Category Archives: legal news

What, precisely, does ‘original intent’ mean?

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U.S. Sen. Marco Rubio tonight paid glowing tribute to the late U.S. Supreme Court Justice Antonin Scalia.

The praise came while Rubio was taking part in the Republican presidential debate.

He said something that struck me as, well, fascinating. Rubio said Scalia’s legal brilliance was rooted in his belief that the U.S. Constitution is not a “living document,” but that the Constitution should be interpreted precisely as the founders intended.

I don’t believe for one second that Justice Scalia wanted to roll back the advances that came about in the many years since the founders wrote the Constitution — in the late 18th century.

However, if Rubio’s praise of Scalia is to be taken literally, it seems fair to wonder: Does he believe the founders were right to deny women the right to vote, or that African-Americans should be enslaved?

Of course he doesn’t.

However, we can see the discrepancy — in my view — in the debate over whether the Constitution is a living document. The argument of those who favor the so-called “original intent” of the founders breaks down.

Why? Because of the many reforms approved in the 200-plus years since the Constitution was ratified, the document does indeed evolve as our nation has evolved.

It’s alive, man.

 

A major battle now looms

chapman.0830 - 08/29/05 - A Supreme Court headed by Supreme Court Justice Antonin Scalia has questions for Chapman University Law School professor John Eastman as he and California Attorney General Bill Lockyer argue the 1905 ''Lochner v. State of New York'' case during a re-enactment Monday afternoon at Chapman University. (Credit: Mark Avery/Orange County Register/ZUMA Press)
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Supreme Court Justice Antonin Scalia’s sudden death today has stunned the nation.

As President Obama said this evening, the 30-year member of the nation’s highest court was one of the “most consequential” legal minds of our time.

The president now faces arguably the “most consequential” appointment of his time in office.

To say that Justice Scalia’s passing upsets the ideological balance of the highest court would commit the supreme understatement.

And, oh yes, the partisan divide opened wide immediately upon news of Scalia’s death. Senate Majority Leader Mitch McConnell, a Republican, said the Senate should wait until after Barack Obama leaves office to vote on a replacement; meanwhile, Senate Minority Leader Harry Reid, a Democrat, wants the Senate to act quickly.

Who could have seen that coming?

The president said he’ll make the appointment “in due time.” He wants a thorough, fair hearing and a “timely vote.” As the president — lame duck nor not — Barack Obama deserves the chance to nominate someone of his choosing.

Indeed, the appointment coming from a left-of-center president to fill a vacancy created by the death of a right-of-center Supreme Court justice sets up a huge battle that likely will dwarf any of the many fights Barack Obama has waged already with the U.S. Senate.

The court’s narrow balance has just been shaken to its very foundation.

 

Texas AG facing serious ethical probe

AUSTIN, TX - FEBRUARY 18: Texas Governor Greg Abbott (2nd L) speaks alongside U.S. Sen. Ted Cruz (R-TX) (L), Attorney General Ken Paxton (2nd R), Lieutenant Governor Dan Patrick (R) hold a joint press conference February 18, 2015 in Austin, Texas. The press conference addressed the United States District Court for the Southern District of Texas' decision on the lawsuit filed by a Texas-led coalition of 26 states challenging President Obama's executive action on immigration. (Photo by Erich Schlegel/Getty Images)

Ken Paxton took a serious oath when he became the Texas attorney general.

He put his hand on a Bible and vowed to preserve, protect and defend the Constitution of the United States and of the state.

Then the U.S. Supreme Court did something Paxton — I presume — didn’t expect. It ruled that gay marriage was legal in all 50 states. All of ’em. Including Texas.

How did Paxton react? He said county clerks weren’t bound by the court ruling, that they could refuse to issue marriage licenses to gay couples if the issuance of such documents violated their religious beliefs.

Oops! Can’t do that, said the State Bar of Texas.

It’s now going to launch an ethics investigation to see if Paxton — who’s already been indicted for securities fraud by a Collin County grand jury — violated his oath.

Well, of course he did!

If I were able to make a call on this, I’d declare that the AG broke faith with the oath he took. So did that county clerk in Kentucky, Kim Clark, who refused to issue marriage licenses to gay couples and who spent some time in jail because of that refusal.

What I can’t quite fathom is how these elected public officials feel they can get away with refusing to serve all their constituents. Paxton is a statewide officeholder, representing 26 million Texans. He won election in 2014 and then swore to follow the laws of the land. Not just those with which he agrees.

The Texas bar would seem to have an easy decision on its hands as it regards whether Paxton violated his oath of office. The tougher decision will be in the sanction it should level against him.

I am not going to say he should be removed from office.

Honestly, though, it baffles me constantly that these public officials — who get paid to represent every constituent — think they can select which laws to obey and which laws to flout.

That oath is clear. They cannot make that choice.

At all.

 

Let’s just call him ‘Silent Clarence’

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I actually thought it had been longer than a mere decade since Supreme Court Justice Clarence Thomas had asked a question during oral arguments before the nation’s highest court.

Nope. It’s only been 10 years.

The New York Times article attached here spells out what Justice Thomas has settled on as his reason for remaining silent.

It’s discourteous, he told the Times.

Discourteous? You mean if a lawyer says something that you believe needs clarification, but none of your court colleagues wants to seek some clarity, that you don’t want to be rude by asking the lawyer a question?

I don’t quite get that.

On second thought, it makes no sense at all.

Justice Thomas was President George H.W. Bush’s pick in 1991 to serve on the court. He succeeded perhaps one of the most argumentative men ever to serve there, the late Justice Thurgood Marshall, who earned his Supreme Court spurs by arguing successfully before the court on the historic Brown v. Board of Education decision that ended desegregation in public schools.

President Lyndon Johnson made history by appointing Marshall to the court in 1967, making him the first African-American to serve there.

Justice Thomas is a decidedly different type of high court jurist, both in judicial philosophy and temperament, apparently, than the man he succeeded.

I believe President Bush offered a serious overestimation of Clarence Thomas when he called him the “most qualified man” to sit on the high court.

That said, Thomas has been true to his conservative principles over the past quarter century.

As for the next time he asks a question of a lawyer, you can be sure the media will make a big deal of it.

 

Ethan Couch back home . . . but what about his mother?

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Ethan Couch has returned from Mexico, having decided to forgo a fight against extradition back to the United States.

The 18-year-old Fort Worth resident whose trial for drunken driving brought us the term “affluenza” is likely to face a few more months in jail. He really ought to spend some years behind bars, but Texas law won’t allow it.

Couch killed four people two years ago — when he was still a juvenile — after getting roaring drunk and then driving his pickup. He got off with a probated sentence after his defense team brought in a shrink who said Couch’s upbringing by wealthy parents failed to teach him right from wrong.

Hence, came the term “affluenza defense.”

Couch then bolted to Mexico after violating the terms of his probation.

Who helped the kid? His mother. Tonya Couch already is back in Texas. She’s posted bail and awaits her fate.

No matter what happens to Ethan Couch, his mother deserves — and well might get — some serious prison time.

Given that state law won’t allow the court to throw Ethan Couch into the slammer for more than three or four months, it ought to look carefully at how complicit his mother was in enabling her bundle of joy to violate the terms of his probation and then flee to Mexico.

In a curiously ironic twist, Mommy Couch’s alleged complicity in this caper lends ghastly credence to what the shrink said at her son’s trial about how she and Daddy Couch didn’t teach their son about proper behavior.

It didn’t justify that ridiculously light sentence in the first place.

However, it does suggest that Tonya Couch needs to pay a stiff price if she’s convicted of aiding in her son’s flight from justice.

 

Let’s ask High Court to settle Cruz eligibility

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The U.S. Supreme Court is in session.

Sure, the justices have plenty on their individual and collective plates. How about giving them one more issue to decide?

Let’s petition the court to decide whether U.S. Sen. Ted Cruz is constitutionally eligible to run for president of the United States.

An essay in Salon suggests that upon closer examination, Cruz’s “natural born” credentials are showing signs of weakness. I’m not sure I buy that notion. I believe he’s eligible to run, despite being born in Canada; his father is Cuban, but his mother is American. U.S. law granted young Teddy citizenship the moment he came into this world.

But the question is swirling nonetheless over whether Cruz qualifies as a “natural born” U.S. citizen.

What harm can be done by asking the court to take up the issue? It comprises a conservative majority. Oh, wait. The court is non-political, yes?

What might happen if the highest court in America decides against hearing the case? That could be construed as a tacit endorsement of the notion that the Texas Republican senator is, indeed, eligible to seek the presidency.

I don’t believe the issue is a terribly complicated one to settle once and for all.

The federal law that grants citizenship to anyone born to an American citizen — regardless of where the birth occurs — either is constitutional or it isn’t.

I believe Ted Cruz is qualified to seek the presidency.

Furthermore, I also believe it’s time for the nine men and women who sit on the U.S. Supreme Court to decide this issue — for keeps!

Just one more point . . .

Cruz criticized the court this past year for its narrow ruling allowing gay marriage, saying that “five unelected judges” shouldn’t be deciding what’s legal and what isn’t.

Would the senator say the same thing if, say, five unelected judges rule in his favor on the “natural born” citizenship question?

Grand jury turns tables on Planned Parenthood foes

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Grand juries cannot always be depended on to do precisely what some folks want them to do.

Take the case of a Harris County panel that had been impaneled to investigate Planned Parenthood’s activities. The district attorney launched the investigation at the urging of state officials — starting with Lt. Gov. Dan Patrick — into whether Planned Parenthood “sold fetal body parts” in violation of state law.

Today, the grand jury cleared Planned Parenthood of wrongdoing — and instead indicted two anti-abortion activists on charges of “tampering with government records.”

It was a serious surprise.

Here is part of how the Texas Tribune reported the story today:

“The indictments — part of the county prosecutor’s investigation into allegations that Planned Parenthood was illegally selling fetal tissue — include charges against anti-abortion activists David Daleiden and Sandra Merritt for tampering with a governmental record, a second-degree felony that carries a punishment of up to 20 years in prison. The grand jury handed down a second charge for Daleiden for ‘Prohibition of the Purchase and Sale of Human Organs,’ according to the Harris County District Attorney’s office. That charge is a class A misdemeanor that carries a punishment of up to a year in jail.

“The grand jury cleared Planned Parenthood Gulf Coast in Houston of breaking any laws.”

Planned Parenthood has become a whipping child for foes in Congress — and some Republican presidential candidates — over a heavily edited video that purported showing staffers talking about selling organs from babies.

Planned Parenthood, with a mission that goes far beyond assisting women who want to terminate their pregnancies, sees this no-bill from the grand jury as a significant victory in this public-relations campaign being waged against it by political adversaries.

Will this end calls to defund the organization? Probably not. It’s possible that we’ll hear complaints from those who consider this some kind of “political decision.”

Grand jurors lock themselves behind closed doors, listen to presentations by prosecutors and other witnesses. They are charged with weighing the evidence dispassionately and then deliver a decision based solely on what they hear in that room.

Unless I hear otherwise — and grand jurors are sworn to secrecy about what they say and hear during the presentation of evidence — I’ll presume the grand jury did its job properly.

Constables: Who needs ’em?

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Chris Johnson’s campaign signs are popping up all over southern Amarillo.

He is spending a good bit of dough seeking re-election to one of the more curious public offices I’ve ever seen.

He won’t get my vote. It’s not that I have anything against Johnson. I don’t know him. I’ve never had any dealings with him.

He’s a constable in Randall County, Texas.

Constable. What is that? He’s a politician/cop whose duties include (a) serving papers, such as subpoenas and summonses and (b) providing security for justice of the peace courts.

Let me stipulate a couple of things here.

One is that I’ve had a longstanding antipathy toward the very idea of electing constables. Why? We don’t need them. My wish would be for the Texas Legislature to propose a state constitutional amendment to do away with the office. The duties done by the constable can be done by sheriff’s deputies or municipal police officers.

But no-o-o-o-o! We’ve got to have another elected official assigned to do these things.

The other thing is that during my nearly 32 years living in Texas, I’ve voted for one man as a constable. Jeff Lester used to hold the office that Johnson now occupies. Lester, who retired recently from the Amarillo Police Department, ran for the office with one pledge: to get rid of it.

He held the title of constable, but didn’t do anything. He didn’t get paid. He referred all the duties to the sheriff’s department. He wanted to keep the office inactive long enough to enable the Randall County Commissioners Court to abolish the office, which state law empowers it to do after a period of time had lapsed.

Then came reapportionment after the 2010 census had been completed. The county had to redraw political boundaries based on shifts in population as required by state law. County commissioners then reapportioned Lester out of the precinct he had served as constable, meaning he couldn’t run for re-election.

That’s when Johnson ran — and won.

I must reiterate that I have nothing personal against Constable Johnson. It’s the office he holds that bugs the bejeebers out of me.

I get that some counties have a need for constables. The experience in Randall and Potter counties, though, has been spotty at best. We’ve elected constables who haven’t done anything while drawing their salaries. One Potter County constable — who’s since resigned — would suit up in all the gear and the requisite hardware just to serve legal papers.

I’m digging deep trying to remember a time I’ve ever heard of a constable in this part of the state making an arrest, or being involved in a high-profile criminal activity. Have I been asleep all these years?

So, I guess that Constable Johnson will get re-elected this year. Good for him. I’ll kick in my piddling portion to help pay his salary, although I won’t like doing it.

In this era when people say they’re sick of government inefficiency, I keep wondering: Where is the anger over paying for a superfluous law enforcement entity that — from my vantage point — need not exist?

We have plenty of county and municipal law enforcement personnel who are quite capable of doing the constables’ job.

 

Conservatives dig in against Obama appointments

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U.S. Senate Republicans had better hope that the nine men and women who comprise the U.S. Supreme Court are still on the job when President Obama checks out of the White House.

Politico is reporting that conservative lawmakers are set to all but block future presidential appointments for the remainder of Obama’s term.

Why am I not surprised?

They’ve been holding up presidential appointments all along, so it doesn’t come as any shock that they’d lay down that marker.

I keep coming back to the highest court in the land.

The president already has selected two members of that court — Justices Sonya Sotomayor and Elena Kagan. It still has a narrow conservative majority, but some of the conservatives on the court — as well as some of the liberals — are getting a bit long in the tooth. Don’t misunderstand me here. I do not wish ill on any of them.

But suppose the president must make an appointment . . .

That’s just a single example of how the legislative branch can gum up the process that allows the president to make these critical selections.

I totally understand that the Constitution gives the Senate the power to “consent” to such appointments. I honor that provision. However, as one who long has stood behind the principle of presidential prerogative, I believe the “advise and consent” constitutional clause can be abused.

If Senate conservatives are merely intending to stick it in the president’s ear just because they can, well, that’s not in keeping with the concept of good government . . .  in my humble view.

El Chapo saga takes strange turn

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I’m trying to figure this one out and, so help me, this item has me puzzled to the max.

Joaquin “El Chapo” Guzman escaped six months ago from a maximum-security prison in Mexico. He is one of the world’s most notorious drug lords, responsible for dealing in death while peddling meth, heroin and assorted other killer drugs.

So, as one who practiced journalism for more than 36 years, I find myself asking tonight: If given a chance to interview this notorious criminal, would I accept the chance to do so or would I blow the whistle on his whereabouts to the authorities who are looking for him?

The actor Sean Penn took the former course. He interviewed El Chapo for a Rolling Stone interview several months ago.

I don’t think I would have done that.

Then again, Penn is an actor.

I’m also wondering tonight whether Penn has the same sense of outrage that El Chapo was on the lam that many others — such as yours truly — have had as he avoided capture by the authorities.

The Mexican police caught up with him and Guzman is now facing extradition to the United States.

I believe it’s fair to ask: What was Sean Penn thinking?

According to the New York Times: “Mr. Penn and Mr. Guzmán spoke for seven hours, the story reports, at a compound amid dense jungle. The topics of conversation turned in unexpected directions. At one stage, Mr. Penn brought up Donald J. Trump, the Republican presidential candidate; there were some reports that Mr. Guzmán had put a $100 million bounty on Mr. Trump after he made comments offensive to Mexicans. ‘Ah! Mi amigo!’ Mr. Guzmán responded.”

Perhaps there’s something about this story that goes over my head. I’ll admit that I’ve never been given a chance to interview one of the world’s most wanted fugitives . . . so I have no direct knowledge of how I’d respond to such an opportunity.

Still, I find it strange in the extreme that a celebrity of Penn’s stature — someone with no apparent experience as a journalist — would seemingly turn a blind eye toward the circumstances that led to an interview subject’s arrest and conviction while he is seeking to avoid being thrown back into the slammer.

Is it fair to question Penn’s loyalty?

Hmmm. I think I just did.