone is injured especially badly then there is necessarily another at fault. Actual accidents do not exist in their world. And that it is right to use legal proceedings after any substantial injury to redress the wrong and to locate (or invent) a guilty party and get them to pay. This is, I think, quite a childish impulse. I don’t understand how an adult can act on such an idea in the absence of evidence or any suggestion of malfeasance or malice.

Negligence is often cited as a cause for accidents and used as a proxy for fault. Tiger Woods occasionally misses a nominally routine putt. Jose Calderon has an 2008/9 NBA free shooting percentage of 98.052%. Why not 100%? After all free throws are routine. The point is that humans performing any routine activities will occasionally fail or introduce a mistake. Accidents can occur which are not intentional and are not actionable. All too often an error is cause for suit even when it is an “honest” mistake. An obvious rejoinder is that this is what courts are for, to distinguish between honest mistakes and ones which arise from malice, greed, or other intentional errors. And yes, that is the case. But the courts should not be the place where this issue is explored, but the place where evidence of error is tried.

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