Category Archives: Courts

A Thought on Fisher

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Justice Clarence Thomas has one.  Fisher v University of Texas at Austin was a case that wound up in front of the Supreme Court that involved a white woman who was denied admission as a result of UTA’s racial preference admissions system that explicitly deprecated some students and elevated others in the UTA admissions system solely on the basis of race, or so she claimed in her suit.

Monday, the Supremes took the easy way out and sent the case back to the Appellate Court on the legal technicality that that court had used the wrong criterion in reaching its decision upholding UTA’s race-based admissions system.

Justice Thomas, in his separate concurring opinion, had this to say concerning race-based discrimination, as cited in The Wall Street Journal:

While I find the theory advanced by the University to justify racial discrimination facially inadequate, I also believe that its use of race has little to do with the alleged educational benefits of diversity. I suspect that the University’s program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities….  The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. See, e.g., Calhoun, Speech in the U.S. Senate, 1837, in P. Finkelman, Defending Slavery 54, 58–59 (2003) (“Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually….”)

…A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers. See, e.g., …Tr. of Oral Arg. in Bolling v. Sharpe, O.T. 1952, No. 413, p. 56 (“There was behind these [a]cts a kindly feeling [and] an intention to help these people who had been in bondage. And there was and there still is an intention by the Congress to see that these children shall be educated in a healthful atmosphere, in a wholesome atmosphere, in a place where they are wanted….”)

…Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign.

What he said.

A Little Bit of Cynicism

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The Supreme Court has agreed to take up, in its next term, the question of recess appointments and of what is a “recess.”  The DC Circuit had ruled, in the case being appealed, that certain NLRB appointments were unconstitutional and so invalid because they had occurred while the Senate was in session and not in recess.  That court also held both that an actual recess could only occur between the year-long sessions of a Congress and that a recess appointment could be made only for a vacancy that originated during that recess.

President Barack Obama’s Solicitor General, Donald Verilli, in his filing before the Supremes argued with a straight face that were the Court to uphold the DC ruling, it would restrict the president’s power.

To which I ask, “Yeah, and…?”

Verilli also argued with similar seriousness that upholding the DC ruling

…would deem invalid hundreds of recess appointments made by presidents since early in the nation’s history[.]

Umm, no.  It would deem invalid the appointments on appeal and possibly the appointments made under similar circumstances since the NLRB appoints at the start of 2012.  Verilli knows better.

A Death Panel Overruled

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A Death Panel of One, consisting of the woman who’ll be in charge of the death panel that will come into being with the full implementation of Obamacare.  HHS Secretary Kathleen Sebelius refused to intervene to overrule her own Department’s rule that would have left a 10-year-old girl to die because her chronological age left her too young to be eligible to compete for a lung transplant that could save her life.

Sebelius insisted she had no authority to waive the rule and so to allow the girl to compete with adults for an organ donor’s lung, never minding that the Congress that authorized her Department to have the rule assured her she did.

Sebelius insisted she didn’t want to play God and tear-jerkingly assured the House Committee on Education and the Workforce that she “can’t imagine anything more difficult” and that she “can’t imagine anything worse than one individual getting to pick who lives and who dies” while cynically ignoring the fact that by refusing to act, she was taking the “difficult” step of choosing “who lives and who dies.”

This Death Panel of One further justified her refusal by claiming

[T]there are about 40 seriously ill Pennsylvanians over the age of 12 also waiting for a lung transplant[.]

Never mind that the girl is at the top of the children’s list, so the other children’s status wouldn’t be affected, except through a slight improvement in their chances for getting a pediatric lung.  And that the girl wouldn’t go to the top of the adult’s list as a result of the rule’s waiver—she’d only be eligible to compete for a place in the list.

Fortunately, Federal District Judge Michael Baylson has overruled the Death Panel of One, at least temporarily, ordering Sebelius to waive the rule at least until 14 June, when he’ll have a full hearing on the rule.

But this is temporary, both for the 10-year-old and for Americans generally.  This is the sort of thing we can expect out of Obamacare’s more formal Death Panel, and too few Americans will have the resources to fight that one’s…decisions.

Holder’s Defense

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On 15 May, Attorney General Eric Holder testified under oath before the House Oversight and Government Reform Committee that

With regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy.

Yet he had already been consulted concerning, and subsequently approved, a search warrant application to search the personal emails of an individual reporter (James Rosen of Fox News), a warrant that said in part

Because of the Reporter’s [Rosen’s] own potential criminal liability in this matter….

A three-page Department of Justice letter to the Chairmen of the House Judiciary Committee and that committee’s Subcommittee on Crime, Terrorism, Homeland Security, and Investigations is cynically unresponsive (quite aside from the fact that while the chairmen had addressed their concern on the “disconnect” to Holder, the latter didn’t deign respond, instead having an underling do so).

The letter devoted two and a half pages first to piously proclaiming Holder’s reverence for the role of a free press in American society and then to outlining the way getting warrants to search members of the press is supposed to work.  The underling then proclaimed that there was and is no disconnect between the facts of Holder’s testimony and the fact of the warrant’s accusation.  That’s it—just a bald, unsubstantiated pronouncement.  The underling offered not the least shred of evidence to support that claim.  The underling did, though, include this shocker in his penultimate paragraph:

At no time during the pendency of this matter—before or after seeking the search warrant—have prosecutors sought approval to bring criminal charges against the reporter.

DoJ and writers of the Left have made much of that word “potential,” saying that there was no prosecution after the fact, as though this non sequitur eliminates any potential.

Yet Holder did not testify “with regard to prosecution;” he testified explicitly to its potential.  And the warrant he’d already approved at the time of his testimony spoke explicitly about that potential.

It’s clear that Holder still has some tap dancingexplaining to do in order to reconcile his sworn testimony with the content of the search warrant he’d approved prior to his sworn testimony.

But there’re an additional couple of questions in my mind that goes to Holder’s fitness as the US’ chief prosecutor.  What kind of prosecutor accuses a man of criminal activity—that warrant—in order to obtain a search warrant while, at the time of the accusation, having no intent of prosecuting that man should the warrant produce the relevant evidence?

Did Holder lie to the judge in his warrant—he didn’t consider the reporter to be “potentially” criminally liable at the time?  Related to that, is it normal DoJ practice to deliberately mislead a judge with such ruses in order to get a warrant to conduct a search?  And: if the warrant is unobtainable without such shenanigans, how legitimate can the warrant be?

The DoJ letter can be read here.  The Rosen search warrant can be read here.

Some Later Thoughts on Obama’s Counterterrorism Speech

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President Barack Obama had this to say, also, in that…speech:

We unequivocally banned torture, affirmed our commitment to civilian courts, worked to align our policies with the rule of law, and expanded our consultations with Congress.

Let’s see how he did that:

He banned interrogation techniques that produced results, after torture had already been banned for years.

He’s been pushing for five years to try terrorists and other illegal combatants as common criminals and to try Guantanamo Bay Detention Camp in New York courts or to release them outright.

He interrupts interrogations in progress in order to read the prisoner his Miranda “rights.”

He had his Attorney General drop a voter intimidation case involving the New Black Panthers and their white voter victims after the particular NBP miscreants had pled out.

He’s done nothing material about his DoJ’s program of running guns to Mexican drug cartels.

He’s had his HHS Secretary “encourage” fund “contributions” to his federal health insurance exchange from the insurance companies she regulates.

He’s doing nothing material about his Treasury Department’s IRS (which he falsely claims is an “Independent Agency”) program of targeting Americans and groups of Americans of whom he disapproves for the special treatments of tax audits, invasion of their donor lists, deliberate and prolonged delays on finalizing their tax exempt status applications.

He’s actively covering up his and his State and Defense failures in the run-up to the Benghazi terrorist attack in which an American ambassador and three men attached to him were murdered, their failures during the attack, and their failures in the aftermath.

He’s doing nothing material about his DoJ’s assault on our free press via secret seizure of phone records, emails, and obtaining search warrants by falsely accusing individual journalists of criminal activity.

He’s played a couple of rounds of gold with the House leadership and invited them to dinner, and then he’s castigated them for not kowtowing to him and giving him everything he wants.

That’s a powerful alignment.