Briefly

Posted on 16 May 2017 by eehines

President Trump has promised to roll back the regulatory state, but he’ll need the help of a judiciary that has for decades deferred too eagerly to executive agencies.

Indeed. As the WSJ op-ed at the link says, that’ll require the judiciary to recognize its role in the Federal government and, in particular, its position in the hierarchy.

The proximate matter here is a DC Circuit ruling in US Telecom Association v Federal Communications Commission which used the Chevron Deference doctrine (which holds that the Court should be spring-loaded to uphold an Executive Branch agency rule rather than considering its constitutionality—its legitimacy—de novo on its merits) to find for the FCC. Judge Brett Kavanaugh dissented, and he based his dissent in large part on decrying that deference doctrine. The WSJ asked

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Law and Trump’s EO Regarding Travel Delays

Posted on 10 May 2017 by eehines

The 4^th Circuit Appellate Court is hearing the Trump administration’s appeal of Hawaii and Maryland Federal trial judges’ preliminary injunctions blocking implementation of the President Donald Trump’s second Executive Order imposing a temporary travel delay of its own on persons from six Middle East nations from entering the United States (with provisions for case-by-case exceptions). Even though Hawaii is in the 9^th Circuit and not the 4^th, I’m using the Hawaii ruling as my example here since the Maryland ruling is substantially the same, the Hawaii ruling is more readily available, and I’m lazy.

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A Thought on Filibusters and Supreme Court Nominees

Posted on 4 April 2017 by eehines

In a Wall Street Journal piece on the potential for Senate Democrat obstructionism (my term) provoking an end to the filibuster as it concerns Supreme Court nominees, Kristina Peterson had this remark:

If the Senate is able to confirm Supreme Court nominees with just a simple majority, centrists in both parties fear that future presidents whose party also controls the Senate will have no incentive to pick a nominee aimed to garner bipartisan support.

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Pre-judging

Posted on 23 March 2017 by eehines

Democrats want Supreme Court Justice nominee Judge Neil Gorsuch to prejudge case that might come before him as a litmus test of his fitness to sit on the Court—i.e., his willingness to subordinate himself and the Supreme Court—the pinnacle of a coequal branch of our Federal Government—to the Progressive-Democratic subset of Congress.

Democrats…want [Gorsuch] to declare how he would rule in specific areas of the law—questions that every Supreme Court nominee declines to answer.

Vermont Senator Pat Leahy said last week he would “insist on real answers from Judge Gorsuch.”

And

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Partial Immigration Moratorium

Posted on 19 March 2017 by eehines

The irrationality of some Federal District judges is being made palpable by their rulings against the latest Executive Order involving a temporary moratorium on folks from six terrorist- and terrorism-supporting countries. Here’s one example, from US District Judge Derrick Watson in Hawaii:

The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.

Yet he chose not to explain his own logic, nor did he deign explain the limiting principle he holds underlying this claim. Indeed, he explicitly refused to explain himself:

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A Circular Judge-Made “Law”

Posted on 10 March 2017 by eehines

A jury can’t deliberate impartially and independently if its deliberations are going to be overseen by the presiding judge or any other government representative. Such government oversight smacks of Bushel. Yet that’s what the Supreme Court has decided must be in certain cases.

The Supreme Court on Monday ruled courts must review typically secret jury deliberations when a juror relies on racial or ethnic stereotypes to convict a defendant.

The 5-3 opinion by Justice Anthony Kennedy found the Constitution’s call for a colorblind justice system outweighed traditional interests in promoting robust jury deliberations and protecting verdicts from challenge.

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Insulting?

Posted on 16 February 2017 by eehines

Army Colonel Jeffery Nance, the presiding judge in the Sergeant Bowe Bergdahl desertion case has some concerns, officially because Bergdahl’s lawyers has them; unfortunately, Nance has his own, and they’re misplaced.

The judge…called video of [President Donald] Trump repeatedly calling Bergdahl a traitor during campaign speeches “disturbing” at a pre-trial hearing Monday.

He went further:

He also asked prosecutors pointed questions about whether Trump’s criticism has already created a public perception that Bergdahl won’t be treated fairly.

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Judge James Robart’s TRO

Posted on 5 February 2017 by eehines

Some of you may have heard that Judge Robarts, of the Western District of Washington, has issued a Temporary Restraining Order in favor of Washington and Minnesota (which joined the case after its initial filing by Washington) blocking the Federal government from enforcing President Donald Trump’s Executive Order delaying entry into the US of immigrants from seven terrorist or terror-sponsoring nations in the Middle East. The EO was intended to create a pause in the flow of people from that area into the US until our vetting procedures could be examined and improved as much as might be.

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Whose Seat Is It, Again?

Posted on 2 February 2017 by eehines

A “journalist” asked then-Senate candidate Scott Brown (R, MA) whether he was willing to sit in Teddy Kennedy’s seat and block the Democrats’ health care bill. Brown answered in pertinent part,

With all due respect, it’s not the Kennedy’s seat, it’s not the Democrats’ seat, it’s the people’s seat.

What brings that up is Senator Jeff Merkley’s (D, OR) claim in the aftermath of President Donald Trump’s announcement of his nominee for the Supreme Court, 10^th Circuit Court Judge Neil Gorsuch.

This is a stolen seat. This is the first time a Senate majority has stolen a seat[.]

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Hurted Feewings

Posted on 16 January 2017 by eehines

…don’t make for lawsuits, even in New Jersey.

Former Democratic Councilman Dennis Kleiner quit his elected position in 2012. He then sued the municipality, the mayor, and another councilman claiming he had been forced to resign because of the rumors and false charges they made about him.

Fortunately, the New Jersey courts are a bit more grown up than this little boy.

The judge overseeing the case said Kleiner’s “complaints over his hurt feelings, damaged reputation, and potential embarrassment fall far short of violation of his First Amendment rights.

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