Strangely, many of the same people who are claiming that democracy is hanging by a thread or two are also trying to fray a rather obvious thread, the right to free expression and free speech. Since that First Amendment thingy is a bear, they have to find ways around it that will stifle ideas, opinions and arguments that interfere with the “greater good”.”” (as they see it, natch). Or pretend the First Amendment “isn’t what it is” (#64).
Recent developments:
Judges are proving less partisan and ideologically driven than the increasingly totalitarian Left had hoped.
1. In Vitolo v. Guzman, the 6th U.S. Circuit Court of Appeals at Cincinnati ruled last week that the federal government violates the equal protection clause when it considers race or sex in in allocating Wuhan virus relief funds. Following the same track as the earlier case discussed here, the Court agreed that the U.S. Small Business Administration violated the Constitution by giving preference to minority- and women-owned restaurants.
Antonio Vitolo and his wife own a restaurant called Jake’s Bar and Grill. Vitolo is white, his wife is Hispanic, and they each own 50% of the restaurant. Of course, Jake could have gamed the easily manipuated SBA system by just handing his wife the extra 1%. The government requires small businesses to be at least 51% owned by women, veterans or “socially and economically disadvantaged” people to jump to the head of the line, because someone is presumed to be socially disadvantaged if they are a member of a designated racial or ethnic group. A person is considered economically disadvantaged if they are socially disadvantaged, and they face diminished capital and credit opportunities. In such a system, whether the business owner being given preference has actually been disadvantaged doesn’t matter. He or she is presumed to be disadvantaged. This nicely follows the circular logic of Critical Race Theory.
The group preferences are taken into consideration during the first 21 days in which the Small Business Administration awards the pandemic grants to restaurants. After priority applications submitted during that period are processed, the Small Business Administration processes grant requests in the order that they were received. That is, white men come last.
The 6th Circuit majority said Vitolo and his wife are entitled to an injunction forcing the government to grant their application, if approved, before all later-filed applications, and that their color and gender should be irrelevant. The government did not demonstrate a “compelling interest” justifying preferences based on race or sex.
This is why all Americans should be grateful for President Trump’s judicial nominees.
In 2015, a group of 21 children (<cough> I’m sure this was the children’s idea, aren’t you? Sure you are) filed a lawsuit that came to be known as Juliana vs. the United States. This pure abuse of the legal system to engage in climate change hysteria grandstanding asserted that the government was violating their constitutional rights by not sufficiently addressing the climate change crisis. The case should have been thrown out years ago, but last week, the 9th Circuit Court of Appeals finally did it.
Well, good. The fact that it took this long was a disgrace, and the result of “Think of the children!” pandering. The 9th Circuit being the residue of judicial activism and liberal bias that it has long been, however, it couldn’t restrain itself from writing, “The panel reluctantly concluded that the plaintiffs’ case must be made to the political branches or to the electorate at large,.”
panel concluded. Whoever one the three judge decided that the word “reluctantly” belonged there should be forceably retired. “The panel reluctantly concluded that the United States Constitution does not permit courts to dictate national policy, nor citizens, especially those without voting privileges, to bypass our system of governance because they disagree with its policies” is what that word is telling us, and a judge who regrets how the separation of powers operates to that extent does not belong on the bench. Maybe they belong in President Elizabeth Warren’s cabinet, as she announced this week that she would eliminate student loan debt “on day one.” Lord, this woman is a shameless liar!
But I digress. Sorry. Warren’s name is becoming like “Niagara Falls” to me in the old vaudeville skit….
Or rather, “yecchhh!”
1. Ben Carson doesn’t think women’s shelters should admit men identifying as women. Obviously, he must be destroyed. Has there ever been a tiny minority that has triggered so many gotchas and excessive controversies like trans citizens?
Let me stipulate that Ben Carson has no business being Secretary of HUD, as he is completely unqualified and possessed of narrow brilliance in an unrelated area and crippling dufus-ness in all others, so this goes in the “Stop Making Me Defend Ben Carson” files.
Nonetheless, the current outrage over remarks he made in a closed-door meeting with roughly 50 HUD staffers at the agency’s San Francisco office are contrived, and blatant virtue-signaling to the hyper-sensitive Democratic base.
Let me also stipulate that Carson is an idiot for not being able to figure out that in any group of San Francisco residents there would be several just looking for a “Ben Carson is an anti-trans bigot” smoking gun.
Carson wrote in an all-staff email that he
“…made reference to the fact that I had heard from many women’s groups about the difficulty they were having with women’s shelters because sometimes men would claim to be women, and that HUD’s policy required the shelter to accept—without question—the word of whoever came in, regardless of what their manifested physical characteristics appeared to be.This made many of the women feel unsafe, and one of the groups described a situation to me in which ‘big hairy men’ would come in and have to be accepted into the women’s shelter even though it made the women in the facility very uncomfortable,. My point was that we have to permit policies that take into consideration the rights of everybody, including those women.”
This was relayed to the media by a few enraged staffers as Carson referring to trans individuals as “big hairy men,” as well as representing insufficiently supportive sentiments towards the transgender community. “The sentiment conveyed was these were not women, and they should not be housed in single-sex shelters — like we shouldn’t force people to accept transgender people in this context because it makes other people uncomfortable,” one staffer told the Washington Post.
To the contrary, what Carson was referencing is a legitimate concern. Having recently been served at McDonalds by someone who certainly appeared to be a big hairy man wearing a beard, a woman’s wig and a bra, I understand the problem, and it is a problem—not at McDonalds, but surely in a women’s shelter. Because Carson acknowledged reality, Julián Castro, a former HUD secretary and a 2020 Democratic candidate for President, said Carson’s comments “normalize violence” against transgender people. Elizabeth Warren and other Democrats piled on.
2. Immunity again, bad judges again, KABOOM! again. Where do these judges come from?
The Fresno Police Department carried out a raid on Micah Jessop and Brittan Ashjian, who were suspected of operating illegal gambling machines, though no charges were ever brought. After the search, officers provided both men with a ledger stating that the police had seized $50,000. Jessop and Ashjian allege that the officers really took $151,380 in cash and $125,000 in rare coins, pocketing $226,380 in what was outright robbery.
Are you ready? Continue reading
—-Five judges of the U.S. 9th Circuit Court of Appeals (Judges Jay Bybee, joined by Judges Alex Kozinski, Consuelo María Callahan, Carlos Bea, and Sandra Segal Ikuta, attacked what Bybee called the “fundamental errors” in the February decision of a three-judge panel upholding the temporary restraining order that blocked President Donald Trump’s first executive order temporarily halting immigration from seven Muslim-majority countries.
The opinion denounced the panel’s ruling as a “clear misstatement of law,” and stated that the five, constituting a larger number of judges than the three judge panel whose contrary holding was described as a “unanimous” 9th Circuit decision, had an”obligation to correct” it for the record.
“We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress,” the five judges stated.
Currently, the President’s revised order is held up by an even more widely criticized temporary restraining order issued by U.S. District Judge Derrick K. Watson. As well as following many of the same lines of activist judicial reasoning the five judges criticized in their dissent, Judge Watson’s opinion heavily relies on the campaign rhetoric of President Trump and statements by chief aide Stephen Miller in TV interviews. This means, as several critical legal experts including Alan Dershowitz have pointed out, that the exact same order, if issued by Barack Obama, would not have been blocked, and would have been found Constitutional.
Now that’s a double standard!
In criticizing their colleagues, the five judges said that the panel “brushed aside” the clearly controlling case law of Kleindienst v. Mandel, 408 U.S. 753 (1972) and ignored entirely the rulings in Kerry v. Din, 135 S. Ct. 2128 (2015) and Fiallo v. Bell, 430 U.S. 787 (1977). The Supreme Court in Mandel recognized that First Amendment rights were implicated by an executive action but decided…
“when the executive has exercised its authority to exclude aliens on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment 11 interests of those who seek personal communication with the applicant.”
First, a quote…
—New York Times TV reviewer Neil Genzlinger, in his conclusion to the review of CNN’s documentary on the history of television comedy.
Ugh.
The reason, Neil, that the world “isn’t listening or doesn’t care” is that with very, very rare exceptions, the political pronouncements of comedians are simple-minded, ignorant, juvenile or worse. Unfortunately, comics are increasingly laboring under the delusion that their junior college degrees, narrow life experiences and success at making drunks cackle imbues them with some genuine authority to pass judgments on complex policy issues. This is manifestly untrue. The clowns are on TV because they are, or were, allegedly funny, not because they have anything more sophisticated to offer regarding foreign policy or tax reform than the average guy on a barstool.
I have now seen an ad for Samantha Bee’s comedy show “Full Frontal” approximately a million times, or so it seems. If she is really this ignorant, her show should be banned by the NEA. All of her featured riff is about how horrible the President is—well, at least that’s original—and it ends with her statement, complete with “any idiot should know this” facial mugging, that “lawyers call” Trump’s temporary immigration halt from seven nations “unconstitutional.” Continue reading
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.
The unethical prosecutor in State v. Flores. Watch out for her!
It’s always heartening to see a court cite the 1935 Supreme Court case of Berger v. United States, 295 U.S. 78, (1935), famous in legal ethics circles for its ringing statement that government lawyers must understand that their obligation “in a criminal prosecution is not that it shall win . . . , but that justice shall be done.” The principle has been extended by some judges to civil cases as well, making the point that the government in any legal dispute should be interested only in the best interests of citizens and getting the case right. It is less heartening when the cite is in a dissent, as in this case.
The Ninth Circuit, reviewing a conviction for illegal drug importation, conceded that the prosecutor crossed into unethical territory by misstating the law,misstating the defendant’s testimony, and improperly vouching for a witness. Nonetheless, the court in State v. Flores concluded that this misconduct didn’t rise to the level of “plain error,” meaning that the defendant would have been found guilty anyway:
“In sum, while the government misrepresented Flores’s testimony and misstated the law on multiple occasions, in the context of the trial as a whole, it is unlikely that the jury was misled about the law or the facts.”
That’s right: the government misrepresented facts and law, but the jury was probably not misled. Continue reading
Ethics Alarms 