Category Archives: Courts

Judicial Nominations

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In a more extensive piece about the vacancies into which President-Elect Donald Trump can nominate Federal judges, The Washington Post emphasized the nature of President Barack Obama’s (D) appointments—and by extension, the differences in judicial qualification philosophy between the two Presidents, although that wasn’t necessarily intentional.

Trump is likely to appoint judges with a view toward

[s]tate gun control laws, abortion restrictions, voter laws, anti-discrimination measures, and immigrant issues are all matters that are increasingly heard by federal judges and will be influenced by the new composition of the courts. Trump has vowed to choose ideologues in the mold of the late Supreme Court justice Antonin Scalia, a conservative icon….

Even though none of those are matters of ideology, much as the newspaper would like it to be, but rather are matters of adherence to the Constitution and understanding of the legal questions involved in today’s controversies.

On the other hand, Obama selected his nominees on the basis of…diversity.

Obama has used his nominations to systematically diversify the federal courts to look more like the fast-changing country. He appointed far more female and minority judges than any other president in history, and he has paid particular attention to sexual orientation. When Obama took office, there was only one openly gay or lesbian judge, and he appointed 11 more.

“The president, my predecessors and I spent a significant amount of time looking for all different kinds of diversity—racial, sexual orientation, gender, and professional background,” [White House Counsel Neil] Eggleston said.

Not at all an emphasis on Constitutional adherence, or even legal qualification: just whether a nominee was a member of an identity group within Obama’s identity politics.

A State Court and the Citizens of the State

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In last month’s elections, one of the ballot items was a South Dakota measure (apologies: the Argus Leader has a really intrusive set of popup ads) to limit

how much PACs, political parties, and individuals can give to candidates.

The measure passed by a slim 51%-49% margin, but nevertheless, the passage is by the voice of the citizens of that State.  The article at the link gives a summary of those limits.

Now a South Dakota judge has issued an injunction against implementing or enforcing that law.  Circuit Judge Mark Barnett, in issuing the injunction, acknowledged that the matter likely will end up before the South Dakota Supreme Court, and he said

This is just a stop on the bus route.  This is going to a much higher power and a much higher pay grade than me.

Never mind that it’s already been to the much higher pay grade—the good citizens of the State of South Dakota, whose employee the State’s government, including the court system, is.

Republican Governor Dennis Daugaard and his Chief of Staff, Tony Venhuizen, have the beginnings of a hazy understanding of the larger issue at hand.  Daugaard said that he’d

support rolling back the measure if it isn’t struck down in court[]

and Venhuizen said that

[t]he governor views the order as a good step that will give the courts and the Legislature time to sort out the “mess [in the current campaign funding system.]”

But only the beginnings of a hazy understanding.  Whether the law passed by the citizens is a good idea or not is a legitimately debatable question.  However, the matter is a political question and only a political question.  The courts have no role to play whatsoever in this or any political discussion.

Here is a case where a court has said the people have no voice; the court speaks in their stead.

Sexism in a Court

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The singer Kesha, in a Manhattan court, is suing Sony and ex-producer “Dr Luke” over allegations of having been drugged and raped.  There are (unsubstantiated) reports that the presiding judge, Shirley Kornreich, should be removed from the case because she’s married to Proskauer Rose law firm partner Edward Kornreich, and Proskauer Rose represents Sony.

Kornreich says the move is sexist.

If it’s an issue at all, it’s an issue because women are now part of the professional work force[.]

Kornreich reveals her own sexism with that claim.  The move, if it existed beyond press reports (Kesha’s lawyers say they weren’t going to file any recusal motion), was about conflicts of interest from family ties connecting a judge to one of the litigants; it had nothing to do with the genders of the individuals who are—or might be—tied.

Gerrymandering, Politics, and Race

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The (eight Justice) Supreme Court is going to take up the question of gerrymandering and Congressional districts in Virginia and North Carolina.  In fact, the case the Court is hearing is narrower than that:

drawing legislative districts based on race.

Never mind that the Democrats’ Voting Rights Act of 1965 mandates race-based districting: the VRA

generally prohibits reducing minority-voting power through redistricting[]

which, of course, explicitly requires race-based districting in order to “protect” that “power.”

Indeed, the whole divide[] between white and minority voters nonsense with which Jess Bravin opened his piece at the link is just a tacit summary of the Left’s racism.  We’re all Americans.  Full stop.  Any “divide” is nothing but an artificiality, fueled by the Left’s fundamental identity policies that end up masking real abuses.

Were the Left, and now the courts, serious about how bad gerrymandering is, they’d agree to its elimination altogether.  Congressional districts should be squares enclosing substantially equal sized populations, differing from those straight-line boundaries only at the borders between states, and drawn without regard to the Left’s identity politics concerning which special groups of Americans are resident in which districts.

The Law Professor Misapprehends

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Jacob Gershman has a piece in The Wall Street Journal‘s Law Blog about the increasing use of software algorithms to assess newsworthiness and the implications of that increasing use on legal assessments of the tradeoffs between individual privacy and what’s fit to print.  In it, Gershman quotes Georgetown University Associate Professor of Legal Research and Writing Erin Carroll.

Given the dominance of platforms like Facebook, the related influence of algorithms on how news is made, and specifically how algorithms are beginning to supplant editorial discretion and the editorial process, courts need to rethink their rationales for deference to the press. In the realm of privacy law, courts have long trusted the Fourth Estate to vet the newsworthiness of a subject before publishing, so that the courts themselves did not have to. Today, that trust is becoming misplaced.

Carroll is right that courts need to “rethink their rationales for deference to the press,” but for reasons wholly independent of the existence of news algorithms.  On the contrary, Carroll has a couple of misapprehensions here.  For one, editors (and publishers, come to that) certainly are outsourcing the work of assessments in making editorial decisions, but they cannot outsource their own responsibilities in the newsworthy judging process.

For another, related thing, there’s no reason to believe the courts’ trust “is becoming misplaced” due to the use of news algorithms.

In both instances, Carroll has missed the key factor: it’s entirely the editors’ and publishers’ decisions to use new algorithms, and it’s entirely the editors’ and publishers’ decisions to use any part of the algorithms’ outputs.  The editors and publishers remain entirely and solely responsible for the material they publish—whether that material originates from interns, news algorithms, or journalists.

Full stop.

Update: Missing word is no longer missing.