Category Archives: legal news

Merrick Garland haunts this hearing


Merrick Garland is very much alive and well but his “ghost” floated throughout the hearing room today as a congressional hearing commenced on an appointment to the U.S. Supreme Court.

The U.S. Senate Judiciary Committee welcomed another federal judge, Amy Coney Barrett, as she began her confirmation hearing to the U.S. Supreme Court. She would take the seat occupied by the late Justice Ruth Bader Ginsburg, who died in September.

Garland’s role in this drama? Well, he once got nominated to the high court by President Barack Obama. Another justice, Antonin Scalia, died in February 2016 while on vacation in Texas. President Obama wanted to nominate a successor. Senate Majority Leader Mitch McConnell wasted no time in declaring his intention to block that effort. Why? Because the voters had a right to be heard before a SCOTUS nomination would be considered by the Senate.

We had a presidential election in 2016. Obama couldn’t run again. It turned out that Donald Trump would win the election. So, Trump got to select someone to succeed Scalia; he chose Neil Gorsuch.

The hypocrisy between then and now is stunning in its scope.

We were 10 months away from the previous election when a vacancy occurred. Now, we’re just 22 days before the next election. Don’t Americans have a right to have their voices heard before the Senate considers a nominee to succeed Ginsburg? Of course we do.

Except that Republicans who at the moment hold the majority of Senate seats are pushing full speed with the Barrett hearing.

Most astonishing of all is the comment that Committee Chairman Lindsey Graham made in 2018. He said then that if an opening occurs during Donald Trump’s term as president and the “primary season has begun,” the Senate should hold off until after the election before considering a possible replacement.

Graham said we could hold his words against him. Fine. Many of us are doing that, Mr. Chairman.

Amy Coney Barrett wouldn’t be my choice to join the court. I much prefer a jurist in the Merrick Garland mold: moderate, center-left in philosophical judicial outlook. Garland, though, never got the courtesy of a hearing, let alone a Senate vote, that appears to be in store for Judge Barrett.

It’s all because the Senate GOP majority played politics with the judicial nomination process in 2016 … and is doing so once again right now.


Answer the question, Joe


Joe Biden and Kamala Harris, the Democratic ticket seeking to defeat Donald Trump and Mike Pence, are performing a clumsy dodge when it comes to a simple, straightforward question.

It is this: Do you endorse a plan to add members to the U.S. Supreme Court in the event Judge Amy Coney Barrett gets confirmed to the seat vacated by the death of Justice Ruth Bader Ginsburg?

Many progressives are alarmed at the addition of another conservative to the high court and they want to add at least two seats to the nine-member bench presumably with progressives/liberals to, um, provide some ideological balance.

The move might pick up steam if Democrats gain control of the U.S. Senate, which is looking more plausible each day we draw closer to the election.

Biden and Harris have danced all around the question about whether they back such an idea. For the record, I happen to oppose it. The court has been a nine-member body for more than 150 years and it should remain that way. Even the late Justice Ginsburg opposed the idea of “packing” the court.

Donald Trump and Mike Pence are raising a ruckus over Biden and Harris’s refusal to answer the question. To be candid, they do have a point. Biden said he will make that decision public “after the election.” Harris, when asked during her VP debate with Pence this past week, turned the discussion instead to the “packing” being done by Republicans who are filling lower-court bench seats.

Biden and Harris need not provide the Trumpkins with ammunition to fire at them down the stretch of this campaign.

Just answer the question. No matter what they decide, rest assured that the Democratic Party presidential ticket will continue to have my support. Honest. Really and truly.

Texas AG faces new questions, allegations


Texas Attorney General Ken Paxton had been in some serious trouble already, with a pending trial awaiting him over allegations of securities fraud.

Now comes a new set of concerns raised by senior AG office staffers, including Paxton’s top assistant, who are demanding a federal investigation into whether Paxton has abused the power of his office.

The hits just keep on comin’, as the saying goes.

Gov. Greg Abbott and Lt. Gov. Dan Patrick, two of Paxton’s fellow Republicans, are being strangely reticent about the allegations. Patrick says they are “very concerning” and Abbott said they raise “serious questions.” The two men of course are withholding judgment until they know all the facts.

As the Texas Tribune has reported: “We have a good faith belief that the attorney general is violating federal and/or state law including prohibitions related to improper influence, abuse of office, bribery and other potential criminal offenses,” seven agency leaders wrote in a one-page letter obtained by the (Austin American-) Statesman.

Among the seven officials who signed the letter is Jeff Mateer, Paxton’s top aide, who quit the AG’s office this past week.

Good heavens. The state’s top law enforcement officer cannot possibly function well with these kinds of clouds hanging directly over him. He already is awaiting trial on securities fraud stemming from a Collin County indictment in 2015 alleging that he failed to notify investors of his involvement with certain fund management outfits. Now we have this matter.

I would hope the federal government would get involved promptly and reach an independent finding of whether the admittedly unspecified allegations have any merit.

If not, then let Paxton stand trial on the securities matter. If they are legitimate, then let’s allow the system to take care of AG Paxton.

Justice isn’t partisan


A series of political signs caught my eye recently while driving along Lucas Avenue just east of Allen in Collin County, Texas.

“Keep Your Republican Judges” the signs blurt out.

The signs bring to mind a question I used to ask Texas judicial candidates while I was working for a living as a newspaper editor.

“Can you tell me the difference,” I would ask, “between Democratic justice and Republican justice?” The answer from judges and judicial candidates in either party was essentially the same. They couldn’t differentiate between the parties.

That brings me to a point I have been harping on since The Flood, which is that if Texas is going to keep electing its judges it needs to remove the partisan label from these races.

I have more or less given up on the notion of appointing judges and then having them stand for “retention” at the ballot box. Texas seems wedded to the notion of electing judges, which we do at all manner of levels: justices of the peace, to county court at law judges, to district judges, to appellate court judges, to the Court of Criminal Appeals and to the Texas Supreme Court.

They all run either as Democrats or Republicans. Depending on the relative strength of either party at the time, we have tossed out fine judges from the weaker of the two parties.

As late as the early 1980s, when Democrats remained strong in Texas, fine GOP judges got the boot. Then the tide turned and Texans began tossing out fine Democratic judges in favor of GOP judges. Why? Because they were of the party in power.

It doesn’t make sense to me.

Judges who adjudicate criminal and civil cases do not deliver justice on the basis of partisan leaning. Appellate judges, be they sitting on regional appellate benches or on the state’s top two appellate courts — the CCA or the Supreme Court — do not interpret the Texas Constitution on a partisan level.

I can understand selecting judges based on their judicial philosophy. If they are too soft or too harsh in their judgments, then allow voters to make their selection on that basis.

Partisan labels don’t belong in our state’s judicial contests.

Consider this possible bombshell


I don’t want to predict the moment that Earth will spin off is axis, but there’s a potentially explosive scandal out there that might erupt, forcing the worst constitutional crisis in American history.

Donald Trump is about to nominate someone to the Supreme Court. That someone could be confirmed in a U.S. Senate vote before the Nov. 3 election.

We’ll go to the polls and the result might not be to Trump’s liking. He might decide to challenge the results that could show Joe Biden winning narrowly … God forbid!

Then the case could go to the Supreme Court.

Just suppose Trump’s selection on the court finds herself in the position of casting the deciding vote that might return Trump to office for a second term. Suppose as well that the appointee doesn’t recuse herself from any deliberation and that her vote renders a Biden victory moot on some legal technicality that no one can predict at this moment.

Whoever Trump nominates and is confirmed in my view needs to declare herself out of the game. She must not participate in any decision that could deliver a second term to the individual who selected her for a lifetime appointment on the nation’s highest court.

Oh, man, I do not want any of this to play out. My version of political perfection would be for Joe Biden to win in a rout, to bury Trump under an electoral landslide that produces zero doubt over the outcome … not that a landslide loss would dissuade Trump from trying to pull of some mumbo jumbo to steal an election result.

We need to prepare ourselves for the possibility of a hideous, horrendous, hell-raising crisis in the event we get a shiny new Supreme Court justice sitting on the bench awaiting an electoral outcome.

Recusal is the only option.

‘Not written in the stars’


I kinda think U.S. Sen. Mitt Romney of Utah has missed a key point in the fight over whether Donald Trump should proceed quickly with nominating someone to the U.S. Supreme Court in the wake of Justice Ruth Bader Ginsburg’s death.

Romney said he would support moving forward quickly, endorsing the idea of a rapid-fire confirmation process, despite assurances from many key GOP senators in 2016 that they would oppose such a thing, even with a Republican president awaiting the chance to nominate someone in a presidential election year.

Sen. Romney declared Tuesday that there nothing “in the stars” that requires the SCOTUS to be a “liberal” court. That was his public declaration in stating his support for moving ahead. I am scratching my head over that one, Mitt.

We all get that elections have consequences. Trump promised to select conservative judges. He is delivering on the pledge. It’s the timing of it, the idea that an election now no longer stands as an impediment to the president being able to select someone. The GOP sang an entirely different tune in 2016 when Justice Antonin Scalia died and President Obama sought to name Merrick Garland to the high court. GOP Senate leaders — namely Majority Leader Mitch McConnell — slammed the brakes on that, declaring that the “people deserve a voice” in determining who sits on the Supreme Court.

Well, they deserve as much of a voice today as they did then.

That’s the beef. It has little to do with whether a president can select who he wants.

I was hoping Mitt Romney would put principle above party — just as he did when he was the lone GOP senator to vote to convict Trump of abuse of power in his Senate impeachment trial.

Silly me. Mitt let us all down.

Electoral consequences? Yep, we have ’em!


It has been said more times than I care to recall that “elections have consequences.”

That truism is playing out in real time as I write these few words.

Ruth Bader Ginsburg’s death has opened the door wide for the most unfit man ever to hold the office of president to nominate his third selection to the nation’s Supreme Court.

You want consequences? The court, if Trump’s nominee gets confirmed, will be locked in a solid 6 to 3 conservative majority possibly for a generation.

Yes, this is what we get when we elect someone with no moral compass, no ideological basis, no authentic sense of what justice really means to the nation’s highest office.

Trump says he’s going to nominate a woman to succeed Ginsburg.  I always am struck, by the way, at Trump’s use of platitudes to describe individuals. He calls Judge Amy Coney Barrett, one of the frontrunners to be nominated, as “fantastic,” that she’s a “brilliant lawyer,” that she’ll do a “great job.” What is missing in these platitudes is any sense that Trump knows anything of substance about the individuals he is considering.

How in the name of electoral power do we rectify what’s about to happen? I believe the first and perhaps last option is to ensure that Trump gets defeated, that Americans elect Joseph R. Biden as their next president. I know that electing Biden won’t undo the damage that Trump might inflict on our federal judiciary — given his penchant for heeding the advice of far-right-wing commentators and thinkers. Electing Biden does set the predicate for a longer-term repair of the damage that Trump will inflict.

Thus, the upcoming election — shall we say — has intense consequence on the future of our nation.

If you disbelieve the value of elections and the consequences they can produce, I present to you Exhibit A: Donald John Trump’s fluke victory in 2016.

Count the ‘persons in each state’

It’s a given that Donald J. Trump doesn’t know the U.S. Constitution, the document he swore on oath to defend and protect.

With that established, let’s understand that when Trump says that census counters are not to count undocumented immigrants as part of the 2020 census, he is violating the Constitution … which he doesn’t understand.

Trump wants to limit the count of those who are living here to just citizens, actual Americans. No can do, Mr. POTUS. That 14th Amendment to the Constitution, the one that talks about equal protection under the law, has this to say about how states must be represented in Congress:

“Section 2: Representatives shall be apportioned among the several States, according to their respective numbers, counting the whole number of persons in each State … “

If you look throughout the 14th Amendment, you will not find a word in it that stipulates that only citizens can be among the “whole number of persons” counted in each state. The framers threw open the counted to be “persons.” Citizens or non-citizens, documented or undocumented immigrants. They all count the same, according to the U.S. Constitution.

That is the basis for progressive groups complaining about the restrictions that Trump is seeking to place on the census takers.

This kind of ham-handedness would have an impact on Texas, which stands to gain as many as three new representatives once the census is taken. The state also is home to quite a large number of undocumented immigrants, which you know about already. Many of those immigrants happen to be “dreamers,” the folks brought here as children when their parents sneaked into the country to pursue a better life for themselves and their families.

Trump is trifling with the Constitution in a way that is going to do harm to communities and to states. He must not be allowed to get away with this attempt to pilfer power from states that deserve a loud and clear voice within the halls of government.

All-GOP Texas Supreme Court follows the law!

A ruling by the Texas Supreme Court denying a Republican Party appeal over the cancellation of its state convention is a really big deal.

Here’s why.

The state’s highest civil appeals court, unlike the U.S. Supreme Court, comprises partisan politicians who run for election to the office on partisan ballots. That means they might be subject to intense political pressure to favor one party over the other.

The Texas Supreme Court, in a 7-1 ruling, said “no” to the Texas Republican Party’s appeal seeking to stage its convention in Houston.

Houston Mayor Sylvester Turner had canceled the convention, citing extreme risk caused by the COVID-19 pandemic. The GOP wanted to meet in the George Brown Convention Center. Turner said that’s a non-starter, so he invoked his power as mayor to keep Texans safe from the killer virus.

The case went immediately to the Supreme Court of Texas, which has put the kibosh on the GOP’s appeal.

The state Supreme Court is made up entirely of Republican judges, which makes this decision damn near spectacular.

It goes to show that on occasion even partisan judges can do the right thing, which is what occurred with the Texas Supreme Court’s decision stiffing the Republican Party’s desire to expose thousands of convention attendees to a potentially deadly virus.

SCOTUS justices provide satisfaction

I took more than a little bit of satisfaction from this week’s stunning decision from the U.S. Supreme Court that no president is above the law.

My satisfaction came in the form of two justices’ decision to side with the 7 to 2 majority that declared that Donald Trump cannot invoke presidential immunity no matter what, that a Manhattan, N.Y., prosecutor is entitled to obtain Trump’s financial records in a probe that could result in some serious criminal indictments.

Those two justices happen to Donald Trump’s two nominees to the highest court in America: Neil Gorsuch and Brett Kavanaugh.

Let’s presume Trump’s ignorance of the law and the Constitution for a moment and conclude that the president had hoped Justices Gorsuch and Kavanaugh would stand with him. I mean, Trump does demand loyalty even from members of an independent and co-equal branch of the federal government. The justices didn’t do as Trump no doubt wanted.

This gives me hope on at least one important matter. Gorsuch and Kavanaugh likely will sit in their high offices long after Trump leaves his office. Trump said he wanted to appoint rock-ribbed, true-blue conservatives to the federal judiciary, which is another way of saying he wants judges who will vote in his favor at all costs.

Neil Gorsuch and Brett Kavanaugh saw the question arising from the Trump finances case differently. They interpreted the law with no regard to how it might affect Trump’s continuing refusal to release his financial records to prosecutors.

I cannot predict whether Justices Gorsuch and Kavanaugh will continue to demonstrate their judicial independence on future cases. The Supreme Court term has ended; justices will return to the bench in October, just ahead of the November presidential election.

I am hoping the election will deliver a new president who then will take over the appointment powers from a president who doesn’t grasp that the concept of an independent judiciary is inscribed in our nation’s governing document.

I am going to hope that the men who ended up on the court because Donald Trump nominated them will continue to exhibit the independence they showed in determining that no one — not even the president of the United States — is immune from criminal prosecution.