Tag: Courts

Join Jim and Greg as they enjoying watching House Democrats point fingers at each other for doing much worse than expected in Tuesday’s elections. Jim tells Republicans to stop airing their arguments about election crimes or irregularities on social media and cable news and bring evidence to court if there are reasons to investigate the vote counting. And they unload on self-important New York Times columnist Thomas Friedman for suggesting Al Gore “took a bullet for the country” by conceding to George W. Bush in 2000.

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Politics is a dirty business, and apparently so are elections. Andrew McCarthy is an attorney whom I’ve admired for years. So, when he seemed to state that fraud in elections is inherent in the process, I was very disappointed. But then I realized that his statement was reasonable. And deeply disturbing. It wasn’t the fact […]

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I used to think that the best job in the world, a job from which you would rarely get fired, was being the weatherman.  Let’s face it, half the time weather people can’t predict sunrise with accuracy.  But, in spite of telling you that you won’t need your umbrella today, and you getting drenched in […]

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With nearly seven in 10 American adults worried about cultural and political threats to free speech, good news may be closer than you think. In fact, a recent court decision provides hope that free speech protections are trending upward, charting the course for future victories for all Americans. Free speech was at the very center […]

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Jim Geraghty of National Review and Greg Corombos of Radio America welcome a federal judge’s decision to strike down Obamacare now that Congress has repealed the individual mandate.  They also cringe as President Trump’s digs his legal holes deeper and deeper with more impulsive, ranting tweets.  And they react to Massachusetts Sen. Elizabeth Warren admitting she’s not a person of color just weeks after trying to score political points with her DNA test.

Jim Geraghty of National Review and Greg Corombos of Radio America prepare for Thanksgiving by each discussing three things for which they’re politically thankful.  They discuss the positive aspects of the midterm elections, the big confirmation fight, and important news this year from the courts and the Congress.  Happy Thanksgiving and join us again on Friday for another special edition of the Three Martini Lunch.

Jim Geraghty of National Review and Greg Corombos of Radio America react to reports that former FBI Director James Comey is described as “insubordinate” in the forthcoming inspector general’s report and former deputy director Andrew McCabe is asking for immunity before testifying to Congress about the Hillary Clinton email investigation.  They also push back against the outrage surrounding the arrest of an illegal immigrant delivering pizzas to a military base, pointing out the man told a judge he would leave the country eight years ago and never did.  And they’re puzzled by Sen. Bernie Sanders refusing to endorse his own son’s congressional bid when he’s been very active backing other candidates around the country.

The Limits of Textualism

 

In his recent column for Defining Ideas, Clint Bolick, a member of the Arizona State Supreme Court, addresses the central question of modern constitutional jurisprudence: What is the proper way to interpret the Constitution? Bolick, who is also my colleague at the Hoover Institution, casts his lot with the late Justice Antonin Scalia and his many followers who endorse textualism as the one proper method. The argument goes as follows: Textualism—the effort to find the accurate meaning of every word of the relevant provision—helps prevent activist judges from undermining the rule of law by creating new rights under the guise of a “living constitution” on such key issues as abortion, the death penalty, and gay rights, even when there is no basis for such rights in the Constitution or the laws as written.

Bolick’s strict textualist approach is a needed antidote to unduly adventurous constitutional interpretations. But however necessary the careful reading of text is to constitutional deliberation, it is not the full story. Sometimes, the courts must overturn erroneous precedents—and other times, they must, by “necessary implication,” read terms into the Constitution for its prohibitions to make sense. In such cases, the text alone is not a large enough tool-kit to do the job.

Let’s consider an issue that shows both the power and the limits of textualism. The Commerce Clause reads: “Congress shall have power . . . to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” In the 1824 case of Gibbons v. Ogden, Chief Justice John Marshall construed the middle phrase dealing with interstate commerce in harmony with the text’s treatment of commerce with foreign nations and the Indian tribes. His interpretation consciously covered all forms of communication and transportation across state lines, but it also excluded agriculture, manufacturing, and mining, in large measure to ensure, sadly, that slavery was immune to regulation or abolition by Congress.

Jim Geraghty of National Review and Greg Corombos of Radio America focus squarely on the media in this episode of the Three Martini Lunch awards.  They begin by discussing two massive stories that media either ignore or are severely downplaying – one overseas and one here in the U.S.  Then they switch gears to reveal which stories received far too much coverage in 2017.  Finally, they choose what they see as the best stories of the past year.

Jim Geraghty of National Review and Greg Corombos of Radio America applaud President Trump’s nomination of Don Willett and James Ho for spots on the Fifth U.S. Circuit Court of Appeals.  They also are cautiously optimistic that this NFL weekend might actually focus on football as three teams announce they will be standing for the national anthem.  And they throw up their hands as a anti-Trump elementary school librarian publicly rejects the donation of Dr. Seuss books from First Lady Melania Trump, while also slamming Education Secretary Betsy DeVos and falsely accusing Dr. Seuss of racism.

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I wanted to post this great Bloomberg article, not so you have to sit through their whining about Garland or their complaining about how Trump is going to move the courts, but because once you get past that, the charts they are listing are real eye-openers. Trump Begins the Rightward Shift of America’s Courts Preview […]

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The Massachusetts Supreme Judicial Court is moving the Black Lives Matter agenda to the bench. Here’s part of their ruling: “[A black male], when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity.” Preview Open

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Hispanic Judges and Who Said It First

 

Sotomayor Latina MagazineJustice Sonia Sotomayor’s comment that a “wise Latina woman” will make a better decision than a white male judge is well known and, inexplicably to me, didn’t get her branded a racist and disqualified from the bench.

However, now that Donald Trump is taking mega-heat from all sides for saying the judge in his case, who is of Mexican descent, might not be fair to him, another of Sotomayor’s comments, even more on point, needs to be looked at:

“Whether born from experience or inherent physiological or cultural differences,” she said, for jurists who are women and nonwhite, “our gender and national origins may and will make a difference in our judging.”

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As you’re already aware, the Federal government is suing Apple Inc to force Apple to provide software for breaking the encryption of an Apple phone owned by San Bernardino County and used by a county employee in the pursuit of his terror and his wife’s attack on county offices. Apple’s CEO has demurred and is […]

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The Barter System of Justice

 

shutterstock_167988596In a perfect world criminals would be punished appropriately and expediently, and the innocent would find vindication in our courts of law. We do not live in a perfect world. We have the highest rate of imprisonment in the world, our crime rates are low and lowering, but our system can hardly be described as just.

Justice Alex Kozinski of the US Court of Appeals Ninth Circuit wrote an article in the Georgetown Law Journal last summer that is bringing the injustice of our system to light. As George Will put it:

[Justice Kozinski] provides facts and judgments that should disturb everyone, but especially African Americans, whose encounters with the criminal justice system are dismayingly frequent and frequently dismaying.

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The third in a series on what I take to be the best or second best political strategy on the market in terms of the strategy’s return on investment, and on what should be the contents of the bill or bills this strategy would require, and on what we can do to get started. I […]

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