Category Archives: The Courts

Janice Rogers Brown: The Justice Obama (And Bush) Bypassed

Conservatism, Constitution, Justice, Law, The Courts

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Whoever interviewed the terribly nice Ben Carson the other day went blank (and quickly moved on) when Dr. Carson answered a question about his possible pick for the Supreme Court. (The ignorance jibes with Megyn Kelly, but I can’t be sure.) The good doctor’s pick was a good one: Janice Rogers Brown.

In 2009 (May 26), Judge Brown was “Barely A Blog’s Pick For The Supreme Court,” when we were faced with the choice of clodhopper Sonia Sotomayor (George Bush’s picks were as catastrophic. Remember the goofy Harriet Myers?). I wrote:

Who said the following: “Today’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much ‘free stuff’ as the political system will permit them to extract”?

Answer: Justice Janice Rogers Brown, the black, conservative judge George Bush had also passed-up on nominating for the SCOTUS. (Yes, the Republicans’ new-found fidelity for the Constitution should always be laughed out of court.)

This is just one of Brown’s many just utterances. At the time, President Bush’s lickspittles came close to conceding that he, too, considered Rogers Brown “outside the mainstream,” to use the Democrats’ line.

Janice Brown quotes Thucydides, F.A. Hayek, and Burke. That’s so white male, so yesterday; so wrong.

UPDATED: Obama Will Likely Use The Equivalent Of An Executive Order To Fill SCOTUS Vacancy

Barack Obama, Federalism, Justice, Law, The Courts

It’s called a recess appointment, and we know enough about President Barack Obama to know he’ll use it to fill the Supreme Court vacancy (left by Antonin Scalia’s death), in the teeth of Republican opposition.

Over to professor Jonathan Turley:

… Faced with a refusal of the Republican senators to move forward with a nominee for the court in the last year of the Obama Administration, President Obama could use the nuclear option: a recess appointment to the Supreme Court.

Under Article II of the U.S. Constitution a president is allowed to temporarily fill vacancies that “may happen during the Recess of the Senate.” I have long been a critic of recess appointments to the judiciary. While far less common than appointments to the Executive Branch, such appointments have occurred historically (including 12 to the Supreme Court).Yet judicial recess appointments undermine the integrity of the courts by using the equivalent of a judicial temp for a position that was meant to be held by a jurist with lifetime tenure.

The framers wanted a president and the Senate to come to an accord on such appointments, including the need to compromise to achieve such goals. Obama, however, made it clear years ago that he was willing to go it alone when Congress failed to give him legislation or confirmations that he demanded. His unilateral actions have already produced a constitutional crisis over the fundamental guarantees of the separation of powers. This includes a unanimous 2014 decision of the Supreme Court that Obama violated the recess appointments clause in his circumvention of the Senate. …

More Turley.

Meanwhile, Republicans prepare to cave:

BACKGROUND:

OBAMA’S BACKGROUND:

Jeff Deist:

More debunking of the “Obama is brilliant” narrative. He was never a constitutional scholar, a con law professor, or even a top law student.
And his vaunted aloofness is not due to being intelligent and bored- it’s due to being out of his league.
He is, and was, an empty suit. A complete cipher in 2008, thanks to a compliant media in the tank for him.
Note also Obama’s pseudo-intellectual interest in phony theories like Alinsky’s “Power Analysis.”

“Chicago Law Prof on Obama: The Professors Hated Him because he was Lazy, Unqualified & Never Attended any of the Faculty Meetings.”

UPDATE (2/24):

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UPDATED: Disparate-Impact Doctrine: Doing Away With Due Process (Obama’s Race Database)

Constitution, Justice, Law, Private Property, The Courts

Is there any doubt the US Supreme Court is engaged in shameless social engineering, and now regularly exceeds its constitutional appellate jurisdiction? A scandalous example of this is Justice Anthony Kennedy’s swing vote in affirming the disparate-impact doctrine, thus doing away with due process (property rights have long since been sundered).

The Doctrine holds “that the law allows not only claims for intentional discrimination but also, claims that cover practices that have a discriminatory effect, even if they were not motivated by an intent to discriminate.” (CNN)

An example that comes to mind: A property owner (in name only) doesn’t want to sell a residential property in a quaint little town to a developer who’ll erect an apartment block on the small space, currently surrounded by family homes. The government decides that this would impede the ability of poorer minorities to move into this cute little hamlet, and sues the seller.

The SCOTUS Blog:

On June 25, 2015, the Supreme Court, by a five-to-four margin, upheld the application of disparate impact under the Fair Housing Act (“FHA”) in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. While upholding the theory, the Court imposed significant limitations on its application in practice. [Yeah, right!]

In a disparate-impact claim, a plaintiff may establish liability, without proof of intentional discrimination, if an identified business practice has a disproportionate effect on certain groups of individuals and if the practice is not grounded in sound business considerations. The Court, however, imposed important limitations on the application of the theory “to protect potential defendants against abusive disparate-impact claims.”

Is there any wonder Attorney General Loretta E. Lynch was so jubilant? She “released the following statement … after the Supreme Court ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project Inc.:

“I am pleased that the Supreme Court has affirmed that the Fair Housing Act encompasses disparate impact claims, which are an essential tool for realizing the Act’s promise of fair and open access to housing opportunities for all Americans. While our nation has made tremendous progress since the Fair Housing Act was passed in 1968, disparate impact claims remain an all-too-necessary mechanism for rooting out discrimination in housing and lending. By recognizing that laws, policies and practices with unjustified discriminatory effects are inconsistent with the Fair Housing Act, today’s decision lends support to hardworking Americans who are attempting to find good housing opportunities for themselves and their families. Bolstered by this important ruling, the Department of Justice will continue to vigorously enforce the Fair Housing Act with every tool at its disposal – including challenges based on unfair and unacceptable discriminatory effects.”

UPDATE (7/25): The link between the affirmation of the disparate-impact doctrine and Obama’s race database is obvious. Have race data will travel.

Paul Sperry:

… Unbeknown to most Americans, Obama’s racial bean counters are furiously mining data on their health, home loans, credit cards, places of work, neighborhoods, even how their kids are disciplined in school — all to document “inequalities” between minorities and whites.

This Orwellian-style stockpile of statistics includes a vast and permanent network of discrimination databases, which Obama already is using to make “disparate impact” cases against: banks that don’t make enough prime loans to minorities; schools that suspend too many blacks; cities that don’t offer enough Section 8 and other low-income housing for minorities; and employers who turn down African-Americans for jobs due to criminal backgrounds.

Big Brother Barack wants the databases operational before he leaves office, and much of the data in them will be posted online.

So civil-rights attorneys and urban activist groups will be able to exploit them to show patterns of “racial disparities” and “segregation,” even if no other evidence of discrimination exists.

MORE.

No Salvation From The Gang of Nine

Constitution, Free Speech, Law, The Courts

By Myron Robert Pauli, Ph.D.

Every June is when the Supreme Court announces its decisions on the disputes on which it picks to rule. According to Chief Justice Charles Evans Hughes, “The Constitution is what the judges say it is.” Each year, they hand down very erudite but often nonsensical opinions citing previous erudite nonsensical opinions (known as “precedent”). If you trace back all the precedents, you might get a slight resemblance to the US Constitution, just as if you rotate 1 degrees each time for 180 times, you wind up pointing in the opposite direction.

From my view, the biggest nonsense of 2015 was Zivotofsky v. Kerry, a relatively inconsequential case over Congress instructing that passports for people born in Jerusalem list Israel as their birthplace. Now, the 4th clause of Article 1 Section 8 gives Congress authority over the rules of naturalization, which would seem to me, to cover citizenship status. Congress could declare Jerusalem births to be from Israel, Jerusalem, Palestine, Bolivia, or Mars. NO – said 6 Justices – that power is exclusively reserved for the president (Where is that stated in Article 2??).

Many were annoyed by the Obamacare decision – but there should be little surprise. In 1937, the Supreme Court had decided: (1) The 10th Amendment has no meaning. (2) Congress can hand out welfare, retirement, etc. “benefits” to individuals at will. (3) Congress can delegate legislative powers in the form of “regulations” which can be drafted by unelected bureaucrats and where citizens can be fined and imprisoned for violating. So, Gomer Pyle, where is the “surprise surprise surprise”? Congress surely didn’t read the 2900 page Affordable Care Act. I somewhat doubt that Obama read the 2900 pages and, in any case, has changed it at will every month. Why should a “wise Latina” like Sotomayor decipher 2900 pages of hieroglyphics? Besides, only one person in the galaxy understands what is in that glop and that is Professor Gruber. If hyperregulation is good on Mondays, why is it wrong on Tuesdays? Basically, the Supremes did not want to touch that greased pig of a bill.

The Court often rules for freedom of speech. This angers “conservatives” when the speech is smutty and angers “liberals” when it is plutocratic oligarchs funding 30 second political spots. Admittedly, the smut is on a higher intellectual and more honest than the 30 second ads. But is the Supreme Court responsible because more people watch smut than read the Bible? Is the Supreme Court responsible because people believe those silly spots where Hillary uses her billion buck fundraising booty from sucking up to the oligarchs and special interests to accuse Jeb of being a corrupt tool of the oligarchs and special interests and Jeb uses his billions to accuse Hillary of being the corrupt tool?

And, of course, we have gay marriage? Personally, I am not going to change because someone marries the same sex or a consenting bear or their toaster (but don’t fool around with the vacuum cleaner!). If millions are going to descend into Sodom because of a few people’s preferences, those millions cannot have very strong moral convictions. But again, did the Supreme Court cause “indecency” or are they just “following the election returns” (and popular trends)?

And the granddaddy of all brouhahas: abortion. Theoretically, the right to abortion follows the right of a person to “do what she wants with her body.” Hence, a person can chop off her leg, cook it in the over, and eat it. But America has not had 55 million cases of cannibalistic self-mutilation. America has had 55 million abortions since 1973. Is there not some responsibility for that among the tens of millions who decided to terminate the lives of those developing children?

When Stevens in Gonzales v. Raich said that a woman smoking dope in her basement interferes with interstate commerce, he also pointed out that if the law is idiotic, Congress and the president should repeal the law. Yes folk, don’t look at Ginsburg, Scalia, Roberts, and Rehnquist as the Blessed Mother and the Holy Trinity! If this nation is authoritarian, corrupt, bloated, idiotic, or immoral – time to gaze into the mirror. You will not receive Salvation from the Gang of Nine.

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Barely a Blog (BAB) contributor Myron Pauli grew up in Sunnyside Queens, went off to college in Cleveland and then spent time in a mental institution in Cambridge MA (MIT) with Benjamin Netanyahu (did not know him), and others until he was released with the “hostages” and Jimmy Carter on January 20, 1981, having defended his dissertation in nuclear physics. Most of the time since, he has worked on infrared sensors, mainly at Naval Research Laboratory in Washington DC. He was NOT named after Ron Paul but is distantly related to physicist Wolftgang Pauli; unfortunately, only the “good looks” were handed down and not the brains. He writes assorted song lyrics and essays reflecting his cynicism and classical liberalism. Click on the “BAB’s A List” category to access the Pauli archive.