Category Archives: Law

UPDATED (7/10): Kavanaugh Questions

Constitution, Federalism, Justice, Law, The Courts

Brett Kavanaugh, of the U.S. Court of Appeals for the D.C. Circuit, has been nominated to replace Justice Anthony Kennedy on the Supreme Court.

Kavanaugh comes from Administrative Law—was he good at fighting the Deep State?—was appointed and recently praised by George W. Bush, who gave us John Roberts, and George Washington University professor Jonathan Turley, who approved of Neil Gorsuch, suggests Kavanaugh is not an intellect of Gorsuch’s order.

For his part, libertarian-leaning Rep. Justin Amash (R­–Mich.) is openly unhappy. He tweets:

Kavanaugh is not another Gorsuch—not even close. Disappointing pick, particularly with respect to his 4th Amendment record. Future decisions on the constitutionality of government surveillance of Americans will be huge. We can’t afford a rubber stamp for the executive branch.

Randy Barnett, on the other hand, approves.

I don’t know that libertarians want “big fierce nominees,” but I see what Turley, an interesting thinker himself, is saying in the must-read op-ed, “Why ‘big fierce’ nominees are rare.”

An original thinker is always a good thing (and how few of those there are).

Supreme Court nominees. Most are not especially remarkable in their prior rulings or writings. They are selected largely for their ease of confirmation and other political criteria. Big fierce minds take too much time and energy to confirm, so White House teams look for jurists who ideally have never had an interesting thought or written an interesting thing in their increasingly short careers. … The last nominee was a remarkable departure from this judicial ecology rule. As I testified at his confirmation hearing, Neil Gorsuch was an intellect of the first order with a long list of insightful and provocative writings as both a judge and an author. …The history of Supreme Court nominations is largely one of planned mediocrity. The influential legal minds of a generation often are avoided for more furtive minds. … There is a difference between fierce ideology and fierce intellect. Many on the list of 25 judges stand out for commitment to conservative values but are not particularly distinguished in contributions to legal thought. Most fall closer to the mold of Samuel Alito and Clarence Thomas, as opposed to Antonin Scalia and Gorsuch.

Confirmations tend to reward young lawyers who avoid controversies to advancement on the Supreme Court.

Jonathan Turley cites Richard Posner and Robert Bork as examples of “big fierce minds,” which simply could not be countenanced on the mediocrity-necessitating SCOTUS.

Brilliant piece. Turley is brilliant.

UPDATE (7/10):

John G. Roberts Jr.? Please no.

UPDATED (8/13/018): NEW COLUMN: Separated From My Child—And Nobody Cares

Family, Ilana Mercer, IMMIGRATION, Law, South-Africa

“Separated From My Child—And Nobody Cares” is the current column. It’s now on Townhall.com (slightly abridged), but on WND.com and The Unz Review, au naturel.

An excerpt:

The late Charles Krauthammer was right about the rules of good writing. The use of the first-person pronoun in opinion writing is a cardinal sin.

To get a sense of how bad someone’s writing is count the number of times he or she deploys the Imperial “I” on the page. Krauthammer considered a single “I” in a piece to be a failure.

Use “I” when the passive-form alternative is too clumsy. Or, when the writer herself has earned the right to, because of her relevance to the story. (The story itself, naturally, should have relevance.) The second is my excuse here.

As a legal immigrant to the U.S., now an American citizen, I have a right to insert myself into the noisy narrative.

As a legal immigrant who was separated from her daughter, herself a legal immigrant, the onus is on me to share a scurrilous story that is part of a pattern:

America’s immigration policy—driven as it is by policy makers and enforces—exalts and privileges those of low moral character. It rewards law-breakers, giving them the courtesy and consideration not given to high-value, legal immigrants.

The same U.S. immigration law enforcers who cater so kindly to each illegal immigrant—the kind that is a drain on the country and has no right to be in the country—stripped my daughter of her American permanent residency privileges.

A young person travels alone and gets bamboozled at the border-crossing in Blaine, Washington State. So, they strip her of her green card.

That’s our immigration story.

My girl was studying in Canada. She got intimidated at the border and gave the wrong answer to her petty American inquisitor. So, she was quick-marched into a small booth and peppered with more questions meant to terrify.

With an intimidating display of machismo, the burly men of U.S. Citizenship and Immigration Services (USCIS) bullied a young girl into relinquishing her right of permanent residency (also the road to citizenship).

La Bandida was at bay. America was finally safe.

More fundamentally, hers was not an ill-gotten green card.

The principal sponsor, a Ph.D. in electrical engineering, had entered the US on an O-1 visa. Unlike the H-1B visa, the 0-1 visa doesn’t replace Americans; it adds to them. For it is granted to those with “extraordinary ability in the fields of science, education, business or athletics.” The O-1 necessitates “a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.”

Not by deceit did my child gain her green card. But by deceit is how the swarms on the border will get theirs. The squeaky wheels squatting on the southern border, funneled daily into the interior to create facts on the ground, are not refugees or legitimate asylum seekers. Rather, they are merely from what President Trump has termed “s–thhole countries.” By that criteria, Americans could be forced to welcome the world.

A refugee, conversely, is an individual who is …

… READ THE REST. “Separated From My Child—And Nobody Cares” is the current column. It’s on Townhall.com slightly abridged, and on WND.com and The Unz Review, as is.

UPDATE (8/13/018):

Trump’s List

Intellectualism, Intelligence, Justice, Law, The Courts

Amy Coney Barrett: How can one fail to be impressed by this 46-year-old mother of seven, former Notre Dame law professor and clerk to the late Justice Antonin Scalia?

Speaking on Fox News (7/5), constitutional scholar Jonathan Turley, certainly an intellect, intimated to Jason Chaffetz that none of the justices on Trump’s list quite matches Neil Gorsuch for intellect. Turley sagely advised that the president “choose intellect, not optics.”

As Micky Kaus grumbles, the Federalist Society vets for Roe v. Wade. But do they vet for Flores? Making sure Trump doesn’t pick a Bushesque act-of-love justice seems like Job #1 for border controllers right now.

Ted Cruz and Rand Paul support Sen. Mike Lee (R-Utah), for reasons they don’t specify. They say he has fine principles. Well, what are Lee’s principles?

Principle is important. So is intellect.

This Washington Post item is crammed with grammatical mistakes. Mismatched subject and verbs, for example. Disgraceful. But here is, “Trump narrows list for Supreme Court pick, with focus on Kavanaugh and Kethledge.”

Leftists Are Convulsing Over A Conservative Court. It Doesn’t Get Better. OK, Maybe It Will.

Conservatism, Constitution, Law, Republicans, The Courts

Quite correct: Republicans have had the chance to consolidate a conservative majority on the Supreme Court and … FAILED, REFUSED, or chose to break bread with the opposition, rather than keep the faith with the base and the original Constitution. As the author of this New York Times Review of Books essay suggests, the “mishaps” of previous republican presidents in appointing justices to the SCOTUS suggest “something less than full-throated judicial conservatism on their part.”

… In retrospect, it is remarkable that a strong conservative majority on the Court has not emerged before now. Since 1980, Republicans have held the presidency for twenty-two years and Democrats for sixteen. Ronald Reagan, who campaigned on the platform of choosing conservative judges, appointed three justices—Antonin Scalia, Sandra Day O’Connor, and Kennedy—and elevated William Rehnquist to the chief justiceship. That should have established conservative control. Yet O’Connor turned out to be a centrist, controlling the Court for a quarter-century by casting the decisive fifth vote in controversial cases. When she retired in 2006, Kennedy assumed her position as the swing justice and unexpectedly emerged as a liberal hero, voting, for example, to extend constitutional rights to detainees in Guantánamo Bay and marriage rights to same-sex couples.

George H.W. Bush also had the chance to consolidate a conservative majority. He appointed Thomas to replace Thurgood Marshall but also replaced William Brennan with David Souter, who underwent a subtle yet significant evolution from Burkean conservative to Burkean liberal. Bill Clinton, George W. Bush, and Barack Obama each got two justices confirmed, which maintained the Court’s balance. That conservative control has been so long in coming reflects either miscalculation by Reagan and George H.W. Bush or (more likely) something less than full-throated judicial conservatism on their part. …

… THE REST IN “Tipping the Scales by Noah Feldman.”

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