A Judge’s Ruling on Female Genital Mutilation

Posted on 26 November 2018 by eehines

Charges related to female genital mutilation were dismissed last week against Detroit doctor Jumana Nagarwala, who has a history of performing such “surgeries.” Federal District Judge Bernard Friedman, of the Eastern District of Michigan, ruled that Congress had overstepped its authority in passing a law banning this FGM.

Sadly, the judge was right. That law, passed in 1996, was done under our Constitution’s Commerce Clause, which authorizes Congress to regulate interstate commerce (along with trade with foreign nations and with the Indian Tribes).

However, Friedman wrote,

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A Bogus Beef

Posted on 14 November 2018 by eehines

Recall CNN‘s Jim Acosta striking a White House intern (albeit lightly) and actively preventing her from doing her job. In consequence of that, the White House suspended Acosta’s accesses to the White House.

Now CNN is suing the White House to get Acosta’s credentials back. They’re doing it, too, on the risible grounds that the suspension violates Acosta’s 1^st and 5^th Amendment rights of free speech and due process.

Sure.

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The EU and National Sovereignty

Posted on 21 October 2018 by eehines

Poland enacted a law at the start of the year that lowered the mandatory retirement age of all of its judges from 70 to 65. This resulted, among other things, in the required retirement for 27 of the nation’s 72 Supreme Court judges (a too-big Court, anyway IMNSHO, and they ought not be replaced, but that’s a separate story).

The ruling Law and Justice (PiS [Prawo i Sprawiedliwość]) party says the changes are necessary to a justice system they say is controlled by an untouchable “caste” of judges steeped in communist-era mentality.

The European Union has demurred.

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Future Nominations for Judgeships

Posted on 16 October 2018 by eehines

A denizen of flyover country—Jan Graham of Nebraska, in fact—had a thought in her Letter to the Editor of Wednesday’s Wall Street Journal:

Every one of those Harvard and Yale law students protesting Brett Kavanaugh’s appointment should have their names written down and kept in case they want to be a judge someday. At that point their college-age record can be used to show that they don’t believe in due process and shouldn’t ever be considered for the bench.

Nor can they be considered, legitimately, for any prosecutorial office, Federal, State, or count/parish.

Full stop.

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The ABA and Judicial Ratings

Posted on 15 October 2018 by eehines

Judge, now Justice, Brett Kavanaugh is on the Supreme Court and hearing cases. The American Bar association is still looking for relevance here. The ABA, after first giving Kavanaugh glowing marks as a judge wrote to the Senate Judiciary Committee that it was “reopening” its evaluation—timing its letter for 5 Oct, just before the Senate’s floor vote on Kavanaugh’s confirmation.

The ABA was ignored when Kavanaugh, et al., were being evaluated for a Supreme Court nomination and again when Kavanaugh was nominated. That prior ABA endorsement was simply the association’s jumping on the band wagon.

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A Newly Conservative Court?

Posted on 12 October 2018 by eehines

Jess Bravin, writing in The Wall Street Journal, thought so.

When Justice Brett Kavanaugh takes the bench Tuesday, it will mark the culmination of the Republican Party’s 50-year drive to cement a conservative majority on the Supreme Court.

At the least, he argued,

[A] five-justice majority more sensitive to regulatory and litigation costs on business should tip more outcomes toward industry and employers, imposing higher bars for workers, consumers and environmentalists, according to legal experts who have studied the court and Justice Kavanaugh’s jurisprudence. At the same time, the new majority is likely to show more sympathy for social conservatives resisting the encroachment of gay rights and access to contraceptives, as well as greater tolerance for state initiatives to curb the availability of abortion.

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Roberts’ Court

Posted on 11 October 2018 by eehines

Aside from the misnomer of the title, which is implied by the thrust of a piece in Sunday’s Wall Street Journal centered on Brett Kavanaugh’s confirmation and the hoo-raw surrounding that, Chief Justice John Roberts has a problem with the perception of the Supreme Court—according to Brent Kendall and Jess Bravin, the authors of the piece.

“We don’t work as Democrats or Republicans, and I think it’s a very unfortunate perception that the public might get from the confirmation process,” CJ Roberts…2016.

The Court can’t worry about perceptions, though. It can—should—only rule on what the Constitution or law actually says.

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Partisanship

Posted on 10 October 2018 by eehines

Chris Wallace interviewed Senator Ben Cardin (D, MD) on his Fox News Sunday program last Sunday.

Here are some of the claims Cardin made.

The change that Senator McConnell made to the rules on the Supreme Court really caused us to be much more partisan in this[.]

And

I don’t believe that Justice Kavanaugh’s in the mainstream of judicial thought.

And

Kavanaugh’s confirmation puts at risk “the progress we’ve made on health care issues, on women’s Constitutional rights, and on protecting the Mueller investigation.”

Not quite, although this is America, and Cardin is entitled [sic] to his spin.

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The Supreme Court

Posted on 8 October 2018 by eehines

As I write this (Saturday morning), Supreme Court Justice nominee Brett Kavanaugh has not been confirmed; although, that seems more likely than I had thought Friday morning before the cloture vote. Nevertheless, here’s why we need another textualist Justice on the Court—from the words of another Supreme Court Justice.

Associate Supreme Court Justice Elena Kagan said Friday she fears the high court may lack a justice going forward who would serve as a swing-vote on cases….

And

Kagan said at a conference for women at Princeton University that over the past three decades…there was a figure on the bench “who found the center or people couldn’t predict in that sort of way.”

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A Response

Posted on 4 October 2018 by eehines

Recall Senator Richard Blumenthal’s (D, CT) sly innuendo about Supreme Court Justice nominee Brett Kavanaugh during last Thursday’s (has it been only a week?) Senate Judiciary Committee hearing to receive testimony from Dr Christine Blasey Ford and Judge Kavanaugh:

As a federal judge, you’re aware of the jury instruction falsus in uno, falsus in omnibus [false in one thing, false in everything], are you not? You’re aware of that jury instruction.

Where Blumenthal was being legally pedantic, Victor Davis Hanson has an idea of an entirely appropriate response by Judge Kavanaugh, a broader, literary one, from Horace:

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