Category Archives: Courts

A Thought on Filibusters and Supreme Court Nominees

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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.

What Peterson has missed, though, is that the Progressive-Democrats in the Senate have denied any possibility of bipartisan support for some time. There has been no such possibility at least as far back as 2012, when Senate Democrats announced through their spokesman, Harry Reid, that they would never work with a President Mitt Romney.

Pre-judging

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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

At Monday’s opening day of Senate hearings, Connecticut Democrat Richard Blumenthal told Judge Gorsuch that while the committee might ordinarily respect a nominee’s reticence on cases, ordinary rules don’t apply for President Trump’s nominee. “If you fail to be explicit and forthcoming,” he said, the committee would have to assume his views were in line with Mr. Trump’s.

Because the inconvenience of rules can’t be allowed to impede the High and Mighty.  Never mind the utter lack of logic in Blumenthal’s “have to assume” conclusion (or his arrogance in presuming to speak for the committee): petty logic and impertinent Republicans can’t be allowed to impede, either.

This is both disgusting and an illustration of why Americans have been steadily repudiating the Progressive-Democrat Party in all levels of government over the last four election cycles.

Partial Immigration Moratorium

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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:

The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise.

Thus: the illogic of the judge’s contention is palpable.  The notion that one can demonstrate animus toward entire groups of people by only targeting some of them is fundamentally flawed.

How small a minority of the group can be targeted without the judge deeming the entire group targeted?  Is targeting only terrorists in a group a necessary targeting of the entire group?  Is targeting a single individual—rightly or wrongly; that’s what trials are for, after all—necessarily a targeting of the entire group to which he belongs?

And which group in which he has membership—Islam?  Sunni Muslim?  His fellow citizens of a nation?  The group comprised of fellow members of his gender?  All groups?

Where is the limiting threshold?  Watson chose not to say.

And this:

[P]lainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose.

Here is the judge dragging into the case things that are not in the case at all.  The matters before the judge are the Executive Order and its constitutional legitimacy and nothing else.  Campaign rhetoric, marketing commentary, are not relevant.  What is relevant–all that is relevant–are the plain text of the EO, existing immigration law, and the Constitution.  Full stop.

This judge has ruled solely on personal ideological grounds and not at all on the legality of the matter.  Ideology, political matters–policy–are for the political branches of Government, not for the judicial–as Article III makes plain.

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.