Tag Archives: Supreme Court

The Court and Kavanaugh

08 Monday Oct 2018

Posted by in Supreme Court

≈ Leave a comment

Tags

, , , , , , , , , ,

There are both great and hysterically negative expectations for Brett Kavanaugh’s seating on the Supreme Court, depending on one’s perspective. The changes are likely to be much less dramatic than many think, however, according to Glenn Reynolds in his Sunday column. As he says, most cases before the Supreme Court are decided by easy majorities, and that won’t change. On split decisions, Kavanaugh will be less of a “swing vote” than Anthony Kennedy, no doubt, and he will have influence over the choice of cases to be heard by the Court because the selection of a case requires only four justices.

Reynolds thinks Kavanaugh is not as conservative as partisans hope or fear. For example, Reynolds believes he is unlikely to vote to overturn Roe vs. Wade, when and if that question comes before the Court. There may be shifts on narrower questions, such as an earlier definition of fetal viability (in recognition of improved medical technology) and greater protection against arrangements that facilitate illegal funding of abortions by federal taxpayers. Reynolds acknowledges, however, that Kavanaugh is a stronger advocate of Second Amendment rights than Kennedy, so those protections are less likely to be eroded.

Reynolds’ also notes a shift that is likely to take place in legal academia:

“Strange new respect for judicial minimalism. As Harvard Law professor Adrian Vermeule remarked, ‘Law review editors: brace for a tidal wave of legal academic theories supporting judicial minimalism, Thayerianism, and strong — very strong — theories of precedent. Above all: the Court must do nothing without bipartisan agreement, otherwise it is illegitimate.’ The past half-century’s enthusiasm for judicial activism will vanish, as legal academia turns on a dime to promote theories that will constrain the court until a left-leaning majority returns, at which point they’ll turn on a dime again.”

That is all too likely. My liberal friends insist that the four justices on the left are free of political bias. Don’t laugh! I’ll be happy if Kavanaugh, as a justice, sticks to his traditional originalist philosophy on constitutional interpretation. I’m under no illusion that the left side of the bench takes the original meaning of the Constitution seriously.

My own concerns about Kavanaugh have to do with his earlier work in the Bush White House on issues related to national security, including work on the PATRIOT Act. In fairness, that work took place at a time when the horrors of 9/11 were still fresh in our minds. However, years later he wrote a favorable judicial opinion on metadata collection by the government. It’s disturbing that Kavanaugh has ever shown a willingness to relinquish the rights to privacy and due process as a routine matter of national security. The founders’ intent was to protect individual rights from the threat of tyranny, so they expressly limited the power of government through the Constitution. Those who would claim that threats to national security are so compelling as to supersede individual rights are perhaps the very tyrants the Constitution was meant to foil. Nevertheless, my hope is that Kavanaugh, having come face-to-face with those who would prefer to deny privacy and due process rights when it suits them, has gained additional respect for these protections.

The “Judicial Temperament” Ruse

02 Tuesday Oct 2018

Posted by in Uncategorized

≈ Leave a comment

Tags

, , , , , , , ,

“Judicial temperament” applies to situations in which an impartial third party is or would be acting as a judge, weighing evidence that might support one side of a case or the other. It cannot apply to one of the parties to a dispute or allegation of wrongdoing, nor can it reasonably be inferred in other matters from the attitude or statements of one of the first two parties with respect to the accusation. Of course, an individual accused of a misdeed for which they KNOW they are innocent can be expected to react angrily. That would be natural and understandable, and it has nothing to do with the individual’s judgement in other realms. Any victim of wrongdoing has a right to be angry, and a false accusation is no exception.

Christine Blasey Ford has accused Brett Kavanaugh of a sexual assault that she says took place 36 years ago when the two were in high school, but without corroboration of any kind. The Left has characterized Kavanaugh’s righteous indignation as a “temper tantrum” unbefitting a Supreme Court Justice. “Oh, but why are you so angry?”, they ask. Really.

Assuming that he is indeed innocent of the charge, and there are many reasons to doubt its veracity, Kavanaugh’s reaction was well-justified. The allegation was unveiled by the minority on the Senate Judiciary Committee at the eleventh hour as they prepared to vote on bringing his name to the floor of the Senate for confirmation. A much earlier disclosure was possible and would have permitted an investigation weeks before the Committee hearings. Not only that, the minority presumed his guilt, he was called “evil” by one senator, he received death threats against his family, and he was forced to field a host of probative questions about his teenage scribblings in a high school yearbook. Only a Vulcan would greet such sabotage of character with equanimity, and I’ll gladly give Kavanaugh a pass on it. I mostly enjoyed his fire and emotional at the hearing last Friday.

Another dimension of judicial temperament is impartiality. The meaning of that term can be manipulated, of course. For example, one’s views on constitutional interpretation are at the very root of many political disagreements, yet when convenient, some pretend that the two are mutually exclusive. Shall we disqualify anyone with a specific constitutional philosophy? Does it somehow depend on which seat is open? Of course not.

On the other hand, Kavanaugh voiced what many knew to be true at the hearing last Friday: the Leftist minority on the Committee had prepared an ambush to destroy him. He also noted the possibility of lingering resentment for his role on Ken Starr’s staff investigating the Clintons in the 1990s. Perhaps Kavanaugh was unchaste to express what was obvious, and the Left has seized on those statements as evidence of a disqualifying political bias. But again, he stated what he knows to be true.

Kavanaugh’s is widely viewed as an impartial jurist, and he has a history of collegiality with judicial peers from across the political spectrum. As Randy Barnett states at the link above:

“His 300 opinions have been thoughtful and well reasoned. His reasoning has repeatedly been adopted by majorities of the Supreme Court. He gets high marks from, well, from everyone for his intelligence, decency, and judicial temperament.”

It is my conviction that Kavanaugh would rely on his legal scholarship and constitutional philosophy, as he has in the past, in deciding his positions on issues that come before the Court, rather than hearing cases with a view toward malice against particular individuals or one end of the political spectrum. I also believe he is wise enough to know that he should recuse himself in cases of obvious personal conflict. The charge that he lacks judicial temperament is an additional attack based on his judicial philosophy, and it is an opportunistic attempt to discredit him on the basis of his strong and understandable response to a smear campaign.

Can Dems Keep a Straight Face Through Thursday?

21 Friday Sep 2018

Posted by in Defamation, Sexual Predation, Supreme Court

≈ 1 Comment

Tags

, , , , , , , , , , , , , , , ,

A political party that wants voters to give them control of Congress also wants you to believe that a man is guilty until proven innocent; that presumed guilt is contingent on gender and race; and that sitting on accusations until the midnight hour is not a manipulative, politically-motivated stunt. With all due respect to victims of sexual predation from both genders (oops, perhaps I should have said all genders), the allegations and smears against Brett Kavanaugh smack of political motivation, and you can bet Kavanaugh’s detractors are proud of it.

First there was Professor Christine Ford’s allegation about an assault 36 years ago at a party that no one remembers, including her. Then there are the cloudy and shifting recollections of Deborah Ramirez about a dorm party at Yale 35 years ago at which she thinks Kavanaugh exposed himself as part of a drinking game, but no one else seems to recall that event either. In fact, it’s reported that Ramirez was not going forward with the claim until she was sought out by congressional Democrats. And then there is Michael Avenatti, the cartoonish attorney for porn star Stormy Daniels, who says that Kavanaugh and a buddy, Mark Judge, regularly drugged women and arranged for “trains” of men to rape them. Avenatti now says one such woman will come forward within 48 hours. Perhaps she’s still negotiating her deal with Avenatti. Why, you could almost get the idea that Democrats are actively recruiting accusers.

Here’s what Charlie Martin said:

“Okay, so we’re up to Kavanaugh and Mark Judge supposedly pimping out drug-addled high school girls to pull a train with classmates without anyone mentioning it for 36 years. Do the accusations of Satanic abuse and child sacrifice hold off until Wednesday, do you think?”

Ford claims that Judge Brett Kavanaugh, 36 years ago as a teenager, sexually abused her at a high-school party while his friend, Mark Judge, watched. She claims Kavanaugh pushed her down on a bed, groped her, attempted to remove all or part of her one-piece swimsuit, and placed his hand over her mouth to silence her protests before Master Judge piled on top, causing the three to fall off the bed and allowing her to escape from the room.

Democrats say this allegation should keep Kavanaugh off the Supreme Court or delay any vote on his appointment until after a full investigation by the FBI. Let’s review some facts in the case:

  • Ford can’t recall a specific location, how she got there or how she got home, how she wound up in the upstairs bedroom with the two boys, the name of the party’s host, or more specifics about the date of the alleged assault.
  • Ford says she never told anyone about the incident until years later when she revealed it to a therapist, whose notes say there were four people in the room and do not mention Kavanaugh.
  • The allegation was made by Ford in a letter to Senator Diane Feinstein on July 30, five weeks before the Senate Judiciary Committee held hearings on Kavanaugh’s nomination to the Court. Feinstein did not mention the letter during the hearings. She revealed it’s existence just a few days before a scheduled Committee vote on the Kavanaugh nomination, six weeks after her receipt of the letter. Feinstein has refused to reveal the unredacted contents of Ford’s letter to the Judiciary Committee.
  • Kavanaugh has denied the allegation and says that it could be a case of mistaken identity. Kavanaugh’s friend Mark Judge denies that the incident took place.
  • Ford named two other individuals as potential witnesses who could place both Ford and Kavanaugh at the party in question. Both have stated that they are unable to do so. The first, another male friend of Kavanaugh’s, released a statement praising Kavanaugh’s integrity. The second, a woman, stated that she does not know Kavanaugh and is unable to place the two at a party together. That’s a total of three witnesses who say they didn’t witness anything.
  • Some 200 alumni of Ford’s private all-female high school wrote a letter in support of Ford, but many of them are not even contemporaries of Ford and Kavanaugh.
  • Some 65 women who knew Kavanaugh during his high school years have signed a letter vouching for his character; a number of college and law school classmates as well as high-profile female attorneys who have worked with (and for) Kavanaugh have publicly stated their support and vouched for his integrity.
  • Originally, Ford and Kavanaugh both agreed to appear before the Judiciary Committee on Monday, Sept. 24; the vote on Kavanaugh’s nomination was delayed a week. Subsequently, Ford stated that she would not appear before the Committee until the FBI had completed an investigation of the incident.
  • The charge would not be a federal crime, so the FBI declined to investigate.
  • Later, she expressed a willingness to appear under the right conditions, but not as soon as Sept. 24; only questions from Senators; Kavanaugh cannot be in the same room; and Kavanaugh must go first.
  • After a week of repeated requests through Ford’s attorneys and several “deadlines” set by the Committee Chairman, it now appears that the hearing will take place on Thursday, Sept. 27, but the terms have not been fully settled.

I think the Committee Chairman, Chuck Grassley, got played in accepting the delays. It allowed the Democrats to raise these unprovable accusations in a campaign against Kavanaugh in the media. It also invited the very bandwagon effect of unfounded accusations we are now witnessing, as the underhanded effort to block Kavanaugh’s appointment began to bear additional fruit.

The alleged crime occurred when both Ford and Kavanaugh were minors (Ford was 15, Kavanaugh 17). The statute of limitations applicable to minors in the state of Maryland, where the alleged incident occurred, is three years or until the “injured party” reaches the age of majority. It is therefore too late for Ford to file criminal charges against Kavanaugh. The statute of limitations is reasonable to the extent that teenagers do a great many stupid and harmful things for which they should not necessarily be held responsible as adults. Sexual aggression, if proven, may well cross a line depending on its character and severity, but from a legal perspective that line is determined, in part, by the victim’s determination to bring charges at a time when the charges can reasonably be investigated. Ford did not bring them, and she did not so much as mention them to anyone for about 30 years.

Ford has been involved in some left-wing activism, but her social media profile was  scrubbed before the allegations went public. Her attorney, Debra Katz, has been a prominent member of the MeToo movement. This has, quite naturally, contributed to suspicions that the entire matter is a political stunt. That’s reinforced by Feinstein’s delays in making the matter public, Feinstein’s refusal to release Ford’s letter without redactions, and by the repeated delays in Ford’s commitment to testify before the Committee. In fact, Ford claimed that she cannot appear before the Committee until late next week because she must drive from the west coast to Washington, DC. That’s because Ford says she has a fear of flying and “closed spaces”. Not only that, these fears originated with Kavanaugh’s alleged attack. Just wow! The author at the last link wonders whether Ford took a boat to her internship in Hawaii a few years ago, avoided elevators for 36 years, or perhaps managed her issues with medication.

Ford’s high-school yearbooks were available on-line until just a few days ago, when they were suddenly taken down by the affluent private girls school she attended. The yearbooks do not reflect directly on Ford. They are, however, a bit surprising because they were presumably overseen by faculty, and yet they celebrated heavy drinking and the joys of blacking out, promiscuity, and they even contained hints of racism. The fact that the yearbooks were suddenly removed from the internet reflects on Ford’s defenders, who must have felt that the books would damage her credibility.

Again, the terms of the hearing involving Ford and Kavanaugh are still up in the air. Ford’s insistence that Kavanaugh should testify to the Committee prior to her is contrary to the normal procedure in any case involving criminal charges. The Senate follows the same rules. Putting Kavanaugh in a different room would deny him his right of habeas corpus. The Committee chairman has also suggested that questioning would be handled by a female attorney. Given these differences, it is far from certain that Ford will ever appear before the Committee.

The letter to Feinstein, as it turns out, was drafted by Ford at the senator’s request after Ford had first consulted her congresswoman, Anna Eshoo, earlier in July. The redacted portions of that letter are of interest. After all, they may either bolster or weaken the credibility of the charges. However, if there are allegations in the letter that are false, and if they were revealed to the Committee, it would expose Ford to criminal charges and imprisonment. Could this be why the full letter has been withheld by Feinstein?

However much we might desire justice for victims of sexual abuse, and however much we might sympathize with a victim’s emotional difficulties attendant to such an attack,  those matters cannot be used to deny the due process rights of an accused. Society cannot simply take an accuser’s “word for it”, especially when the accuser declines to take action within a reasonable period of time, one within which evidence and testimony might be gathered effectively. While the evidentiary standards in a criminal proceeding might be more stringent than in assessing an accused individual’s fitness for high office, mere late-hour assertions are not adequate when the record, as in Judge Kavanaugh’s case, is so exemplary, and when there is absolutely no corroboration. Indeed, it is dubious to raise serious allegations of this nature when they are unprovable, and only when the alleged attacker is due to receive a prominent appointment of some kind. Ford’s allegation, and the others, have all the earmarks of a politically-motivated smear campaign.

Obamacare Gets a Whole New Grube

13 Thursday Nov 2014

Posted by in Uncategorized

≈ 1 Comment

Tags

, , , , , , , , ,

obamacare-cartoon

Is anyone unaware at this point that Obamacare (the ACA) was built on a foundation of lies? The “tax vs. penalty” controversy was squirrelly, as the administration shifted positions in defending the individual mandate before the Supreme Court in 2012. Surprisingly, that court decision went in favor of the ACA despite the obvious flip-flop. Of course, we heard Obama say, “if you like your plan, you can keep your plan,” and “if you like your doctor, you can keep your doctor,” both of which were patently false statements. Now, we have the curious case of Jonathan Gruber, the celebrated MIT economist and a chief architect of the ACA. A citizen journalist (“real” journalists were asleep at the switch) uncovered a series of video clips of Gruber in which he strongly asserts that there was willful deceit involved in the crafting and selling of the health care law. Some Gruber:

“This bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If CBO [Congressional Budget Office] scored the mandate as taxes, the bill dies. Okay, so it’s written to do that. In terms of risk rated subsidies, if you had a law which said that healthy people are going to pay in – you made explicit healthy people pay in and sick people get money, it would not have passed… Lack of transparency is a huge political advantage. And basically, call it the stupidity of the American voter or whatever, but basically that was really really critical for the thing to pass….”

Ron Fournier, at the first link above, writes:

“Liberals should be the angriest. Not only were they personally deceived, but the administration’s dishonest approach to health care reform has helped make Obamacare unpopular while undermining the public’s faith in an activist government. A double blow to progressives. …Gruber’s remarks are evidence that the administration intentionally deceived the American public on the costs of the programs. …And so even I have to admit, as a supporter, that Obamacare was built and sold on a foundation of lies.”

Even worse for those clinging to hope that the ACA will survive intact, in July, a year-old video came to light in which Gruber confirmed that the Obamacare subsidies were intended as an inducement  to states to provide their own insurance exchanges, rather than relying on the federal exchange. This is now the subject of another case before the Supreme Court, King vs. Burwell. Sacred Cow Chips featured a post on Gruber’s statement in July, when he attempted to pass-off the remarks as mistaken, a “speak-o” as he put it, but he said the same thing on at least three separate occasions. In so doing, Gruber helped to make the case that subsidies were not intended for individuals purchasing insurance through the federal exchange.

There has been a spate of recent contentions that Obamacare is “working” after all. Lest any hypocrite take solace that the lies and deceit were worthwhile after all, the positive news is scant. Of course, the number of uninsured has declined to some extent, but almost entirely via Medicaid enrollment, for which access to providers is often problematic. Premia have increased for many previously insured under individual policies. Overall measures of premia are distorted by subsidies and the so-called “risk corridors,” basically bailout funds kicked back to health insurers to keep them profitable. There are a host of other problems. You can read about some of them here.

Abortifacients and Hobby Lobby

01 Tuesday Jul 2014

Posted by in Uncategorized

≈ Leave a comment

Tags

, , , , , ,

Image

Some are apparently too lazy, propagandized or ignorant to understand the facts underlying the Supreme Court’s Hobby Lobby decision. But not too lazy to re-tweet or re-post unreliable information.

Here is what the decision means:

1) The decision was narrower than the sloppy memes and some media reports would have you believe. Of the 20 different contraceptives approved for use by the FDA, only four are affected by the decision. Hobby Lobby offers the other 16 through its employee health plan, and it will continue to offer them. The four it is no longer required to offer through its plan are so-called abortifacients, which destroy an already fertilized egg. The ruling does not imply that Hobby Lobby can avoid covering other “mandated benefits” under Obamacare, including the other 16 contraceptives. (In my view, however, the entire coverage mandate should be struck down as well, keeping employer-provided health care benefits a private contactual matter. The specifics of the mandate were not part of the ACA legislation. They were promulgated by bureaucrats at HHS for whom overreach has no meaning.)

2) In general, when individuals decide to associate or act under a corporate form, the corporation assumes the rights they possess as individuals. Human action taken under the corporate form does not involve a diminution of individual rights. Yet the left acts as if people have no rights when acting under the corporate form. Incorrect. Speech, religion — all rights that are granted to individuals under the Constitution are guaranteed to them whether they act as a corporate association or not.

3) The decision in Hobby Lobby applies only to closely-held corporations, the shares of which are not publicly traded. These are not the “faceless corporations” of popular infamy, but are often family-owned companies, associations of partners, or professional practices. Publicly-traded corporations are not affected by the ruling. Only privately-held corporations with more than 50 employees (under the original provisions of the ACA) are affected.

4) The decision does NOT interfere with womens’ rights to obtain most contraceptives. It means that the government cannot force Hobby Lobby to pay for abortifacients, and female employees have an unrestricted right to pay for abortifacients out of their own pockets. They are employed, after all. In addition, the ruling has nothing to do with coverage of abortion procedures that might be necessary when a mother’s life is at risk.

5) The government is not restricted, except as a possible matter of politics, from offering all women free access to abortifacients. It has not offered to do so, however. Therefore, under the 1993 Religious Freedom Restoration Act (RFRA), signed by President Clinton, the Court held that the government cannot impose any burden on private parties (including individuals organized as closely-held corporations) in violation of their religious beliefs if there is a less burdensome alternative available. The RFRA’s importance to the Hobby Lobby ruling is discussed here.

6) Some have accused Hobby Lobby’s owners of hypocrisy, since they sell goods imported from China, where abortion is often coerced by the state. And that might be hypocritical, but the only possible relevance to the case would be if the purchase of Chinese goods reflected on the sincerity of their religious beliefs. That is a litmus test that few would sanction. A beauty of private markets is that they tend to be impersonal, allowing individuals of different cultural practices and beliefs to trade peacefully with one another if they so desire. That has no bearing on the type of labor contract that Hobby Lobby may offer its own employees. In any case, the ruling applies more broadly than to Christian importers of Chinese goods.