About the “So-Called” Judge’s TRO

robart

Ethics Alarms had a revealing comment on the post about the grandstanding and unethical ex-acting-Attorney General’s  breach of her duty to represent her client regarding the President’s Middle East immigration Executive Order. Following Judge Robart’s temporary restraining order (or TRO), the reader said, in essence, ‘See? She was right! The order was illegal, just like she said it was!’ The comment was idiotic on its face on many levels, yet it was also a fair summation of how partisan citizens have viewed the controversy. The various TROs validate the criticism of the Executive Order in their minds. They don’t, however. Judge Robart’s order particularly doesn’t. In fact, it is infuriatingly vague.

Now, a TRO doesn’t necessarily have to explain in detail what is wrong with a law, regulation or order. The purpose of this judicial act is to stall a measure that has the potential of causing a lot of disruption, unhappiness or expense from going into effect until there can be a decisive determination that it is legal, constitutional and within the power of the government entity that issued it. A judge issuing a TRO must conclude that the objection to the act is substantive, that the party applying for the TRO has a substantial chance of prevailing on the merits, and that the party has standing to object. The judge does not have to conclude that the party asking for the order is right, just that the party may be right.

However, reading Judge Judge Robart’s order, one can glean no clue as to why the TRO was justifiable, and why it is so sweeping. Although the judge writes in his conclusion that…

The work of the court is not to create policy or judge the Wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. …

[T]he court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government.

…the order never states what is illegal or unconstitutional in his view.  This omission has led many analysts to conclude that there isn’t anything. He just doesn’t like the order. Much has been made of the fact that Robart was a Bush appointee, so the order isn’t “partisan.” Of course, the same people making this argument, in other settings, would maintain that a Bush appointment is just a bad judge. Many, many, many Republicans  and conservatives detest the President, and especially, one should remember, the Bush family. It is far from unlikely that bias against the President caused Judge Robart to employ poor judgment. Democrats cite the fact that Rorart is a conservative as part of a wonderfully convenient construct: if a conservative judge opposes them, the fact that he’s a conservative means he’s wrong, and if a conservative judge agrees with them, the fact that he’s a conservative means he’s right.
Some of the exchanges in the hearing that led to his order directly contradict his written statement that he is not questioning the wisdom of the order rather than challenging its legality.

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Ah! So THAT’S What’s Going On In North Carolina!

Somehow the story isn't clear without Elsa in the picture, it it?

Somehow the story isn’t clear without Elsa in the picture, it it?

While national Democrats were desperately and embarrassingly search for some way, any way, to overturn the election of Donald Trump, the mania reaching apotheosis in the unhinged rantings of Michael Moore—“Trump is not president until 12 noon on Jan 20th. So we’ll continue to fight & hope to find a legal, nonviolent way to stop this madness,” the “madness” known as “losing an election”—Democrats, news media, and op-ed writers in the New York Times (but I repeat myself) have been loudly condemning the North Carolina Assembly as part of a condemnation of Republicans generally. After narrowly losing the State House, the overwhelmingly Republican legislature has been passing measures to limit the power of the incoming Democratic governor  in a lame-duck legislative session. The changes drastically reduce the number of officials the governor can appoint within state government, require legislative confirmation of Cabinet-level appointments, eliminate partisan majorities in the state board of elections and strip the governor of the power to make appointments to the University of North Carolina Board of Trustees.

This is, according to Slate’s Mark Joseph Stern, for example, a “last-minute power grab” that “marks an alarming departure from basic democratic norms—a blatant attempt to overturn the results of an election by curtailing judicial independence and restructuring the government to seize authority lawfully delegated to the incoming Democratic governor.” By the end, he is foaming at the mouth with indignation:

“What’s happening in North Carolina is not politics as usual. It is an extraordinarily disturbing legislative coup, a flagrant effort to maintain one-party rule by rejecting democratic norms and revoking the will of the voters. It is the kind of thing we might expect to see in Venezuela, not a U.S. state. It should terrify every American citizen who believes in the rule of law. This is so much more than a partisan power grab. This is an attack on democracy itself.”

I was preparing to write something similar, but unlike Stern, I did some research first. What I discovered, however, thanks to the work of Volokh Conspiracy contributor Jonathan Adler, a Case Western law professor, was that as unethical as the General Assembly’s power grab is, the tactic is business as usual in the Tarheel State. Adler points his readers to the research of John Hood, who informs us…

Precisely four times in modern North Carolina history, voters have elected a new governor or lieutenant governor of one party and legislative majorities of the other party. In all four instances, the legislature stripped the newly elected executives of some power.

In the first three instances — Republican Gov. Jim Holshouser’s election in 1972, Republican Gov. Jim Martin’s election in 1984, and Republican Lt. Gov. Jim Gardner’s election in 1988 — a Democratic legislature did the stripping. As Martin’s biographer, I’m most familiar with his experience. Lawmakers limited his ability to staff agencies (including the State Board of Elections), subjected other appointments to constraints or confirmation, and withdrew gubernatorial control over state construction and administrative hearings, among other actions.

In each case, Republicans cried foul. Democrats insisted they were simply carrying out North Carolina’s longstanding preference for legislative supremacy….

Democrats upset with the special session might have been more persuasive had they chosen a different rhetorical strategy. Every time they accused GOP lawmakers of “unprecedented” acts, of “contempt for democracy,” of being “sore losers” and the like, all Republicans heard was hypocrisy. What happened in 2016 was different in detail, but not much in degree, from what happened in the past. A better argument would have been, “Yes, we Democrats went too far when we were in power. It often came back to bite us. Don’t make the same mistake.”

I am all for breaking the cycle. That will inspire greater trust and long-term thinking, from both sides.

That pretty well sums up my position too. Continue reading

The Daily Beast’s Nico Himes Tricks Gay Olympian Athletes Into Revealing Themselves And Their Sexual Orientation To Him…And His Editor Sees Nothing Wrong With That [UPDATED]

_Sex-in-VillageThis is another one of those stories that makes me wonder it it’s time to switch fields. My current one feels especially futile this week.

The sleazy feature story from the Daily Beast’s Nico Hines was about how Olympic athletes were hooking up for hot, sweaty, muscle sex in Rio. Hines writes…

“Perhaps the question most people have is: How do the rest of us get an invite? Can an Average Joe join the bacchanalia?”

That’s right: that’s what most people think about when they watch the Olympics. Good lord. The creep continues:

After 60 minutes in the Olympic Village on Tuesday evening, I’m surprised to say that the answer is “yes.”Armed with a range of dating and hookup apps—Bumble, Grindr, Jack’d, and Tinder—your distinctly non-Olympian correspondent had scored three dates in the first hour. Athlete profiles on the various apps during my short exploration included a track star, a volleyball player, a record-holder in the pool, a sailor, a diver, and a handball player.

There is one teeny ethics problem. Well, several. The obvious one is that he wasn’t looking for real dates, just trying to see if he could attract some. That’s deception. It is an obvious Golden Rule breach, as well as misconduct in any other ethical system. It is like advertising a job opening to write a story about how many desperate unemployed people apply for job openings. How dead do your ethics alarms have to be not to instantly understand this? Well, as dead as Nico’s and the Daily Beast’s, I suppose.

Here’s the smoking gun quote:

For the record, I didn’t lie to anyone or pretend to be someone I wasn’t—unless you count being on Grindr in the first place—since I’m straight, with a wife and child. I used my own picture (just of my face…) and confessed to being a journalist as soon as anyone asked who I was.

Isn’t that great? Nico didn’t lie, except to suggest that he was looking for sex when he wasn’t, or pretend to be someone he wasn’t, other than pretending to be gay by the very fact of posting on Grindr, a gay social media site that exists so gay men can find other gay men seeking hook-ups.

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Now THIS Is Hate Speech…No, Wait, It’s A Gay Writer Hating A Straight Baseball Player, So It’s All Good

Daniel Murphy

 

In March, in a post about Dr. Ben Carson’s awful apology for his ignorant statement on CNN about prison turning prisoners gay, I compared his ignorance to that of Mets second-baseman Daniel Murphy, who had just listened to Billy Bean, a former major league baseball player who is gay, and had been appointed as the sport’s “ambassador for inclusion.”  Murphy said,

“I disagree with his lifestyle.I do disagree with the fact that Billy is a homosexual. That doesn’t mean I can’t still invest in him and get to know him. I don’t think the fact that someone is a homosexual should completely shut the door on investing in them in a relational aspect. Getting to know him. That, I would say, you can still accept them but I do disagree with the lifestyle, 100 percent.”

His statement loosely translated means, “I don’t know anything about gays except what I have been told by people who also know nothing about gays but think they do.  I believed all of it, since, honestly, I don’t think about the topic much. But the question was about whether the fact that a team mate was gay would cause me to distrust him or not want to play with him, and my answer is no.”

Later Murphy elaborated,

“Maybe, as a Christian, that we haven’t been as articulate enough in describing what our actual stance is on homosexuality. We love the people. We disagree the lifestyle. That’s the way I would describe it for me. It’s the same way that there are aspects of my life that I’m trying to surrender to Christ in my own life. There’s a great deal of many things, like my pride.”

I mentioned Murphy then because he, unlike Carson, is just a baseball player, and his having ignorant ideas about gays (what does “disagreeing” with the fact that someone is gay even mean? He’s gay–you can’t “disagree.” Anyone using “lifestyle” to describe gays has just written his ignorance in sky-writing. If one knows any gays at all, the idiocy of this is manifest. What would ever make an 8 year old wake up one morning and say, “I’ve weighed the options, and made my choice: I want to be gay!” This literally never happens.) and stating the ideas out loud only hurts Murphy, while Carson’s ignorance is relevant to the job he’s seeking and his qualifications for it. Carson is a narrow, biased, irresponsible amateur, and thus unqualified to hold office. Nobody, however, should care what Murphy thinks, as long as he can hit and field his position.

For someone who is clueless, Murphy’s comments are even admirable. He’s not going to judge a man’s character based on “his lifestyle” or wish him ill, which makes him infinitely preferable to Slate’s gay issues blogger, Mark Joseph Stern. Continue reading