Supreme Court

Obama Fires Inspector General Who Uncovered Fraud, and Honors Defrauder Instead

by Hans Bader on June 11, 2010

in Economy, Employment, Energy, Environment, Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony, Stimulus to Nowhere, Trade, Zeitgeist

Earlier, President Obama fired the inspector general for the AmeriCorps program after he uncovered fraud by Obama crony Kevin Johnson.  (Johnson did not receive even a slap on the wrist for his fraud; an organization Johnson ran was required to pay $350,000, but it never did so because it was insolvent; and Johnson himself was not ordered by the Obama administration to pay anything.)

Now, the Obama administration is honoring Johnson despite his fraud, inviting him to be a featured speaker at an event for AmeriCorps, the program Johnson defrauded.

The Obama administration fired the inspector general who uncovered the fraud, Gerald Walpin, falsely claiming he was a senile right-winger, even though Walpin was a successful lawyer with recent high-profile court victories who had uncovered millions in fraud against taxpayers, and even though Walpin, a northeastern moderate Republican, was sufficiently non-partisan that he endorsed Obama’s Supreme Court nominee, Sonia Sotomayor.  (The Obama administration even trumpeted Walpin’s endorsement of Sotomayor to push her nomination.)

Judiciary Committee Votes to Promote Judge Who Made Excuses for Roadside Strangler, Claiming His “Sexual Sadism” Was a “Mitigating Factor”

by Hans Bader on June 10, 2010 · 3 comments

in Culture, Legal, Personal Liberty, Politics as Usual, Zeitgeist

On a party-line vote, the Senate Judiciary Committee has approved President Obama’s promotion of a federal judge who tried to block the execution of a serial killer and rapist known as the Roadside Strangler based on the unbelievable ground that this serial killer’s  “sexual sadism” was a mitigating factor.  The judge did so even though this serial killer admitted his sentence was appropriate and did not seek to challenge it. Obama nominated this judge to serve on a federal appeals court known as the 2nd Circuit.  The newspaper Roll Call reports:

“The Senate Judiciary Committee approved the nomination of Judge Robert Chatigny to the 2nd U.S. Circuit Court of Appeals Thursday on a largely party-line vote despite stiff GOP opposition over his handling of child pornography and rape cases as a district court judge. With Sen. Dianne Feinstein (Calif.) abstaining on the vote, the committee’s other 11 Democrats approved the nomination Thursday morning, while the committee’s entire seven-member contingent of Republicans voted ‘no.’ In a series of cases involving defendants found guilty of child pornography, rape and sexual assault cases, Chatigny used the process of downward departure to reduce their sentences. Chatigny also played a central role in the ‘roadside strangler’ case. In that case, Chatigny allegedly threatened to pull the law license of the attorney for a convicted killer — who has been on death row for 15 years — unless he continued his efforts to have the sentence overturned. Chatigny’s nomination has been hotly contested by victims’ rights advocates and the families of several high-profile victims, including the family of Elizabeth Smart, who was kidnapped in 2002.”

The Judiciary Committee ignored objections from victims-rights advocates like Edward Smart of the Surviving Parents Coalition, who noted that Judge Chatigny had not just opposed the execution of “Roadside Strangler” Michael Ross, but also gone further, to question his very conviction, based on silly reasons: “Judge Chatigny claimed Ross was incompetent to stand trial based on the prison environment and Ross’s sexual sadism.”  This sort of making excuses for dangerous criminals to overturn their convictions (and potentially set them free) is extremely disturbing.

Footage of the Judiciary Committee hearing makes clear that even some liberal Senators found Chatigny’s record disturbing, but they voted for him anyway out of blind party loyalty to Obama, who nominated him.  Conservative Senator Sessions discusses and criticizes the nomination here.

An even more radical Obama nominee, Goodwin Liu, was previously approved on a party-line vote by the Senate Judiciary Committee.  Liu is a Berkeley law professor who believes that the Constitution requires racial quotas and welfare, and is hostile to “free enterprise, private ownership of property, and limited government.”  If confirmed by the full Senate, Liu would sit on the Ninth Circuit Court of Appeals, the nation’s largest federal appeals court.

Obama’s recent Supreme Court nominee, Elena Kagan, shirked her duty to defend federal laws protecting crime victims, while in her current position as Solicitor General, to which she was appointed by Obama.

Kagan Shirked Duty to Defend Federal Laws Protecting Crime Victims

by Hans Bader on May 19, 2010

in Culture, International, Legal, Nanny State, Personal Liberty, Politics as Usual, Precaution & Risk, Regulation, Sanctimony, Zeitgeist

Federal law authorizes life sentences without parole for particularly heinous violent crimes committed by 16 and 17-year olds.  But Solicitor General Elena Kagan was nowhere to be found when life imprisonment without parole was challenged in the U.S. Supreme Court last fall.  That’s true despite the fact that as solicitor general, “Kagan has an obligation to defend federal laws against constitutional challenges.”

In a 5-to-4 ruling Monday, the Supreme Court struck down such sentences, relying partly on their alleged conflict with international legal norms and “international opinion.”

(Since international norms are hostile both to civil liberties and to life imprisonment even for adult murderers, the Supreme Court’s reliance on them set a dangerous precedent).

Despite Kagan’s dereliction of duty, she was nominated to the serve on the Supreme Court by President Obama.

As Solicitor General, she zealously defended the most censorious aspects of the McCain-Feingold law, which violated the First Amendment, and her office argued that the federal government could even ban books advocating the defeat of a politician using it.

As dean of Harvard Law School, she banned the military from Harvard, challenging a federal law that granted equal access to military recruiters.  She claimed the law, which applied to recipients of federal funds, was unconstitutional — a position unanimously rejected by the Supreme Court.

Too bad she didn’t have similar zeal for protecting crime victims in Monday’s Graham v. Florida case, which may well result in dangerous criminals being released who will go on to commit more acts of violence. (Solicitors General have broad authority to intervene in Supreme Court cases, which they have exercised even in cases not involving the federal government.  But Kagan, who is literally a limousine liberal, could not even be bothered to defend federal laws protecting crime victims).

Curiously, as dean of Harvard Law, Kagan pushed through changes in the curriculum that included dropping constitutional law as a requirement and adding international law as a requirement. (This was a misguided change. I attended Harvard Law before these changes, and not taking an international law class did not in any way hamper my subsequent ability to practice international trade law. My constitutional law class did, however, leave me better equipped to bring lawsuits against government agencies.)

Other Obama judicial nominees have also attracted controversy over their views on the death penalty and criminal sentencing, like the radical law professor Goodwin Liu, and a Connecticut judge who tried to block the execution of the Roadside Strangler, arguing that his “sexual sadism” was a mitigating factor.

Obama Nominates Liberal Lawyer Elena Kagan to the Supreme Court

by Hans Bader on May 10, 2010 · 1 comment

in Legal, Personal Liberty, Politics as Usual

President Obama has nominated liberal lawyer Elena Kagan to the Supreme Court.   She currently serves as Solicitor General.  Before that she was dean at Harvard Law School.

You can find my take on the nomination at this link, which quotes the reactions to Kagan’s nomination by liberal, conservative, and libertarian  legal commentators.  (The opinions I express there are solely my own.)

Earlier, I wrote about Obama’s controversial nominations of Goodwin Liu to the Ninth Circuit Court of Appeals, and Robert Chatigny to the Second Circuit Court of Appeals.

Politics is Conflict

by Fred Smith on May 3, 2010 · 1 comment

in Energy, Environment

In Massachusetts vs. EPA, the Supreme Court sided with a group of Green States seeking to impose draconian energy rationing schemes on America.  A few states have access to non-carbon energy sources (hydro-power or older nuclear power) and, thus, can reward their ideological majorities at lower cost.  But most Americans will become poorer as energy prices sky rocket.   With EPA moving aggressively toward mandating this new power, restricting energy use throughout the nation, conflict will surely erupt among the states of the union.

One of the most creative features of our Constitution was its concept of competitive federalism.  States were to be the laboratories of democracy.  The goal was not to impose national uniformity but to allow states to try different ideas – as long as those policies did not harm interstate voluntary exchanges. 

The Massachusetts decision harmed that arrangement as did the 1857 Dred Scott decision, which forced northern states to enforce southern slavery rules.  The concept of ensuring voluntary interstate commerce had little to do with the coercive institution of slavery but the recognition that slaves were “property” was stretched to force non-slave states into policies that they viewed as harmful and immoral.  Non-slave states responded by enacting laws nullifying that decision, refusing to allocate funds for its implementation and eventually to the Civil War.

The impact of Massachusetts is different but perhaps as significant.  Religious Malthusians are determined to enforce their Puritanical vision on America.  They are most powerful in a handful of coastal states and seem very willing to use federal coercion to force their beliefs on middle America.  States are already moving to enact laws and resolutions to oppose this push.  And as the lights go out and plants are shuttered throughout America, we may find ourselves moving toward greater conflict here too.  The prospect is worrisome.

Supreme Court Overturns Ban on Cross; Gay-Marriage Opponents Will Lose Privacy Battle; Controversial Judicial Nominees; Wal-Mart Faces Mega-Lawsuit

by Hans Bader on April 28, 2010 · 1 comment

in Economy, Employment, Labor, Legal, Personal Liberty, Regulation

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.)

The End of Anti-Discrimination Discrimination?

by Fred Smith on April 22, 2010

in Culture, Legal, Nanny State, Personal Liberty

Affirmative action proponents face a battle this Monday when the Supreme Court hears Christian Legal Society vs. Martinez. The challenger argues that a campus religious group should have the right to seek members only among those groups adhering to their religious beliefs.  The explicit challenge involves the right of CLS to exclude non-Christians, gays and non-celibate students.  This case raises the critical issue of whether organizations can “discriminate” – that is form associations to promote specific values or whether that option is precluded by currently dominant views of “anti-discrimination.”  It will be an interesting decision.  And the chances of America moving toward a truly free world where tolerance rather than value-affirmation becomes public policy are looking much better.  The author of the piece was Jonathan Turley, a left-of-center law professor at George Washington University!

Last Bastion of Progressive Optimism

by Fred Smith on April 22, 2010

in Legal, Personal Liberty

Progressives once believed in bureaucracy.  A wise, enlightened civil service kept immune from the corrupting influence of politics would create Heaven on Earth.  That blind faith in government as a better means of advancing the public interest had many roots: a secular substitute for declining faith in traditional religion, a power grab by an expanding intellectual class, the innovations that (they thought) would ensure this result (the “independent agency,” supposed advances in the social “sciences,” and an impatience with the evolutionary gains made possible by the free market.  If spontaneous order could yield gains, think what a directed expert-led effort could achieve!

Reality has not been kind to the Progressives.  Their hope of a non-political politics rapidly went astray as their first model, the Interstate Commerce Commission, was first captured by the railroads and then by the shippers.  The ICC was soon a tool for suppressing competition, for rewarding special interest (the “regulatory capture” reality that the public choice school was to analyze much later).  Regulatory agencies faced a swiftly changing marketplace and found themselves time and time again out-maneuvered.  (It is, of course, always possible that somewhere in our society, there exists a handful of brilliant individuals who might be able to “regulate” a complex and changing marketplace, but it is highly unlikely that those individuals will be attracted to bureaucracy.)

As a result, Progressives have changed tactics.  They still favor elite control of America, but they no longer place their faith in agencies, in the “independence” of civil servants.  They have switched their allegiance to the Courts.  And, that change has meant that the courts have become much more politicized than even the most powerful Progressive institution, the Federal Reserve.  That point was alluded to in a recent Outlook piece in the Washington Post, “Picking a Justice, Ignoring the Fed” by Matthew Yglesias commenting on the massive attention given the retirement of Supreme Court justice, John Paul Stevens, compared to that given the retirement of several key Fed Reserve governors.  Yglesias notes this is somewhat surprising since in many ways the Fed has even more influence over our daily lives than does the Court.  No surprise really: the ideas of Keynes still dominate at the Fed so the Progressives are content.  The Court is narrowly divided with Progressive ideology on the defensive.  It remains narrowly a Progressive institution – they’ll fight to the death to keep it so.

Obama Nominates Left-Wing Extremist Goodwin Liu to Appeals Court; Liu is Possible Supreme Court Nominee

by Hans Bader on March 5, 2010

in Employment, Environment, Legal, Politics as Usual, Sanctimony

President Obama has nominated law professor Goodwin Liu, a left-wing extremist, to the nation’s largest federal appeals court, the Ninth Circuit.  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 opposed the appointment of Supreme Court Chief Justice John Roberts, who was easily confirmed by the Senate in a bipartisan vote of 78-to-22, on the grounds that Roberts supported these “basic precepts of American liberty and economic freedom.”

Liu has been suggested by left-wing “civil-rights” groups as a possible Supreme Court nominee.

Liu also believes in “a constitutional right to welfare“  (perhaps echoing Obama, who has expressed regret that the Supreme Court “didn’t break free” from legal constraints in order to bring about “redistribution of wealth”).  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 also must have “substantial courtroom and trial experience.“  Liu has no trial experience, and has not even been out of law school for 12 years, meaning he is 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 share his extreme political views.

Meanwhile, the Obama administration is doling out favors to politicians that violate federal influence-peddling statutes.  (Earlier, the Administration fired an inspector general, Gerald Walpin, who uncovered wrongdoing by an Obama crony.)

Do Corporations Have Free Speech Rights? The Supreme Court’s Ruling in Citizens United v. FEC

by Hans Bader on February 6, 2010

in International, Labor, Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

In the Citizens United case, the Supreme Court recently struck down restrictions on corporations’ and unions’ ability to criticize politicians.

Do corporations have free speech rights? I explained why I think they should have free speech rights in this letter in the New York Times. Many civil liberties guarantees, like free speech, have long applied to corporations in the U.S. and Europe, as I noted earlier at the Examiner.

Anthony Dick rebuts common misconceptions about the Supreme Court’s decision here.

Earlier, I wrote about Justice Alito’s reaction to the President’s attack on the Supreme Court’s ruling in the Citizens United case. Here, Justice Thomas explains why he skips the State of the Union Address.

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