Category Archives: Courts

A Circular Judge-Made “Law”

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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.

In an all too typical case of lawmaking from the Bench, Kennedy wrote

A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts….

And so, with his opinion, Kennedy usurped the authority of We the People and legislated on his own (lack of) authority.  It may be that such a statute, even an Amendment to our Constitution, is necessary, but that’s a political decision, and so it’s exclusively for us to decide, not a lone judge (or five lone judges in the present case).

Note that Kennedy’s “constitutional rule” is not, in itself, a direct attempt to amend our Constitution or otherwise to legislate.  It is, instead, a backdoor attempt, by creating a judicial rule that directs how the Constitution or a State’s law must be applied from outside of the plain text of the thing.

Aside from that, in order to legitimize (arguendo) such a penetration of the secrecy of jury deliberations, the existence of racial bias must first be shown.  Yet how that bias can be shown without penetration the cloak of secrecy has been elided by the five justices.  Kennedy centered his new rule on a juror in the present case voluntarily speaking up, but this is a thin reed, indeed.  Not all jurors will come forward, and of those that do, not all can be believed.  Especially with the former situation extant, under Kennedy’s rule there no longer can be equal protection under law—only “protection” when it suits a juror, and hopefully a juror with no axe to grind.

No, the answer is a proactive one, and it’s one that already exists: pre-trial juror selection.  A suitably qualified lawyer—and so are they all, all qualified lawyers—can tease out bias in a juror while the juror still is only prospective, and exclude him.

Insulting?

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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.

Nance exposed his own prejudgment with his characterization of a politician’s—a businessman as political tyro’s—campaign rhetoric as disturbing as though such blather might prejudice Bergdahl’s case.  Nance then deepened his failure with his implication that the trial participants—judge, lawyers, jury—might be influenced by doings from outside the courtroom.

It got worse.  Nance asked the prosecution lawyers,

You’re not at all concerned about the statement he made, “If I get in we will review his case”…after ranting and raving about no jail time?

Ranting?  More importantly, though, is Nance’s slur here against officers and NCOs in the United States Army—that they’re such cowards they’ll be swayed from their duty as jurors by campaign commentary.

The trial needs to go forward.  The Army and Bergdahl’s fellow soldiers deserve justice.  Bergdahl deserves justice: if the charges are dropped by this judge, Bergdahl can never be viewed as anything other than a deserter, even if he were not.  A fair trial—juried by officers and NCOs who aren’t the timid Milquetoasts Nance thinks they are—will determine Bergdahl’s guilt or innocence; ducking away from the trial cannot.

Judge James Robart’s TRO

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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.

As Robart described in his order, a TRO must meet all of four criteria, and it’s on the plaintiffs (Washington and Minnesota) to prove that each of those criteria are met.  Those criteria are (Robart cited two sets of criteria; they’re functionally the same, per Robart; below is the more detailed description) [quotes omitted]:

(1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and ( 4) that an injunction is in the public interest.

Robart then ruled that the plaintiffs had met these criteria:

The court finds that the States have satisfied these standards and that the court should issue a TRO. The States have satisfied the Winter test [the more detailed test described above] because they have shown that they are likely to succeed on the merits of the claims that would entitle them to relief; the States are likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities favor the States; and a TRO is in the public interest.

So far, so good.  Then Robart provided his rationale for this finding.

Specifically, for purposes of the entry of this TRO, the court finds that the States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing. Accordingly, the court concludes that a TRO against Federal Defendants is necessary until such time as the court can hear and decide the States’ request for a preliminary injunction.

That’s it.  No substantiation, nor even claim, that the plaintiffs are likely to succeed on the merits, no substantiation, nor even claim, that balance of equities tips in favor of the plaintiffs, no substantiation, nor even claim, of public interest.  Only a claim that irreparable harm is likely absent a TRO—but even here, there’s no real substantiation, just a repeat of the States’ claims.

We’re simply supposed to accept the single, superficial claim of harm as by itself satisfying the other three criteria.  But what about that (I’ll come back to the claimed harm in a bit)?

Likely to succeed on the merits?  Based on what? Robart has failed to present any merits other than his repetition of plaintiffs’ claims.

Balance of equities tips in favor of the plaintiffs?  Suppose, arguendo, that the claimed harms are real.  There was no investigation into balance, no presentation in this TRO that the Federal government’s interest in the nation-wide public’s welfare, the nation’s security, is outweighed by this harm.

And that public interest: see above; Robart didn’t even look into that, or if he did, he chose to omit the outcome of that enquiry from his order.

Now about those harms the States are alleging and that Robart apparently simply accepted withut question.  The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel.  In what way?  Robart declined to say.  Further, a 90- to 120-day delay in reentry into the US imparts no serious education harm, only a delay for those students involved.  This is an inconvenience, not a harm.  To the extent the delay impacts employment (unidentified, but lets assume of the delayed immigrants), that’s a matter between the employee and employer, and to the extent legal relief is appropriate here, that is a separate case.  Freedom to travel?  That’s what borders are: no non-citizen has freedom to travel across borders; noncitizens—even visa holders—must have the permission of the receiving nation prior to entering.  Furthermore, existing permission—those visas—can be suspended or revoked at the receiving nation’s discretion.  Family relations?  Sure, these will be interrupted, and that’s a serious inconvenience.  But it’s only an interruption, and it cannot outweigh the Federal government’s interest in the welfare of all of the public or its interest in the nation’s security.

The extension of these individual harms to the States is too far a reach.  The States by virtue of their roles as parens patriae of the residents living within their borders, indeed, but the people whose travel is being interrupted aren’t known to be residents.  Many of them may well have established residency, but there was no showing that all of them have or even a showing that a significant fraction of them have.  (From this, it’s even not clear that the States have standing to bring their suit—another matter unsubstantiated here.)

Clearly, these matters affect only a subset of the delayed travelers, to the extent they affect any—yet Robart’s order lets in, without delay, those unaffected, too; the TRO is not properly limited to those claimed to be harmed.

The States themselves are harmed by virtue of the damage…inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds?  This is an even bigger reach.  Any students affected by the EO are so few in number as to be a drop in the bucket compared to the schools’ populations.  Nor are the States’ governments’ or government facilities’ materially harmed—nor even trivially harmed—by the delayed entry of these travelers.  Robarts declined even to say how these delays impact public revenues.

This is a bad, wholly unsubstantiated TRO, and it should be dismissed out of hand.

Whose Seat Is It, Again?

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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, 10th Circuit Court Judge Neil Gorsuch.

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

Stolen from whom?  Who owns this seat, exactly?  In the feverish minds of the Democrats in the Senate, a Supreme Court seat belongs to the Democrats, or maybe if we take Merkeley’s claim literally, it belongs to the minority party.  Or the seat belongs to a Liberal/Progressive wing of…somebody.  (Never mind that the liberal wing of the Supreme Court doesn’t even support the Constitution, holding that it lives through judicial rulings and not through Article V.)

And this, from Juan Williams, author of the piece at the second link:

[I]f a liberal now sitting on the court retires or dies and Trump has another nomination, get ready for fireworks if not all out war on the nomination.

Because somehow, that seat belongs to a liberal, if not a Democrat, or the “right” to pick who sits in that seat “belongs” to Democrats or other liberals.

And here’s that so-familiar view of morality, this time as articulated by Williams, and concerning the Republicans’ block of ex-President Barack Obama’s (D) nominee, DC Circuit Court Judge Merrick Garland, made in a Presidential election year.  Keep in mind that the purpose of the block was because Senate Republicans believed that the people in the upcoming election should have a voice in who the nominee should be.

Turnabout is fair play, acted on with glee in these politically polarized times.

There it is: the morality of a behavior isn’t at all intrinsic in the behavior, it’s strictly in whether someone else did it or is doing it.  Morality is strictly situational, the Democrat says, it’s whatever is politically convenient in the present case.  And that’s the immorality that the Democrats are applying to justify their opposition in the present case: payback’s a bitch, and we’re gonna be bitches.  Nothing at all on whether Gorsuch is qualified for the Supreme Court.

And this little detail.  By the Democrats’ logic, the vacant seat—Scalia’s seat in the Democrat lexicon—belongs to the conservative wing of…somebody, or it belongs to a Conservative, if not a Republican, or the “right” to pick who sits in it “belongs” to Republicans or other Conservatives.  Yet these Democrats in that election year demanded to install their left of center candidate into “Scalia’s seat,” and they’re determined to block the Republicans’ “right” to pick “their” judge for the seat.

But the question of whose seat the vacant one on the Supreme Court is—indeed whose seat each of the nine is—has been answered quite clearly, and the answer was plainly stated in the block of Garland.  Just as with all of the seats anywhere in the Federal government, we the People own the seats on the Supreme Court, including any vacant ones.  Not Democrats.  Not Republicans.  We the People.

Did I say feverish minds?  No, that’s wrong.  These Democrats know exactly what they’re doing, and the sad thing about it is that they’re doing it anyway.

Hurted Feewings

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…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.

“This court will not condone this pointless litigation over [his] disappointments in the world of politics to linger….”

And he tossed the case.  So Kleiner appealed.

The appellate panel upheld the lower court’s toss and further noted that “another politician may not have resigned under the same circumstances.”