Monthly Archives: September 2016

Disingenuosity

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This from Democratic Party Presidential candidate Hillary Clinton and her campaign.

A new batch of emails released Thursday allegedly shows a top Clinton Foundation official asking Hillary Clinton aide Huma Abedin for help obtaining diplomatic passports—though Clinton officials say the request was related to the effort to secure the release of two American journalists held in North Korea.

Never mind that Federal law is quite clear on this: diplomatic passports can be issued only to diplomats and Foreign Service officers, no matter the purpose of the trip.  Even so, Clinton is arguing through her campaign spokesman Josh Schwerin that

Judicial Watch is now attacking State Department officials and the 42nd President of the United States for rescuing two American journalists from North Korea.  This is a new low even for this right-wing organization that has been going after the Clintons since the 1990s.

No, Judicial Watch is concerned about the Hillary Clinton State Department willfully and willingly agreeing to flout Federal law for her Clinton Foundation leadership’s benefit.  The excuse that her State Department used—that it was for the children journalists—is cynically disingenuous.  The low is Clinton’s distortion of that concern, and no, it’s not a new low; it’s all too typical of Clinton’s and Clinton’s staff’s behavior.

Obamatalk

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Here’s an example, through President Barack Obama’s (D) former advisor, Dan Pfeiffer, from a podcast he does with Jon Favreau, Obama’s former speech writer, via The Wall Street Journal‘s Notable & Quotable.

Pfeiffer: The press gets bored of writing the same story over and over again, and they almost start to feel guilty about writing s—ty stories about the same person all the time, and they want to do something different. So it’s a classic move to do two things: One, fire someone. Press doesn’t even care who, right?  …  “Huge problem in the VA, oh, someone got fired? OK, that’s fine then, we don’t worry about that anymore.”

Or, stand in the middle of Pennsylvania Avenue, wave your arms in the air and say “we’re pivoting.” It’s a total bulls—t thing. You and I have been a part of many bulls—t pivots.

Remind you of anything?

The Courts’ Role in Law

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The New York Court of Appeals, the State’s Supreme Court, has inserted itself into the political debate concerning who is a parent.  It’s entered the moral debate, too, but its ruling is a legal and political one:

New York’s highest court Tuesday upended how the state legally defines parenthood, reversing course on a 25-year-old ruling that had blocked many same-sex couples from seeking the court’s help in custody disputes.

Until now, New York only recognized as parents those with a clear adoptive or biological tie to a child, shutting out those who otherwise may have played a key role in a child’s upbringing.
…
The court ruled that going forward, a partner can seek visitation and custody if it is shown “by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.” The court recognized that some people could even deserve custody if they came into a child’s life after the birth, but said now isn’t the time to set a rule for such situations.

The Court justified its ruling in this way:

Tuesday’s decision by the New York Court of Appeals said society has changed in recent decades and that families formed by gay couples need to be protected.

And there’s this by Susan Sommer, an attorney at Lambda Legal:

Finally, New York is bringing its law in line with the reality of thousands of children who need protection for their relationships[.]

No, even if society has changed, this is a political decision that legitimately can be made only by that society—the citizens of New York, themselves or through their elected representatives.  The courts have no proper role to play in the political arena; they have only in a judicial one—which is to apply the law as it’s written (or strike it altogether if they can make the case that the law in question is unconstitutional).  The courts’ role does not include making law from the bench.

Our Dishonest Department of Justice

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The Obama Department of Justice has been caught again.  This time, it advised the Supreme Court—13 years after the DoJ’s misbehavior—that it had lied made “several significant errors” in the 2003 case Demore v Kim, a case concerning excessive detention times for aliens with criminal records who were being held without bail.  DoJ had “mistakenly” argued at the time—and convinced the Supremes with the argument—that the detention periods involved were four months or less and so not excessive.  From this, the Supremes upheld a blanket policy of bail denial to immigrants jailed while appealing deportation orders.

DoJ’s lately confession admits that the detention periods actually were longer than 12 months.

And this incident:

In 2012, the Justice Department told the court that it had inaccurately asserted in a 2009 case, Nken v Holder, that officials routinely “facilitate” the return to the US of deported aliens who later win their immigration appeals.

It turns out that DoJ hardly lifts a finger to speed such returns.

Unfortunately,

In both instances, more accurate information emerged through Freedom of Information Act requests filed by immigrant advocates who were skeptical of the government’s claims.

Clearly, DoJ knew these things and have been trying to hide the fact of their “mistakes.”  They knew they were lying “providing inaccurate information” at the time; they deliberately withheld accurate information from the Supreme Court.  That’s why it took FOIA requests to expose these facts.

Recall, too, the DoJ having been caught out overtly and deliberately lying in another immigration case in 2015, and that judge ordered DoJ’s lawyers to undergo ethics training.  President Barack Obama’s (D) Attorney General Loretta Lynch has refused to have her lawyers undergo that training.

Of course she has.  Lying is too deeply embedded in the culture of the DoJ.

This is a mess, spanning administrations, and it can be cleaned up only with a wholesale removal of DoJ leadership down to middle management and the discharge of the lawyers ordered to undergo ethics training and who have not yet done so.  But that won’t happen in a potential Clinton administration led by a candidate who has promised to continue and extend Obama’s policies.

Free Speech and Disruptions

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Do high school football fans have a constitutional right to display the American flag at games?

That question headlined Jacob Gershman’s piece in a recent Wall Street Journal law blog.  A North Carolina high school principal, Travelers Rest High School’s Lou Lavely, answered that question in the negative, justifying his ban of the American flag from the school’s home football games with the excuse that students had

used the US flag, in conjunction with verbal taunts, to target Hispanic members of the Berea community in a manner that was both unsportsmanlike and also a misuse of our flag[.]

Lavely’s move also was consistent with an earlier 9th Circuit ruling on the other side of the country that

a California high school didn’t infringe on the constitutional rights of white students who were told they couldn’t wear shirts displaying the American flag in an effort, the school said, to defuse a potential fight with Mexican students

a ruling that the Supreme Court then declined to review.

In the face of public outrage over the flag ban, Lavely reversed his position and “allowed” our flag to be displayed after all.  However, that doesn’t cure the misunderstanding, both by Lavely and our courts, underlying such bans of our flag or of shirts with our flag imprinted on them or of any other such display.

The misunderstanding is in the cause of disruptions and how to deal with those disruptions.

Banning the American flag because its display might cause disruption is wrong-headed.  The American flag, or displaying our flag—free speech generally—doesn’t cause disruptions.  The disrupters cause disruptions, and they’re the ones who need to be dealt with.

Full stop.

Update: Clarified a sentence to say what I actually meant rather than the opposite.  Also clarified a later paragraph.