Below is my column in the Wall Street Journal on nomination of Amy Coney Barrett. While the confirmation hearing often seemed weirdly disconnected to the nominee, there were important moments where the jurisprudential views of Judge Barrett were expressed with striking — and rare — clarity.
Here is the column: Continue reading “Barrett Unmodified: Moments of Clarity Emerge From The Confirmation of Judge Amy Coney Barrett”
I previously testified in the Senate on Antifa and the growing anti-free speech movement in the United States. I specifically disagreed with the statement of House Judiciary Committee Chair Jerry Nadler that Antifa (and its involvement in violent protests) is a “myth.” My greatest concern remains the growing use of violence to shutdown free speech events around the country — a practice that has been going on for years on our campuses. That danger was evident in San Francisco yesterday when a conservative group gathered for a free speech rally to protest the recent actions of big tech companies like Twitter. They were violently attacked and the organizer had two teeth knocked out before the event was canceled. Continue reading “Conservatives Attacked by BLM and Antifa Supporters In Effort To Hold Free Speech Rally In San Francisco”
Below is my column in USA Today on the troubling course taken by Democratic members in the confirmation hearing of Judge Amy Coney Barrett. As I have stated, there are a host of legitimate questions to be raised over Judge Barrett’s view of the law. Indeed, I praised the exchanges between Sen. Dick Durbin (D., IL.) and Judge Barrett as the substantive highlight of the hearing. Unfortunately, those were the exceptions. Instead, the thrust of the entire hearing was that Barrett was unqualified due to her expected vote in the upcoming case on the Affordable Care Act (ACA). Various senators directly stated that they would vote against Barrett to protect the ACA. That is what is so unnerving about the Barrett confirmation hearing.
Here is the column:
Below is my column in The Hill newspaper on Roe v. Wade and the doctrine of stare decisis (or the respect and preservation of precedent). One of the most notable moments in the hearing came when Judge Barrett suggested that Roe was not “super precedent.” Indeed, she noted that the concept of “super precedent” is the work of others in academic publications. However, on Roe, Judge Barrett had an interesting exchange with Sen. Amy Klobuchar, D-Minn. in which she identified Brown v. Board of Education as such super precedent. However, when pushed on Roe, she noted “I’m answering a lot of questions about Roe which I think indicates that Roe doesn’t fall into that category.”
This issue was addressed in the column: Continue reading “Barrett: There Is Nothing Super About The Precedent In Roe v. Wade”
Today I have the pleasure of speaking at Brookings Institution as part of the Washington University’s speaker’s series. Ironically, the speech is on the use of legislative history, a subject much discussed yesterday in the confirmation hearing of Judge Amy Coney Barrett. I will therefore step away from blogging for an hour to appear virtually. Continue reading “Turley Speaks At Brookings On Legislative History and Judicial Interpretation”
We occasionally have the opportunity to publish columns from other academics on pressing legal or political issues. In the column below, Professor Douglas A. Kahn discusses the charge that Judge Amy Coney Barrett would clearly vote to strike down the Affordable Care Act (ACA) in the pending case of California v. Texas. Professor Kahn is the Paul G. Kauper Professor Emeritus of Law at the University of Michigan. He taught for decades at Michigan and has written a host of books and articles in his distinguished career. He is also a graduate of our law school at George Washington University. It is my distinct honor to post his thoughts on the ACA issue below.
Continue reading “Douglas Kahn: There Is No Basis To Assume That Barrett Would Strike Down The ACA”
Many of us in the free speech community have long complained that the 1969 case of Tinker v. Des Moines Independent Community School District is often dismissed in cases addressing the free speech rights of students. The famous decision declared that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Yet, courts have regularly curtailed free speech rights in deference to school officials maintaining discipline and order in their schools, even in the regulation of speech outside of schools. One rare victory emerged this week in Louisiana where a federal judge ruled that Superintendent Frances Varnado and Washington Parish School District board violated the rights of a high school senior by painting over his mural of President Donald Trump. U.S. District Judge Eldon Fallon relied on Tinker and declared the mural to be protected political speech.
Minority Leaders Chuck Schumer and various commentators have called for Amy Coney Barrett to recuse herself from any decision on the 2020 general election. There is no reason for such a recusal, which would be unprecedented in these circumstances. Moreover, it would establish a dangerous precedent of nominees securing their positions by promising results or positions if confirmed by the Senate. Continue reading “No, Barrett Should Not Recuse Herself From Any Election Challenge”
In Connecticut, U.S. District Judge Alfred V. Covello has dismissed a free speech challenge that could have sweeping implications for protests against police operations or policies. Michael Friend was arrested in 2018 after he held up a sign warning motorists “Cops Ahead.” The police were looking for distracted drivers in Stamford. Covello ruled that Friend did not have a free speech right in making such a protest. As will likely surprise few on this blog, I disagree. Covello’s decision dismisses the obvious political and social viewpoints reflected in Friend’s protest. Under this standard, a wide variety of speech could be curtailed as inimical to police operations.
Tyler County District Attorney Lucas Babin has secured a grand jury indictment of Netflix for promoting “lewd visual material” of a child in its controversial film “Cuties.” As discussed earlier, I found images from the film to be deeply disturbing. However, the criminal charge in Texas is in my view a violation of the First Amendment and a dangerous return to a period of film censorship and criminalization. Continue reading “Cutie Indictment: Netflix Charged in Texas For Promoting “Lewd Visual Material””
Last night’s NBC’s town hall in Miami with former Vice President Joe Biden was panned, to quote Politico’s Marc Caputo, as another “Biden Informercial” that protected the candidate from both tough questions and skeptical voters. There was not a single question on Biden refusing to answer whether he supports packing the Supreme Court, a move supported by his running mate Kamala Harris and various top Democrats in this election. However, Biden did make one notable comment about the Court and nominee Amy Coney Barrett. He said that, if Barrett helped reverse Roe v. Wade, he would make “Roe the law of the land.” Continue reading “Biden Pledges To Make “Roe The Law Of The Land” If Overturned By The Supreme Court”
Below is my column in The Hill newspaper on the call for a litmus test for Supreme Court nominees and the packing of the Supreme Court with up to six new members to secure a majority. Both ideas were expressly denounced by Ruth Bader Ginsburg. Indeed, to achieve these objectives, the Democratic members will have to tear down the very rule established by Ginsburg in her confirmation hearing. Continue reading “Ginsburg’s Nightmare: The Democratic Plan To Destroy The Supreme Court Of The United States”
Former FBI Deputy Director (and CNN contributor) Andrew McCabe has long said that he was willing to answer questions under oath about his controversial actions in the Russian investigation. He was scheduled to do so on Tuesday, but he now has refused — citing the infection of three senators with Covid-19. However, McCabe also refuses to testify remotely as did both former FBI Director James Comey and former Deputy Attorney General Sally Yates. He simply says that “fairness” dictates that he not testify at all. The basis for his refusal to appear remotely is utterly and almost comically absurd.
Continue reading “McCabe: I Will Not Testify Out of Fear For My Health … Even Remotely”
In a recent column in the New York Times, Michigan Gov. Gretchen Whitmer criticized President Donald Trump for not issuing a national order making the wearing of masks mandatory – a pledge made by Vice President Joe Biden raising serious constitutional questions. Now, Whitmer is having her broad interpretation of state executive authority checked by the Michigan Supreme Court, which found that she violated the Constitution with her extension of the state of emergency. Continue reading “Michigan Supreme Court Strikes Down Gov. Whitmer’s State of Emergency Order”
Below is my column in The Hill newspaper on the sentencing hearing of former Trump National Security Adviser Michael Flynn. Unfortunately, in the hearing, Judge Emmet Sullivan fulfilled the expectations of the D.C. Circuit panel that ordered him to dismiss the charge without further delay. That decision was reversed en banc but only because the court decided (as many of us argued) that Sullivan should be allowed to issue a final decision before an appellant review of his handling of the case. The en banc court did not rule in favor of his controversial comments or orders. Yet, in the hearing, Sullivan declared “Suffice it to say, the case was remanded to me by the en banc court.” As argued below, the law is clear and, suffice it to say, Sullivan will be reversed if he follows the advice of John Gleeson. Instead, Sullivan announced that he still “has questions” and indicated that he is not prepared to issue a final decision after two years. Instead, he repeated the words of Gleeson as virtual fact like an alter ego. This is moving from the cathartic to the tragic. The Court is not just prolonging the inevitable for the ruling but the trauma for the defendant. Flynn should have been sentenced years ago and the charges dismissed months ago. A defendant should not be a vehicle of the court to express displeasure or satisfy its curiosity on public controversies. The court knows that it would be almost certainly reversed if it follows the advice of its self-appointed quasi-prosecutor Gleeson. Instead, it is continuing to refuse to rule while using the case to ask more questions about the internal decision-making at the Justice Department.
Here is column: Continue reading “It Is Time To Dismiss The Flynn Case”