Combs Spouts Off

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Posts Tagged ‘courts’

It’s not just the Supreme Court we should worry about

Posted by Richard on September 10, 2016

For many pro-freedom folks, the strongest argument for voting for a deeply flawed GOP presidential candidate revolves around the Supreme Court. Donald Trump released a list of potential Supreme Court appointees a while back, a list strongly influenced by the Federalist Society and widely praised by conservatives and libertarians. Of course, there’s no guarantee that he’d stick to that list (although he’s promised to nominate people like those on the list). But it’s a virtual certainty that Hillary Clinton would nominate candidates like Breyer, Ginsburg, Kagan, and Sotomayor, if not worse.

But the Supreme Court isn’t the only judicial issue of concern. The Heritage Society points out that President Obama has fundamentally transformed the federal judiciary:

When Obama entered the Oval Office, liberal judges controlled just one of the 13 circuits of the U.S. Court of Appeals. Fifty-five successful presidential nominations later, liberal majorities now control nine of those appeals benches, or 70 percent.

Outside of legal circles the transformation of the influential federal appeals courts has gone largely unnoticed, though.

“The Supreme Court grabs the spotlight, but it hears fewer than 100 cases a year,” Texas Supreme Court Justice Don Willett said, “while the 13 federal courts of appeals handle about 35,000.”

More than one-third of the 179 judges on federal appeals courts owe their seat to Obama, Willett told The Daily Signal. “That’s a legacy with a capital L.”

Obama also has left his mark on the U.S. District Courts, which are the lower federal courts, successfully appointing 268 judges—seven more than President George W. Bush.

All those appointments were of course confirmed by the Senate. The GOP establishment and its critics disagree about whether Senate Republicans did the best they could or “handed over the keys to the judiciary without a fight,” and the Heritage article fairly presents both sides. Personally, I think the critics have the stronger argument. That’s not just water under the bridge; it gives us an idea of what to expect if Hillary Clinton is elected.

The next president could tip the balance of the four remaining circuit courts of appeals still dominated by conservatives.

“It’s hands down the most fateful issue of the election,” said Willett, who is on Republicans’ short list for the Supreme Court.

“When Americans vote in November, they’re choosing not just a president but thousands of presidential appointees, including hundreds of life-tenured judges.”

In 2013, Sen. Harry Reid invoked the “nuclear option” for all appointments other than to the Supreme Court, ensuring that a simple majority could end debate (quash a filibuster) and vote to confirm. This precedent will cut both ways going forward.

If Clinton is elected and the Democrats retake the Senate, anyone she nominates to the federal bench is, barring a scandalous revelation, certain to be confirmed. Even if Republicans retain the Senate (I think they probably will, but wouldn’t bet on it), history suggests that most of her nominees would be confirmed. There are several Republican senators who will will not oppose a Democratic president’s nominally qualified nominee based on ideology (unless the nominee is an avowed Stalinist, and maybe not even then).

If Trump is elected and the Democrats retake the Senate, I suspect the self-described deal-maker would nominate judges and justices who could get enough Democrat votes to be confirmed, perhaps people like Souter and Roberts. But I consider this scenario highly unlikely. Given the tepid support for Trump among the GOP base, I can’t imagine him being elected, but the GOP losing the Senate.

So the election of Trump would almost certainly be accompanied by the election of a Republican majority Senate. The nuclear option would then ensure that his lower court appointments could be confirmed, and he’d have every reason to nominate judges acceptable to the conservative base and no reason not to. In just four years, that could easily mean 25 or more circuit court and 100 or more district court appointments.

The Reid precedent doesn’t cover Supreme Court nominations, so that’s a different story. Senate Republicans could tell their Democrat colleagues “you started this, we’re going to finish it” and extend the nuclear option to cover Supreme Court nominations. But I can’t see Mitch McConnell doing that; it would require new leadership with a stiff spine.

The more likely scenario is, again, the nomination of people like Souter and Roberts in order to attract enough Democrat votes to invoke cloture (Roberts was confirmed on a 78-22 vote, with fully half of Senate Democrats voting for him). That’s not something I’d cheer, but it would be far better than two to four more Breyers or Kagans. So maybe a sigh of relief.

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More Obama administration lawlessness to come?

Posted by Richard on March 18, 2014

The Obama administration has ignored laws, unilaterally changed laws, and administratively enacted laws, demonstrating complete indifference to the separation of powers and contempt for the legislative branch. Now it seems poised to also demonstrate its contempt for the judicial branch. Michael Cannon at Forbes (bold emphasis added):

As readers of this blog know, the plaintiffs in Halbig v. Sebelius and three similar cases are challenging the IRS’s attempt to issue certain subsidies and impose certain taxes where it has no authority to do so: in the 34 states that have chosen not to establish a health insurance “exchange” under the Patient Protection and Affordable Care Act. Oral arguments in Halbig are scheduled for March 25 before the U.S. Court of Appeals for the D.C. Circuit.

Read all about the these cases here.

On Wednesday, March 12, government lawyers filed with the court a brief but strange “notice of supplemental authority” that seems to suggest the IRS will keep issuing those subsidies and imposing those taxes even if the court declares the agency has no authority to do so.

Instead of jailing “climate change deniers,” we should jail “Constitution deniers.”

The Cato Institute has lots more about Halbig and related cases.

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When straws are outlawed…

Posted by Richard on June 27, 2012

Every time I think I’ve encountered the ultimate example of  “zero tolerance” policies run amok, it later turns out I was mistaken. It’s happened again.

The Supreme Court has refused to hear Mikel v. School Board. That means Andrew Mikel II will continue to have on his record a full year school suspension and a juvenile court sentence to a diversion program for anger management and substance abuse counseling. For shooting spitwads at classmates during lunch period.

Mikel was 14 and an honor student active in Junior ROTC when he committed this heinous act in December, 2010. Spotsylvania High School in Spotsylvania, PA, called it “criminal assault and possession of a weapon,” and referred it to local law enforcement, which initiated juvenile criminal proceedings.

Mikel has been homeschooled since.

The Rutherford Institute fought the case all the way to the Supreme Court (emphasis added):

“There can be no justice in a nation where young people like Andrew Mikel have their futures senselessly derailed by school administrators lacking in both common sense and compassion,” said John W. Whitehead, president of The Rutherford Institute. “That the Supreme Court refused to hear Andrew’s case is a tragedy in itself, but by failing to intervene, the Court is legitimizing the perverse use of zero tolerance policies by school districts and the criminalization of America’s schoolchildren by teachers, administrators and police.”

Decrying the school’s actions as arbitrary, capricious and an abuse of discretion, attorneys for The Rutherford Institute filed a petition with the Circuit Court of the County of Spotsylvania asking the court to overturn the School Board’s decision. Although the Circuit Court ruled in favor of the school, it did acknowledge that it was “incongruous” that Andrew was suspended for the remainder of the year for spitwads while a student who punched someone in the eye could be suspended for only ten days. 

Ah, but the student who punched someone in the eye wasn’t armed with an illegal weapon — a straw and some hollow plastic “spitwad” pellets.

I have some questions for Spotsylvania school officials, police, and the courts through which this farce proceeded:

  • Is a straw automatically a weapon, or only if it’s “loaded” with a pellet?
  • What if the straw’s “unloaded,” but the student has the “ammo” elsewhere on his person?
  • Is it a worse offense if he’s carrying the straw concealed?
  • What’s going to be declared a weapon next — a rubber band? A spork?

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Court kills Amazon Tax

Posted by Richard on April 3, 2012

Woohoo! Colorado’s so-called Amazon tax has been ruled unconstitutional by the U. S. District Court in Denver:

In 2010, the Democrats in Colorado, in violation of the state Taxpayers Bill of Rights, passed a variety of tax increases known as the Dirty Dozen.  The state’s highly politicized Supreme Court gave the tax increases a pass around TABOR’s requirement for a citizen vote, but the federal courts are frequently a different matter, and so it has proved with one of the measures, the so-called, “Amazon Tax.”  That tax applied the state sales tax to sales by Amazon affiliates in the state, on the dubious proposition that the presence of a person who either owns a website (which could be hosted anywhere in the world) or who sells web ads constitutes a significant physical presence in the state.

Now, a federal court has decided that the tax violates the US Constitution:

On Friday, the federal court in Denver declared the 2.9 percent tax on purchases unconstitutional on the ground it was tilted unfairly against out-of-state retailers, and that it put an undue burden on retailers to either collect the tax owed by consumers or report consumer purchases to the state.

Judge Robert Blackburn’s ruling noted the legal language of the tax didn’t distinguish between in-state and out-of-state businesses, but the practical effect of the tax did.

“I conclude that the veil provided by the words … is too thin to support the conclusion that the Act and the Regulations regulate in-state and out-of-state retailers even-handedly,” Blackburn wrote.

The court applied what is known as the “negative Commerce Clause,” the notion that if regulation of interstate commerce is explicitly delegated to the Federal government, then it cannot be exercised by state governments. …

After the tax was enacted, Amazon simply terminated all affiliate relationships with Coloradans, so the socialist scum who enacted it gained no revenue as a result.

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The crime of failing to be omniscient

Posted by Richard on May 29, 2011

A disturbing idea has taken root in the Western world in recent decades: that whenever anything bad happens to anyone, someone must be blamed. And made to pay. This may be the most bizarre application of that idea that I've encountered:

ROME (AP) — Seven scientists and other experts were indicted on manslaughter charges Wednesday for allegedly failing to sufficiently warn residents before a devastating earthquake that killed more than 300 people in central Italy in 2009.

Italian media quoted the judge as saying the defendants "gave inexact, incomplete and contradictory information" about whether smaller tremors felt by L'Aquila residents in the six months before the April 6, 2009 quake should have constituted grounds for a quake warning.

I'd like to think that this bit of nonsense is an aberration that will soon go away. But nowadays, who knows? Meanwhile, the defendants are no doubt racking up legal bills. Will we soon see liability insurance policies marketed to geologists, vulcanologists, meteorologists, … ?

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Radical redistributionist blocked

Posted by Richard on May 19, 2011

The Senate has blocked the nomination of Goodwin Liu to the 9th Circuit Court by failing to invoke cloture. Sen. Ben Nelson (D-NE) joined all the voting Republicans to block the motion. This is very good news indeed. The 9th Circuit Court is already home to some pretty far-left judges (and is the most frequently overturned circuit court), but Liu would have made them look restrained and centrist. As Reason's Ilya Shapiro noted:

As I blogged last year, Liu is, without exaggeration, the most radical nominee to any position that President Obama has made. He believes in constitutional positive rights — not that the welfare state and all its accompanying entitlements (and then some) are a good idea, but that they are constitutionally required.  That is, someone ought to be able to sue the government (qua the taxpayer) if they don’t have adequate health care, or food, or shelter, or… well, anything Liu envisions is part of his indeterminate Constitution whose evolving norms adapt to the times “in order to sustain its vitality in light of the changing needs, conditions, and understandings of our society.”


Moreover, he’s opined that words like “free enterprise,” “private ownership of property,” and “limited government” are “code words for an ideological agenda hostile to environmental, workplace, and consumer protections.”

People like Goodwin Liu should be kept as far away from a judicial appointment as possible. And a president who wants people like Goodwin Liu on the federal bench should have his appointments blocked by any means possible.

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