Category Archives: legal news

Is it better to deal with the ‘devil you know’?

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The word this morning is that President Obama might reveal his selection for the U.S. Supreme Court as early as, oh, Monday!

Excellent. Let’s get this going-away party for the president started.

He reportedly has narrowed the field to three men. One is an African-American, one is an Indian-American, one is a Caucasian. They’re all reportedly able individuals who’ve been confirmed to spots on lower federal appellate courts. The president said he’s going to consider someone whose credentials are impeccable. Moreover, he appears to be zeroing in on someone who’s already passed GOP muster in the Senate.

But, hey. Hold on. Republicans who control the Senate — which must approve the nominee — say they ain’t budging in their refusal to even consider an Obama selection. They want to wait until after the November election.

Here’s where it might get dicey for the Republican leadership in the Senate that is digging in its heels and refusing to do its job — which is to consider and decide whether to confirm a Supreme Court nomination.

Suppose the Republican nominee is Donald J. Trump, who the GOP “establishment” despises. Suppose the Democrats nominate Hillary Rodham Clinton, who the GOP despises perhaps even more.

Suppose, too, that Clinton wins the election in November. Suppose she wins big, as in really, really big.

Do the Republicans believe they’re going to get a more suitable nominee from a President Clinton than they would from the current president? After all, the next justice is going to replace the iconic conservative jurist Antonin Scalia, who died a month ago while on a hunting trip in West Texas.

The balance of the court is likely to change, meaning that the appointment is, shall we say, h-u-u-u-u-u-u-ge!

We might know a thing or two about how this shakes out on Tuesday, when voters in five states decide in primary elections in both parties. Clinton might be able to tighten her vise grip on the Democratic nomination. And Trump could establish himself even more firmly as the GOP frontrunner.

So, with a Clinton-Trump contest shaping up in the fall — and with Republican power brokers scared spitless at the prospect of their party being led by a demagogic know-nothing blowhard — the GOP might want to rethink its resistance to whomever Barack Obama selects for the nation’s highest court.

As someone said this morning on one of those Sunday news talk shows, it might be better to “deal with the devil you know than the one you don’t.”

Let’s all stay tuned. This week well could shake the political ground under our feet.

 

Legislating from the bench? Maybe so

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I’m usually not one to comment on judges being accused of becoming black-robed “legislators.” Must be my liberal bias.

An Ohio judge, though, just might fit the bill of a jurist who has taken a step or two too far.

Franklin County Common Pleas Court Judge Richard Frye has ruled that Ohio voters who are 17 years of age today can vote in the Tuesday primary if they’ll be of legal voting age — that’s 18 years of age — by November.

My first reaction is: huh?

It makes no sense.

Let me see if this adds up. Someone who’s not yet old enough to vote will be able to vote in the primary anyway. On what grounds does this make sense?

Frye’s ruling is seen as a potentially big win for U.S. Sen. Bernie Sanders, one of two Democrats running for president. Sanders has been getting a lot of young voters’ support and this could open up a large trove of votes; I guess pledges of free college tuition are resonating with the young voters.

“This is a huge victory for 17-year-olds across Ohio. Their votes for presidential nominees will now count when they vote on either Tuesday or over the weekend in early voting,” Sanders campaign counsel Brad Deutch said in a statement.

But, but … how does that compute? How does someone get to vote prior to being of legal voting age?

Ohio’s Republican secretary of state, Jon Husted, is incensed over the ruling. He vows to appeal it. I think he’s got a case for judicial overreach.

I’m a simple fellow. It just seems to me that pre-dating someone’s voting eligibility smacks of manipulation that the law shouldn’t allow.

To be honest, this kind of reminds me of something I witnessed in Jefferson County, Texas, many years when two judges whose courts had criminal jurisdiction were slapped hard by the Texas Commission on Judicial Conduct for back-dating prison sentences. The judges would sentence defendants to prison terms that began before the crimes actually took place. The state’s court watchdog organization took a dim view of it.

Judge Frye, by my way of thinking, is playing a similar game by giving Ohio teens the right to vote before they are actually legally entitled to do so.

 

Stalkers getting their rear ends kicked

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Sportscaster Erin Andrews has just won a $55 million award from a jury that ruled her privacy was invaded while she stayed in a hotel.

Someone recorded her in the nude while she was in her hotel room and then sent the video into cyberspace.

I can’t think of anyone who isn’t cheering that verdict. I hope she gets every penny, although it’s not likely she will.

There’s more.

Former pro wrestler Hulk Hogan was recorded having sex with his best friend’s wife. That video was sent out, too.

The Hulkster is suing a publication for invading his privacy.

I have much less sympathy for Hogan — who’s real name is Terry Bollea — simply because of the nature of the video in question. I need not elaborate.

However, I do believe his privacy is as protected as Erin Andrews’ privacy. I hope he wins his suit.

And get a load of what the former editor of Gawker.com, which sent the video of Hogan/Bollea into cyberspace, told a jury today. He said the only people whose privacy should be honored in such a manner are children. At what age? He said 4 years of age. Five-year-olds? Hey, no sweat. They’re fair game.

Here’s how the New York Times reported the testimony:

“Can you imagine a situation where a celebrity sex tape would not be newsworthy?” asked the lawyer, Douglas E. Mirell.

“If they were a child,” Mr. (Albert) Daulerio replied.

“Under what age?” the lawyer pressed.

“Four.”

Holy smokes, dude!

The Times reported that there was an audible gasp in the courtroom. Gee, do you think?

The testimony almost turns Hulk Hogan into a truly sympathetic character.

Almost.

Litmus tests: virtually unprovable

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President Obama has a big decision to make.

Who’s going to become the next nominee to the U.S. Supreme Court?

Now comes the inevitable question: Uh, Mr. President, do you have a litmus test that a nominee must pass?

Gee, how does the president answer that one? “Of course not! I don’t believe in litmus tests. My nominee will be the most qualified person I can find. He or she must be able to interpret law, not make it, and they must be studious as they ponder the constitutional decisions he or she must face.”

Actually, it is my considered opinion that answers like that are full of so much mule dung.

Of course there are litmus tests! The issue facing the politicians doing the appointing is that they dare not call them such.

Does anyone in their right mind believe that when, say, a president of the United States looks across a conference-room table at a prospective nominee that he or she doesn’t ask them The Question?

In a case such as this it might be: “Would you vote to uphold the Roe v. Wade abortion decision?” Or, “would you stand behind the Affordable Care Act?” How about, “would you continue to uphold the ruling that gay couples are guaranteed under the 14th Amendment to the Constitution to be married?”

Do presidents ask those questions? Sure they do. You know it. I know. The presidents know it. The people they interview know it.

Let’s not be coy, either. Presidents of both parties ask them in search of the correct answer. Does anyone really believe, for instance, that President Reagan didn’t at least know in advance how Antonin Scalia would lean on, say, the Roe v. Wade decision when he considered him for a spot on the court? Do you think he might have asked him directly? I believe it would have been a distinct possibility.

Are all these meetings open to public review? Are they recorded for posterity? No and no.

That’s why the “litmus question” is a monumental waste of time. The answers mean nothing to me.

If only presidents would be candid. “Sure, I have tests that candidates must meet. Hey, I was elected to this office and most voters who cast their ballots for me knew what they were getting. Elections have consequences.”

 

Timing determines ‘lame duck’ status

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I’ve noted before the importance of timing.

Perhaps it might have something — or everything — to do with the kerfuffle that’s consumed Washington, D.C., over President Obama’s upcoming attempt to fill a critical vacancy on the U.S. Supreme Court.

Justice Antonin Scalia’s untimely death created a political earthquake within minutes of the announcement that he had succumbed at a West Texas ranch. U.S. Senate Majority Leader Mitch McConnell, master of proper decorum that he is, declared about an hour later that the Senate would block any nominee that Obama would present for confirmation.

Other Republicans, namely the candidates for president, called Obama a “lame duck” and said the task of filling the vacancy belongs to the next president — who he or she is.

A reader of this blog commented on an earlier post that the president really isn’t a lame duck. He didn’t lose re-election in 2012, the commenter noted. Given that he won, he implied, the president is entitled to fulfill all the duties granted to his office by the U.S. Constitution.

Which brings up a question: Would we be waging this political fire fight had Justice Scalia died during the first year of President Obama’s second — and final — term rather than in the final year?

Surely the president’s foes wouldn’t suggest in early 2013 that filling a critical vacancy on the court — the next pick, after all, is likely to change the philosophical balance — should belong to the next president. The court would be short a justice for the next three years … maybe longer.

As it stands now, if McConnell and Gang succeed in blocking the president’s choice for the high court, the Supreme Court could be short a member until next summer. The court adjourns in June and won’t resume its duties until October 2017.

Hey, what difference does it make, correct? So what if the narrowly conservative court is short a member for the next 18 months?

McConnell showed his hand very early during Barack Obama’s time as president. He vowed to make Obama a “one-term president.” That, he said, would be his top priority as then-minority leader.

He failed to accomplish that mission, so he’s settling for the next-best thing by denying the president the opportunity to ensure the nation’s highest judicial panel remains whole.

Timing. Sometimes it really stinks.

Justice Sandoval, anyone?

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You’ve got to hand it to the White House media machine.

It puts out a report that has Washington all a-flutter, even if it appears to be the longest of long shots.

Or is it?

Nevada Gov. Brian Sandoval is being considered for that coveted spot on the U.S. Supreme Court.

Two things about Sandoval make this a remarkable consideration.

One: He is a former U.S. district judge whom the Senate confirmed overwhelmingly.

Two: He is a Republican.

Sandoval being vetted

It’s the second part of Sandoval’s resume that is most intriguing.

GOP senators, led by Majority Leader Mitch McConnell, have said they won’t consider anyone for the spot that President Obama wants to fill to replace the late Justice Antonin Scalia.

But are they really and truly going to slam the door shut on one of their own Republicans, someone they’ve endorsed already for a lower court post?

Sandoval is reportedly a moderate Republican. That, of course, doesn’t fit the profile desired by so many of the hard-right senators who will have to vote on whomever the president selects.

The chatter already has suggested that the president is going to nominate a centrist. He’ll forgo an ideological battle in order to get someone seated.

Gov. Sandoval is a long way from being nominated, let alone being considered for the job.

It makes me wonder: Is the president trying to stick it in the ear of the folks with whom he’s been fighting throughout his entire presidency?

 

 

 

Politics keeps coming around

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Rick Perry quite famously — at least was in Texas — declared that a Travis County grand jury indicted him only for political reasons.

The former governor faced charges of abuse of power and coercion of a public official after a Travis County jury charged him with those two felonies.

Perry would have none of it. He blamed it on Travis County Democrats who comprise the bulk of the voting population in the county where the state’s capital city of Austin is located.

Hey, he had demanded that the district attorney, also a Democrat, resign after she got caught driving drunk. Rosemary Lehmberg didn’t quit. So Perry vetoed money appropriated for her office to run the Public Integrity Unit.

Politics, politics, politics.

So, Perry played the politics game while condemning the indictments that came down.

What happened next might deserve a bit of scrutiny.

The Texas Court of Criminal Appeals today dismissed the remaining indictment against Perry, the one accusing him of abuse of power. He acted within the law when he vetoed the money for the DA’s office, the court said.

Did politics determine that decision? Well, I don’t know.

The state’s highest criminal appellate court comprises all Republicans. The same party to which Perry belongs.

Was the CCA decision to dismiss the indictment as politically motivated as the grand jury’s decision to indict the governor?

Perry said so when the grand jury returned the indictment. He’s not going to say the same thing about his political brethren on the state’s top criminal court.

Still, isn’t it a question worth pondering?

 

 

Respect this opinion … while disagreeing with it

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Rick Perry is free at last!

Free of the indictment that he said was politically motivated. Free of the cloud that threatened to rain buckets of trouble all over him. Free of the snickering from his foes.

The Texas Court of Criminal Appeals, the state’s highest criminal appellate court, has dismissed the indictment that charged the former governor with abuse of power. A lower court had tossed out another indictment that charged Perry with coercion of a public official.

This is one of the decisions that one can respect while disagreeing with the findings.

Texas Tribune story.

The system did its job.

A Travis County grand jury indicted Perry on charges of abuse of power over his veto of money for the Public Integrity Unit run out of the Travis County district attorney’s office. The DA, Rosemary Lehmberg, had pleaded guilty to drunken driving and served some time in jail. Perry said she should resign and if she didn’t he would veto money for the Public Integrity Unit, which is charged with investigating wrongdoing among public officials.

Lehmberg should have quit. But she didn’t. So Perry followed through on his threat and vetoed the money. I must add here that Lehmberg is a Democrat, while Perry is a Republican.

So, the grand jury indicted him — while Perry was finishing up his stint as governor and preparing to run for president of the United States. Perry accused the grand jury of playing politics. Travis County is a Democratic bastion; Perry, of course, is a Republican. I’ll point out, too, that the special prosecutor who presented the case to the grand jury also is a Republican.

I actually thought the lesser of the charges — the coercion part — had more staying power. Silly me. I didn’t expect a lower court to toss that one first.

I never liked the idea of a governor telling an elected county official to quit. That wasn’t his call to make, given that the district attorney is answerable only to the people who elected her. Gov. Perry tried to bully Lehmberg into doing his bidding and that — to my way of thinking — is fundamentally wrong.

As for the veto itself, the governor could have — should have — simply vetoed the money appropriated for the integrity unit without the fanfare he attached to it. That’s not the Perry modus operandi, however. He sought to make a show of it, which also is wrong — but not illegal, according to the Court of Criminal Appeals.

As for the politics of this case … if the governor alleged that the grand jury indictment was motivated by politics because Travis County comprises mostly Democrats, is it fair to wonder whether the top appellate court dismissal occurred because all its members are Republicans?

Hey, I’m just thinking out loud.

So, the case is over.

Now we can all turn our attention to the Greatest Show on Earth, which would be the Republican Party presidential primary campaign. Let’s bring out the clowns!

Oh, that silly thing called ‘public comment’

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A member of my family challenged me earlier today to recall a statement from a politician that seemed to contradict what President Obama has said about his upcoming nomination for someone to serve on the U.S. Supreme Court.

The president wants the Republican-controlled Senate to give the nominee a fair and thorough hearing and then a vote in a “timely fashion.” Democrats are angry that GOP senators are pledging that whoever gets the nod won’t get a committee hearing, let alone a vote.

One of those angry Democrats is Vice President Joe Biden.

Oh, but wait. He said something different in 1992 when a Republican was president. Then-Sen. Biden said President George H.W. Bush shouldn’t get a Supreme Court nominee approved in an election year.

My family member brought that statement to my attention and asked me whether I opposed it then.

My answer? I couldn’t remember the statement, let alone what I thought about it at the time.

White House defends Biden

The vice president has said that the statement has been “taken out of context.” Biden says that he added later in his Senate floor remarks that he’d consider a nominee if he or she were a moderate; Biden chaired the Senate Judiciary Committee at the time.

I, too, believe the Senate should consider a presidential appointment to the Supreme Court to fill the vacancy created by the death of Justice Antonin Scalia.

Which brings me back to where we started.

We hear so many things through so many channels, venues, forums and information-delivery systems that most of us can’t remember who said what, when they said it and in what context they said it.

If I’d heard it at the time I likely would have condemned it. However, that’s a hypothetical event, which politicians say they dislike. I’ll concede that I probably didn’t hear Sen. Biden say what he’s now acknowledged he said.

Sure, Biden would be wrong — if he favored obstructing future high court nominations and left it at that. He says now he had more to say than what’s being reported.

Fine …

None of this justifies today’s Senate leadership vow to obstruct the current president from filling a seat on the Supreme Court.

Americans have already decided who gets to choose

Senate Majority Leader Mitch McConnell, R-Ky., center, is joined by, from right to left, Majority Whip John Cornyn, R-Texas, Sen. John Thune, R-S.D., Sen. John Barrasso, R-Wyo., and Sen. Roger Wicker, R-Miss., as he speaks with reporters following a closed-door policy meeting on Capitol Hill in Washington, Tuesday, Feb. 23, 2016. The Senate will take no action on anyone President Barack Obama nominates to fill the Supreme Court vacancy, Senator McConnell said as nearly all Republicans rallied behind his calls to leave the seat vacant for the next president to fill. His announcement came after Republicans on the Senate Judiciary Committee ruled out any hearing for an Obama pick. (AP Photo/J. Scott Applewhite)

What part of the American electoral process don’t U.S. Senate Republican leaders understand?

Majority Leader Mitch McConnell said “the American people should decide” who gets to make the next appointment to the Supreme Court.

Texas Sen. John Cornyn of Texas, a member of the Senate Judiciary Committee, has echoed that sentiment.

McConnell said the Judiciary Committee will not conduct any hearings to decide whether to confirm whomever the president nominates. It’s malarkey, man.

OK, this isn’t an original thought, but it’s the best one I can come up with.

Americans already have decided who gets to fill the vacancy created by the sudden death of Justice Antonin Scalia. They decided it in two presidential elections.

Barack H. Obama won them both. He won the 2008 election by nearly 10 million votes; he was re-elected in 2012 by nearly 5 million votes.

Both times the young man gave every indication he would find someone to sit on the court with whom he — as a progressive Democrat — was ideologically comfortable. Two of his picks, Sonia Sotomayor and Elena Kagan — already have taken their seats on the court.

He gets to nominate a third individual to succeed Justice Scalia.

Yeah, he’s a “lame duck.” What difference does it make? None. He’s still the president. The Senate is still functioning.

So … let the president propose and let the Senate dispose.

Senators can stop hiding behind the cheap canard that the “American people” deserve a voice.

The people’s voice has been heard. Twice!