Category Archives: Courts

A Bogus Beef

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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 1st and 5th Amendment rights of free speech and due process.

Sure.

Acosta is in no way restricted from speaking his piece or from asking questions, either personally or in his capacity as a member of the press, although for the time being, he can’t ask his questions at White House pressers.  With regard to that last, the freedom of…the press, here personified by CNN, is in no way restricted since the suspension applies to Acosta personally: CNN is free to appoint another of its employees to attend such gatherings and ask such questions as CNN might consider useful.

Furthermore, getting credentials for access to the White House is a privilege, not a right; due process plainly does not apply.  On the other hand, striking White House personnel—or anyone else—however firmly or lightly is neither a right nor a privilege for anyone, much less for members of the press.

In my view, Acosta should not have his suspension lifted until his boss publicly apologizes for Acosta’s misbehavior.

The EU and National Sovereignty

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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.

The Luxembourg-based European Court of Justice said Friday that Poland must delay implementation of a law that came into force earlier this year requiring early retirement for nearly 40% of the court’s judges. Poland could face fines if it doesn’t comply, but more significantly such a move would represent an unprecedented threat to the authority of the bloc’s top court.
The Polish judges sent into retirement must be allowed to return to work, the ruling said.

That supposed threat to the ECJ may, in fact, be the crux of the matter: the EU must reign supreme over the member nations.

Whether retiring the judges is a good idea or not is a good idea or not, it’s an internal, domestic affair for Poland to decide.

Joining the EU plainly requires the surrender of a potful of national sovereignty far beyond such outward looking matters as national borders, trade rules, and the like.

Future Nominations for Judgeships

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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.

The ABA and Judicial Ratings

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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.

Now its irrelevance is manifest, and the ABA is squalling and trying to get back in the game.  That’s all this is.  That’s all that lately letter was all about.

Now the chairman of the ABA Standing Committee on the Federal Judiciary, Paul Moxley, is claiming he’s being bullied by Association President Robert Carlson, and that lately letter was an example.

[I]f he’s [Paul Moxley] being bullied by Mr Carlson or Democrats on his committee, he ought to resign and say so publicly.

That’s what the worthies on the editorial board of The Wall Street Journal claim.

No. Bullies only have the power their putative victims choose to give them. If Moxley thinks “Carlson or Democrats” are trying to bully him, he should have the integrity to stay put and call them out publicly.

In the meantime, the ABA needs to figure out what it means when it says something, and stick to it.  That’s the road back to relevance.

A Newly Conservative Court?

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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.

Not so much.

Bravin is either naive or excessively optimistic.  Kavanaugh’s confirmation has produced no five-justice majority.  The only Conservatives on the Court are Thomas, Alito, Gorsuch, and Kavanaugh.  Four others form a liberal bloc convinced that the Constitution needs updating in accordance with the climate of the era.

The ninth Justice, Chief Justice John Roberts, is too squishy, too enamored of “perceptions of Court legacy” to be reliably conservative. He’ll find middle ground for the sake of that perception instead of basing rulings on the text of the Constitution or the law in front of the Court.