Category Archives: Courts

Kavanaugh and Precedents

Posted on by
Reply

Brent Kendall, in a piece in Monday’s The Wall Street Journal, wrote about the importance of judicial precedence and how willing Supreme Court Justice nominee Judge Brett Kavanaugh would be to overturn them.

Liberals warn that key rulings on abortion, affirmative action, and gay rights could be weakened or reversed by a court that leans further to the right. Many conservatives, on the other hand, hope those precedents will be limited by future rulings and eventually crumble, even if Judge Kavanaugh moves carefully rather than tearing through established doctrine.

Sure enough, in Tuesday’s Senate Judiciary Committee hearing’s opening remarks, it was the End of Days according to the Progressive-Democrats on the Committee.  Kavanaugh represents, you see, everything wrong with President Donald Trump (even though his nomination to office was confirmed a couple of years ago), with Republicans, and with the non-Progressive world.  Women will die (although unborn babies dying doesn’t matter).  People will get horribly sick.  Segregation will return (although it was the Progressive-Democrat Woodrow Wilson who resegregated the Federal government work force that post-Civil War Republicans had integrated, and it’s Progressive-Democrats’ identity politics that actively seeks to segregate Americans politically.)  Violence will rule the streets.

As Kendall pointed out, though,

The judicial doctrine of stare decisis—respect for precedent—is a pillar of the US legal system, and justices generally are reluctant to toss out a ruling without a compelling reason that goes beyond believing it was wrongly decided.

There are two reasons why a precedent should be reversed or overturned by a court, in particular by the Supreme Court.  One, contra reluctant judges (and Kendall?), is if the precedent was wrongly decided: in that case, the precedent should be overturned.  Allowing an error to stand only allows injustice from the error to stand, and the longer the delay in correcting the error, the greater the injustice.  It’s never too late to correct an error.

The other reason is if the circumstances of the precedent no longer apply.  An example of this is the Supreme Court’s ruling of a lack of presumption of privacy in its upholding warrantless wiretapping of a wireless telephone connected to its homeowner’s base station by a then-unencrypted radio signal.  The public has gotten quite a bit more sophisticated about privacy and quite a bit more concerned with preserving it in all venues today, and so the circumstance of that precedent no longer applies—it should be reversed.

In either case, though, it’s not a straightforward affair to come to the recognition of error or of inapplicability.  That depends on the particular facts of a case and on what the applicable law actually says.  It’s unreasonable to expect Judge Kavanaugh to be able to comment substantively on whether he’d use a case to overturn Roe v Wade, for instance, or any of the other cases the Progressive-Democrats have their panties twisted around: he hasn’t seen those cases, since they haven’t come before him.

It’s also unreasonable to say what he might do, as Justice Ruth Bader Ginsburg said at her confirmation hearing.  To speculate in advance would be to prejudge those cases, and no honest judge can do that.

The Progressive-Democrats know that, also.

Facts-s-s-s

Posted on by
Reply

It burns-s-s-s….

Brown University has come under fire after censoring its own study on transgender youth, which found that social media and friends can influence teenagers to change their gender identity.

After all, the study’s findings might invalidate the perspectives of members of the transgender community.  Can’t have the narrative contradicted.

Here are examples of what its study found, according to the study’s author, Lisa Littman, Assistant Professor of the Practice of Behavioral and Social Sciences at Brown, physician, and author of the study:

The transition often happens after teens use social media and watch online videos about transitioning to another gender.
“In on-line forums, parents have been reporting that their children are experiencing what is described here as ‘rapid-onset gender dysphoria,’ appearing for the first time during puberty or even after its completion[.]
“The onset of gender dysphoria seemed to occur in the context of belonging to a peer group where one, multiple, or even all of the friends have become gender dysphoric and transgender-identified during the same timeframe[.]”

And

The parents [surveyed in the study] described “a process of immersion in social media,” such as binge-watching “transition videos” and excessive use of social media, immediately preceding their child becoming gender dysphoric[.]

And a part of the study’s conclusion:

The research goes on to suggest that teens could be influencing each other to promote certain behaviors through “peer contagion.”

Bess Marcus, School of Public Health Dean at Brown, rationalized the university’s censorship this way:

[The university] has heard from Brown community members expressing concerns that the conclusions of the study could be used to discredit efforts to support transgender youth and invalidate the perspectives of members of the transgender community.
The University and School have always affirmed the importance of academic freedom and the value of rigorous debate informed by research…[all studies] should be debated vigorously.
… At the same time, we believe firmly that it is also incumbent on public health researchers to listen to multiple perspectives and to recognize and articulate the limitations of their work.

But only so long as those multiple perspectives suit the predetermined conclusion.  That’s the critical limitation of any work.

There’s no doubt that gender dysphoria exists.  Understanding it, though, and preventing it or treating it where appropriate are impossible so long as today’s Galileos are to be kept locked away.

A “secretive, corrupt and troubling process”

Posted on by
Reply

In a Letter to the Editor in Monday’s Wall Street Journal, Kristine Lucius, of the Leadership Conference on Civil and Human Rights, decried the allegedly secretive, corrupt, and troubling process (Lucius’ phrase) with which the document release related to Judge Brett Kavanaugh is being handled by the Senate Judiciary Committee.  She even went so far as to compare the document release of then-nominee Elena Kagan with that of Kavanaugh:

When President Obama nominated Elena Kagan to the Supreme Court, then-Chairman Patrick Leahy joined with then-Ranking Member Jeff Sessions to request and receive access to her records from the Clinton White House—a full 99% of them. But now that the shoe is on the other foot, Chairman Chuck Grassley refuses to even request the same set of records for Mr Kavanaugh from the National Archives.

Couple things about that.

That Ms Lucius succeeded in getting potsful of irrelevant documentation released for committee consideration in no way legitimizes wasting committee time on similarly irrelevant documents regarding Kavanaugh’s nomination.

Besides, the secretive, corrupt, and troubling process with the Kavanaugh nomination is solely that of the Progressive-Democrat Senators. They’re the ones who said they’d vote “No” on the Trump nomination for Kennedy’s replacement even before a nominee was named. They’re the ones who said, even louder, they’d vote “NO” on Kavanaugh’s nomination the day it was announced—before any document requests were even made.

It’s the Progressive-Democrat Senators who are being secretive and troubling by keeping million pages of documentation and 300 judicial opinions away from their own eyes, having already announced their votes, and thereby making their own process corrupt.

Of course, Lucious knows all of that.

Flipping Witnesses

Posted on by
Reply

President Donald Trump decries it.  So have I in writing about the Manafort case and the credibility of Mueller’s prosecutors’ witnesses.

What’s interesting to me and saddening, and what’s dangerous to our system of justice—which includes justice for the accused as well as the victim—is prosecutors’ response to Trump’s decrial.

Peter Zeidenberg, a former federal prosecutor, said that Mr Trump’s comments amount to “an absolutely outrageous statement and to any prosecutor would just be shocking to hear.”

“It’s hard to overstate how fundamental” to prosecutions cooperating witnesses are, Mr Zeidenberg said.

And Stephen Gillers, a New York University School of Law professor:

Trump’s idea would effectively demolish one of the basic and valuable tools of criminal law enforcement in the US.

It’s dangerous for our prosecutors to so blatantly and avidly rely on their ability to do the testifying by using the mouths of “witnesses” they’ve either browbeaten into testifying in a certain way or who’ve sold their testimony to the prosecutors like Thursday night hookers.

If the prosecutors can’t make their case without such witnesses, they don’t have a case to make.

The Will of the People

Posted on by
Reply

The West Virginia House of Delegates has returned articles of impeachment against every one of the sitting Justices of the State’s Supreme Court.  One Justice, Robin Davis, has resigned her post, doing so before any of the impeachment cases proceed to the West Virginia Senate for trial.  In her resignation press conference, Davis complained

The majority members have ignored the will of the people who elected the justices of this court.  They have erased the lines of separation between the branches of government.

The will of the people in electing Supreme Court Justices is overruled, is it?  Certainly it has been—by the will of the people as expressed in their election of the Representatives who voted for (and against) the impeachment. Those elected Representatives will be subject to the will of the people again, and much sooner than the Justices would be—the one stands for election every two (Senators, who will conduct the trial, every four years); the other only every dozen years.

Beyond that, it’s a critical function of the Legislature to remove misbehaving people from government, including those of the other branches of government.  This is what impeachment and trial proceedings are for.

The will of the people is being well served.