Tag Archives: courts

Judicial Abuse

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The Wall Street Journal has laid out the present abuse. DC Circuit nominee Justin Walker is up for confirmation hearings this week.  Now recall how the so-called watchdog of judicial ethics, the Codes of Conduct Committee tried to get potential judges disqualified from their nominations for the apostasy of belonging to the Federalist Society. There was considerable blowback over the Committee’s draft rule that would have affected the bar: 210 appellate and district judges signed a letter to the Committee demurring from the rule.

One of those letter signers was…Justin Walker. Now the Left, including particularly Senator Sheldon Whitehouse (D, RI), who is a member of the Senate Judiciary Committee, wants to use that letter as the reason to disqualify Walker from the DC Circuit confirmation.

Note, now, that the Committee’s draft rule remains in draft; it has not been withdrawn from consideration.  At this point, the WSJ exposed a surprising naivete.

Chief Justice John Roberts is the official head of the Judicial Conference, and he should call Judge [Codes of Conduct Committee Chairman Ralph] Erickson and tell him to kill this draft forthwith.

Roberts has shown himself too timid and too mindful of his image in the press to make such a call.

On the other hand, his call isn’t strictly necessary: the Codes of Conduct Committee is a committee of the Judicial Conference of the United States. The latter, in turn, is a creation of the Congress.

It would be straightforward for an honest Congress to rein in the Code of Conduct Committee, to disband it altogether, to alter the Judicial Conference, to disband that body altogether, or to otherwise reform the Judicial Conference so as to eliminate abuses like those of its subordinate committees.

On the third hand, reform is especially difficult with the present House.

Look for an especially vitriolic “hearing” by the Judiciary Committee’s Progressive-Democrat members.

Another Clue

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…into the machinations of the “liberal” wing of the Supreme Court.

The Court is going to hear oral arguments on 10 cases that the Wuhan Virus situation had previously forced the Court to postpone. The arguments will be done by teleconference. The structure of the oral arguments will be…structured…during the teleconferances.

The court is also jettisoning its unstructured process for questioning the lawyers before them. Instead of jumping in at will, the justices will speak in order by seniority, beginning with Chief Justice John Roberts, moving on to Justice Clarence Thomas—a moment that may hold some suspense, as he can go years without speaking at oral argument—and so on to the newest justice, Brett Kavanaugh.

Here’s the kicker from that more formalized structure:

The format could pose challenges for Justice Elena Kagan and other junior members who sometimes seek to shape the debate by posing questions early.

Shape the debate.  Because Kagan and her fellows aren’t interested in dispassionately hearing argument on the case before them and then, with equal dispassion, ruling on the matter before them. No, they’re at war with one or the other side and must shape the battlefield in order to achieve their…victory.

What a shameful thing for a Justice, who’s supposed to be objective and unbiased—sworn, in fact, to faithfully and impartially discharge and perform all the duties incumbent—to do.

A Supreme Court Error

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No, I’m not talking about the Court’s cowardice on gun rights. This one concerns the Court’s nearly unanimous decision regarding any Congress’ ability to undo what a prior Congress has done and the Executive Branch’s obligation to spend money that hasn’t been appropriated.

The Court upheld health coverage providers’ demand, under Maine Community Health Options v US for

payments to health insurers for so-called risk corridors in ObamaCare’s first three years[.]

Never mind that the 112th Congress, in 2010, undid what the prior 111th Congress had done and both refused to appropriate funds for those “risk corridors” and explicitly forbade the Executive Branch from making any risk corridor payments from other funds.

Never mind that money must actually be appropriated before it can be spent. Article I, Section 9 of our Constitution makes that clear.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law….

At least it used to be clear.

Now none of that matters. In addition to the “implied rights” that the Supremes are wont to manufacture, now it has manufactured out of whole cloth an implied obligation.  The health coverage providers are owed the money because a prior, overridden, Congress wanted the money paid out.

And We the People are the ones who’ll be left paying for this egregious error of the Court. Pay up, suckas.

An Appellate Court Error

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The 6th Circuit has this one.  Gary B v Whitmer concerns children in a really poorly performing Detroit public schools: miserable classroom conditions and abysmal test scores.

The appellate court decided, though, that this matter had nothing to do with the quality of the schools, over which the court has no jurisdiction, and everything to due process as delineated in our Constitution’s 14th Amendment, within which the court does have some jurisdiction.

Acting within that capacity, the court manufactured out of whole cloth, a brand, spanking new right: a state-funded education. Whereby this appellate court has also asserted the Federal government’s right and authority to dictate to a State on matters which the court acknowledges to belong to the State and not to the Federal government.

The Wall Street Journal noticed one of the foolishnesses of this ruling [emphasis added]:

The decision…notes there is a history of public education in the US and “a substantial relationship between access to education and access to economic and political power.” Surely the same could be said of home ownership. Does the Constitution command subsidized housing? “Property,” unlike education, is at least mentioned in the Constitution.

Indeed. And [emphasis added here, too]:

When judges invent new rights they can also damage the democratic process. The Supreme Court has warned against the Due Process Clause being “subtly transformed into the policy preferences of the Members of this Court.” Yet that’s what will happen if federal judges are put in charge of state and local education policy. The majority says poor education undermines democracy, and that’s right—but judicial imperialism threatens it even more.

That brings to mind, also, CJ Taft’s remarks in an earlier case:

The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

So it is, too, with extra-Constitutional judicial rulings.

The 6th Circuit’s ruling can be read here.

What a Concept

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A legal, permanent resident immigrant with a prior criminal record, has been ordered deported, and the Supreme Court has upheld the deportation order.  Because it’s the law.

Writing for the Court, Justice Brett Kavanaugh had this [emphasis added]:

Removal of a lawful permanent resident from the United States is a wrenching process, especially in light of the consequences for family members. Removal is particularly difficult when it involves someone such as Barton who has spent most of his life in the United States. Congress made a choice, however, to authorize removal of noncitizens—even lawful permanent residents—who have committed certain serious crimes. And Congress also made a choice to categorically preclude cancellation of removal for noncitizens who have substantial criminal records. Congress may of course amend the law at any time. In the meantime, the Court is constrained to apply the law as enacted by Congress.

The law does matter. At least to some of us.

Unsurprisingly, the four liberal Justices, voted against the Court’s ruling. Which is entirely consistent with their view that laws don’t matter when they’re in the way of the Justices’ personal views of social needs.

The case is Barton v Barr, and it can be read here.