Tag Archives: courts

A Judge’s Error

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The Trump administration had expanded rules allowing employers to opt out of being required to provide birth control coverage to their employees at no cost to the employees, so long as the opting out was convincingly based on religious or moral grounds.  Federal District Judge Haywood Gilliam of the Northern District of California has issued an injunction blocking enforcement of the expansion while an underlying lawsuit against the expansion is underway.

Ordinarily, blocking an enforcement while the underlying case proceeds is no big deal, but this one is just plain wrong.  Gilliam based his ruling in significant part on the premise that

the [expansion] would result in a “substantial number” of women losing birth control coverage, which would be a “massive policy shift.”

For one thing, given how cheap birth control drugs and devices are and how easily obtained prescriptions for them are, it’s not at all clear that a “substantial number” of women would be unable to obtain birth control drugs or devices.

But the larger, vastly more important matter is this.  As Gilliam himself noted, the expansion would be a policy shift (massive or not, that’s irrelevant here).  Policy matters are political matters, and so they clearly are outside the purview of the courts.  Policy—political—matters are the exclusive province of the political arms of our government and of We the People.  A judge who intrudes, from his bench, into political matters clearly violates his oath to uphold the law.  Making policy has no place in his oath.

Religious Tests for Federal Office

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Here’s what our Constitution says about religious tests for Federal office, from Article IV [emphasis added]:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Despite this, the Progressive-Democratic Party’s Senators, on two separate occasions, challenged judicial nominees over their religious beliefs.

The prior occasion was when Senator Dianne Feinstein (D, CA) objected to Amy Coney Barrett and her nomination to the 7th Circuit.

Dogma and law are two different things.  And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern.

Progressive-Democrat Senator Dick Durbin (IL) challenged Barrett with his own religious test:

Do you consider yourself an “orthodox Catholic”?

Fortunately, Barrett was confirmed despite the slurs.  However, this turns out to be not an isolated incident; the religious test is the Progressive-Democratic Party’s actual, out loud position.

The Party also objected to the (Catholic) religion of current judicial nominee Brian Buescher, this time through the voices of Mazie Hirono (D, HI) and Kamala Harris (D, CA).  Here’s Hirono:

The Knights of Columbus has taken a number of extreme positions. For example, it was reportedly one of the top contributors to California’s Proposition 8 campaign to ban same-sex marriage.

As if opposing same-sex marriage on religious grounds, especially in a purely State-level debate, is somehow extreme.  As if it’s in some way extreme to disagree with Heavenly Master Buddha Hirono.

Harris asked Buescher whether he was aware that the Knights of Columbus was anti-abortion and anti-gay marriage at the time he joined.  As if that matters to a judge who is called to apply the law as it’s written, not at the Party demands it be applied.

I had trouble with the weakness of Buescher’s responses (it would have been good had he pushed back on this blatant bigotry and violation of the Senators’ oath of office), but that doesn’t excuse the religious bigotry so obvious in the Progressive-Democratic Party, nor does it excuse the lack of understanding of our Constitution or of the nature of oaths (as my friend Grim pointed out in his blog, Grim’s Hall).

A US Appellate Court Thinks Americans Are Grindingly Stupid

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Kellogg’s makes Cheez-Its, a cheesy, corny confection that’s attractive to lots of folks, especially at boring parties.  Some versions of this snack are marketed as “Whole Grain” or “Made With Whole Grain,” and the text on the packaging makes plain that this means 5 to 8 grams of whole grain for each 29-gram serving along with the primary ingredient being “enriched flour.”

This is too confusing for three women to bear, so they sued.  One of the women went so far as to claim she was injured by all of this, yet, were the packaging only changed, she would continue to purchase the products in the future (where are the feminists over this feigned stupidity?).  There started out some sanity in this idiocy:

A federal judge dismissed the case in 2017, ruling that the “Whole Grains” wording was factually correct. In toto, the label “would neither mislead nor deceive a reasonable consumer.”

Amazingly, the 2nd Circuit reversed.

Additional verbiage on the front and side of the package is no defense, the court said.

The 2nd Circuit thinks Americans are just too stupid for words.  Or it finds entirely reasonable that Americans are too mind-numbingly lazy to read a simple label.

Pre-Determined Outcome

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New York’s Attorney-Elect Letitia James says she’s made her decision about the guilt of a man, a family, and a business, and now he’s going to collect the information needed to support her decision.

We will use every area of the law to investigate President Trump and his business transactions and that of his family as well.
We want to investigate anyone in his orbit who has, in fact, violated the law[.]

She’s already determined, prior to any investigation whatsoever, that they’re guilty of having violated one or more [unnamed] laws.

An honest investigator, on suspicion of an illegal activity—not on suspicion of a person—would seek out all information surrounding the activity, both exculpatory and damaging, and then decide whether an illegal activity had occurred.  If an illegality had been done, then an honest investigator would seek out all information regarding who might have done the deed (and, yes, there would be considerable overlap with that prior phase), both exonerating and guilt-implying, and then decide whether to prosecute, or not.

But, hey—this is the age of We Can’t Handle the Truth of an Election.

A Conservative’s View….

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My latest effort, a pamphlet on the American legal system (because I don’t lack for ego), A Conservative’s View of the American Concept of Law, has been released, and it can be found on amazon.com: https://amzn.to/2L4iVXx .  Links also can be found on my Books page.

Our legal system is explicitly founded on natural law through our Creator’s endowment—the origin and source of our fundamental principles.

Though government should not legislate morality beyond a very narrow arena (vis., a measure of specificity regarding types of homicide and theft; strictly limited controls on bearing false witness, etc.), with natural law as the foundation of our legal system, morality inescapably informs it.  This is so because morality flows from the Creator-endowed and individually-imbued nature of our inalienable rights to life, liberty, and the pursuit of happiness. Our social compact was founded explicitly to protect these.  From that, our statutes are at their best when limited to attempts to implement and protect those foundational principles and nothing more. Any further legislation should be limited to improvements on those strictly circumscribed efforts. In particular, legislation should not be used to generate new morals.

The nature of our American judiciary and the proper role of judges in our jurisprudence has been argued throughout our history, but the argument has been especially virulent over the last dozen or so years.  The current dispute (I don’t call it a debate) centers on whether our Constitution means what it says and neither more nor less, or whether it’s a living document that should grow and adjust to meet a judge’s understanding of changing times and mores.

In this pamphlet, I lay out three key propositions.  The first is that only Congress may make law.  The second is that judges may strike a law before them as unconstitutional, but if they do not, they must apply the law as written.  The third is that the Constitution must be applied as it is written.  Alterations or updates to it are political decisions, and thus only We the People may make them.

Understand: I’m not writing about the origins of the idea of law or of systems of law.  A plethora of legal philosophers (HLA Hart, Jeremy Bentham, John Austin, and Gustav Radbruch to mention a few Western ones) treat these subjects should the reader wish to explore them. I begin later, with the principles underlying our American legal system.

 

Keep in mind, too, that government, per se, does not make law; the men who populate the government do.

 

Finally, Justice Antonin Scalia made this claim in his A Matter of Interpretation,

Surely this is a sad commentary: we American judges have no intelligible theory of what we do most.
Even sadder, however, is the fact that the American bar and American legal education, by and large, are unconcerned with the fact that we have no intelligible theory.

I agree, and in my hubris, I offer the beginnings of such a theory here.