What Might Have Been . . .

Justice Sandra Day O’Connor and Chief Justice William H. Rehnquist (Photos via Library of Congress)

To be specific, Sandy, will you marry me this summer?

— William H. Rehnquist, then a law student at Stanford Law, in a letter where he proposed to his then classmate, Sandra Day. Day turned town Rehnquist’s proposal and later married a different classmate, John O’Connor. Rehnquist and O’Connor later served on the high court together, and remained friends their entire lives.

HT: Above the Law 

Brett Kavanaugh - Where We Are

Either reader of this blog knows my feelings on Donald Trump, movement conservatism, and the national Republican party. It will come as no surprise that I oppose Brett Kavanaugh's elevation to the Supreme Court.

I also believe that whether he is ultimately confirmed or if it is somebody else on Donald Trump's infamous list of Federalist Society Reactionaries, the legal outcomes will be the same.

So, I can't help but ask why the numerous defenses of Judge Kavanaugh from the right? Regardless of whether Kavanaugh or someone else on the list is confirmed, we can be assured that this 5-vote conservative majority will:

• refuse to find any burden, whatsoever, to be "undue" under the Casey test;
• will likely continue to create exceptions to, if not wholly repeal, the exclusionary rule;
• will hamstring the ability of administrative agencies to participate in rule-making and adjudication, effectively rendering them toothless advisory boards;
• continue to use the 1st amendment as protection against pretty much any meaningful regulation of either the economy or political spending; and
• elevate the 2nd Amendment to the level of sacrosanct and essentially (to the extent it has not already been done) read out the part about "a well-regulated militia."

All of these are longtime conservative policy goals. All of these goals would be advanced by pretty much any one of the Federalist Society judges, as these judges have been groomed in conservative ideology for decades.

So, why the defense of Brett Kavanaugh?

I don't know. I hear people say that he is an innocent man who has been slurred, but I have a few points to add to that:

1. This is not a criminal investigation. "Beyond a reasonable doubt" and "presumed innocent" are fine phrases when we're talking about depriving someone of his freedom. They have no place in what is a job interview for a lifetime, exceedingly powerful, position. Nobody on the right demanded that Hillary Clinton be "presumed innocent" of all of the charges they hurled at her (BENGHAZI!!! EMAILS!!!). I don't recall Donald Trump presuming that Barack Obama was born in the United States. On a personal level, if I was looking to hire a babysitter and heard a rumor that a particular babysitter liked to get drunk on the job and steal from the houses at which she babysat, I wouldn't be looking for corroborating evidence, giving a presumption of innocence, or demand proof beyond a reasonable doubt. The rumor would suffice for me to look elsewhere. My babysitter does not have the power to interpret the U.S. Constitution and determine the breadth of my rights for the remainder of his/her life. A Supreme Court Justice does.
2. In litigation, there are numerous presumptions that we can make based on testimony. A generally known principle in criminal litigation is that a false exculpatory answer, when proven to be false, is pretty strong evidence of the accused's knowledge of his own guilt. Judge Kavanaugh made some fairly ludicrous statements: Beach Week Ralph Club refers to his weak stomach; Renate alumnius [sic] had no sexual connotations, even though Renate Dolphin (the self same Renate) is insulted by the reference; Devil's Triangle is a drinking game (that nobody has ever heard of) and not a sexual reference (that is fairly common). The list goes on and on, but these statements really stretch credulity, and he offers them as exculpatory. While I am not entirely convinced that he is lying, I have significant misgivings about it.
3. Similarly, while a polygraph is not strong evidence of the truth of a statement, it is strong evidence of the speaker's belief in the truth of such statement. Dr. Ford took a polygraph. The results do not demonstrate that her statements were true, but they demonstrate that she believed them to be true. Has Judge Kavanaugh been subjected to a polygraph?
4. Dr. Ford repeatedly requested an investigation into her allegations. Brett Kavanaugh said he would "do whatever the (Republican-controlled judiciary) committee wanted." If he is so innocent of these charges, why is he not demanding an investigation into them? It says a lot to me that when two people are making mutually exclusive assertions, and one of them wants the matter investigated and the other doesn't.

I could go on, but I'm pretty sure the point is clear. 

I also note the defenses of Judge Kavanaugh. Some say "he didn't do it," but given Dr. Ford's credible testimony, Kavanaugh's defenders have a difficult time simply saying she's lying. So, they come up with a series of defenses:

• It actually happened, but Dr. Ford is mistaken about who did it;
• Even if it did happen as Dr. Ford says, it was a long time ago and we should forgive his behavior;
• Even if it did happen, he never actually raped her so it doesn't really matter.

I am not particularly convinced by any of these rationalizations. 

Never Forget

It is no secret that I am a lawyer. Insert joke here.

That said, I have an enormous affection and respect for  the judiciary. It hurts me to my soul what is invariably going to happen to the Supreme Court.  

It was bad when they refused to so much as consider Merrick Garland.

It was bad when they eliminated the filibuster so that 51 senators, making it possible for senators representing less than 19% of the American population to put someone on the highest court in the land, for life, regardless of what the other 81% of Americans think. (And this doesn't even take into account the fact that most of those senators were likely elected with approximately 55-60% of the popular vote in the state, rendering the 19% more like a well-connected 10-11%, but I digress).

Now, we live in a world where it is highly doubtful whether the U.S. Senate will, in my lifetime, ever confirm a Supreme Court nominee from the other party. Thanks Mitch McConnell.

We also live in a world where, whether it is Kavanaugh or someone else nominated, 4 out of 9 Supreme Court seats are occupied by justices who were appointed by presidents entering office after having received fewer votes than their opponents.

We also live in a world where the Senate Majority/President is desperately trying to look like they give a damn about the allegations against Brett Kavanaugh without allowing these allegations to even slightly influence their votes. Can you say, "Gleichschritt?"

I suppose it shouldn't surprise me, after all. After all, this:

That's all bad enough. Now, consider this:

Over the weekend, Dr. Ford reached a tentative deal to testify in front of the Senate Judiciary Committee on Thursday. Most of her other requests were denied, as apparently Senate Republicans feel no particular need to respect the wishes of a mere woman. Republicans are going to make her testify first, when she’d asked to testify second. Republicans refused to call other witnesses who Ford claims have first-hand knowledge of the attack (more on that collection of heroes later). And Republicans are currently on the hunt for a woman, any woman, to do the attack job on Ford for them, so they don’t have to face the “optics” of attacking a potential survivor of sexual assault.

And Republicans are already indicating that nothing Ford says will matter to them in the least. Lindsey Graham, for instance, said: “What am I supposed to do, go ahead and ruin this guy’s life based on an accusation?”

I highly suggest you read either the linked article or one of the numerous articles available not only detailing the allegations against Kavanaugh, but also addressing the way the Senate Judiciary Committee and the Republican leadership (ahem, a bunch of old white men, ahem) has decided to handle this. It is shameful, and everytime I think we've reached rock bottom, we just keep on digging.

Milquetoast Joe Donnelly

To parrot what Sheila Kennedy wrote the other day, I think that Joe Donnelly is a horrible centrist sellout. I think that so many of his positions are cowardly, and I rank him down with Evan Bayh as a finger-in-the-air politico.

I will vote for him anyway, even if I have to hold my nose.

In light of that preface, I turn to a different but related topic: whether he should vote to confirm Brett Kavanaugh.

I think that he should not.

I actually wrote to the Ft. Wayne Journal Gazette recently about this. My point, then and now, is that there is not a single Republican out there who is (a) aware of who Brett Kavanaugh is AND (b) will be swayed to vote for Joe Donnelly and against Mike Braun. Contrarily, I believe that there are plenty of progressives (whether they count themselves as Democrats or not) who will stay home if Sen. Donnelly votes to confirm Brett Kavanaugh. After all, if Sen. Donnelly votes like a Republican when it counts, why bother to campaign/canvass/fundraise for him? Why not just let the few remaining governing positions in Indiana go to Republicans if all of the Indiana Democrats are going to act like Republicans when the rubber hits the road anyway?

In light of that, I present this from Abdul Hakeem Shabaz (he used to be "Abdul in the Morning" but I think the plug got pulled on that):

A new poll of the U.S. Senate race gives Democrat Joe Donnelly a 12-point lead over Republican Mike Braun, but it changes depending on whether he votes to confirm Brett Cavanaugh for the U.S. Supreme Court.

The poll of more than 1,400 likely voters, conducted by The Trafalgar Group, gives Donnelly a lead of 50.8 to 38.6 over Braun.  Ten percent are undecided.

However, that lead drops to 39.4 to 38.5 if Donnelly votes for the confirmation.  And if Donnelly votes against the confirmation,  his lead only drops to 45-38.

The number of undecided voters also grows to 22 percent if Donnelly votes yes; 16 percent if he votes no.

The poll was taken from July 31 to August 7.

It has a margin of error of +/- 2.6 percent.

Of course, a poll taken 3+ months before an election, combined with $3, is worth approximately $3 (ask Hillary Clinton). Nonetheless, I note that Sen. Donnelly's lead over Mike Braun drops more if he votes to confirm Brett Kavanaugh than if he votes not to. (I also note that Abdul mis-spells Kavanaugh's name, but who really cares?)

So, to that end, Sen. Donnelly, I implore you to vote against Brett Kavanaugh's confirmation. I don't like that Supreme Court nominations are political. That doesn't mean that they aren't. Senators often have to take tough votes; sometimes right before an election. It seems to me that someone who represents me in a legislature should be willing to vote his conscience, even if it costs him an election.

Gambling & Motorsports

The Supreme Court recently ruled that the national ban on sports gambling, with the exception of Nevada, is unconstitutional.

OK.

I am not a gambler, so it really has little effect on me. I have heard the arguments that casinos and gambling outfits are deleterious to communities, but I am skeptical. As a general rule, when it comes to local activity, I prefer to let people do what they want to do. If they want to gamble, then they can gamble. I do hope that people bet with money they can afford to lose, but I say the same thing about people running up bar tabs, credit card debt, etc.

What I wonder about, though, is what effect that will have on motorsports, particularly the Indy 500. How much would it add to the fan experience if you could go and place bets, not only on the winner but also first to wreck, first to pit, most laps led, top-5 finishers, trifecta, slowest finisher, top speed, etc.

I don't have hard numbers to back it up, but I am given to understand that outside of the 500, IndyCar is having financial problems. I have also heard many rumors that the 500 itself is experiencing generally declining attendance. As I said, this is what I've heard, not what I've researched.

Anyway, perhaps auto racing will have somewhat of a renaissance because of this. What do you think?

Brett Kavanaugh - What We Know

I have been scolded by a commenter for (paraphrasing) presuming that I know how Judge Kavanaugh will rule on issues that come before him. This scold is no more than a repeat of a partisan talking point. "We can't possibly know how Judge Kavanaugh will rule because every case that comes before him will be different, and he will reach his own conclusions, i.e. he's just calling balls and strikes."

Spare me.

when SeaWorld trainer Dawn Brancheau was killed by a whale that mauled her and then pulled her underwater until she drowned — the third time this particular whale killed someone while in captivity — Chief Judge Garland joined an opinion rejecting SeaWorld’s argument that “working with killer whales was not a recognized hazard because its training and safety program adequately controlled the risk.” Again, their argument was that working with killer whales was not a recognized risk. And this particular killer whale was a repeat offender.

Judge Kavanaugh, meanwhile, wrote a dissenting opinion claiming that the Department of Labor cannot protect whale trainers from dangerous workplaces, because that would be like regulating “tackling in the NFL or speeding in NASCAR.”

I guess we can kind of presume where his sympathies lie in cases that involve employment hazards.

Also, in Garza v. Hargan, Garland voted in favor of a woman that the Trump administration literally held prisoner to prevent her from obtaining an abortion. Kavanaugh dissented in that case too.

Of course, this case makes me think that I can presume where Judge Kavanaugh's heart is on reproductive rights vs. power of the government cases.

Oh, and Kavanaugh frequently attacks the EPA’s efforts to protect the environment, while Garland takes a much lighter hand with federal agencies.

Once again, Judge Kavanaugh has literally written, for himself (through his clerks) what I know about him. 

I also know this:

Q: Judge Kavanaugh, thank you for coming today. My name is Chris Johnswick (ph). I just had a question for you. You spoke about the chief justice’s role in both Roe and Casey. I wonder if you could elaborate as what would you say his biggest legacy is for us. You agreed with his dissent in those opinions.

JUDGE KAVANAUGH: As I said, he was not successful in convincing the other members of the Court to his position there. But, more broadly, in subsequent due process, or unenumerated rights cases more generally, he did write the Glucksberg opinion that prevents a general role for the Court in creating new social rights. So I don’t know if I can improve upon just that bare description of what he did. He clearly wanted to overrule Roe and Casey and did not have the votes. That’s where it was left. So it did not deter him or prevent the Court from reaching the result it reached in the later Glucksberg cases, as I mentioned, and that adopts a general framework for creation of new social rights that still applies today.  

For the record, the Glucksberg opinion, as Judge Kavanaugh states, "prevents a general role for the Court in creating new (unenumerated, specifically, in the Constitution) social rights." So, I for one will not be taking the bait to merely judge Judge Kavanaugh on his sterling resume; his substantive opinions about the law, which he has held for years and will continue to hole, are important and worth considering.

What is "Lochner" all about?

I talk about the Lochner era sometimes as though everyone else knows what I'm talking about. It occurs to me that perhaps I'm making an unwarranted assumption, so today's post will more or less clarify what that means.

First off, Lochner v. N.Y. was a 1905 Supreme Court case. In a nutshell, the state of New York had passed a law stating that no baker could work more than 6 days per week, 10 hours per day, or something similar to that. Mind you, this was in an era where the bakers worked in large industrial bakeries, often 12 hours/day 7 days/week. The State of New York decided that, for a variety of reasons, they wanted to limit how much a person could be required to work. Maybe they thought it was good public policy to allow workers to spend time with their families; go to church; etc. Maybe they thought it would help their economy by forcing the bakeries to hire more bakers. Maybe they thought it would be better for safety. Regardless, the State of New York made that decision.

Someone named Lochner decided to challenge the law's constitutionality on the grounds that it violated his right to contract and deprived him of his fundamental economic liberty. Recall that the U.S. Constitution prohibits the passage of laws that impair the obligations of contracts. (Art. I, Sec. 10). Recall also that the 5th and 14th Amendments guarantee due process under the law.

The U.S. Supreme Court ultimately sided with Lochner and invalidated New York's' law. As such, it set a precedent that, more or less, all workplace safety and labor regulations would be determined to be unconstitutional. The Lochner era that followed is widely considered to have lasted into the New Deal, when it was overturned.

There are many of us, myself very much included, who believe that this nation is slowly but surely heading down that path again, where workplace protections and laws designed to even the bargaining power between workers and employers are deemed to be unconstitutional infringements on the corporations' rights to due process under the law. Of course, the modern conservatives on the court (every bit the activists as the Lochner era conservatives) use the 1st Amendment instead of the contracts clause and the 5th/14th. You can see the seeds of that in the recent Janus decision: right to free speech means that you have the right not to associate with a union that is compelled by law to represent your interests.

When I say that Justice Gorsuch is a dangerous, activist, retrograde judge, I have reasons. When I say the same about Clarence Thomas, I have reasons.

A Wonderful Man with a Wonderful Family

It seems that my lone reader has given me some pushback on my assessment of Judge Kavanaugh and what we can expect in the New Gilded Age Lochner Court that is certainly coming.

Rather than put words into the proverbial mouth of my wonderful reader, I would prefer to quote the comment in full:

Now boo hoo Tabletop Joe Trump’s puck seems to me like a wonderful man who has a wonderful family . Are you a religious man Tabletop Joe ? Everyone needs religion , whichever religion you choose ... that’s just my opinion and not growing up Catholic but having converted I can say this is a very admirable attribute , looks like he is very giving to the community of his time talent and treasure....

Where to begin with this?

Boo Hoo Tabletop Joe
For starters, let's make clear that the people who Judge Kavanaugh and modern Republicans want to hurt generally doesn't include me. I will benefit from their tax cuts (minimally) and, as a white male, their decreasingly covert racism isn't directed at me. Therefore, save your boo hoos for someone else.

Wonderful Man/Wonderful Family
As to the "wonderful man who has a wonderful family," that's fine and great. Some would say the same about me, even if they think my ideas are the worst thing in the world. Curtis Painter, I'm sure, also has a lovely family, but that doesn't mean that I want him to play QB for the Indianapolis Colts. I only care about a football player's football playing (to put a comically fine point on it). Similarly, I care about a judge's approach to the law, not his approach to his own family. However kind he is in person is irrelevant to me because it is such a longshot that I will ever get to meet him personally as to be effectively impossible. However, his jurisprudence will affect me (and you).

On judicial philosophy, I am given to understand that he doesn't believe in the exclusionary rule and wants to eliminate that. For the uninitiated, the exclusionary rule states that the government can't use evidence against you if they violated your rights and illegally obtained it. It's the thing that keeps the police from breaking into your house, for example.

Further, I have no illusion that a Justice Kavanaugh will be the 5th vote to overturn, either explicitly or sub silencio, Roe v. Wade. Now, I've had plenty of conversations with so-called conservatives who tell me that abortion doesn't bother them as long as it's not a 3rd trimester abortion. To them, I would say that you should actually, you know, read Roe v. Wade. However, to save you some time, I'll summarize: the state has no business getting between a woman and her doctor in the 1st trimester; the state has an interest in getting involved during the 2nd trimester to protect the mother's life; the state has an interest in getting involved during the 3rd trimester to protect the baby's life. There it is. Apparently Judge Kavanaugh believes that the government knows better than a woman and her doctor what is proper for her. These are not easy decisions, and it appears that this judge does not believe that determining what grows inside one's own body is a fundamental right. I disagree.

Judge Kavanaugh has also written about how he believes that a sitting president can't be indicted. I'm sure that had nothing to do with Donald Trump's selection of him, though. I'm likewise sure that it will never come up because the Mueller investigation is one with which Donald Trump has fully supported, as he is concerned that our nation's elections be free of foreign interference, right?

Religion
My commenter believes that "everyone needs religion." I disagree. If you are happily ensconced in your faith, I am happy for you. If you are happily ensconced in atheism, I am similarly happy for you. I do not believe that everyone needs religion. Regrettably, too many people use religion as a justification for their own desire to look down on others, to judge others, and to exclude others. It is those who use religion for such profane purposes that put so many people off from religion. It kind of reminds me of when I was young and couldn't stand Phish for no reason other than the band's fans were just intolerable.

Everyone does not need religion.

Time, Talent, and Treasure
I too give my time and talent for good causes. I do some pro bono legal work, and I play in two rock n' roll bands that donate a lot of money to charity and no money back to me. That doesn't make my ideas the right ones for public policy, and it doesn't do so for Judge Kavanaugh, Mitch McConnell, Paul Ryan, Elizabeth Warren, or anyone else.

Elected representatives are our employees. Just like I don't really care how giving my paralegal is in her own community if she can't do her job to my liking, I don't care how giving my representatives are in their community if they don't do their jobs to my liking. While I recognize that a judge doesn't represent me, he is supposed to represent the law.

My big takeaway about Judge Kavanaugh is that he will use the Court not to protect the weak from the whims of the powerful but rather to protect a privileged, wealthy minority from the whims of democracy.

A Righteous Screed

Here at Above the Law:

between you and me, I honestly couldn’t give a wet crap about which version of fascist the Russian president nominates tonight. I’ll report on who and cover the confirmation hearings and mock the Democrats’ ineffectual attempts to hold up the confirmation process. But care? No. You can’t make me. They all look the same to me.

. . . . . . . 

Trump is going to appoint a fascist. Trump will nominate a fascist. The Republican Senate will confirm a fascist. That fascist will be a vote against women’s rights, minority rights, and non-white voting rights for 30 years. It will be a vote for mass shootings and police brutality and bigotry for 30 years.

. . . . . . .  

Which particular person gets to stuff themselves in the robe is inconsequential to me when the robe-bearer is standing on my neck.

The Anschluss of the Supreme Court and Trump’s brand of white supremacy is upon us. I don’t give a damn which puppet functionary is installed to do Trump’s bidding. 

Seriously, go read the whole thing.

Thoughts on Right to Work Laws and Janus

The Supreme Court recently issued its opinion in Janus v. AFSCME et al. To those (like me) who support the union movement, this is an abomination. To those who don't, this is a victory for freedom.

The rationale of Janus, however, is quite interesting. It struck down fair-share fees (which are illegal in Indiana because of course they are) on the grounds that taking money from one individual forcefully to advocate positions with which that individual disagrees is necessarily a violation of the 1st Amendment. This is an interesting view of the 1st Amendment, particularly when combined with the Hobby Lobby case of a few years ago. Apparently, the Court is signaling that government policies can't compel individuals or organizations to expend money to advocate positions with which they disagree.

Can't this work the other way as well? Can't unions then file a declaratory judgment action seeking a declaration that being forced by statute to represent and advocate for those who don't contribute fair-share fees is in essence being compelled to advocate positions with which they disagree (i.e. non-members should get the same benefits as members)?

Given that the next step from the anti-labor movement appears to be a lawsuit seeking to recover all fair-share fees "illegally and unconstitutionally" collected, what if Unions file suit against all freeloaders on a quantum merit theory?

Take the two lawsuits together, and it certainly presents a thorny problem for the courts to deal with (that they brought on themselves).

Today's musing.

Supreme Court - Musings and Expectations

Well, Anthony Kennedy is retiring, and Donald Trump will get his second Supreme Court pick. Woo friggin' hoo.

For starters, perhaps Republicans will now embrace "activist judges?" I'm inclined to think they did so long ago, perhaps in the matter of Bush v. Gore? I can't accurately express how disingenuous this line of argument has been my entire life: after all, Republicans have nominated the median Supreme Court justice ever since the Burger Court in the late 1960s. 

As a side note, I think that the Supreme Court will have a legitimacy problem on its hands if it continues to hand down 5-4 "conservative" decisions based on partisan preference, particularly when 4 of the 5 "conservative" justices will have been nominated by presidents who entered office after losing the popular vote. 

But I digress. The New Yorker's Jeffrey Toobin recently posted a fantastic article about what to expect in the coming years. He starts with recognizing that Justice Kennedy was by no means what Rush Limbaugh and company would characterize as some "activist liberal judge."

Kennedy is no liberal. He provided the fifth vote to deliver the Presidency to George W. Bush in Bush v. Gore; he was the author of the majority opinion in Citizens United v. Federal Election Commission, which hastened the deregulation of American politics; he upheld Trump’s travel ban this term; and his votes on the day-to-day grist of the Supreme Court’s docket—on labor law, the environment, and health care—hewed closely to those of his fellow Republican nominees. But, to the dismay of conservatives, he departed from their orthodoxy on some key issues in addition to gay rights, among them affirmative action, the death penalty, and, most notably, abortion rights. 

Toobin then notes one of Trump's shrewd political moves:

The whole purpose of Trump’s Supreme Court selection process has been to eliminate the possibility of nominating someone who might commit Kennedy’s perfidies of moderation. The activists from the Federalist Society and the Heritage Foundation who supplied the President’s list of twenty-five prospective nominees are determined to tear down the monuments, on select issues, that Kennedy has built. Their labors have already produced one soaring success, in the confirmation, last year, of Neil Gorsuch. His extremism has exceeded that of his predecessor Antonin Scalia and equalled that of his colleague Clarence Thomas, the Justice with whom he has voted most often. 

Clearly, while Trump's personal life should shame anyone who self identifies as "christian," "family values oriented," "respectable," or "decent," many evangelicals have cast their lot with President Trump for just this moment.

I fear what "this moment" will bring, but here is a decent primer for step one:

Yet it’s far from certain that the public wants the kinds of rulings that a brazen conservative majority would produce. So the nominee and his or her supporters will avoid spelling out the implications of this judicial philosophy. As with Gorsuch, the nominee will be supported with meaningless buzz phrases: he or she will be opposed to “legislating from the bench” and in favor of “judicial restraint.” 

I think it is important, however, to cut through all of the niceties and the discussions about process, and get to the meat and potatoes of what is coming from our new Unbound Conservative Supreme Court. Here is the highlight reel, such as it is:

It will overrule Roe v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend élite universities. It will approve laws designed to hinder voting rights. It will sanction execution by grotesque means. It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.

Probably not surprising, since every Republican politician in the country has expressed fealty to these notions, if not in these precise terms. However, this coming unbridled conservative majority has more nightmares in store, we can be sure:

 In many respects, the most important right-wing agenda item for the judiciary is the undermining of the regulatory state. In the rush of conservative rulings at the end of this term, one of the most important received relatively little notice. In Janus v. afscme, a 5–4 majority (including Kennedy) said that public employees who receive the benefits of union-negotiated contracts can excuse themselves from paying union dues. In doing so, the Justices overruled a Supreme Court precedent that, as it happens, was nearly as old as Roe v. Wade. (Chief Justice John Roberts, who has made much of his reverence for stare decisis, joined in the trashing of this precedent, and will likely join his colleagues in rejecting more of them.) 

To my Republican-voting, machine-operating, union buddy in Ft. Wayne (to take a single example of someone who I note to consistently vote Republican in direct contravention of his own self interest, apparently in some misguided sense of grievance directed toward pointy headed intellectuals and college leftists), perhaps you ought to familiarize yourself with the term Faustian Bargain. 

On a closing note:

Kennedy’s words at the conclusion of the Obergefell opinion deserve to be his judicial epitaph. “It would misunderstand these men and women to say they disrespect the idea of marriage,” he wrote. “Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” But the Constitution grants only those rights that the Supreme Court says it grants, and a new majority can and will bestow those rights, and take them away, in chilling new ways. 

For the record, pursuant to Marbury v. Madison, the Constitution says precisely what the Supreme Court says it says. The Constitution means what the Supreme Court says it means; plain English is only so persuasive (i.e. the complete elimination in legal discourse of the phrase "well-regulated" from the 2nd Amendment). 

To my lone reader, I implore you to look deep into your soul and ask what rights you presently have that would be eliminated by powerful interests, given the chance. Property rights? Familial rights? Contractual rights? Religious rights? Remember, the Supreme Court does a lot more than navel gaze over abortion; it affects essentially everything. Next time you're forced to sign a mandatory arbitration clause, for example, be sure to thank your conservative majority on SCOTUS for its enforceability (and good luck finding a lawyer to take your case to arbitration on contingency over the mere $1,000/year you've lost for the last decade due to getting ripped off; I can tell you what it would cost to pay your lawyer hourly and it well exceeds your $10,000 damages).

In reference to the legitimacy problem the court will face, recall that Democrats can currently retake the House of Representatives by garnering 55% of the popular vote to get 51% of the seats. The converse of that means that Republicans retain control of the House by losing the popular vote with 46%. Now, imagine a landslide where Democrats take the House and the Senate, and start passing popular progressive legislation only to have it struck down by a 5-4 conservative Supreme Court, replete with "Justice" Merrick Garland Neil Gorsuch; a court that is 5-4, and 4 of the 5-vote majority was installed by presidents who entered office after having received fewer votes than their opponents. Legitimacy problems abound.

As a parting note, I simply suggest that we are in for more, not less, domestic disturbance in this country. I suppose that probably is par for the course, as Americans are a quarrellous bunch; the good old days weren't really that good.

"Majority Rule"

Interesting Data Point #1: By this fall, four of the nine Supreme Court justices will have been appointed by presidents who entered office after having lost the popular vote.

Interesting Data Point #2: To take control of the U.S. House of Representatives, Democrats will have to win the national popular vote by 11% (55.5% to 44.5%).

Democracy: a government by the people; rule of the majority

These data points don't fit too well with the definition of democracy; it all leads to a very depressing conclusion.

Royal Wedding - Enough Already!

I will just say it: I do not care about what the British Royal Family does, whether that includes celebrating someone's birthday or having a wedding. I just don't give a damn. It doesn't affect me in any way, shape, or form.

I notice that the news has a seemingly "mandatory" discussion of the damn royal wedding nearly every day. I can't help but contrast coverage of the royal wedding with the scant coverage of the recent Supreme Court decision striking down a law known as PASPA.

In a nutshell, PASPA is (was) the federal law that made gambling on sports illegal in every state except Nevada. Note that you can presently play slot machines at Indiana Grand but you can't place a bet on the Colts' game. I suspect that is about to change.

I also suspect that the sports book won't just stop with professional sports. How long until we have a sports book on the Butler or IU game? How about the Speedway H.S. baseball game? Ask yourself how susceptible a high school or college kid would be to a point shaving scheme?

After considering the consequences of the royal wedding and the recent Supreme Court decision, ask yourself which one will affect your life. What do you think? Do you get the feeling that your attention is being diverted?

A Moment of Smug Satisfaction

As I have made no efforts to hide, I am a lawyer. Some may say that implies that I have a forked tongue and cloven hoof, but if that is the case, I haven't seen it and tend to base my evaluations on the actual evidence and not my own prejudices. Nonetheless . . .

I have noted that one of the big triumphs that my conservative friends see in the Trump administration is the theft of Merrick Garland's seat on the Supreme Court and handing it over to the interloper Justice Gorsuch. This is an irreversible development. Mark my word, not again in my lifetime will the U.S. Senate confirm a Supreme Court Nominee from the opposing party. I find this to be a troubling development for the legitimacy of the Court as a non-partisan, counter-majoritarian institution. However, with all of that being said, this post is about the nominees put forth for the lower federal judgeships, i.e. trial court and "intermediate" court of appeals.

For those who haven't heard of Brett Talley, he was the first embarrassingly unqualified nominee to hold an Article III judgeship that President Agent Orange put forth. Apparently actually "practicing law" or even having a "working understanding and knowledge" of the courts and their procedures is not necessary to be a Trump judicial nominee - you just have to be liked by the Federalist Society (a right-wing organization on every law school campus in America).

In light of this, Senator Kennedy (R-LA) had an interesting interchange with another one of Trump's nominees. I have posted the video below:

Now, for starters, I will readily concede that I take some smug satisfaction watching this "elite" struggle with elementary questions. For those keeping track at home, the Daubert (pronounced DOWbert) standard refers to a case the Supreme Court decided that had to do with what makes someone an expert. Motions in Limine are pre-trial motions where you attempt to persuade the judge to keep certain evidence from the jury. The abstention doctrines (Pullman and Younger) deal with situations where the federal court should NOT decide a case (I may be getting them backwards, but Pullman says that federal courts can't rule not he constitutionality of a state law until the state court weighs in on how the state law should be interpreted; Younger says that you can't bring a civil rights case in federal court that is related to a pending state court matter - i.e. you can't bring a civil rights lawsuit against IMPD for violating your 4th Amendment rights when they bursted into your home and found your box full of cocaine and dead body).

Like I said, I take some smug satisfaction in being able to recall these things while Mr. "Article III, Lifetime Tenure, Irreducible Salary" future judge (who invariably believes that people who draw a check from the government are moochers and don't have real jobs . . . huh) struggles. One small point is that Sen. Kennedy's focus on abstention doctrine seems a bit misguided, as it is a doctrine that is rarely invoked. Additionally, I feel like Sen. Kennedy's grandstanding is a bit beside the larger point: So many of these people are rated unqualified by the American Bar Association not because they are unable to recall details that, to non-litigators, are trivial; rather, they are rated unqualified because they have reactionary views that fail to respect and adhere to centuries of legal tradition.

Look, the law wasn't written in a day. We can go back to the Magna Carta, or for that matter the Ten Commandments, to seek the genesis of our legal system. It has taken  a long time to get where it is. We don't need a bunch of reactionary (or radical) ideologues intent on overturning centuries of thoughtful jurisprudence.

I know this is a bit of an obscure issue for many people. Please bear in mind that each and every judge who is confirmed will be on the bench for decades and will shape the law in this country in ways large and small, predictable and otherwise. When handing that kind of power to someone, I would think that careful consideration would be appropriate.

"Right to Work"

I am pro-union.

Now that we have that out in the open, let's get to the substance of this post: Why right-to-work (RTW) laws are disingenuous, fundamentally unfair, and probably unconstitutional.

1. They're Disingenuous

I have never met someone who (a) wants to work for a particular company, (b) wants desperately not to be a member of the union in place; and (c) can't find comparable non-union employment. This is the individual who this law is designed to "protect," and such individual resides, I think, right between Moby Dick and Santa Claus. In other words, whoever this law is supposed to help (according to its proponents) does not exist.

The real beneficiaries of this law are the business owners who want to suppress wages, plain and simple. Note to such business owners, if you need the government's aid to suppress wages in order to stay in business, you have a business model problem and you are depending on the government for your livelihood every bit as much as a welfare recipient.

These laws are disingenuous in their purported efforts to "protect workers."

2. They're Fundamentally Unfair

I know that "fairness" is a dirty word these days; make of that what you will in regard to the society that we've created. However, a right-to-work law states that one can't be forced to pay the union for its services. It does not say that the union doesn't have to represent these freeloaders. In fact, the union is forced to represent these freeloaders, come hell or high water.

To the point of disingenuous, stated above, nowhere do the supporters of these laws acknowledge that the union must represent all the workers, whether they pay dues or not. RTW supporters like to say that unions will "earn their membership through the free market," but this too is disingenuous: who pays for things they get for free? Why would I pay for representation when I get it for free anymore than I would pay for sunshine?

3. They're Probably Unconstitutional

Not that I expect our stolen Supreme Court (looking at you Gorsuch) to do anything about this, but follow me here:

• Corporations are people (distasteful as that may be);
• Unions are corporations;
• Therefore unions are people;
• RTW laws preclude unions from collecting mandatory dues from members of the bargaining unit (employees at the same place);
• The National Labor Relations Act (NLRA) forces unions (people, remember) to representing all members of the bargaining unit (employees at the same place);
• Therefore, RTW, in combination with the NLRA, forces unions to work on behalf of people without compensation.

Someone explain to me how this does not enslave the unions.

End Note

As I said at the outset, I support unions and will debate their merits with any and all comers. However, this post is NOT about the merits of unionism but rather about right-to-work laws.

Origination

For the 4th of July, I will leave aside the cheap jingoism that too often accompanies the holiday and instead focus on what I believe was the founding idea of this great nation of ours.

For millennia, the commoners (like my ancestors) were expected to live at the pleasure of their royal "betters." The "landed gentry" was a term that arose in the context of a society where there were a few people who had land, and then there was everyone else who worked said land for the pleasure of its owners. These were the feudal lords, and at the culmination of this system were the titular royals who had the authority to grant land and titles, both of which directly correlated to more bountiful and comfortable lives. Pardon the oversimplification.

At some point, our founding fathers determined that they could set up a new system whereby power and wealth amassed not based on one's parentage but based on one's merit. Again, pardon the oversimplification.

I still believe that this is a beautiful aspiration: the populace governs itself, instituting policies that are based on objective evidence, and rejecting the policies that repeatedly fail. . . stubbornly refusing to repeat the mistakes of our peoples' collective history. A place, not unlike ancient Rome, where good ideas are always welcome; where we understand that those good ideas make our society better and are more than a mere vehicle to launch people into perpetual un/underemployment.

Maintaining such an idea requires vigilance and a constant longview. What may be good for today and tomorrow may be immeasurably bad for the day after. We need to be mindful of such things.

As I've written before, good policy outcomes in the past don't necessarily mean good outcomes in the future. Perhaps, we should have a conversation as to what outcomes we want. Then, we can move on to how we get there. That is the essence of self governance.

Happy 4th of July. Be careful.

Sen. Donnelly (D-IN)

Soon-to-be ex-Senator Joe Donnelly will not be receiving my vote in November, 2018. I would rather vote for my neighbor, or brother, or that crazy Tea Party/Trump guy I saw in front of the statehouse the other day. At least they have a spine.

Joe Donnelly does not.

I can't think of one instance of Joe Donnelly standing up for progressive values. Gun Control? Obamacare? Crickets.

Now, he has indicated that he will refuse to stand with the Democratic filibuster of the stolen nomination of Neil Gorsuch. Let's never forget that the American people decided who they wanted to choose Supreme Court Justices in 2016 . . . in November, 2012. For those who forget easily, that person was President Obama. He nominated Merrick Garland to the Supreme Court. Mitch McConnell et al decided that didn't count. Joe Donnelly is now complicit in this.

You own it Joe, but you will never again own my vote.

Your cowardice will garner you not a single vote from those who would fault you for filibustering this stolen nomination.

It will, however, earn you a "present" vote from me. I doubt I'll vote for your opponent, but how can I vote for you, Sen. Donnelly, when I know that you refuse to stand up for progressive values when it counts? Either you disagree with me on foundational issues (i.e. stolen Supreme Court nominations) or you simply refuse to stand up for what is right.

Neither rationale convinces me that I should vote for you. So I won't.

Prayers in School

I watched Indiana Lawmakers last night, and there was a very thoughtful discussion about prayer in school. As a former educator, I have some thoughts on this topic.

For starters, the Indiana General Assembly needs to stop addressing the issue (seemingly every session). Moving targets are hard to hit, and changing rules make for difficult compliance.

Also, most advocates on any side of the issue need to be mindful of a few parameters.

First, because a school is a government institution, it has to be careful that it does not suppress students' right to religion. This means that students can pray in their own time and space; students can do projects on religion to the degree that they want to; they can write essays about their religious experience; and the bible can be used as a primary source for literature lessons, should students choose to use it.

Of course, there's also another side to that coin.

Again, a school is a governmental institution and it needs to be careful that it does not endorse any particular religion or selectively allow student religious expression. To the degree that a school allows for students to write about their religious experience, this becomes problematic when the school allows the Christian student to express religion but disallows the Muslim, Jewish, or Hindu student from doing so. Further, the school itself can not be seen to be endorsing religion. This includes such things as having explicitly Christian-oriented events, i.e. a "Christmas" program.

We need to be mindful of the balance, and I believe that 50 years' worth of 1st amendment jurisprudence is reasonably clear.

I could write much more on this, i.e. perhaps it's inappropriate for the Speedway Town Council to conduct official prayer sessions? However, this is a fraught topic and it seems that the more it's discussed, the less people agree on it.

Hugh Hewitt making sense?

I read something in the Washington Post today by Hugh Hewitt, the blowhard "conservative" talk radio host. Surprisingly, I actually agreed with some of what he said:

You can’t call yourself a conservative if you don’t stand with the Constitution over your personal preferences. 

This is an important point that I would make to many of my conservative friends. If you cloak yourself in the constitution, you have to accept both the parts you like (2nd Amendment) and those you probably don't like (1st, 4th, 5th, 14th, 16th. 24th Amendments; Supremacy Clause; Establishment Clause).

I have studied the Constitution, and I generally do not revere it like some who "don't need to read it to know what it says." I perceive our constitution to be a grand but flawed system, but I digress.

Mr. Hewitt, in his normal blowhardism, of course takes it too far.

Sanctuary cities and marijuana legalization statutes are examples of local and state governments ignoring federal law.  

No. They're not. They're simply examples of local and state governments refusing to allow their resources to be commandeered by the federal government to enforce policies with which they disagree. There's a difference.

Perhaps Mr. Hewitt is unfamiliar with the details of this (because who cares about details when you have a radio show, amirite?), but there is a longstanding principle known as the "anti-commandeering" principle. Without getting too far in the weeds, here is a quote from the Supreme Court authored by Justice O'Connor from the early 1990s. This case deals with toxic waste dumps and is by no means the only case on this issue, but it illustrates the point:

The allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce.

This is not to say that Congress lacks the ability to encourage a State to regulate in a particular way, or that Congress may not hold out incentives to the States as a method of influencing a State's policy choices. Our cases have identified a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests. Two of these methods are of particular relevance here.

New York v. United States, 505 U.S. 144 (1992)

The case goes on to note the two methods at issue: attaching strings to federal spending, and offer states the choice of regulating something themselves or having the federal government do so.

The point of all of this is twofold:
1. You really should not piously claim allegiance to the constitution unless you're willing to claim allegiance to the entire thing, even the parts you dislike.

2. The federal government has a limited  ability to force states to adopt policies. For Mr. Hewitt's purposes, if the federal government wants to enforce immigration laws in San Francisco or Chicago, it has the power to do so. It can't force those cities to do it for them. Likewise with marijuana. If the Trump administration wants to crack down on marijuana in Colorado or California, it has the power to do so. It does not have the power to force the state of Colorado or California to do it for them.

A small piece of constitutional law, for those having a difficult time taking their mid-morning nap.

Grow Up and Deal with It

I hear that a lot lately from those who are happy with Donald Trump's election as our president. Interestingly, they were uninterested in that advice a year ago. Or two years ago. Or three. Or four.

I could go on, but there's not much point.

I will deal with it. I have no intention of seceding from this great nation or moving to Canada. I have no fantasies about armed uprising against the government. I will not call this country the USSA or some similar thing. I will not even claim that I want to "Take My Country Back" from someone, or something.
Instead, I intend to work to make this nation great. Full stop.

It takes people who believe that government can make people's lives better to actually have a government that makes people's lives better. I believe that government can make people's lives better.

This is the same principle that it takes a doctor who believes that medicine can cure health problems to actually get a doctor worth having, i.e. one who will effectively address the problem. There is no chance in hell that I would ever hire a surgeon who believes that surgery is the problem. If I was getting sued, I would hire a lawyer who believed (and acted) as though lawyers are worth having. I would hire a coach who believes that coaching helps the team rather than hurts the team. I would hire a lawn service that believes that cutting the grass solves the problem of long grass; not the one that believes that the problem is that we cut the grass and thus perpetuate the grass's dependence on getting cut.

Similarly, I vote for politicians who believe that the government they purport to run can actually do something to make people's lives better.

Because I believe that public policy can be an active force for good in people's lives, I will devote what resources I have to creating such public policy. I will devote what resources I have to preventing bad policy from enactment, to the extent that I can.

Mercifully, thanks to Justices Roberts, Kennedy, Scalia, Alito, and Thomas, I have the same right to dump hundreds of millions of dollars into elections as George Soros or the Koch brothers. (Hopefully the sarcasm came through).

Given my notable lack of millions of dollars, to dump into campaigns or use otherwise, I will donate what resources I do have. These include a decent (I hope) intellect, a passion for this great country, state, and city in which I am blessed to live, some time, and some ideas both big and small.

I intend to do my part to make the world a better place. I intend to do so without casting aspersions on the characters of those with whom I disagree. I intend to assume pure motives. I will do my best not to engage in ad hominem argument unless it is warranted and goes to either the credibility or ability to speak knowledgeably on a subject. For example, someone who has made scores of wrong predictions deserves to have this brought up the next time he makes a prediction. Similarly, if someone yesterday said "X is not the case," and today is saying "X is the case," that deserves a mention.

This is good faith.

This is me growing up.

This is me dealing with it.

What I will not do is acquiesce to that with which I vehemently disagree.