Justice Brett Kavanaugh

No, Anti-Kavanaugh Obsessives, Attending A Holiday Party Does Not Constitute “An Appearance Of Impropriety” [Corrected]

/ Jack Marshall / 6 Comments

Ooooh, scary! Politico reported that Justice Brett Kavanaugh attended a private holiday party last week at the home of Matt Schlapp, chairman of the Conservative Political Action Coalition (CPAC). Attendees included Stephen Miller, whose group America First Legal Foundation, it reported, “has interests in cases now pending before the court.”

Bloomberg Law seems to think social engagements over the holidays aree suspicious actions triggering “the appearance of impropriety” prohibitions all judges are told to avoid. They are not. The problem is that now there is a glut of committed ideologues determined to intimidate, neutralize and delegitimatize the Supreme Court, and to those biased critics, virtually anything a conservative justice does appears improper. In Kavanaugh’s case, unsubstantiated juvenile conduct while in high school was cited as sufficiently improper to overshadow his impeccable record as an adult judge.

Attending a party with people who “live, eat, and breathe conservative political action” is either reflective of a level of insensitivity to that development or indifference to it, says Charles Geyh, an Indiana University Maurer School of law professor. “This is the worst possible time for this,” he said. “That development” is the Court being unjustly and disingenuously attacked for legitimate and legally justifiable decisions that the Left hates. The prohibition against “the appearance of impropriety” means conduct that could be reasonably and objectively seen as improper, not conduct that partisan fanatics find convenient to call improper. Professionals like lawyers, politicians and judges should be capable of interacting socially with those they may disagree with, and there should be no adverse inferences from accepting a private party invitation. As the late Justice Scalia insisted, even Supreme Court Justices are entitled to a social life. If the job requires living like a cloistered monk, no one will want the job.

Continue reading →

To Be Fair, Some Conservatives ARE Hysterical Over The SCOTUS Decision in Bostock….

/ Jack Marshall / 43 Comments

… which is sad. Gerald Bostock, Aimee Stephens and Donald Zarda, the appellants in the three cases decided yesterday, were discriminated against by their employers for no other reason than what they were, or had decided to be.  In a 6-3 decision, the Supreme Court decided that this breached  the landmark 1964  civil rights legislation which banned discrimination in the workplace on the basis of race, religion, and gender, or what the law called “sex.”

This morning I criticized the Times for a cut line  in its print edition that read “A Trump justice delivers an LGBT ruling that demoralizes the Right” as a gross exaggeration and “psychic news” —how does the Times know that conservatives are “demoralized”? However, I did recently encounter an article in The Federalist by a conservative who not only was apparently demoralized by the decision, but driven to the edge of madness. In all fairness, I thought I should mention it.

Joy Pullman, the author, is a Hillsdale College grad and an executive editor of the Federalist, which will lead me to be a bit more careful using the magazine as a source in the future.

As a preface, I note that Pullman isn’t a lawyer, and I see nothing in her background that suggests qualifications to analyze a Supreme Court decision. Indeed, I see nothing in the article that suggests that she read the majority opinion and the dissents. I’m guessing that she read a news article about the decision, or maybe a critical blog post. Well, a non-lawyer can only criticize a SCOTUS ruling according to his or her policy and ideological preferences. I don’t know why the Federalist would entrust an essay about the decision to someone like Pullman, though she is an executive editor.

Hear are some extreme and irresponsible statements from the piece, which has an extreme and irresponsible title that kindly warns us of the hysteria to come: “SCOTUS’s Transgender Ruling Firebombs The Constitution”: Continue reading →

In A 6-3 Vote, SCOTUS Holds That Workplace Discrimination Against Gay and Transgender Employees Violates Existing Federal Law

/ Jack Marshall / 37 Comments

Back in October I wrote about these cases, including the case involving whether businesses requiring employees to dress in traditional gender-specific garb discriminated against transgender workers without violating federal civil rights law.  Solicitor General Noel Francisco and other Justice Department attorneys argued just that , claiming that Congress didn’t intend to include transgender status when it passed Title VII of the 1964 Civil Rights Act (I think that’s obvious), so the law’s ban on discrimination because of “sex” referred only to unequal treatment of men and women in the workplace.  In  R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, the Justice Department opposed the position of the Equal Employment Opportunity Commission that the firing of  former funeral home director Aimee Stephens after she announced she would transition from male to female violated the Act, arguing that redefining sex discrimination was a job for Congress, not the courts. I wrote at the time,

It seems clear that giving LGBTQ Americans the same protection against discrimination as other minorities is the ethical course. This seems to be a technical dispute over whether the Courts or Congress should  fix the problem. That argument is worth having, and I would not be shocked in a SCOTUS majority said that the omission in the law was unjust, but it was not the Court’s job to fix it. In the long run, it will be illegal to discriminate against LGBTQ citizens in the workplace, as it should be. The only question is how drawn out, angry and divisive the process will be to get there.

Well, we have our answer. Continue reading →

Let’s Knock Down Another Partisan False Narrative, Shall We? Republican National Committee v. Democratic National Committee

/ Jack Marshall / 6 Comments

“How the Supreme Court Curtailed The Right To Vote For Thousands” is the New York Times headline about the Wisconsin elections fiasco this month. The headline is misleading and inflammatory, insinuating that the Court majority aided and abetted a Republican effort to suppress votes. In fact, the majority, headed by Justice Kavanaugh, followed the law. I don’t know if Jim Rutenberg and Nick Corasanti, who wrote the story, actually read the opinion they are criticizing. I wouldn’t bet my life on it.

Luckily, Professor Turley was irritated about this, and explained why the narrative was garbage ten days ago. In a blog post titled, “No, The Supreme Court Did Not Just Help Rig The Wisconsin Election,” Turley wrote in part (but read it all):

…The decision of the Supreme Court to reverse the decision of a district court judge on extending the voting for the Wisconsin election this week has generated breathless headlines and comparisons to the Bush v. Gore decision in the 2000 elections. Such hyperbolic language aside, the decision was actually quite narrow and well-supported. Moreover, the dissent is chastising the majority for denying relief that the Wisconsin Democrats never requested from the District Court in their original preliminary injunction motion.

Translation: the minority, made up of Democratic appointees, were taking a partisan position based on politics, exactly what the Times reporters accused the conservative majority of doing.

The issue in Republican National Committee v. Democratic National Committee was not whether an election would be held this week in Wisconsin. … the Wisconsin Supreme Court blocked Gov. Tony Evers’ late executive order postponing in-person voting in Tuesday’s elections — specifically postponing the state’s presidential primary and hundreds of local elections. Evers’ took the unilateral action after he was refused his request by a special legislative session…. Evers previously admitted that “my hands are tied” in ordering a delay of the election and the legislature would have to do so. It then proceeded to refuse to do so. Evers then declared that he had the authority after all.

Got that? The Governor fist said that he didn’t have the power, then reversed himself when the legislature, which did have the power, refused to do what he and his party wanted. But as Turley points out, he was right the first time, since “his authority was transparently weak…He does not have that express unilateral authority under existing law.”

Turley goes on to say that he agrees with the governor that holding the election posed  “am unnecessary risk and forces citizens to choose between minimizing their exposure and declining to participate in the election. …However, this is ultimately a question for the state legislature.” If the law says it’s the legislature and only the legislature that can postpone an election, the fact that one party really really really wants it postponed doesn’t and can’t change the law, even if that party happens to be right.

OK,  pay attention now, because this is a mess: Continue reading →

Ethics Dunce: Senator Chuck Schumer [CORRECTED]

/ Jack Marshall / 30 Comments

“I want to tell you [Justice] Kavanaugh, I want to tell you [Justice] Gorsuch: You have unleashed a whirlwind, and you will pay the price.You won’t know what hit you if you go forward with these awful decisions!”

—–Democratic Senate leader Chuck Schumer, sounding like Sonny Corleone, in front of the Supreme Court.

How many ways was this demagoguery wrong, as in spectacularly unethical? Let’s see:

  • Schumer  threatened Supreme Court justices, by name. What does “pay the price” mean, if not, “Just you wait, you’re gonna regret this!”

There is no possible justification for such ominous rhetoric

  • It is an attempt at intimidation as well as  encouragement to others to follow through on Schumer’s threat. This prompted Chief Justice Roberts into a making an unprecedented protest, as he wrote, “Statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All members of the Court will continue to do their job, without fear or favor, from whatever quarter.”

Perfect.

Even addled Larry Tribe, the former Harvard Law School icon turned mad anti-Trump tweeter and conspiracy-monger, called Schumer’s outburst intolerable, tweeting,

These remarks by @SenSchumer were inexcusable. Chief Justice Roberts was right to call him on his comments. I hope the Senator, whom I’ve long admired and consider a friend, apologizes and takes back his implicit threat. It’s beneath him and his office.

Prof. Jonathan Turley joined the chorus and wrote, Continue reading →

Morning Ethics Warm-Up, 5/14/19: Tlaib And Kavanaugh.

/ Jack Marshall / 68 Comments

Good morning,

I hope…

1 Social Q’s ethics. I’m whomping the advice columnist in the Ethics Alarms poll regarding whether complimenting someone on weight loss can be reasonably taken as offensive by the object of praise. Looking at the same column, I have decided that Mr. Gallanes was just having a bad day. Another inquirer complained that he sleeps with her bedroom window open, and is often awakened in the morning when the next door neighbor takes his dog out for a 5 am walk, a ritual, she says, that is always preceded by his “disgusting” coughing. The advice columnist suggested that she ask him to do his disgusting coughing inside. Yeah, THAT will go over well. If you insist on leaving your window open, you have no standing to protest sounds that would not be heard if you kept it closed. Given the choice between waking one’s spouse with the morning hacking that most men of a certain age can identify with, and getting all the morning phlegm up while walking the dog, the latter is the wiser and more ethical choice.

2. Supreme Court ethics and pro-abortion fear-mongering.

a.) Somehow it was reported as news akin to squaring the circle that Justice Kavanaugh joined with the four typically liberal justices in a 5-4 ruling yesterday that left Thomas, Gorsuch, Roberts and Alito licking their wounds. This is non-news. It was a dishonest partisan smear on Kavanaugh to suggest that he would be a mindless puppet in lock-step with conservatives on every issue. Justices consider cases in good faith, and the fact that their judicial philosophies make some decisions predictable doesn’t mean, as non-lawyer, non-judge, political hacks seem to think, that they will not judge a case on its merits rather than which “side” favors a particular result.

b) Kavanaugh did join the conservative justices in a ruling that overturned a 1979 case in which the Court had allowed a citizen of one state to sue another state. This decision, being a reversal of an older case, immediately prompted the publication of fear-mongering op-ed pieces warning that the evil Court conservatives, having re-read and enjoyed “The Handmaiden’s Tale,” were slyly laying the ground for a Roe v. Wade reversal with a case that had nothing whatsoever to do with abortion. Don’t you see? Stare decisus is the SCOTUS tradition that older cases will generally not be overturned by later Courts, lest Constitutional law be seen as unstable and too fluid to rely on. Garbage. Stare decisus has never been an absolute bar to reversing a wrongly decided case, so no new affirmation of that fact is necessary. In addition, the case overturned yesterday was a relatively obscure case that seldom comes into play, exactly the kind of case in which a reversal is minimally disruptive. Roe, on the other hand, has become a foundation of supporting law and social policy. That doesn’t mean it can’t be overturned, but it does mean that the protection of stare decisus is strong. Continue reading →

Conclusion: If #MeToo Has No Integrity, Then It Is Doomed, And Deserves To Be

/ Jack Marshall / 31 Comments

When the #MeToo movement emerged, the idea appeared to be that women (and men!) should speak out about sexual assault and sexual harassment, that powerful people should not feel entitled to take physical liberties with others, and that the culture needed to unequivocally and clearly condemn such conduct. Like most abstract concepts, it sounded good in theory, until—

—the question about what constituted sexual assault and harassment remained unanswered, because in so many cases it is a matter of perception and perspective.

—basic due process and the presumption of innocence were ignored, minimized, or jettisoned entirely, turning the accused into victims themselves

—Democrats sought to weaponized the movement politically, raising questions about motive, equal justice, and bias, and turning what should have been a bi-partisan movement into a cynical partisan one.

—The “women must be believed” mantra, discriminatory, unjust and ridiculous on its face, became part of the narrative and burst into open misandry and outrageous double standards.

Then the Harvey Weinstein Ethics Train Wreck collided head-on with the Brett Kavanaugh Ethics Train Wreck, and here we are among ethical and cultural carnage.

Good job, everybody!

Now here’s where we are: Continue reading →

Sunday Morning Ethics Warm-Up, 10/14/18…Stretching the Truth: Fake Accusations, Fake Supreme Court News, Fake Fake Doctors

/ Jack Marshall / 29 Comments

Good Morning!

1.Who Could Have Predicted That Black Men Would Identify With Brett Kavanaugh?,cont. From the New York Times yesterday:

A white woman who called police after claiming that a young black boy touched her behind in a Brooklyn deli drew a storm of ridicule and criticism on social media, and late Friday she made a public apology to the child.

Critics characterized the incident as the latest example of a hypersensitive white person calling the police to report black people for dubious reasons. Many detractors imputed racist motives to the woman, Teresa Klein.

She was quickly labeled “Cornerstore Caroline” by Jason Littlejohn, 37, a lifelong Flatbush resident who recorded the commotion Wednesday outside the Sahara Deli Market on Albemarle Road. Littlejohn’s Facebook recording of the incident had been viewed 4 million times by Friday evening.

“I was just sexually assaulted by a child,” Klein is heard saying on the video as she was on the phone with the police. The boy, who is about 9, and another child burst into tears outside the store as bystanders confronted Klein about the incident. “The son grabbed my ass and she decided to yell at me,” Klein continued in the video, referring to his mother. The video was first reported by The New York Post.

I just don’t think the Left thought through this “believe all women who claim to be victims” bit. And I’m still confused about the rules. You have to believe a white woman who accuses a white high school kid of sexual assault if she remembers it 30 years later, but you don’t have to believe a white woman who accuses an even younger kid immediately, if he’s black? Does it matter if she’s black? If the accused was a white high school kid, then would everyone have to believe her?

2. Newton’s Third Law! From the Huffington Post: 

Minutes after an event at a Manhattan Republican club meant to celebrate violence against leftists, attendees belonging to a proto-fascist, pro-Trump street gang reportedly pummeled three people on the sidewalk in Manhattan’s Upper East Side while shouting homophobic slurs.

Footage posted online by video journalist Sandi Bachom shows a group of men who appear to be Proud Boys — a misogynistic and anti-Muslim fraternity known for committing acts of political violence across the country — kicking and punching three apparent anti-fascist protesters as they lay prone on the sidewalk.

“Do you feel brave now, faggot?” one of the attackers yelled, according to Bachom and another journalist, photographer Shay Horse. Another video shows multiple attackers yelling “faggot.”

HuffPo, being smear-meisters, calls the group “Pro-Trump” in its headline. I don’t recall any news source calling the antifa a “pro-Obama group” when it was running amuck punching people on Inauguration Day. Speaking of the antifa,  here’s a tweet from a Portland journalist from October 8: Continue reading →