Nel's New Day

June 27, 2022

SCOTUS Continues Disastrous Rulings, CNN Goes Conservative

Mass Shootings: Last weekend, seven people were killed and 46 injured in 10 shootings of four or more people. Locations were Tacoma (WA); Blakely (GA), San Antonio (TX), Brooklyn, Patterson (NY), Winona (TX), Sutherlin (VA), Minneapolis, Hopewell (VA), and Houston.

Breaking news! The House January 6 investigative committee has scheduled an unexpected hearing on Tuesday, June 28, 2022 at 1:00 pm EST after announcing none until the week of July 11. The sixth hearing comes after “recently obtained evidence.” No one knows that the “evidence” or the new witness is. One guess is that that rush comes to keep Deposed Donald Trump (DDT) and his allies from suppressing the revelation.

One new bit of information is that federal agents used a warrant from the DOJ’s inspector general to seize the phone of DDT’s former lawyer John Eastman, instrumental in developing the illegal plot to overturn the 2020 presidential election. U.S. District Court Judge David Carter had called the “likely” criminal conspiracy between DDT and Eastman “a coup in search of a legal theory.”

A federal grand jury in New York issued subpoenas to Digital World Acquisition Corp., the special purpose acquisition company merging with Trump Media & Technology Group, and its board members. The investigation can delay the merger and caused the company’s stock to drop ten percent, making this year’s loss over half its value.

Kennedy v. Bremerton School District: The current Supreme Court continued its unanimous list of decisions against separation of church of state by ruling that a football coach could kneel to pray after games, possibly coercing his players into following his Christian religion. Writing for the six Supremes, Neil Gorsuch, stated lower courts should no longer follow the “Lemon test” from Lemon v. Kurtzman (1971), criticized by religious conservatives, about whether the government’s action might look to a reasonable observer as government endorsement of religion. Overturned is 60 years of the Supreme Court position that the government cannot organize and promote prayer in public schools. Previously the high court had also limited speech rights of on-duty public employees.  Justice Sonia Sotomayor wrote in her dissent:

“This Court consistently has recognized that school officials leading prayer is constitutionally impermissible. Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents … The Court now charts a different path.”

Americans United for the Separation of Church and State stated:

“Today, the court continued its assault on church-state separation, by falsely describing coercive prayer as ‘personal’ and stopping public schools from protecting their students’ religious freedom.”

Gorsuch’s opinion shows that the six Supremes swallowed the lies of Kennedy’s lawyer. Joined by many people, Kennedy wasn’t “offer[ing] his prayers quietly while his students were otherwise occupied,” but the decision was based on “private” and “quiet” prayer.” The coach inserted “motivational” prayer into his coaching which resulted in a presentation on the 50-yard line, shown in photographs. He also went on a media tour bragging about being a coach who “made a commitment with God” and inviting everyone to come pray with him on the field in what a federal appeals court called a “stampede.” The school principal “saw people fall,” and the district was unable “to keep kids safe.” Crowds knocked down members of the school’s marching band. Gorsuch claimed that only the opposing team players joined Kennedy—which makes no difference.

Other pro-Christian opinions from the six Supremes are mandating states to include religious private schools in public tuition grants, access of a spiritual adviser for a person being executed, and the requirement that Boston fly a Christian flag at city hall if secular groups have that privilege. In banning abortion, Alito said that states should have the rights to make their own laws, but their decisions in religion and gun safety are opposite to this statement.

Ruan v. United States and Kahn v. United States:  Doctors may now overprescribe drugs after the government is forced to prove beyond a reasonable doubt that the doctor knew or intended to prescribe drugs in an unauthorized manner. The ruling overturned the conviction of two physicians accused of operating opioid “pill mills” in Alabama. Xiulu Ruan made over $4 million in four years when he dispensed almost 300,000 prescriptions, many of them for opioids, in a pharmacy connected to his medical clinic. Practicing in Arizona and Wyoming, Shakeel Kahn operated mostly on a cash-only basis and accepted property for payment including firearms. The convictions were returned to the lower courts for review. Samuel Alito, who voted for the decision, wrote that the court’s “radical new course” may cause “confusion and disruption.”

Clarence Thomas dissented from the Supreme Court’s refusal to revisit New York Times v. Sullivan (1964) that creates a higher bar for public figures to claim libel. He opposes the rights of the media “to cast false aspersions on public figures with near impunity.” Earlier Neil Gorsuch had also urged justices to revisit the decision. Public figures such as Thomas must show “absolute malice” to succeed in a libel dispute against people or the media. Thomas ranted against the Southern Poverty Law Center calling Coal Ministries a “hate group” because it claims “homosexuals say yes” to pedophilia and promotes other anti-LGBTQ lies, called the SPLC position a “blatant falsehood.” He wrote that the group “has nothing but love” for homosexuals despite the leader emphasizes literature that pushes LGBTQ people to be executed.  

The six Supremes justify overturning Roe by saying “the law offered no protection to the woman’s choice in the 19th century.” That could be the justification for overturning everything—desegregation, biracial marriage, mandatory sterilization, male ownership of wives—the list could be endless. Declaring precedents “egregiously wrong,” the six Supremes are making the United States into a place with rights only for adult straight Christian conservative white men. Everybody else is screwed.

Judges in Louisiana and Utah temporarily blocked the states’ anti-abortion “trigger laws,” those immediately going into effect to block abortions. Louisiana has passed multiple trigger laws since 2006, and which ones go into effect or what conduct is prohibited is not clear. In Arizona, Florida, Idaho, Mississippi, and Texas, trigger laws are also being challenged. Mississippi AG Lynn Fitch had already certified the state’s trigger law, meaning that all abortions, except to save the pregnant woman or in a confirmed case of rape, will be illegal.

The high court has four more cases to announce this term, one determining clean water and the power of agencies. The others are President Joe Biden’s overturning DDT’s border policy “Remain in Mexico,” refusing immigrants entry from Mexico; EPA regulation of carbon emissions from existing power plants; and weakened work protections for veterans with disabilities.

Note: CNN used to be a useful alternative to MSNBC for a take on the news—until Chris Licht was hired to replace Jeff Zucker as the head of CNN. Licht said he wants CNN to be “a beacon … by being an organization that exemplifies the best characteristics in journalism.” Friends with GOP former New Jersey Gov. Chris Christie and House Minority Leader Kevin McCarthy (CA), Licht watched the Super Bowl with GOP pollster Frank Luntz and wants to showcase more conservative guests.

After Roe was overturned, CNN immediately aired commentary from these “experts:

  • Mary Szoch, the director of the center for human dignity at the anti-abortion rights and anti-LGBTQ rights Family Research Council who talked about how “American needs to reckon with” the “60 million unborn children’s lives taken by the abortion industry.”
  • Jeffrey Toobin, who exposed his penis during a Zoom meeting with colleagues at The New Yorker and masturbated.
  • Democrats for Life, that “seeks to elect anti-abortion Democrats,”—not a major player in the political world.

Licht told producers to stop referring to DDT’s accusations of a stolen election as the “big lie,” its common nickname. A CNN insider said:  

“It’s worrisome that we’re being told how to talk about one of the worst things that ever happened to American democracy. We have to call lies, lies, whether they’re small lies or big lies. Is there any lie bigger than that lie?”

Reporters such as Brian Stelter and Jim Acosta will be forced out if they don’t keep to Licht’s “less partisan coverage.” The influence seems to come from parent company Warner Bros. Discovery with DDT-donor John Malone calling the shots. Instead of raising ratings, Licht wants to generate revenue by sponsored segments inserted in news broadcasts, meaning the “news” comes from big business, and a paywall for part of CNN’s website, reducing CNN’s audience.

Not a blueprint for a “beacon.”

February 4, 2022

‘President Trump Is Wrong’

Lots of news on the first Friday of Black History Month, but one lede might be that former VP Mike Pence finally opposed Deposed Donald Trump (DDT) after lying for him since the beginning of their campaign in 2015. The setting was a Federalist Society convention in Florida where Pence, the keynote speaker, was to speak about “constitutional principles and the rule of law,” which included attempts to overturn a legitimate election The subject was DDT’s lie that Pence could legally overturn the 2020 election. DDT also stated the House January 6 investigation committee should probe Pence for not doing so. With a note of optimism, Pence flatly declared DDT’s idea “un-American“:

“President Trump is wrong. Under the Constitution, I had no right to change the outcome of our election, and [Vice President] Kamala Harris will have no right to overturn the election when we beat them in 2024.”

Pence called January 6 a “dark day in the history of the United States capitol” and said that a vice president plays no part disrupting the certified votes from the states for president. Rubbing salt in DDT’s wounds, Pence has also said they may “never see eye-to-eye” about that day and was proud of the completion of the certification after the insurrection.The question is now whether Republicans will turn on Pence or separate themselves from DDT. DDT is even more distressed because two top Pence aides, former chief of staff Marc Short and general counsel Greg Jacob, are talking to the January 6 committee.

February 4, 2022, is also a dark day for the U.S. Supreme Court: Justice Neil Gorsuch is secretly speaking to conference guests—no press allowed. Supreme Court conservatives are tired of being called political hacks, but they keep proving they are.

With the upcoming 2022 election, GOP interest in pursuing a “stolen” election for DDT at its RNC winter meeting in Utah is waning from its platform to take over the country. Attendees know that DDT has a hold on the GOP base, but candidates need to focus on inflation and parents’ rights (aka book censorship and ignorance in school curriculum) in an effort to find new voters. RNC reps also worry about the plethora of federal and state investigation and lawsuits DDT faces and polls indicating less support for him.

On the same day Pence made this speech, RNC representatives censured Reps. Liz Cheney (R-WY) and Adam Kinzinger (R-IL) for their participation in the House investigation of January 6. Kinzinger is not running for election in 2022, and Cheney has outraised her RNC-backed primary opponent by four to one with over $2 million in the last quarter of 2021. The RNC resolution described the violent attack on the U.S. Capitol as “a Democrat-led persecution of ordinary citizens engaged in legitimate political discourse to mask Democrat abuse of prosecutorial power for partisan purposes.” Republicans first resolution was to expel the two representatives from the House, but they said they didn’t want to appear to have dissenting views. 

The one-minute voice vote for censure was meant to keep anyone from being embarrassed by their vote, but some of the delegates spoke out against the decision. During the voice vote, some people shouted “No,” including Henry Barbour (MS) and Bill Palatucci (NJ). Glenn McCall (SC) left the room during the vote because the party needs to stick to resolutions “that are going to advance the party.” Caleb Heimlich (WA) said he voted for the resolution before he found out the last-minute language of “legitimate political discourse.” Even Sen. Mitt Romney (R-UT) criticized RNC Chair Ronna McDaniel, his niece, for pushing through the resolution:

“Shame falls on a party that would censure persons of conscience, who seek truth in the face of vitriol. Honor attaches to Liz Cheney and Adam Kinzinger for seeking truth even when doing so comes at great personal cost.”

GOP Maryland Gov. Larry Hogan tweeted:

“The GOP I believe in is the party of freedom and truth. It’s a sad day for my party—and the country—when you’re punished just for expressing your beliefs, standing on principle, and refusing to tell blatant lies.”

Author of the resolution is Citizens United President David Bossie—top DDT adviser in charge of fight DDT’s loss in 2020 until he contracted COVID. Although that put Giuliani in charge, Bossie stayed involved, taking part of the meetings at the Willard Hotel to strategize overturning the election and putting pressure on congressional members to support overturning the legitimate Electoral College presidential votes for Joe Biden.

The censure vote came shortly after DDT’s rally when he promised to pardon the insurrectionists helping him overturn the election and violence if he’s held accountable for both business and political crimes. And the same week as the discovery that DDT tried to get the government to seize voting machines and additional details about his plan to use forged, fake state electoral vote certificates forcing Pence to overturn the election.

The censure beings the new RNC goal of “unity,” not necessarily in accord with Pence’s statement that DDT “is wrong.” Conference-goers also think that Glenn Youngkin has the answer because of his strategy for his winning election to Virginia governor—just pretend that DDT doesn’t exist. The idea may not be successful, however, because Youngkin’s scrupulous allegiance to DDT’s agenda has infuriated many people voting for him as a “moderate.” Plus one of Youngkin’s executive orders signed on his first day in mid-January, the “opt-out” permission for school mask mandates, has already been overturned—at least temporarily. Some GOP leaders also want Pence to run for president in 2024 even if DDT decides to be a candidate.

Other Republicans are getting fed up with the lies from DDT’s supporters.  After Republican officials in Maricopa County rejected the quackery efforts of Cyber Ninjas to “recount” its ballots, GOP House Speaker Rusty Bowers, representing the Mesa area, showed some sanity and support for democracy regarding a voter-suppression bill. It would not only allow the state legislature to reject the popular vote if they didn’t like the results but also require all ballots, totally almost 3.5 million in 2020, to be hand-counted within 24 hours of the election. Electronic machines would be banned except for disabilities so all ballots, at least 3.5 million in a general election would be counted by hand-counted, something taking almost four months for the Ninjas. As last recount proved, hand-counts “harm accuracy, speed, and dependability,” as Bowers said. The bill would also almost eliminate the early voting program used by almost 90 percent of the voters, meaning that the vote couldn’t start until Election Day.

n a headline, the biggest newspaper wrote that “Bowers didn’t just kill a bill to veto our vote. He stoned the thing.” Laurie Roberts continued:

“House Speaker Rusty Bowers has once again refused to give into the collective psychosis that has affected so many of his Republican colleagues since Trump lost the election. [He] has once again saved Republicans from themselves.”

Bowers’ strategy was to assign the bill to committee—all 12 standing committees. Capital reporter Jeremy Duda of the Arizona Mirror tweeted:

“I’ve never seen a speaker or Senate president kneecap a bill as aggressively as this. Triple-assignments? Sure. Been there. But this is Bowers killing the bill, chopping it up, setting the pieces on fire, then digging up the ashes and throwing them into the ocean.”

A conservative Republican, Bowers refused to buy into the “stolen” election theory or call for election results to be overturned. He said he voted for DDT and didn’t like his loss but “will not entertain a suggestion that we violate current law to change the outcome of a certified election.” Bowers told DDT and his lawyer Rudy Giuliani on a November phone call that he would not “break my oath” and “will follow the Constitution.” In response, the Arizona Patriot Party targeted him for recall, and DDT’s supporters came to his neighborhood with loudspeakers, calling him a pedophile. His GOP colleagues have introduced over 70 bills to “reform” Arizona’s elections. A long piece on Bowers. 

One of the bill’s co-sponsors represents Scottsdale, where one of his GOP constituents was one of ten Arizonans$6 thus far indicted for voter fraud in the $9 million effort to count over two million ballots after she cast a ballot for her dead mother. She eventually pled guilty.

In a positive move, father and son Gregory and Travis McMichael, convicted of killing Ahmaud Arbery in Georgia, will go to trial for federal hate crime charges after his 2020 stalking and murder of the Black man. Prosecutors had agreed to a plea agreement from McMichael in exchange for a cushier prison location, but the judge refused the agreement allows the two men to plead guilty only to interference with rights. A neighbor, William “Roddie” Bryan, also faces federal hate crime charges. The deciding judge was appointed by George W. Bush.

There will be a post on Tucker Carlson as a possible 2024 presidential candidate, but I’m finding it too depressing to finish right now. Especially with the official number of deaths in the U.S. over 900,000–924,530 according to the Worldometer—because of people like Carlson.

January 27, 2022

Lawyers’ Lies – G.S. Hans

As almost everyone in the U.S. must know by now, Supreme Court Justice Steven Breyer will resign at the end of the current term if the Senate has confirmed his replacement. While I work on other projects, I have reprinted this essay about the current status of the nation’s highest court by G.S. Hans, an Associate Clinical Professor of Law at Vanderbilt Law School, where he directs the Stanton Foundation First Amendment Clinic: “The Lie Lawyers Can’t Stop Telling Themselves.” – NW

Judges love to talk about “law” as distinct from “policy.” It’s not.

This month’s chaotic Supreme Court arguments on the Biden administration’s workplace COVID-19 vaccination rules were typical of this 6-3 conservative supermajority: the usual mix of overlong hypotheticals, ahistorical musings, and overt hostility to the executive branch. But one brief comment from Justice Brett Kavanaugh also revealed much about the stories attorneys and judges tell themselves about the role and status of “law” as privileged above everything else.

Kavanaugh spoke after Justices Elena Kagan and Neil Gorsuch, who had just asked questions about the scope of administrative law and the slippery “major questions” doctrine, respectively. “I want to follow up on Justice Gorsuch’s questions, which I think are important, and also Justice Kagan’s questions about the policy arguments that are present here,” Kavanaugh mused. His comment tellingly blessed Gorsuch’s “important” legal questions over Kagan’s mere inquiries into “policy” (while ignoring that both justices were actually asking similar questions).

This sounds all too familiar to those of us who’ve survived the law school experience, in which faculty and peers may dismiss some students’ perfectly valid points as mere “policy arguments.” For law students, the answer to a “cold-call” of the type seen in Legally Blonde “should” be grounded in the case or statute at issue rather than larger concerns like justice, morals, or equality. Students learn fast that, if you care about the equity goals of the Voting Rights Act or the repercussions of artificially cramped standing doctrine, you better have something more than “policy” to justify your arguments. 

Many lawyers, law professors, and judges treat policy as basically just vibes: emotions and feelings dressed up in rhetoric. Law, by contrast, is Solid, Determinate, and Consistent: an elegant edifice, chiseled and crafted by all-knowing judges and learned attorneys. There might be harsh results or perverse incentives, sure, but that’s the price to pay for stability. Indeed, a lack of concern for squishy values like “justice” proves the higher meaning and value of law—there’s no room for maneuvering.

There are (at least) two problems with this view. First, it creates an artificial distinction between law and policy, casting them as disparate arenas rather than inextricably intertwined. Second and more insidiously, it creates a hierarchy in which law reigns supreme over subjective and “imprecise” disciplines like policy, which can too closely resemble feelings in its concern for non-legal considerations. When lawyers and judges assert that law trumps other concerns, they implicitly subordinate those who claim allegiance to other values or disciplines. You’re either on our team, or you’re a loser.

Perhaps because I was told during my first year of law school that my questions were actually “policy inquiries,” I enrolled in a policy program and graduated with a joint degree. There, I learned that policy is more than vibes. It’s a set of social considerations and goals partially achieved through law, informed by empirical and qualitative research and a range of academic disciplines. The best policy scholars and policymakers craft their views with more rigor than one finds in judicial opinions, and with more collective, distributed input. Yet prominent judges seem to both disdain policy and collapse disciplines like sociology, statistics, and economics into a mess they characterize as simultaneously finicky and mushy.

Take our Chief Justice, for example. Who can forget John Roberts describing sophisticated statistics during oral argument in Gill v. Whitford, a 2017 challenge to partisan gerrymandering, as “sociological gobbledygook”? That facile insult prompted the then-head of the American Sociological Association to write him a letter reminding him that Brown v. Board of Education, the 1954 Supreme Court decision that declared school segregation unconstitutional, relied on psychological and sociological evidence to demonstrate why separate wasn’t equal. (Of course, given contemporary conservative hostility to Brown v. Board—I’ve lost count of how many Trump judicial nominees refused to say it was rightfully decided during their confirmation hearings—for some judges, citing it to show that sociology matters for law might be a turnoff.)

More recently, at oral argument in Dobbs v. Jackson Women’s Health—the case from this term that the conservative justices will likely use to hollow out legal protections for reproductive rights—Roberts again signaled that data and policy analysis, no matter how expert or sophisticated, has little to commend it. This seems especially true when “policy” might stop the Court’s right wing from fulfilling its mission of eliminating bodily autonomy for those who can become pregnant. When Julie Rikelman, the lawyer for the Center for Reproductive Rights arguing the case, noted that in the nearly fifty years since Roe v. Wade, “abortion has been critical to women’s equal participation in society,” Roberts asked for the data. After Rikelman cited an impressive amicus brief filed by over 150 economists and researchers proving her point, Roberts breezily ignored it. “Putting that data aside,” he said, he quickly moved on to more serious, more “legal” inquiries: why upholding Mississippi’s 15-week abortion ban wouldn’t present a major shift from the existing viability standard. Rather than examining careful non-legal scholarship, tired, formalist legal questions about line-drawing maintained superiority.

It would be one thing if the justices’ contempt for policy were accompanied by a principled distinction between law and policy. But no serious reader of the Supreme Court’s recent opinions could ignore the policy goals that dominate. In Brnovich v. DNC, a 2021 decision that eviscerated whatever remained of the Voting Rights Act, Justice Samuel Alito decided that he would rewrite the statute to further Court’s policy agenda of eliminating the VRA’s protections for minority voters. Conservative justices often extoll the primacy of statutory text—but not, it seems, when more important social goals of the conservative legal movement are within striking distance.

Or consider Americans for Prosperity Foundation v. Bonta, another case decided in 2021 along ideological lines. Two non-profit entities (one associated with the Koch brothers, the other a law firm that “defends and promotes America’s Judeo-Christian heritage and moral values”) successfully argued that a hypothetical injury—that California’s mandated financial contribution disclosures somehow chilled their First Amendment speech rights—was sufficient to confer standing. Standing requires that plaintiffs in federal cases demonstrate that they’ve suffered a concrete, particularized injury. In Bonta, the Court decided that these nonprofits who had suffered no such injury could nonetheless challenge California’s law.

Most of the time, judges use standing doctrine to keep out those claimants who’ve been injured in ways that judges might not care much about, like privacy or civil rights. Indeed, in a consumer rights case the Supreme Court decided just one week prior to AFP, Kavanaugh had written an opinion sharply limiting Congress’s power to create standing. But when it comes to funding conservative political causes, that hostility to finding standing was nowhere to be found.

My skepticism about a principled divide between law and policy dates back to 1L. In Constitutional Law we debated the then three-month old decision in D.C. v. Heller, which overturned decades of precedent in finding an individual Second Amendment right, to gun ownership. In the majority and dissenting opinions Justices Scalia and Stevens, respectively, spend way too much time arguing about competing dictionary definitions. Justice Scalia, citing to multiple dictionaries: “At the time of the founding, as now, to ‘bear’ meant to ‘carry.’” Justice Stevens, citing to others: “One 18th-century dictionary defined ‘arms’ as ‘[w]eapons of offence, or armour of defence.’”

This is what legal analysis is? I remember thinking. Arguing over what dictionary applies? I thought that taking your intuitions about the Second Amendment’s original meaning and slapping on a veneer of objectivity using Samuel Johnson’s dictionary was exactly the kind of extra-legal thinking we were supposed to eschew. Apparently not.

There’s more at stake here than rhetorical consistency. Judges’ vocal disdain for policy means they can have their cake and eat it too: relying upon the image of law as precise and implacable while setting priorities as they see fit. Courts making policy choices while denigrating policy analysis are like the Very Successful Person who tells you America’s a meritocracy where they pulled themselves up by their bootstraps—and somehow forgets to mention their trust fund.

Policy and law are inextricable. Lawyers need to understand policy and what we can learn from our colleagues in other disciplines. As an instructor, I encourage my students to consider the policy arguments supporting the rules and laws that legislatures, agencies, and courts propound, and the sources for those arguments. If the last few years have proven anything, it’s that lawyers and judges need to have more humility about the limits of law, particularly when other disciplines can provide more insight to why the world is so broken—and what it would take to fix it.

June 25, 2018

The Supremes Close to Finish Rulings

Filed under: Judiciary — trp2011 @ 9:45 PM
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The U.S. Supreme Court has been very “cautious” in several of its June rulings—sending some back or refusing to hear other high-profile cases. Tired of cake, they turned down an Oregon Supreme Court ruling against bakery owners who had refused to make a wedding cake for a lesbian couple, and they sent another case, one in which a lower court ruled that a florist couldn’t refuse to provide flowers for a gay couple’s wedding because she opposed marriage equality, back to the lower court. The Washington state Supreme Court had written that public accommodation laws do more than guarantee access to goods and services:

“Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.”

One case that the high court refused to hear will kill a man because he is gay. Chief Justice John Roberts has piously written that the “law punishes people for what they do, not who they are.” Yet a South Dakota jury sentenced Charles Rhines to death because they thought he would enjoy prison with other men. A juror said that life in prison would mean “sending him where he wants to go.” Upset about this possibility, the jury sentenced Rhines to death rather than life in prison. Thus this man was sentenced for who he is, not for what he did.

Abbott v. Perez, a Texas case, gave the strongest statement today when the conservative majority overturned a lower court ruling that several districts are gerrymandered. Overturning the lower ruling leaves in place discrimination against Hispanic voters. Only one district, according to five justices, was racially gerrymandered. In her dissent, Justice Sonia Sotomayor wrote:

“The Court today goes out of its way to permit the State of Texas to use maps that he three-judge District Court unanimously found were adopted for the purpose of preserving the racial discrimination that tainted its previous maps. […]

“It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population of the State—will continue to be underrepresented in the political process.”

As for North Carolina’s gerrymandering, the Supreme Court sent the case back to a lower court to determine whether the plaintiffs have standing, the same way that it did to Wisconsin. The Court had never found a map so infected by politics that violated voters’ constitutional rights as it did in Wisconsin, but justices did not rule on the merits of the case. In North Carolina, GOP leaders open declared that they were drawing the map to elect Republicans, and they succeeded. With 53 percent GOP vote, 11 of 13 representatives are Republicans. The Supreme Court’s inaction in gerrymandering will leave maps intact until the 2020 election.

Supreme Court Rulings from Thursday, June 21:

Ohio v. American Express: The wealthy benefit from the conservative 5-4 decision that American Express can insist that merchants don’t encourage customers to use other cards. AmEx charges higher fees than Visa or Mastercard but promotes competition with rewards programs for affluent clients. In an unusual move, Stephen Breyer read his dissent from the bench, saying that the ruling can hurt competition in other areas. Stephanie Martz from the National Retail Federal described the ruling as “a blow to competition and transparency” because retailers cannot educate people about how the AmEx “swipe fees” increase the cost of merchandise. The Supreme Court’s ruling overturned the decision from the 2nd Circuit Court that stated that a lower court ruling for AmEx had concentrated on interests of merchants “while discounting the interests of cardholders.”

Many people fail to understand how the use and selection of credit cards influences income inequality because the wealthy pay less for the same object or service that working and middle-class people, who may pay ten percent of their payment for processing a payment. The charge is the same, but credit card fees are different. AmEx costs more for processing, but people pay the same fees no matter what cards they use. The only option merchants have now is to not accept AmEx cards. 

Wisconsin Central v. United States: Justice Neil Gorsuch’s majority opinion explained that stocks are not money. The Railroad Retirement Tax Act of 1937 requires private railroads and their employees to pay income tax on “compensation,” defined as “any form of money remuneration.” Thanks to the Supreme Court, people who receive these stocks are not required to pay taxes on them.

Lucia v. Securities and Exchange Commission: The decision that SEC administrative law judges are “officers of the United States,” requiring them to be appointed by the president and approved by the Senate, may bleed over into the argument about whether special investigator Robert Mueller is the same type of “officer” instead of an “inferior official.” To declare this position means that everything he has done—evidence, indictments, convictions, etc.—can be thrown out.

Pereira v. Sessions: This immigration case rules that a “notice to appear” must specify either the time or place for it to trigger a “stop-time” rule when continuous residence or continuous physical presence ends and that information must be received. Eight justices agreed that they did not need to follow an ambiguous statute; Justice Samuel Alito dissented, using the 1984 Chevron case that the court should accept any reasonable from an agency implementing the statute. Although the decision benefits Pereira and many other immigrants, it also gives the Supreme Court, growing in ideology, in charge of determining orders from Dictator Donald Trump (DDT) if a future administration tries to overturn them.

South Dakota v. Wayfair: In a 5-4 vote, Supreme Court Justice Anthony Kennedy ruled in a mixed majority permitting states to require online retailers without a physical presence in the state to collect sales tax revenue for the states. The ruling, opposed by John Roberts, Stephen Breyer, Elena Kagan, and Sonia Sotomayor overturns the 1992 decision in Quill v. North Dakota. Nineteen of the 20 largest online retailers already follow this practice although Wayfair, Overstock, and Newegg do not.

Major decisions Still Missing:

Janus v. AFSCME: Mark Janus doesn’t want pay anything to a union for the collective bargaining that benefits him. His free speech argument is that the fee directly influences government policies on salary, benefits, and pension. The Supreme Court has addressed this issue three separate times. In the first case,  the high court stated that the challengers weren’t government employees, and the second time was a 4-4 decision after Antonin Scalia’s death, pointing toward a ruling that unions that will have to pay for “takers” who want all the union benefits without paying for them.

NIFLA v. Becerra:  The question in this California case is whether Christian crisis-pregnancy centers, that are opposed to abortion and provide minimal services to women, are required to post disclaimers so that their clients will be aware that the services don’t provide medical help. CPCs argue that free speech allows them to keep this information from clients.

Trump v. Hawaii: Known as the travel ban—or Muslim ban—the limitation of travel to eight countries is argued on the basis that an executive order violates the Constitution’s establishment clause, barring government from preferential treatment for specific religions. Earlier cases have been decided with the use of DDT’s prejudicial tweets about Muslims that show he wants to keep people in one specific religion from coming into the United States.

The Oddest Dissent:

Carpenter v. United States: A majority vote of four liberal judges plus Chief Justice Roberts determined that police must get warrants to use cell phone records as a location device for suspects’ travel. Neil Gorsuch wrote about his interpretation of the Fourth Amendment being more “tied to the law” that the last half-century of Supreme Court opinions but finishes that he agrees with the government’s case because he wants to repeal and replace established law. New technology since the Founding Fathers has changed interpretations of “unreasonable searches and seizures.” The government’s argument was that no warrant was necessary because of no “actual physical invasion.” This argument was reversed in 1967 when Katz v. United States decided that warrants were necessary to listen in on a phone call. The Fourth Amendment was triggered by a “reasonable expectation of privacy.”

Richard Nixon’s judges gave police more authority without warrants, and Gorsuch’s dissent provides ridiculous results with the change in tests for this privacy. Yet he radically shifts to the “traditional approach” that permits privacy only if “a house, paper or effect was yours under the law.” If not, police don’t need a warrant. Gorsuch admits that his argument has no clarity but claims to know more than his colleagues. His “traditional approach” would allow law enforcement unlimited right to examine all technology—including telephone conversations and internet usage. His conclusions supposedly come from “positive law,” the argument that all these records are protected by state or federal law and not the Constitution. Gorsuch wants a Supreme Court decision to rewrite the Fourth Amendment.

April 21, 2017

DDT: Week Thirteen on the Foreign Front

Right before Earth Day tomorrow, the planet won a victory when the Treasury Department refused to grant ExxonMobil a waiver for a joint drilling deal in the Black Sea with Russia’s state oil company. Current U.S. sanctions against Russia after its annexation of Crimea require waivers. President Obama opposed the same plan in 2015 after Secretary of State Rex Tillerson created it as Exxon’s CEO. In the words of Sen. John McCain (R-AZ), “Are you crazy?” My cynic bone wonders what the current administration is planning that is worse that the waiver to the sanctions.

Thus far, DDT’s only victory in over 90 days was getting Neil Gorsuch on the Supreme Court although it required breaking Senate rules. Gorsuch made his first public decision—to kill a man. In its rush to kill eight inmates on death row for 24-26 years before state drugs expired, Arkansas decided to kill them in eleven days. Judicial stays kept these men alive for a few days, but Gorsuch joined the conservative block on the high court to kill at least one of them. Ledell Lee, the first man executed, had fetal alcohol syndrome disorder with significant brain damage and intellectual disability. He has always claimed that he is innocent and that one of his lawyers was drunk and another was mentally ill. The state refused to allow him to take a DNA test to compare evidence collected at the scene of the crime. The judge in the case was having an affair with the prosecutor and later married her. None of the blood at the crime scene belonged to Lee, and forensic evidence of hairs has been discredited. It’s not surprising for Gorsuch to kill the Arkansas inmate because he had ruled in Colorado that a man should lose his job if he chose to save his life.

In the Company of Tyrants: Even conservatives are outraged that DDT called to congratulate Turkish President ­Recep Tayyip Erdogan for his new, almost dictatorial powers by winning a referendum after possible election tampering. Erdogan’s authoritarian rule has destroyed any separation of church and state in an Islamic regime and arrested any critics as well as a roundup of journalists. After last summer’s attempted coup, Erdogan had already detained, suspended, or dismissed almost 200,000 people including state officials and teachers. The new referendum would replace the parliamentary system with a presidential one and abolish the prime minister. Erdogan, who could stay in power until 2029, could intervene in the judiciary, control the nominees for parliament’s nominees, directly appoint top government officials, and declare a state of emergency with no justification. DDT’s congratulatory statement not only contradicts the official message from the U.S. State Department but also was made before the vote is final. It is still being contested. Reasons given for DDT’s congratulations include ignorance, carelessness, or an agreement with Erdogan’s ideology. Or it could simply be because he has business interests in Turkey: in the past, he said that he had a “conflict of interest” in the country (tower on right). If the referendum wins the “yes” votes, Turkey will become a total dictatorship.

Question of Chemical Attacks in Syria: DDT may hope that problems in North Korea keep people from wondering if his April 7 preemptive strikes on Syria—his first open act of war—was based on false information. Although the deaths of people on April 4 have not been contested, questions about the type of gas and the perpetrators remain because of no independent, international investigation. Two longtime experts in war studies and missile systems maintain that DDT’s intelligence report about Syria’s role is “false” and “fraudulent” as well as a “coverup.” They purport that the intelligence report about an air attack is not substantiated by evidence and that the official report did not use the methodologies that it claimed: the information released by the White House is political, not scientific. In 2013, President Obama was given incorrect information that Syria perpetrated an attack but did not retaliate because intelligence did not support that information. Instead, DDT, like George W. Bush, made preemptive strikes against a country that didn’t attack the United States, without accurate information. Support for the experts’ information is that there is no plan for an investigation—just a move forward to inflame North Korea into military action. The world has become a far more dangerous place in DDT’s less than 100 days.

Ships Far from North Korea: One piece of DDT’s saber-rattling in northeast Asia was to declare that he had ordered an “armada” (actually six ships) close to North Korea. Two weeks later the media discovered that the ships “steaming,” in Press Secretary Sean Spicer’s words, toward North Korea were headed in the opposite direction several thousand miles away after the Navy released photographs and the location of the Carl Vinson in the Sundra Strait, 3,500 miles away. The White House blamed the Defense Secretary Jim Mattis for the mistake although U.S. National Security Adviser H.R. McMaster mistakenly told Fox that the ships were rerouted from Singapore to the Korean peninsula as a “prudent” show of force. That’s DDT’s military’s second bad mistake this month: the earlier one referred to the biggest non-nuclear weapon that it used on Afghanistan as “the type of weapon for the type of target” and how it sent a message.

South Korea’s “Concern” with DDT: The egregious “mistake” about the ships’ location upset South Koreans who felt “bewildered, cheated and manipulated by the United States, their country’s most important ally,” according to the New York Times. AP went farther with words such as “unpredictable,” “unhinged,” and “dangerous.” DDT also angered South Koreans by his assertion that the Korean Peninsula “used to be a part of China.” Invaded by its neighbor and forced to pay tribute, Koreans state that the idea that they were once Chinese subjects is highly insulting. DDT is alienating one country almost every every week–South Korea, Great Britain, Mexico, Sweden, Germany, Australia, and China plus Canada after DDT scolded the nation for what the dairy industry did to our workers.” The addition of Colombia brings the total to nine.

Secret Meeting at Mar-a-Lago: Last weekend, DDT interrupted his golf games to meet undercover with former Columbian presidents Álvaro Uribe and Andrés Pastrana, former presidents of Colombia to undermine the current Colombian President Juan Manuel Santos’ peace accord with the Revolutionary Armed Forces of Colombia to end Latin America’s longest armed conflict. The White House also lied about the meeting: it claimed just a brief “hello” because the two men were at the resort, but Pastrana thanked DDT for the “cordial and very frank conversation” about Colombia’s challenges. DDT also ignored any diplomatic coordination with the State Department. Columbia reported that Sen. Marco Rubio (R-FL), an opponent of the peace plans, set up the meeting with the three men.

State Department v. Tillerson: During his campaign, DDT called the Iran Deal “the worst deal ever negotiated” and promised to rip it up on day one. This week Secretary of State Rex Tillerson called the deal a failure, warned this week that Iran’s nuclear weapons could be as bad as North Korea, and accused the country of causing “alarming and ongoing provocations.” At the same time, he wrote House Speaker Paul Ryan (R-WI) that Iran was upholding its commitments, and the State Department released the same positive information. In response to Tillerson’s criticism of Iran, its foreign minister, Mohammad-Javad Zarif, faulted the U.S. for trying to distract from its “abysmal” human rights record, which includes DDT’s Muslim ban, and the U.S. support of Israel, which Zarif claimed has an “illegal” nuclear arsenal. Tillerson made his comments about Iran as a disruptive force on the same day that he praised Saudi Arabia that is trying to reinstate Yemen’s ousted president by killing thousands of civilians in airstrikes.

Raising Prices: DDT signed his “Buy American, Hire American” executive order while in Wisconsin. Part of it changes rules for the H-1B visa program which keeps some highly skilled workers from coming to the U.S. and may send companies that employ them out of the country. At the same time, he saved the visa program for lower-paid workers, like his own because, as he said in the past, “it’s very, very hard to get people.” DDT wants to do away with the waivers in these mandates—except ones that let him buy all the products for his business more cheaply from foreign countries. DDT’s order has no weight unless Congress passes a law to support it or changes past laws, for example the Trade Agreements Act of 1979 that treats products made in foreign countries as domestic if the countries, almost 60 at this time, have a trade agreement with the United States. There are no plans to carry out his order, which would cause prices to skyrocket. China steel, for example, is 70 percent cheaper than what is made in the U.S., and a DDT order from last month raised steel prices 19 percent.

Obsession of Gold: Known for wasting taxpayer money in the United States, DDT is moving the selfishness to Britain on his upcoming visit in October. Despite the cost and the lack of security, he demands that he ride to a meeting with Queen Elizabeth II in a golden coach—just like Mexican President Peña Nieto, Russian President Vladimir Putin, and Chinese President Xi Jinping. It’s the “ugly American” made more hideous than ever.

Tomorrow covers DDT’s damage in domestic issues.

April 6, 2017

GOP Senators ‘Break’ an Institution

The Republicans loved the filibuster. They used it to create an unprecedented blockade of President Obama’s nominees for judge and executive branch positions, leaving key positions unfilled. But that was four years ago with a Democratic president. Today, GOP Senators voted to get rid of the filibuster for the Supreme Court so that lying plagiarist 49-year-old Neil Gorsuch could be confirmed as a life-time justice. No longer does a permanent member of the Supreme Court need at least 60 bona fide votes to make law for the United States. Fifty-one votes are just fine, according to Republicans.

The decision to erase the filibuster for the Supreme Court was made less than a year since the Republicans, the majority of the 115th Congress, refused to even give a hearing to President Obama’s justice nominee, Merrick Garland. [The above cartoon is thanks to Robert Hulshof-Schmidt, husband of blogger Michael Hulshof-Schmidt.] In the past, Republicans maintained that a rule change, such as doing away with the filibuster for judges, requires a two-thirds super-majority, and that former Senate Majority Leader Harry Reid (D-NV) decided to “break the rules to change the rules.” Over 60 percent of these senators who made these protests are still in the 115th Congress. The comments below from their opposition four years ago show that rules are in the eye of the beholder—in this case Republicans.

Sen. Lamar Alexander (R-TN) used an example of a football game to whine that the Democratic majority just changes the rules if they don’t allow the result that they want.

Sen. John Barrasso (R-WY) claimed that ditching the filibuster would be “irreparably damaging the Senate.”

Sen. Roy Blunt (R-MO) called the change four years ago a “power grab” that allows Democrats “to make decisions all on their own about every federal judge.” [Change Democrats to Republicans to show that the GOP senators did today.]

Sen. John Boozman (R-AR) described the “Senate Majority” change as “an act of desperation.”

Sen. Richard Burr (R-NC) cited the removal of the filibuster as “unchecked power by the Executive Branch” and accused the removal of the filibuster as a “way to pack the courts with judges who agree with them” with “lasting damage to bipartisanship, the Senate, and the nation.”

Sen. Thad Cochran (R-MS) complained about “embarking on a path that would circumvent the rights of the minority to exercise its advice and consent responsibilities provided in the Constitution.”

Sen. Susan Collins (R-ME) talked about her opposition to the 2005 GOP plan in erasing the filibuster, giving the majority part “unprecedented power to limit debate and block Senators from offering amendments” and opposed the Democrats taking the same action with a Democratic majority.

Sen. Bob Corker (R-TN) described the change four years ago as “brute, raw force.”

Sen. John Cornyn (R-TX) referred to the change four years ago as “breaking the rules of the Senate in a raw exercise of partisan political power.”

Sen. Mike Crapo (R-ID) said that the change would “break the rules to change the rules and force through a number of executive nominations” and demanded 67 votes to change the rule

Sen. Ted Cruz (R-TX) talked about how losing the filibuster “damaged the Senate” with “President Obama’s lawless disregard of our statutes and Constitution.”

Sen. Mike Enzi (R-WY) claimed that weakening the filibuster will “weaken the Senate itself,” making it “more susceptible to the demands of a smaller majority.” He also called the action “incredibly short-sighted,” which could be very true in 2017.

Sen. Deb Fischer (R-NE) said that destroying the filibuster would “destroy the very character of the [Senate] by citing a story from Thomas Jefferson and George Washington to design the Senate  “as a deliberative body to produce thoughtful policy. The solution to Senate gridlock is not changing the rules.”

Sen. Jeff Flake (R-AZ) called the earlier change “a sad day in the Senate when Democrats are willing to ignore 225 years of precedent.”

Sen. Lindsey Graham (R-SC) reiterated the term “raw power grab” that “washed away” the “advise and consent clause” for executive and judicial branch nominations. [Actually, Republicans buried that clause last year by refusing to consider Garland.]

Sen. Chuck Grassley (R-IA) also repeated the “naked power grab” and asked why this moment was chosen “to hand the keys to the kingdom over to the President, a President with less check on his authority.”

Sen. Orrin Hatch (R-UT) lamented the “pre-scripted parliamentary hit-and-run, over in a flash and leaving Senate tradition and practice behind like so much confirmation roadkill.”

Sen. Dean Heller (R-NV) asked whether this decision would “apply to future legislation.” [McConnell claims it won’t, but he is unreliable in the truth sector.] Heller expressed his concern about protecting his state from a majority decision to move nuclear waste to Yucca Mountain. He should remain concerned.

Sen. John Hoeven (R-ND) wanted to take a measured approach because “to break the rules means you have no rules.”

Sen. Jim Inhofe (R-OK) commented that overturning the filibuster “made the Senate’s constitutional role to advise and consent on nominations merely ceremonial.”

Sen. Johnny Isakson (R-GA) declared that the result would be “a runaway Senate” much like “a runaway House” and “that’s not good for the country.”

Sen. Ron Johnson (R-WI) decried that “the rules are being changed in the middle of the game” in “a partisan political grab.” Republicans are specialists in doing this.

Mike Lee (R-UT) said that changing the filibuster “serves no other purpose than to stymie the rights of the American people to have their voices heard.”

Sen John McCain (R-AZ) declaimed:

“I feel this is a dark day for the Senate. I don’t know how we can get out of it. It is the biggest rules change — certainly since I have been in the Senate, maybe my lifetime, and maybe in the history of the Senate — where it has changed by a simple majority by overruling the Chair…. Senator Reid says: I appeal the ruling of the Chair. I ask my colleagues in the Senate to overrule the rules of the Senate, by a simple majority vote, to overrule the Parliamentarian and the Presiding Officer of the Senate. This is what happened. When our rules say to change the rules of the Senate, it takes a two-thirds vote.”

Sen. Mitch McConnell (R-KY) said that without the filibuster that “advice and consent” means “nothing.”

Jerry Moran (R-KS) complained about breaking Senate rules.

Sen. Lisa Murkowski (R-AK) was “saddened” more than angered because the “change will fundamentally alter our operations and lead us to being a less tempered body.”

Sen. Rand Paul (R-KY) called the action bullying and breaking the rules and hundreds of years of precedent, “causing ore discord and disharmony.”

Jim Risch (R-ID) predicted that “the rule changes will have far ranging implications for the United States Senate and our democracy. “

Sen. Pat Roberts (R-KS) claimed that “our rules have always ensured a voice for the minority in this body” and “cannot be changed without their consent — unless, of course, the majority decides it wants to break the rules to change the rules.”

Sen. Tim Scott (R-SC) said that the change will “carry implications.”

Sen. Richard Shelby (R-AL) said, “If Democrats think that they deserve more power, they should earn it from voters at the polls in 2014, not swipe it with a drastic rule change in the Senate today.”

Sen.  John Thune (R-SD) also complained about breaking the rules of the Senate.

Sen. Roger Wicker (R-MS) described the change as “raw abuse of power” and “purely partisan efforts” that tarnished the integrity of the institution by ignoring 225 years of precedent and trampling the rights of the minority party and the millions of Americans we represent.”

In addition, a former senator called the change a “sad day” when the majority caused “the greatest alteration of the rules without proper procedure that we have probably seen in the history of the Republic.” That former senator is now Donald Trump’s Attorney General.

By removing the filibuster for Supreme Court justices, the Senate has encouraged presidents to pick ideologically extreme nominees, further politicizing the highest court in the nation. For many people, the Senate decision may be a blip on the disastrous media coming from the new rule of Dictator Donald Trump, including possible war with North Korea and Syria, but 55 Senators have voted to allow an unethical judge to make decisions for everyone in the United States for a possible up-coming 40 years. According to their own words, the Republicans have “broken” the Senate.

March 23, 2017

Deny Gorsuch for Supreme Court Justice

The Senate hearings for Neil Gorsuch ended today, and Republicans are already congratulating themselves for getting such a far-right justice after refusing to even speak to Merrick Garland, President Obama’s nominee almost an entire year before the end of his second term. “Unreasonable” and “obstructionist” are two popular terms from the conservatives who completely ignored Garland for almost a year while they claimed that Supreme Court justice decisions should never be considered during a campaign season. Yet the United States is in the midst of a campaign season: Dictator Donald Trump (DTT) declared his 2020 candidacy on the day of his inauguration, and he’s already holding rallies funded by his campaign donations.

Even worse, the evidence keeps piling up that DDT was not legitimately elected to his current office following testimony by FBI director James Comey and other reports from intelligence agencies. The strong suggestion of an impeachment for DDT began swirling even before he was inaugurated, and the daily occurrences of his conflicts of interest make the length of his term even more tenuous. Further, DDT’s behavior is make the United States increasingly unstable.

Just 45 percent favor Gorsuch’s nomination’s nomination for the Court, the lowest level of public support for a Supreme Court nominee since Robert Bork (31 percent) and Harriet Miers (44 percent). Even the Fox poll could find only a 49 percent approval for Gorsuch, and approval among women was only 42 percent. The Senate rejected Bork, and Miers withdrew under intense criticism. Gorsuch’s glib charm will almost surely not have the same result for him as Bork and Miers, but he’s no more deserving than they were.

Gorsuch’s philosophy as shown in Chevron is that unelected judges should have far more power to strike down regulations, a belief extremely popular with Republicans. He believes in blocking agencies from writing regulations that implement congressional laws signed by the president as shown by his opposition to a long-standing legal doctrine tried in a case involving Chevron. Even Antonin Scalia supported the importance of regulations that allow “flexibility, and appropriate political participation, in the administrative process.” Gorsuch wrote that liberals are focused on achieving goals, such as marriage equality, through litigation, but like other conservative judges, he supports the use of corporation lawsuits to strike down laws they oppose. The chart below shows that the only current justice farther right than Gorsuch is Clarence Thomas, but his rulings and writings may show that he’s even more right. Justice Thomas voted this week to overturn one of Gorsuch’s rulings.

Republicans are obsessed with replacing Antonin Scalia with an even more far-right justice. They conveniently forgot that they replaced Thurgood Marshall, one of the finest justices in history, with Clarence Thomas, who is severely flawed with conflicts of interest and other issues while he votes as far right as possible. The only “replacement” that Republicans made was choosing another man of color in Thomas.

Gorsuch’s history shows that he attacks women’s equality by putting employers’ preferences ahead of women’s rights, failing to protect women from pregnancy discrimination, eliminating women’s access to health care, and even denying women access to justice. During a discussion in Gorsuch’s law class, he said that employers should ask female applicants if they plan to start a family because women manipulate maternity leave policies at the company’s expense before resigning—a flagrantly illegal action. In the hearings, Gorsuch first denied saying this but then refused to state whether questioning women and not men about plans for adding to the family would violate the law.

In his writings, Gorsuch has argued against the legal principals of Roe v. Wade and disagrees with the right to privacy allowing legalized abortion. Removing that right removes constitutional rights for individuals to make decisions about sex, reproduction, and marriage. Gorsuch tends to bar women from litigating discrimination claims, going so far as to ignore U.S. Supreme Court precedent in his refusal. When he did take a case of sexual harassment, he ruled that it didn’t exist because the manager was also hard on the men—although UPS drivers testified that the manager was worse on the only female on the team.

Gorsuch’s opposition to substantive due process shows that he disagrees with the Supreme Court’s affirmation that a person’s right to liberty also protects their dignity, to life free of interference and to making personal decisions free of discrimination. As an “originalist,” he believes that this right is not in the Constitution although SCOTUS has disagreed with his position. Gorsuch prefers equal protection which denies medical aided death because of his belief in an inalienable right to life. The right to dignity was the basis for Justice Paul Stevens’ dissent to upholding Georgia’s anti-sodomy laws in Bowers v. Hardwick. Stevens maintained that federal judges have the responsibility to protect an individual’s right to decide “how he will live his own life.” Justice Anthony Kennedy used Stevens’ dissent to overturn sodomy laws in Lawrence v. Texas and to declare marriage equality in United States v. Windsor and later in Obergefell v. Hodges. Gorsuch could attempt to overturn these rights as well as Roe v. Wade because he doesn’t believe in “dignity.”

As part of the GOP culture of cruelty, Gorsuch ruled that a truck driver should die rather than leave his rig in sub-zero weather, that a woman recuperating from a bone marrow transplant should risk getting the flu rather than work from home for a short time, and that disabled children don’t deserve an education. He called the botched execution of Clayton Lockett in 2014, leading to a prolonged painful death, an “innocent misadventure” when he ruled that Oklahoma should continue its untested lethal injection protocol. He also wrote two separate opinions against blocking felons from possessing guns.

An examination of Gorsuch’s cruel votes shows that he almost always sides with the “big guys”—corporations and school systems rather than individuals. His strong support for corporations may come from his associates in his personal life. A lawyer at a Washington law firm in the early 2000s, Gorsuch represented Philip Anschutz and his companies. Anschutz successfully lobbied Colorado’s lone Republican senator and the Bush administration to get Gorsuch onto the federal appeals court in 2006. Now a multi-millionaire, Gorsuch is welcome among that wealthy at Anschutz’ ranch, and he is partners in a company with two of Anschutz’ colleagues. They are so close that Gorsuch has built a vacation home with them.

What Gorsuch says in the hearings means very little because GOP-supported candidates show that their answers mean nothing. Asked in his hearing about the right to vote being “a fundamental constitutional right,” Chief Justice John Roberts said, “It is preservative, I think, of all the other rights.” He said he had no issue with upholding the Voting Rights Act that he gutted eight years later. He also said, about having no agenda, “Judges are like umpires. Umpires don’t make the rules, they apply them.” That was before he pushed the court to the right in outlawing school integration, blocking Medicaid expansion, and allowing—not once but twice—unlimited secret corporate spending for political campaigns.

In the hearings, Gorsuch talked about judicial modesty and not being a “super-legislator,” but his rulings show that he has tried to establish law in ruling against employees in cases involving federal race, sex, age, disability and political discrimination and retaliation claims. In a count, it’s corporation 21, humans 2. There’s a very good reason that big special interests are spending millions of dollars in dark money to push his confirmation.

Republicans praise Neil Gorsuch because he writes well and concisely, because he calls himself a textualist or originalist, and because he votes for big business, big donors, and big bosses. He was hand-picked by the far-right Federalist Society and the Heritage Foundation and has close ties to a conservative billionaire. These are all reasons that he should be opposed. It was rumored that some Democrats would vote to confirm him in exchange for a promise from the Republicans to keep the filibuster for Supreme Court justices. The argument that another candidate might be worse than Gorsuch is invalid because he’s on the far-right edge of current Supreme Court justices’ ideology. In addition, the GOP is not known for keeping its promises.

Keeping the filibuster is of no value if Democrats don’t use it. Democrats should live up to the party’s values and not support a Supreme Court justice who is anti-woman, anti-LGBT, anti-worker, anti-voting rights, anti-education rights, anti-civil rights, and anti-dignity. I want Democrats to develop the same “intestinal fortitude” as the far-right House Republicans who refuse to vote for the new health care act even after the president threatens them with losing their next election. I disagree with the views of these GOP representatives, but I want Democrats to stand for their values in the same way that these conservatives are doing.

Gorsuch will probably be a Supreme Court justice, but Democrats should not be complicit in putting him in that position.

March 22, 2017

Neil Gorsuch: SCOTUS Nominee, Unfeeling Fake ‘Originalist’

Filed under: Judiciary — trp2011 @ 9:55 PM
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Neil Gorsuch, nominee for Supreme Court Justice, is “polite”: that seems to be the consensus on both political sides. But that’s where the agreement ends. The farther right a Senator is, the more he likes Gorsuch, whereas moderates (aka Democrats) are painfully aware of how conservative he is—somewhere to the right of Antonin Scalia. During Gorsuch’s hearings in the Judicial Committee, a unanimous Supreme Court ruling showed how bad Gorsuch is. Four progressives and four conservatives agreed to overturn Gorsuch’s ultra-conservative decision from the 10th Court of Appeals.

The case concerns the Individuals with Disabilities Education Act (IDEA), requiring public schools obtaining federal funding to provide a “free appropriate public education” to certain students with disabilities and bring meaningful education to disabled students. In a lawsuit from an autistic student, parents sought tuition reimbursement from a specialized school for children with autism. Gorsuch’s opinion in Thompson R2-J School District v. Luke P. ruled that educational benefits “must merely be ‘more than de minimis,’” Latin meaning “so minor as to merit disregard.” Gorsuch defined IDEA as requiring education with a little more than nothing, which can be a student sitting in a chair until aging out of the system. The eight justices agreed that a school district’ plan for a disabled student be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Even if the student cannot achieve these marks, the district must do more than the “little more than nothing” standard that Gorsuch required.

The justice nominee defended himself by saying he was “bound by circuit precedent.” Either he is ignorant or lying: in a 1996 opinion, Gorsuch’s court had already ruled that the “benefit” mandated by the IDEA must be more than de minimus. Gorsuch’s opinion added the word “merely” to the ruling which changed the meaning of the decision.

Far Right Views Demonstrated by Gorsuch:

Limited Disabled Rights: In another case about disabled rights, Gorsuch ruled against Assistant Professor Grace Hwang fired by Kansas State University because they denied her a short leave after she had spent her six months leave recovering from a bone marrow transplant for cancer. Concerned that a flu epidemic would endanger her compromised immune system, she had asked to briefly work at home. Gorsuch ruled against Hwang before any evidence was presented about whether her employer would suffer an undue hardship if she were briefly gone. Instead, Gorsuch ruled her request as unreasonable; he claimed that “showing up” was an essential job function and that the Rehabilitation Act should not “turn employers into safety net providers for those who cannot work.” Hwang had “showed up” for the previous 15 years and was able to telecommute during the epidemic. Hwang died two years after Gorsuch ruled against her.

Support of Voter Suppression: As an admirer of Hans von Spakovsky, Gorsuch shows himself a supporter of voter suppression.  Von Spakovsky, special counsel to Associate Attorney General Brad Slozman in 2005, he managed the process to approve Georgia’s strict voter-ID laws, created, according to state Rep. Sue Burmeister to stop fraud by having fewer black voters. A conservative lawyer on the review team was secretly coached by von Spakovsky to achieve voter suppression in the state. Now von Spakovsky has called Gorsuch “the perfect pick for Trump.” Gorsuch’s role model, Antonin Scalia, said that the Voting Rights Act had led to a “perpetuation of racial entitlement.”

Rejection of Civil Rights: Gorsuch’s supervision of the Civil Rights Division during George W. Bush’s time showed serious politicization and lax enforcement of civil rights laws. Nine U.S. attorneys-general were fired because they didn’t find and prosecute voter fraud, even without evidence, leading to the resignation of AG Alberto Gonzales in 2007. During that time, DOJ cases included defense of the Partial-Birth Abortion Ban Act of 2003, the Defense of Marriage Act, the National Security Agency’s warrantless wiretapping program, and detention of prisoners at Guantanamo.

Support of Bush’s post/11 Policies: In the Justice Department, Gorsuch defended such actions as opposing the rights of Guantanamo Bay prisoners to sue in federal court; blocking the release of photographs showing abused prisoners by U.S. military personnel in Iraq’s Abu Ghraib prison; and supporting “enhanced interrogation” (aka torture).

Less Rights for Prisoners: Gorsuch tends to rule against prison inmates bringing complaints about the conditions of their confinement.

Belief in Strong Executive Powers: His emails show that Gorsuch is in favor of the warrantless surveillance program and the method of bypassing the Detainee Treatment Act’s provision banning torture.

Anti-LGBT Positions: Although Gorsuch has never made a ruling on same-gender marriage, his position as “originalist” is code for anti-LGBTQ people because this community isn’t mentioned in the U.S. Constitution. He did reject a transgender woman’s discrimination claim, filed because her school had denied her access to the women’s restroom.

Majority of Rulings in Favor of Corporation against Employees: Gorsuch has consistently upheld arbitration even in flawed contracts, stating, “I just don’t see … how we might rightly rescue [the plaintiff] from the consequences of his choice.” The point is that people frequently cannot make purchases, get loans, or find employment if they refuse to sign a clause mandating arbitration, a secret resolution with arbitrators hired by the companies being protested and allowing corporations to bypass the judicial system. This forced arbitration eliminates the possibility of class action suits and cannot be appealed. An issue that Gorsuch would hear is whether the National Labor Relations Act can bar class action waivers; he has already opposed this position in his general aversion to agreeing with agencies.

Case of the Frozen Truck Driver: Gorsuch ruled in favor of firing Alphonse Maddin, a truck driver who worked for TransAm. In sub-zero temperatures, the brakes on Maddin’s trailer locked from the cold, and his truck cabin’s heat was broken. He called for the company’s road service at 11:17 pm and waited for two hours while his torso and feet grew numb. He called again, and they told him to wait. Thirty minutes later he unhitched the trailer to find heat and lost his job. Maddin filed a complaint with OSHA because the Surface Transportation Assistance Act prohibits a firing if “the employee has a reasonable apprehension of serious injury to the employee or the public.” TranAm claimed the statute didn’t cover Maddin because his trailer was operable. The majority of the panel ruled for Maddin; Gorsuch ruled against him because it was a “simple” case with no ambiguity. Instead he told him that Maddin had either two choices—take the trailer or wait for help to arrive. There was no sympathy in Gorsuch’s statement when he said that the company “permitted him to sit and remain where he was and wait for help.” Gorsuch then provides an inappropriate analogy concluded with “Good luck.”

Defendant’s Right to Counsel: A defendant wanted to take a 10-year prison term for a guilty plea on a second-degree murder charge, but his counsel refused to represent him if he took a deal. The defendant was convicted at trial of first-degree murder and sentenced to life in prison without parole. The 10th Circuit ruled that the defendant’s rights were violated, but Gorsuch dissented.

Religion over Employees’ Rights: Gorsuch thinks that for-profit corporations are human beings and entitled to religious freedom and free speech. In that way they can deny their workers health care insurance, discriminate against customers, and spend millions to influence elections.Through his beliefs he has denied workers in cases about sexual harassment, workplace safety, and unfair labor practices. Gorsuch was one of the judges who allowed Hobby Lobby to deny contraceptive insurance for workers although it was mandated by law because the law would “burden” the company’s religious rights. Gorsuch finds the “religious freedom” law to be a “super-statute” above all other laws. He disagrees that contraceptive use is “a private matter of individual choice.”

Erasure of Death with Dignity: The nominee also opposes “death with dignity,” allowing terminally ill people the right to take drugs to hasten their deaths, now legal in six states. In 2006, Gorsuch, a Catholic, wrote The Future of Assisted Suicide and Euthanasia in which he opposes these practices, including the death with dignity, an opinion that he holds to this day.

Defunding Planned Parenthood: Gorsuch was in the minority in a Utah case that attempted to defund Planned Parenthood, relying on heavily edited videos from anti-abortion advocate David Daleiden in his attempt to smear Planned Parenthood. Six conservative states failed to defund Planned Parenthood because of the videos, and again Gorsuch was in the minority in supporting the defunding.

These are some perspectives that Gorsuch has evidenced. More about the nominee in the next part.

January 31, 2017

Supreme Court Nominee, Lack of Independent Judiciary

Republicans said last year that no Democratic president would ever put a justice on the Supreme Court, starting with their refusal to vet President Obama’s nominee, Merrick Garland, nominated almost one year before the end of the president’s term. Today Donald Trump (DT) drew attention away from his Muslim ban on entering the U.S. by his appointment for this position.Supreme Court nominees can be filibustered unless Senate Majority Leader Mitch McConnell (R-KY) changes the rule to a simple majority.

DT’s nominee: Neil Gorsuch, 49, judge on the Denver-based 10th U.S. Circuit Court of Appeals covering six Western states; the son of perhaps the most corrupt head of the Environmental Protection Agency in its history; attends Episcopalian church; appointed by George W. Bush in 2006; would be the most conservative judge on the court except for Clarence Thomas; opposes assisted suicide, legal in six states, because “human life is intrinsically valuable”; sided with Hobby Lobby in viewing contraception as immoral and defunding Planned Parenthood; falsely described birth control drugs and devices as having the effect of “destroying a fertilized human egg”; believes that business owners have religious liberty claims over their employees’ statutory right to access preventive health care; favors Christian religious expression in public spaces; endorses lack of gun safety laws; opposes agency regulatory power to consolidate power within the judiciary; is originalist, interpreting the Constitution as it was understood at the time it was adopted; opposes using the court for social reform; endangers labor and environmental protections, immigrants, and criminal defendants; most likely supports “religious liberty” to escape anti-discrimination laws; co-founded the ultra-conservative publication The Federalist; wants police to be immune from lawsuit for official actions unless “clearly established” law is violated.

In short, Gorsuch as Supreme Court justice would reward corporations and the Koch brothers and penalize voters, workers, women, and the planet. The question is whether DT appointed Gorsuch because the Democrats will filibuster against him and then go with Thomas Hardiman. Another question is how this nomination connects with the Department of Justice.

In his campaigns, Donald Trump (DT) promised to protect the U.S. Constitution. On Day Seven of his presidency, he issued a Muslim ban that violates up to three constitutional amendments, and on Day Ten he fired Sally Yates a few hours after the Acting Attorney General upheld the Constitution. DT claimed that she “betrayed the Department of Justice” and made the country less safe.

The last president to fire an Attorney General was Richard Nixon when Richard Nixon, who fired his AG and Deputy AG in the “Saturday Night Massacre” because they denied his order to dismiss the Watergate Special Prosecutor. Yates replacement is Dana Boente, U.S. Attorney for the Eastern District of Virginia, until Senate confirms a person for AG. He said that he would order the DOJ to defend DT’s Muslim ban. At this time, Sen. Jeff Sessions (R-AL) is being reviewed by the complete U.S. Senate.

In a letter to Justice Department lawyers, Yates stated that the DOJ must take positions in court that “remain consistent with this institution’s solemn obligation to always seek justice and stand up for what is right.” She also pointed out that the DOJ’s mission is to defend and uphold the Constitution based on established legal precedents. Almost a year ago, she wrote a memo to employees that they must “ensure that politics does not compromise the integrity of our work.”

Concluding that DT’s Muslim ban failed to meet basic constitutional and moral tests, she said she would not assign federal attorneys to show up in court to defend the policy in court. The New York judge granting a temporary restraining order stopping the ban declared that it was likely unconstitutional.

During her 27 years with the DOJ, Yates prosecuted “numerous white-collar fraud and political corruption matters.” She was confirmed as Deputy Attorney General with 85 votes in 2015. Sen. Chuck Grassley (R-IA), chair of the Senate Judiciary Committee, said:

“I supported her nomination, both in Committee and today in the full Senate, and I hope that she will show independence as she provides leadership at the Department. As she told us during her hearing, she is aware that her client is, ‘The people of the United States… not the President… not the Congress, it’s the people of the United States.’”

Sessions, now an anti-Constitution nominee for AG, supported Yates positions:

“Well. you have to watch out, because people will be asking you to do things you just need to say ‘no’ about. Do you think the attorney general has a responsibility to say no to the president if he asks for something that’s improper? [„,] If the views the president wants to execute are unlawful, should the attorney general or the deputy attorney general say no?”

Yates answered that the AG or Deputy AG had the responsibility to follow the law and the Constitution with “independent legal advice to the president.” Sessions followed up:

 “Like any CEO, with a law firm — sometimes the lawyers have to tell the CEO: ‘Mr. CEO, you can’t do that. Don’t do that. We’ll get us sued. It’s going to be in violation of the law. You’ll regret it, please.’ No matter how headstrong they might be. Do you feel like that’s the duty of the attorney general’s office?”

Yates agreed with the 2015 Sessions by saying, “I do believe that that’s the duty of the attorney general’s office, to fairly and impartially evaluate the law and to provide the president and the administration with impartial legal advice.” The year 2017 has a very different president, and Sessions, if confirmed for AG, plans to support the president who lacks respect for the document that Republicans promise to revere.

White House press secretary, Sean Spicer, defended the Muslim ban by citing the tragic attack on a Quebec mosque that killed six people and wounded another eight but made no reference that this was an attack on Muslims. The alleged attacker on the Muslims was Alexandre Bissonnette, a pro-Trump white French Canadian who was known for making anti-immigrant and misogynist remarks. Justin Trudeau accurately called it a terrorist attack on Muslims. Yet the Fox network and the Gab messaging service misinformation insisted on identifying a man of Moroccan descent as a suspect and not a witness.

Another DT defense of the Muslim ban is the attack in San Bernadino by Tashfeen Malick on a K1 visa. Malik was from a wealthy Pakistan family and later moved to Saudi Arabia; neither country is on DT’s list of banned countries. Her husband, who participated in the attack, was a U.S. citizen.

Asked about the five-year-old Iranian boy detained over the weekend in response to DT’s new Muslim ban, Spicer replied, “To assume that just because of someone’s age or gender or whatever that they don’t pose a threat would be wrong.” An 11-month-old baby, a U.S. citizen, was separated from the mother, a legal permanent resident who the Muslim ban tried to deport. The mother was kept from breastfeeding her child.

The press secretary also lied in his references to President Obama’s 2011 policy temporarily delaying visas for Iraqis. And Homeland Security and border patrol officials ignored court orders to release the detainees or even let lawyers see them.

DT also moved James Ragsdale, the Acting Director of Immigration and Customs Enforcement (ICE), to his former position with no explanation. He was replaced with Thomas Homan,  “deporter in chief” who deported at least 920,000 people and “spearheaded the management and reform of the largest civil detention system in the nation” by adding detention beds. An executive order signed by Mr. Trump last week calls for tripling the number of deportation agents. DT has now indicated that he intends to emphasize Homan’s harsh enforcement measures.

The possible confirmation of Jeff Sessions as AG is a continuing constitutional crisis exemplified by the firing of Sally Yates. White supremacist Steve Bannon said that he and Sessions are at the center of Trump’s “pro-America movement” and the global nationalist phenomenon. Bannon claims that the nation is “witnessing now is the birth of a new political order, and the more frantic a handful of media elites become, the more powerful that new political order becomes itself.” Sessions has refused to recuse himself from any investigations into DT, his family, his aides, his conflicts of interest—anything that would challenge DT. And he’ll have the support of the white supremacists.

DT’s firing Yates goes far beyond unconstitutionality of the Muslim ban to raise questions about his commitment to the Constitution and the law of the land. He has said that federal district judge, Gonzalo Curiel, could not properly adjudicate a fraud lawsuit against Trump University because his parents were born in Mexico. DT would “instruct the attorney general to get a special prosecutor to look” into Hillary Clinton if he got elected and suggested he would break the law by waterboarding terrorism suspects.

Firing Yates also raises questions about DT’s relationship with the judiciary, which is intended to be an independent government branch. Did DT require commitments from his new nominees, Sessions and Gorsuch? Would he directly contact them about personal complaints? Or push them toward decisions that he wants?

The United States may be in the midst of a coup, “a change in power from the top that merely results in the abrupt replacement of leading government personnel”–a massive power grab by people who hate the rule of law.


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