Category Archives: legal news

‘Older liberal justices?’ Seriously?

By John Kanelis /

It’s rare that I would challenge the reporting of a major news outlet, but I cannot let this item go without offering a tart response.

The Business Insider reports that U.S. Rep. Mondaire Jones, a Democrat, wants Supreme Court Justice Stephen Breyer to retire at the end of the court’s current term. He also favors expanding the ranks of justices from nine to 13, filling the four additional seats with liberal justices.

I oppose Rep. Jones’s notion of packing the court, even though he calls it a longstanding “court tradition.” Which it isn’t.

OK, then the Business Insider reports this: Many Democrats, still smarting over Donald Trump’s installation of three jurists to the Supreme Court, want to avoid the court becoming even more conservative due to older liberal justices declining to step down during Democratic presidencies, which Jones alluded to in his interview.

Democratic Rep. Mondaire Jones calls on Supreme Court Justice Stephen Breyer to retire (

What? Three justices comprise the liberal wing of the court. Breyer is 82 years of age. He’s an “older” justice. The other two are Sonia Sotomayor and Elena Kagan; Sotomayor was born in 1954, Kagan was born in 1960. Sotomayor is 68 years of age; Kagan is 61. I do not consider them to be “older” or “elderly.”

Justice Breyer will retire when he believes the time is right. President Biden is not about to nudge him toward the Back Forty. Neither should other Democrats in public life.

As for the Business Insider’s description of “older liberal justices,” the organization must be populated by Gen-Xers.

Don’t add to SCOTUS

By John Kanelis /

Listen up, my progressive friends. I am going to say something that will pi** you off.

U..S. Senate Democrats are seeking to do something that I fundamentally oppose. They want to add four seats to the U.S. Supreme Court, packing it with justices more to their liking.  That is a bad call.

What we have here is a slippery slope that can do as much harm over the longer haul than any “repair” that Democrats think will occur were Congress to actually agree with packing the court.

I now feel compelled to stipulate that I do not like the philosophical composition of the Supreme Court. It comprises six conservative justices and three liberals. Donald J. Trump nominated three of the justices and got them approved during his term in office. Did it infuriate me? Yes. It did, particularly after Senate Republicans denied President Obama the opportunity to have a justice seated after the sudden death in early 2016 of conservative icon Antonin Scalia.

As they say, elections have consequences. Trump was elected in 2016 and then Republicans who ran the Senate were able to confirm three Trump SCOTUS nominees.

But is the proper response now to expand the court, allowing President Biden to nominate justices who would grant liberals the judicial edge on the Supreme Court? No. It must not happen.

Why not? Because such a dramatic notion gives conservatives an opening to respond in kind were they to regain the White House and regain control of the Senate. Might they want to add another two seats, expanding the court to, say, 15 justices, allowing a GOP president and Senate to construct a conservative majority?

Let’s be real. The Constitution does not specify how many justices should sit on the high court. Indeed, the number has changed over the two centuries of our republic. Nine of them have presided for many decades. The number of justices is sufficient.

As for the court’s philosophical makeup, elections and attrition ought to be allowed to determine the SCOTUS composition.

President Biden is on record opposing court packing. He wants a commission to study high court procedures. Biden plans to set a 180-day period for a panel to make its recommendations on how we might reform the court.

Let’s tinker around the edges of that process. Packing the court with four new seats, though, is the wrong path to take.

Good riddance, Bernie Madoff

By John Kanelis /

You know how it goes … that you shouldn’t speak ill of the dead.

Hmm. Bernie Madoff is dead. He was 82 years of age. Madoff was the perpetrator of one of the world’s most notorious Ponzi schemes. He bilked Americans out of billions of dollars.

Madoff got caught. He was sent to prison. That’s where he died.

What, then, does one say about this truly nasty individual if we are going to avoid speaking ill of the dead?

Not a damn thing.

Don’t expand SCOTUS ranks


All right, President Biden.

You said during the 2020 presidential campaign that you opposed expanding the number of justices serving on the Supreme Court. I am going to hold you to that notion as you launch the formation of a bipartisan commission to study SCOTUS “reform.”

Mr. President, the court functions just fine with nine justices. You are getting pressure from the left to expand the court to select more justices who fit your philosophical world view. That’s a bad idea.

Is the court composed of a majority of jurists I favor? No, but you know the saying about how “elections have consequences.” The 2016 election delivered serious consequences, indeed, when Donald Trump was elected president and he was able to get three justices confirmed in his single term in office.

Biden Commission Would Study Possible Supreme Court Reforms : NPR

I don’t like the court’s solid conservative majority any more than the lefties do. However, packing the court with more justices and then finding the “correct” jurists to fill those seats plays fast and loose with the founders’ efforts to de-politicize the federal judiciary.

I accept the White House statement on the commission: “The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals,” the White House¬†said in a statement. “The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”

While we’re at it, Mr. President, let’s not limit the terms of the justices, either. There is no compelling need to usher them out the door after they reach a certain age. As long as they are able to do the job, they should be allowed to stay on the court and play a role in determining the constitutionality of federal law.

That all said, good luck with the commission. Just don’t go too far.

Don’t pressure Breyer, Mr. POTUS


President Biden is getting plenty of pressure from the progressive left of the Democratic Party.

The current hot button happens to involve a member of another co-equal branch of government. Supreme Court Justice Stephen Breyer might be retiring later this year from the court. Activists on the left want President Biden to nudge him out the door so he can appoint the first black woman to the nation’s highest court, which Biden already has pledged to do.

Don’t take the bait, Mr. President.

It is believed that Breyer, appointed to the court in 1994 by President Clinton, will retire when the court’s current term expires. White House press flack Jen Psaki assured reporters today that Biden plans to let Justice Breyer make that decision on his own. Good call, there.

The Hill reports, however: Demand Justice, an advocacy group led by a former top aide to Senate Majority Leader Charles Schumer (D-N.Y.), launched an effort Friday to push Breyer, 82, to step down so that Biden can appoint the first Black woman to serve on the Supreme Court while Democrats have control of the Senate.

‚ÄúWe are now firmly in the window when past justices have announced their retirement, so it’s officially worrisome that Justice Breyer has not said yet that he will step down. The only responsible choice for Justice Breyer is to immediately announce his retirement so President Biden can quickly nominate the first-ever Black woman Supreme Court justice,‚ÄĚ said Brian Fallon, the executive director of Demand Justice and a former top aide to Schumer.

Biden will let Breyer decide when to retire, aide says | TheHill

Earth to Brian Fallon: Justice Breyer is under no obligation to announce on any timetable when he plans to retire. He was appointed to a lifetime judgeship, which I am certain is well-known  to Fallon. When he decides to call it quits, I also am certain that Brian Fallon will be among the first to know.

Let’s try this type of ‘diversity’


Donald Trump was fond of reminding us that “elections have consequences.” Of course, he was right. They do and those consequences often present themselves in the form of judicial nominations.

Joseph Biden also knows that truism and he demonstrated just how consequential his election as president might become for the nation’s judicial system. President Biden rolled out his first list of court nominees and they are a truly diverse bunch.

Biden’s nominees include plenty of women, African-Americans, Asian-Americans, a Muslim, a smattering of men, as well as Anglos of both genders.

Already, one of those nominees, Judge Ketanji Brown Jackson, is being discussed as a possible nominee to the U.S. Supreme Court in the event a vacancy occurs. Justice Stephen Breyer, appointed to the court in 1997 by President Clinton, is thought to be considering retirement once the court’s term expires later this year.

Biden has pledged to name an African-American woman to the nation’s highest court. Given that he made a similar promise when he named a vice presidential nominee, I am going to take him at his word that he will do what he promised. Judge Jackson fits the description.

However, I want to offer this suggestion for a way to diversify the SCOTUS: Find someone who didn’t earn a law degree from either Harvard or Yale University.

All but one of the justices on the court received their legal degree at one of those schools. Hmm. It makes me wonder whether the rest of the nation’s legal institutions are worth a damn. Well, of course they are! Which is why I would hope President Biden could cast his Supreme Court nomination wide, far beyond those Ivy League enclaves. Judge Brown is a Harvard Law grad. The only non-Ivy Leaguer on the high court is its newest justice, Amy Coney Barrett, who earned her law degree at Notre Dame.

Biden releases first wave of judicial nominees – POLITICO

I once made a similar request of Texas Gov. Rick Perry, who was considering an appointment to the Texas Supreme Court. It dawned on me years ago that the Texas high court comprised justices who resided strictly between Interstates 35 and 45. I implored Gov. Perry to look for someone beyond that corridor. As it turned out, a highly qualified appellate judge from Amarillo, Phil Johnson, applied for that vacancy.

What do ya know? Perry appointed Johnson to serve on the court. Either he heard my plea which I made on the editorial page of the Amarillo Globe-News, or he listened to the advice of aides who had been strong-armed by legal eagles in West Texas to select someone from our part of the state.

Whatever. I think President Biden could rethink how he wants to apply diversification to the nation’s legal network by looking for a Supreme Court justice who didn’t earn his or her law degree in the hallowed halls of the Ivy League.

Jury duty will have to wait

JPhoto by Jason Doiy

An automated phone call this afternoon dashed my hopes … yet again!

I had hoped to be called for jury duty next week when I reported to the Collin County administration building. Alas, it won’t happen. The call came to inform me that I was being dismissed, that my services are not required.

Maybe next time, yes? Perhaps? Do ya think?

This is a big deal for me. I have always wanted to serve on a trial jury. Not because I lust for the duty. It’s just that I always have wondered to myself what happens in a jury room when a group of men and women gather to ponder how a particular case — civil or criminal — should go. I guess it’s the reporter in me, the nosey, inquisitive side of my persona that drives this interest.

Then again, perhaps I can blame the career I pursued for nearly 37 years as one reason why I never have been called.

When we lived in Randall County, Texas, I would get a summons. I would call the day prior and the automated system would tell me not to bother.

I did serve on a grand jury in Randall County for a period of time. That was a fascinating call to duty. I thoroughly enjoyed the time I spent in the jury room pondering whether to indict someone on a criminal complaint. When we were sworn in by the presiding judge, though, I recall vividly something the district attorney at the time told us. James Farren said we likely never would be summoned for trial jury duty in Randall County because of our grand jury service. Why? Defense attorneys would strike us because they could argue we are prejudiced in favor of the prosecuting side. Oh, well.

We moved from Randall County to Collin County. I want to wipe the slate clean.

However, the call won’t come this time. Again!

I’ll have to wait for another summons. I hope to serve on a trial jury before I check out of this world.

Is there a trial in my future?


A longtime dream of mine took a baby step toward coming true today when I fetched the mail from the mailbox.

It contained a jury summons from the Collin County Courthouse.

The dream involves serving on a trial jury. I long have wanted to perform that particular act of citizenship.

I came of age in my native Oregon. I never got a summons, not from Multnomah County or from Clackamas County, where we lived until we moved to Texas in 1984.

I would get a summons from Jefferson County on occasion, but then would be dismissed. We moved eventually to Randall County in the Texas Panhandle in 1995, where I would occasionally receive a jury summons. One time — just once! — I had to report for duty, where I joined other potential jurors waiting to be selected. Then out came District Judge David Gleason to tell us that our services wouldn’t be needed. Every other summons I got from Randall County would result in my being informed that everyone had settled so I didn’t have to report.

We have migrated to Princeton, in Collin County. The summons arrived today. To be honest, this summons doesn’t tell me if I might be called to serve on a district court jury, a court at law jury or a justice of the peace court jury. Does that mean my chances of being called might pan out? I hope it does.

I know you might think I am a bit loony in the noggin, but I want to serve on a jury. I am aware of those who seek exemptions, citing their work or their age or their physical infirmity. The only thing I can claim is my age, given that I am well north of 65 years of age now. I am not going to evade jury duty.

I know the pay ain’t great. It used to be $6 daily. They’ve kicked it up a bit. That doesn’t matter to me in the least.

Don’t mistake me as some sort of do-gooder, although I have been distressed to read over the years about Texas courts struggling to find eligible residents willing to serve on juries. I have long been curious about how jurors interact with each other and with officers of the court.

I hope I get the chance to find out.

Content of character: does it still count?


Make no mistake that I likely would feel differently were I of African-American or Latino or Asian descent. I am none of those.

Having laid that predicate down, I want to engage in the discussion over who President-elect Biden should select as the nation’s next attorney general.

I practically jumped out of my shoes the other day when I heard an African-American commentator, Jonathan Capehart, say out loud that the three individuals Biden is believed to be considering as AG are too white for his taste. Capehart wants more “diversity” among the finalists.

Hmm. Let’s examine this briefly. The three people Biden reportedly is pondering are U.S. District Judge Merrick Garland, former deputy U.S. Attorney General Sally Yates and U.S. Sen. Doug Jones. They all possess exemplary legal credentials. They also all have committed through their careers to advancing the cause of civil rights.

Their only “shortcoming” is that they aren’t people of color.

President-elect Biden has kept his pledge to nominate executive branch team members who reflect the nation. Has loaded the Cabinet with and top-level staffers with African-Americans, Latinos, Asian-Americans, women; my goodness, he even has selected an openly gay man to serve in the Cabinet.

President Obama nominated Merrick Garland to the Supreme Court, only to have his nomination blocked in 2016 by Senate Republicans who wanted to wait for the presidential election outcome that year. Garland has been a champion for minority rights, for gay rights and has staked out a center-left course while serving on the federal bench.

Sally Yates has demonstrated her own commitment to fair and impartial justice as a deputy AG, striving to be sensitive to minority Americans’ concerns over whether the justice system was loaded against them.

Doug Jones, who lost his bid for re-election to the Senate from Alabama in 2020, served as a federal prosecutor and obtained the conviction of the Klansmen who blew up the Birmingham, Ala., church in 1963 that killed four precious African-American girls; it was one of the most notorious hate crimes of the 20th century. He, too, has earned his spurs in fighting for minority rights.

Is it essential that the next AG be a person of color? No. It isn’t. It is essential that the next attorney general refrain from engaging in partisan politics and administer justice dispassionately and in accordance with the law.

I want to remind everyone of what Dr. Martin Luther King Jr. said on the steps of the Lincoln Memorial that day in 1963. He spoke of his “dream” that one day black Americans can be judged by “content of their character” rather than “the color of their skin.”

Shouldn’t that noble goal apply to any American?

Pardons cross the line


Presidential pardons remain the exclusive domain of the individual in power at the top of the U.S. political chain of command. Presidents grant them with literally no checks on their propriety.

Their impropriety often crosses party lines, with presidents of both parties abusing the power laid out in the U.S. Constitution.

However, the busload of pardons handed out by Donald J. Trump all have a peculiar and frightening look of familiarity to them. He has delivered pardons and commutations to people who (a) are friends and political allies and (b) who have committed heinous acts in defense of policies that he favors.

Procedure calls for presidents to run pardon  requests through a series of examinations by the Justice Department. They usually include those who have behaved well under federal custody or who have expressed some level of remorse for whatever deed they did. I am unaware so far of any expression of remorse from the likes of Roger Stone, Michael Flynn, Paul Manafort, George Papadopoulos or the four Blackwater contractors convicted of killing innocent civilians in Iraq.

Oh, no. They’ve been handed a free get-out-of-jail card by Donald Trump for reasons that have nothing to do with what they are accused — or convicted! — of doing.

Understand, too, that presidents are not bound by law to follow the procedure laid out. They can do whatever the hell they want and that is what Donald Trump has done so far.

This is the kind of exit we all should have expected from Donald Trump as he prepares to leave the White House for the final time; indeed, he might have done so already, having jetted off to Florida to spend the holiday with his family … at least that’s my hope.

This is an astonishing end to an astonishing term as president for Donald Trump. It ain’t normal. If only we had the last of it … if only.