January 2012

In a splintered ruling, the Supreme Court ruled that a trial judge erred in issuing an injunction against a cross honoring veterans. It left open the possibility that the judge could issue an injunction all over again if he makes certain findings, although it suggested that the cross could probably remain in the midst of public land as long as the parcel of land immediately around it is transferred to private hands. (The trial judge had found unconstitutional a federal law transferring the parcel of land immediately around the cross to private hands, since that parcel was surrounded by public land, in Salazar v. Buono.)

Five of the nine justices seem ready to affirm a federal appeals court ruling in Doe v. Reed that opponents of gay marriage cannot invoke First Amendment-based privacy rights to keep their identities confidential after signing a ballot petition to prohibit gay marriage.  (The Institute for Justice discusses the case here.)

President Obama has nominated the controversial Judge Robert Chatigny to the U.S. Court of Appeals for the Second Circuit. Chatigny unsuccessfully attempted to block the execution of serial murderer and rapist Michael Ross, the “Roadside Strangler,” saying that his “sexual sadism” should be a mitigating factor barring his execution — even though Ross himself did not claim that his death-sentence was in any way inappropriate. Yet Democrats and even a few Republicans are likely to vote to confirm Chatigny.

Obama has also nominated the radical lawyer Goodwin Liu to the Ninth Circuit Court of Appeals.  Liu is hostile to “’free enterprise, private ownership of property, and limited government.’ According to Liu, these are ‘code words for an ideological agenda hostile to environmental, workplace, and consumer protections.’”  Liu also believes in “a constitutional right to welfare.“  Liu is also a big user of politically-correct psychobabble, writing that a judge is supposed to be a “culturally situated interpreter of social meaning” rather than an impartial umpire who interprets the law in accord with its plain meaning or its framers’ intent.

Bar association standards say lawyers are supposed to have practiced law for at least 12 years before being nominated to a judgeship, and should also have “substantial courtroom and trial experience.“  Liu has no trial experience, and had not even been out of law school for 12 years at the time he was nominated, meaning he was by definition unqualified under ABA standards.  But a liberal ABA committee, showing ideological bias, rubberstamped his nomination anyway, ignoring his lack of the required qualifications, since its members shared his extreme political views.

The Ninth Circuit, to which Liu was nominated, already contained a lot of left-leaning judges. The Wall Street Journal criticizes a recent 6-to-5 ruling by the Ninth Circuit allowing six atypical female employees to bring a  multibillion dollar class action lawsuit against Wal-Mart in the name of 1.5 million female employees.  The plaintiffs’ lawyers sought at least $450 billion!  The intellectually dishonest ruling allowed just six employees to bring a national class-action even though Wal-Mart’s hiring and promotions are decentralized and not done on a company-wide basis, and national class-actions are supposed to challenge a company-wide practice.  I have explained why the Ninth Circuit’s earlier 2-to-1 ruling against Wal-Mart was an abuse of basic legal principles.

Although the lawsuit will affect employees and managers across the country, a verdict will be rendered by a left-wing jury drawn heavily from San Francisco, since the plaintiffs sued Wal-Mart in one of the most anti-employer judicial districts in America, the Northern District of California, which is based in San Francisco.  My relatives, (relatively) moderate Democrats, live in San Francisco.  They lament the fact that to San Francisco juries, lawsuit defendants are presumed guilty.   The gender-based chip on the shoulder of many San Franciscans is exemplified by the legion of bumper stickers saying that “a woman needs a man like a fish needs a bicycle” and “I believe you Anita.”  (My classmates at Harvard Law School were a liberal bunch, but when law professor Richard Parker asked them if they knew whether Anita Hill was telling the truth, 80 percent of them confessed that they did not.  But San Franciscans, unlike law students, aren’t troubled by conflicting evidence, since they know that the defendant is always guilty in a sex discrimination case.)