Category Archives: legal news

Waiting for return of confirmation comity

There once was a time when U.S. Supreme Court nominees sailed blissfully through the confirmation process, with senators giving presidents all the latitude in the world to select the person of their choice. They asked some tough questions, occasionally, but were respectful and a bit deferential to presidential prerogative.

Not … any … longer.

President Biden is going to select a black woman to succeed Stephen Breyer on the court once Breyer retires at the end of the current court term. The president can expect a donnybrook. He might be able to find the most brilliant legal mind this side of the Magna Carta, but that person won’t be confirmed without shedding a good bit of blood as she takes incoming rounds from the Republican obstruction brigade in the Senate.

When did it come to this? I guess you could trace it to 1987, when President Reagan nominated Robert Bork to the SCOTUS. Bork was known to be a strict constitutional constructionist. He was a brilliant legal scholar, but he had some seriously offensive views about the role of women and racial minorities. His nomination went down in flames.

Then came the 1991 nomination of Clarence Thomas, whom President George H.W. Bush called the most brilliant legal mind in America. He sought to succeed the late Thurgood Marshall. Then came allegations of sexual harassment and the testimony of Anita Hill. The debate was ferocious. The Senate confirmed Thomas, but it was a narrow mostly partisan vote.

I am thinking at this moment of a nominee put forth by President Eisenhower in 1953. Earl Warren was governor of California when Ike asked him to join the court. He had never served as a judge. I wonder now how an Earl Warren nomination would fare in today’s climate. Would senators question his qualifications? Would they hold him to the same sort of careful examination that they appear ready to do to whomever Joe Biden presents? If the answer is yes, would Gov. Warren hold up?

For the record, I am glad Earl Warren served as chief justice, given that the court on his watch approved some amazing landmark rulings; e.g., Brown v. Board of Education.

I want President Biden’s first high court nominee to be judged carefully but fairly by senators. I am concerned they will respond with red herrings, specious arguments and phony concerns.

I remain committed, by the way, to presidential prerogative in these cases. Elections, as they say, do have consequences. I have been faithful to that truism with respect to whomever is in office.

So, let the process move forward. I hope for a semblance of judicial comity as the Senate ponders this most important selection.

Hey, Gipper said so first!

President Biden pledged once again today to make an unprecedented appointment to the U.S. Supreme Court. He will find an African American woman to nominate to the court to succeed Justice Stephen Breyer.

OK. That’s unprecedented. I get it. However, he ain’t the first president or candidate for POTUS to make a pledge to find someone of a particular gender to the court.

Ronald Reagan did so while running for the presidency in 1980. He said a few weeks before that election he would nominate the first woman to the court. He won big that year. And in 1981 President Reagan made good on the promise by nominating Sandra Day O’Connor to the Supreme Court.

We’re good so far, right?

Conservatives then hailed the choice.

Their reaction to President Biden’s pledge? Why, he’s slamming the door shut on qualified judges; they say he is launching an affirmative action program to the court selection process; we can’t allow the president to pick someone who might not pass judicial muster, as if the person’s racial background by itself is an impediment.

The duplicity is stunning.

I am going to hold onto every confidence on God’s good Earth that President Biden is going to find a top-drawer, first-rate, learned jurist … who just happens to be an African American woman to serve on the nation’s highest court.

Breyer to retire … who will join SCOTUS?

Stephen Breyer today made official what the world has known for, oh, the past 24 hours, that he is retiring from the U.S. Supreme Court at the end of the court’s term.

Now comes yet another stern test for President Biden: finding a nominee who will be seated quickly on the nation’s highest court.

The president has limited his field of choices dramatically by pledging to name an African American woman to succeed Justice Breyer. Allow me this bit of wisdom per the next nominee to join the court.

Of the names I have heard mentioned I am struck by the term “public defender” in the backgrounds of at least two prominent judges. The idea that a legal genius who has served as a public defender could join the nation’s highest appellate court is appealing in the extreme to me. One name appears to be the prohibitive favorite, as an article By Elaine Godfrey in The Atlantic has noted:

We know that his nominee will almost certainly be a woman. In 2020, then-candidate Biden vowed that he would respond to a Supreme Court opening by nominating a Black woman. Dozens of candidates are being talked about, but nearly all of the Court watchers I interviewed for this story have their money on one in particular: Ketanji Brown Jackson.

Biden’s Likeliest Replacement for Justice Breyer: Ketanji Brown Jackson – The Atlantic

I believe someone with public defender experience in her legal background brings a totally new perspective to any judicial conference that would occur when the court is considering, for example, an appeal on a death penalty case; or perhaps an appeal on a conviction that someone believes was incorrectly achieved.

Could a Supreme Court associate justice soften the hard hearts of her colleagues? It’s possible. Then again, it might not. My point though is that a U.S. Supreme Court need not be populated only with jurists who come from, say, civil law or who have experience only as criminal prosecutors.

President Biden seemingly wants to broaden the scope of the Supreme Court’s world view. Go for it, Mr. President.

Speed is critical, Senate Democrats

I will be watching with keen interest to see whether U.S. Senate Democrats can move with the speed and precision that their Republican colleagues can when they are given the chance to push a Supreme Court nominee through the body and onto the court.

Justice Stephen Breyer is retiring at the end of the current SCOTUS term. President Biden has promised to name a nominee soon to replace Breyer. He said during the 2020 presidential campaign he would name an African American woman. Remember that he made the same pledge when looking for a vice-presidential nominee. So, he’s a man of his word.

Democrats still control the Senate. But not by much. The body is split 50 to 50. Vice President Kamala Harris would be the tie-breaking vote if she needs to do so. Gawd, I hope it doesn’t come to that when the Senate votes on a Supreme Court nominee.

When Justice Ruth Bader Ginsburg died in 2020, Republicans moved heaven and Earth to get Amy Coney Barrett confirmed just weeks before that year’s election. But … when Justice Antonin Scalia died in February 2016, nearly a year before a presidential election, Senate GOP leader Mitch McConnell dug in his heels and denied President Obama the opportunity to nominate a successor to the iconic conservative justice.

We have a midterm election coming up and Republicans could seize control of the Senate when they count the ballots.

So, the speed of this nomination process is critical.

No lollygagging allowed, Mr. President.

A new fight in store for SCOTUS seat?

Here we go again, maybe, perhaps … but I surely hope not.

U.S. Supreme Court Justice Stephen Breyer announced today his intention to retire from the court at the end of the court’s term. He is paving the way for President Biden to nominate a successor.

Is this a big deal? You bet it is! Presidents have a chance to make a lasting impact on our judicial system that will remain far longer than their terms in office. However, let’s consider some key elements.

Breyer is one of three “liberal” justices serving on the court. A Biden appointment isn’t going to change the nine-member court’s ideological balance. Donald Trump nominated three justices during his term on the court, the last one of whom delivered the strong conservative majority that now sits on the nation’s highest court.

Progressives have been hollering for Breyer to step down for a long time. They want a woman to join the court, along with Justices Elena Kagan, Sonia Sotomayor and Amy Coney Barrett. President Biden already has pledged to nominate a woman, and she likely will be a Black woman. As NBC News reports: Biden has pledged to make just such an appointment. Among likely contenders are federal Judge Ketanji Brown Jackson, former Breyer law clerk, and Leondra Kruger, a justice on California’s Supreme Court.

Is all of this a done deal? Well, consider that recent judicial appointments have been subjected to harsh partisan disagreements between Republicans and Democrats in the Senate, which has confirmation authority.

President Biden is going to move rapidly to nominate someone. Indeed, time is not his friend. The midterm election is coming up this fall, the court’s new term begins in early October and the president will need to get someone seated with whom he feels comfortable.

It’ll be a fight but let us hope is not the kind of bloodbath to which we have grown accustomed.

Impeach the justice!

Here’s a thought for you to ponder. It doesn’t come from me exclusively, but I read about it and have embraced it as a potential game-changer for the American judicial system.

U.S. Supreme Court Justice Clarence Thomas could be impeached by Congress because of his wife’s right-wing activism and the justice’s refusal to recuse himself from cases in which she is involved directly.

Ginni Thomas is a right-wing zealot. She has written scathing essays excoriating the 1/6 House committee examining the insurrection that sought to block the certification of the 2020 presidential election.

She and her hubby talk openly with each other about their jobs and their duties. So, how in the world does Justice Thomas vote on matters involving Ginni Thomas’s political activism?

Case in point: The court voted recently 8-1 to require Donald Trump to turn over documents to the House select committee looking into Trump’s role in inciting the riot. The lone dissent? It came from Clarence Thomas.

Good grief, man. Justice Thomas has no business sitting in on arguments involving anything regarding this issue. His wife has disqualified him in the eyes of many millions of Americans, including mine.

Michael Tomasky, editor of The New Republic, makes the case that Clarence Thomas is ripe for an impeachment action. What’s more, there needs to be ethical rules set up to govern the Supreme Court, the only court in America that doesn’t have any such regulatory authority watching over its conduct.

I happen to agree with him, that Clarence Thomas has disgraced himself and the nation’s highest court.

Verdict: Maxwell is a sex trafficker too!

Just about the time you think we might have a hung jury unable to deliver a verdict in a high-profile trial … we get a verdict in a high-profile trial.

Ghislaine Maxwell, the one-time girlfriend and accomplice to the late millionaire sex-trafficker Jeffrey Epstein, is now a convicted sex trafficker herself.

A jury delivered the news to Maxwell today after five days of deliberation.

Is this the right verdict? Based on what I know — which admittedly isn’t much — it looks as though justice has been delivered. Jurors accepted the testimony that Maxwell assisted Epstein in his quest for young girls with whom he had sex or who he peddled for sex with others.

It was ghastly and gruesome testimony to be sure. As USA Today reported: The verdict capped a monthlong trial featuring sordid accounts of the sexual exploitation of girls as young as 14, told by four women who described being abused as teens in the 1990s and early 2000s at Epstein’s palatial homes in Florida, New York and New Mexico.

Epstein, who was jailed a couple of years ago on sex charges, hanged himself in his New York City jail cell. The world is better off without him staining it with his presence.

Maxwell faces a lengthy prison sentence. My hope is that she gets the maximum.

Oh, and unlike the reaction delivered by Donald Trump when he heard about her arrest in 2019, I do not “wish her well.” I wish her nothing but misery.

What will SCOTUS reveal?

Well now, my fellow Americans, it looks as though the U.S. Supreme Court might get to reveal to us whether it believes in the rule of law or whether most of its justices believe in covering the backside of a cult leader who masquerades as a former president of the United States.

Donald Trump has asked the court to block the release of White House documents related to the 1/6 riot/insurrection. It seems that the ex-POTUS believes he has an actual legal leg on which to stand by declaring some form of executive privilege.

Lower courts have ruled already he doesn’t have such standing. They point out that only current POTUSes can exert executive privilege, not those who longer are in office.

That won’t dissuade the former POTUS from trying a sort of legal mumbo-jumbo to persuade the high court that he actually can block Congress from doing its due diligence in seeking the truth behind the 1/6 insurrection. The House select committee is legally constituted and is acting within its jurisdiction and legal authority to seek White House records. It is charged with finding the whole truth behind the riot, learning who caused it and coming to some solutions on how to prevent such a dastardly thing from recurring.

Trump, though, bellows out of both sides of his pie hole. He says he did nothing wrong; yet he wants to block anyone from the records that — if we are to believe the former Liar in Chief — would prove what he alleges, that he is free and clear of wrongdoing. Am I missing something? I think not.

If the court, even with its solid conservative majority, has a shred of legal integrity, it will rule that Trump must turn the records over and must allow Congress to do the job it is entitled to do.

Many of us are waiting.

Paxton should pay a big price

What do you know about this? It appears that the Texas Republican Party primary race for attorney general is shaping as a fight over the incumbent’s self-inflicted legal difficulties … not to mention the shame he has brought to the high office he occupies.

AG Ken Paxton has it coming to him.

Paxton was elected attorney general in 2014. The very next year he got indicted by a grand jury right here in Collin County on allegations of securities fraud. He continues to await trial in state court. He also has been chastised by the Securities and Exchange Commission; the FBI has launched a probe into complaints from former senior legal assistants at the AG’s office that Paxton has been behaving illegally; then he got that idiotic lawsuit tossed by the Supreme Court in which he sought to overturn the presidential election returns in several other states that voted for Joe Biden.

Texas Attorney General Ken Paxton facing challenges from all fronts | The Texas Tribune

Three Republicans have filed to run against Paxton: Land Commissioner George P. Bush, former Texas Supreme Court Justice Eva Guzman and U.S. Rep. Louie Gohmert. They’re all singing off the same song sheet, which is that Paxton’s legal troubles are enough to get him booted out of office.

I am glad to hear it. Yes, even from Rep. Gohmert, a fellow for whom I have zero respect.

Whatever does the job. Paxton is a joke, an embarrassment, a disgrace.

Yes, try the kid as an adult

It boggles my mind at times why officials have to haggle for a long time about whether to try a juvenile as an adult when he allegedly commits the kind of crime that occurred the other day in Oxford, Mich.

Four people are dead after a high school student opened fire. The student is in custody. Three of the fatal victims dies on the day of the shooting; the fourth one died just today. Many more victims were injured.

I get that the suspect is a juvenile, but damn, the boy is charged with committing a grievous act of violence on other students.

Authorities are keeping him segregated from the adults in jail. I am OK with that. I also am OK with keeping underage convicts who are tried as adults away from the grownups in the slammer.

However, the penalty for a conviction on the crime that this individual is alleged to have committed should be the maximum provided to adults, not to minors. He is accused of committing a heinous act and if he is convicted, he needs to do the time required under the law … as an adult.