Category: Constitutional Law

Columns, Congress, Constitutional Law, Courts, Politics, Supreme Court

Judge Amy Coney Barrett On Her Intellect, Not Her Faith

Below is my column on the fierce attacks that have mounted against Judge Amy Coney Barrett, including articles suggesting that her conservative Catholic views and support for a charismatic group makes her a virtual cult member. The announcement of the new nominee will come today and Barrett has been viewed as a frontrunner. The religious intolerance unleashed by her likely nomination has continued to grow. Last night, “Real Time” host Bill Mayer came unglued with a vulgar attack on Barrett that even brought in Trump’s alleged affair with Stormy Daniels: “We’ll be saying this name a lot I’m sure because she’s a f—ing nut. . . ‘m sorry, but Amy [Coney] Barrett, Catholic — really Catholic. I mean really, really Catholic — like speaking in tongues. Like she doesn’t believe in condoms, which is what she has in common with Trump because he doesn’t either. I remember that from Stormy Daniels.” Imagine if a conservative commentator responded to President Obama’s nomination of Kagan or Sotomayor by referring to sex with a stripper or referring to Kagan a “really, really Jewish.” These continuing attacks do not bode well for the confirmation fight ahead — regardless of the nominee.  To paraphrase Sen. Feinstein, “[Religious prejudice] lives loudly within you.”

Here is the column:

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Columns, Congress, Constitutional Law, Courts, Media, Politics, Society, Supreme Court

Destroying The Court To Save It: Democrats Wrongly Use Ginsburg To Push Court Packing Scheme

Below is my column in USA Today on the growing calls for packing the Supreme Court with up to six new members as soon as the Democrats gain control of both houses of Congress and the White House.  I was critical of Democratic nominee Joe Biden this week when he refused to answer a question of whether he supports this call by his running mate Kamala Harris and other Democratic leaders. Biden told reporters “It’s a legitimate question, but let me tell you why I’m not going answer…it will shift the focus.” That was an extraordinary statement since if the question was legitimate, the refusal to answer it was not. Many of us would not support a presidential candidate who supported the packing of the Court. If Biden considers this a viable option, he is not a viable candidate for many of us. This is a central issue in the presidential campaign that has been pushed by Harris and top Democrats.  Yet, Biden is refusing to confirm his position. What is particularly concerning is that Biden precisely and correctly denounced court packing schemes like the one supported by this running mate.  Just a year ago, he insisted “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”

Here is the column: Continue reading “Destroying The Court To Save It: Democrats Wrongly Use Ginsburg To Push Court Packing Scheme” →

Congress, Constitutional Law, Courts, Politics, Society, Supreme Court

Democrats Introduce Unconstitutional Act To Limit The Tenure Of Supreme Court Justices

Democratic members are introducing a blatantly unconstitutional bill that would limit the tenure of U.S. Supreme Court justices to 18 years. In claiming to defend the Constitution, members like Rep. Ro Khanna (D., Cal.), Rep. Joe Kennedy III (D., Mass.), and Don Beyer (D., Va.) are offering a plan that is as illogical as it is unconstitutional. While the bill also includes a provision that I proposed decades ago for the expansion of the Court, the term limit would be dead on arrival at any court.

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Academia, Congress, Constitutional Law, Courts, Media, Politics, Society, Supreme Court

Fact Check: New York Times Cuts Precedent for Election Year Nominations By Almost Half [Updated]

Last night, I was finalizing my column for USA Today when one of my editors flagged my reference to the roughly 30 election-year nominations to the Supreme Court as a possible error.  The New York Times ran a story declaring that there “there have been 16 Supreme Court vacancies that occurred before Election Day.” I have previously discussed glaring misstatements of cases in major media, but this was unnerving because the New York Times was suggesting that the precedent for the current nomination was roughly half as previously thought. I decided to do another rough count and, if anything, it would seem that the 29 nomination figure is arguably too low and that there appears almost twice the number cited by the New York Times.  The difference appears in part counting a calendar year rather than a year from election, but that approach causes problems in comparison given the earlier early election calendars.

Continue reading “Fact Check: New York Times Cuts Precedent for Election Year Nominations By Almost Half [Updated]” →

Congress, Constitutional Law, Courts, Politics, Society, Supreme Court

Yes, The Senate Can Confirm a New Nominee Before The Election

I was on CBS News today with my friend Kim Wehle on the replacement of Justice Ruth Bader Ginsburg.  There is a legitimate debate over whether a president should wait for the next election for such a nomination to move forward. However, I disagree with Wehle that a nomination would be unlikely given the roughly 40 days left before the election. The Senate could move this nomination in that time and, judging from some past nominations, even have time to spare without setting a record.

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Constitutional Law, Criminal law, Free Speech, Justice, Politics, Society

The Use of Sedition Laws Against Rioters Would Be Wrong

I have been critical recently of remarks attributed to Attorney General Bill Barr, including the alleged consideration of criminal charges against a mayor for not acting against rioters and the use of sedition charges against some individuals. The latter allegation was reinforced by the Associated Press after it obtained a memo to United States attorneys.  The memo suggests a more general use of sedition for anyone opposing government authority by force. Such a use of sedition laws directly threatens free speech values and would return to dark periods of the suppression of dissent in our country.  It is also entirely unnecessary given the array of ample and severe laws available to punish looters and rioters.

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Academia, Constitutional Law, Media, Politics

Turley To Speak At The University Of Michigan On Impeachment

Today I have the pleasure of speaking at the University of Michigan as part of a Constitution Day event.  I will be joined by Professor Michael Gerhardt (UNC School of Law) in discussing the history of presidential impeachments from Johnson to Trump. Both Professor Gerhardt and I testified at both the Clinton and Trump impeachment. I also served as lead defense counsel in the last judicial impeachment of Judge Thomas Porteous. The event was switched to a virtual format and will be held from 4:10 to 5:30 pm ET today. You can join via Zoom at https://umich.zoom.us/j/97622039094

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Academia, Constitutional Law, Free Speech, Lawyering, Media, Politics, Torts

Dershowitz Sues CNN For $300,000,000 In Defamation Action

Alan Dershowitz just filed a whale of a lawsuit against CNN, though it could end up beached in short order under controlling case law.  The Harvard Law professor emeritus is demanding $300,000,000 in compensatory and punitive damages from CNN for misrepresenting his legal arguments in the Trump impeachment trial.  In fairness to Dershowitz, the coverage of the trial by CNN was dreadful with intentionally and consistently slanted coverage of the evidence, standards, and arguments.  However, the objections raised by Dershowitz are likely to be treated as part of the peril for high-profile figures operating in the public domain. In other words, you can complain about the weather but you cannot sue the storm. Continue reading “Dershowitz Sues CNN For $300,000,000 In Defamation Action” →

Constitutional Law, Criminal law

Pennsylvania Judge Hits Lancaster Rioters With $1 Million Bails

There has been a controversy over the refusal of some in the media to use the word “rioters,” but one judge clearly does not see anything nuanced in the actions of those arrested rioting in Lancaster, Pennsylvania last week. Magisterial District Judge Bruce A. Roth set bail for nine of the defendants at $1 million each.  I personally view that bail as excessive under controlling case law.

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Constitutional Law, Media, Politics

Stanford Journalism Professor Rejects Objectivity In Journalism

For four years, I have written about the alarming loss of neutrality and objectivity in journalism — a trend that is reflected by many polls showing that the majority of the public no longer trusts the media for fair and honest reporting. While I have regularly criticized President Donald Trump, I have also objected to unrelentingly biased reporting as well as embarrassingly soft coverage of former Vice President Joe Biden. Now, Stanford Communications Professor Emeritus Ted Glasser has publicly called for an end of objectivity in journalism as too constraining for reporters in seeking “social justice.”

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Constitutional Law, Society

FAA Reportedly Rules For Chick-Fil-A Over San Antonio Airport Concession

In the last few years, Chick-fil-A restaurants have been banned from campuses and airports.  The campaign started in 2012 after public comments opposing same-sex marriage by Dan Cathy, the company’s CEO and the disclosure that that Chick-fil-A’s charitable arm, the S. Truett Cathy-operated WinShape Foundation, donated millions of dollars to organizations viewed as hostile to LGBT rights.  As someone who supported same-sex marriage for decades as well as LGBT rights, I have voiced my concerns over free speech and free exercise in these campaigns.  Now, Fox is reporting that the Federal Aviation Administration has ordered City of San Antonio to offer the popular eatery a lease at its airport after concluding that the city was punishing the company for the religious views of its management.

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Congress, Constitutional Law, Criminal law, Free Speech, Politics, Society

No, The Justice Department Should Not Investigate Netflix’s “Cuties”

Several GOP leaders are calling on the Department of Justice (DOJ) to investigate and take legal action against Netflix  for its promotion of the “Cuties” film.  The film has been denounced for its “sexualization of children.” I have seen the clip of the most controversial scene of young girls dancing which I found deeply disturbing and offensive. However, there is no criminal act alleged of child abuse. What is left is a strong and widely shared revulsion with the film, but that should not be an invitation for governmental action. The threat to free speech of such action is considerable, including the return to a long and detestable period of film censorship in the this country.

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Constitutional Law, Free Speech, Politics

Facebook Under Fire For Keeping Antifa Page While Eliminating Far-Right Groups

Facebook is under fire this week after it was discovered that the company has allowed Rose City Antifa, a violent group associated with riots for many years, to maintain a Facebook page despite the company’s controversial program to take down certain sites.  As will come as no surprise to many on this blog, I would not have the page taken down on free speech grounds. My greatest fear is not Antifa (which I have criticized for years) but the growing censorship of the Internet.  While I recently testified about Antifa, and specifically Rose City Antifa, as part of a violent anti-free speech movement, I have opposed declaring them terrorist organizations and believe that their speech should be protected. While Facebook is a private company not subject to the First Amendment’s limits, it should adhere to free speech values on the Internet.

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Constitutional Law, Free Speech, Media, Politics

No, Twitter Should Not Take Down The McConnell Parody

For years, I have criticized those who have called for increased censorship on the Internet, including regulation of political speech by companies like Facebook and Twitter. There is a legitimate debate over the continued use of Section 230 of the Communications Decency Act by these companies when they are engaged in such censorship (and alleged viewpoint bias). However, President Donald Trump’s call for Twitter to take down a parody of Senate Majority Leader Mitch McConnell is wrong on a number of levels. It would only fuel the erosion of free speech on the Internet in curtailing political commentary. Continue reading “No, Twitter Should Not Take Down The McConnell Parody” →

Congress, Constitutional Law, Politics

D.C. Circuit Rejects Key Challenge Of President Trump To McGahn Subpoena

The U.S. Court of Appeals for the D.C. Circuit issued a major reaffirmation of congressional authority on Friday when it ruled Friday, 7-2 that the House has legal standing to use the courts to compel McGahn to appear in response to a House Judiciary Committee subpoena.  I testified repeatedly in Congress in support of the McGahn subpoena (including in the Trump impeachment hearing) and said that I believed that the White House was not just wrong on the law but would ultimately fail in this effort. I have been a long advocate of congressional standing as an academic, columnist, and a litigator, including my prior representation of the United States House of Representatives in the Obamacare litigation (where we prevailed on standing for the House). I disagreed with an earlier decision against the House.  I am obviously gratified by the result in this case. Continue reading “D.C. Circuit Rejects Key Challenge Of President Trump To McGahn Subpoena” →

Res ipsa loquitur – The thing itself speaks