Below is my column in USA Today on some of the possible nominees to fill the vacancy left with the death of Associate Justice Antonin Scalia. There is a long list of potential nominees and only some are discussed in this column. One of the more interesting prospects is Jane Kelly from the Eighth Circuit who would bring badly needed trial experience to the Court and particularly a rare criminal defense background. As a threshold matter, it is worth noting that the current chaos that we are witnessing over Scalia’s replacement is the result of a long-standing flaw on the Court. As I have argued for many years, our Supreme Court is demonstrably too small and should be expanded by Congress to 19 members – roughly the size of other large nations – to avoid so much power being concentrated in so few hands. If the Court was larger, there would likely be no question that President Obama could get a nominee confirmed because there would be greater turnover on the Court and less at stake with each justice. However, as it stands, even a moderate nominee would move the center of gravity of the Court significantly to the left and would likely produce a host of sweeping changes on gun rights, abortion, affirmative action, and other areas. That is something that the Republicans have pledged to bar, at least until we know who the next president will be.
So our dysfunctionally small Court has left us in another dysfunctional standoff. However, we have some added issues due to the timing of this vacancy as discussed in the column below.
Category: Constitutional Law
Apple has decided to fight an unprecedented and highly controversial order by U.S. Magistrate Judge Sheri Pym that the company has to assist the government in breaking into one of its encrypted phones. Apple says that it does not have the technology and does not want to be part of such an effort to create a privacy stripping tool for the FBI. Pym seems to believe that she can order companies to become unwilling participants in surveillance research and development. I fail to see her legal basis for such an extraordinary order against a private company.
Below is my column today in USA Today on the prospect of a recess appointment fight in the filling of the vacancy left on the Court by the passing of Associate Justice Antonin Scalia. The White House could well use any refusal to consider a nominee as a license to use a recess appointment while the Senate could move to stay in session to preempt such a recess appointment. In my view, the Senate should consider any nominee submitted by the President and, for his part, the President should forego any recess appointment if the nomination is not successful. Here is the opinion:
The Washington Post posted my column on Sunday discussing the passing of Associate Justice Antonin Scalia, a towering figure on the United States Supreme Court and an icon for conservative jurists. It is regrettable that people today often demonize those with whom they disagree. Scalia was personally a warm and engaging person. Indeed, liberal justices Ginsburg, Breyer, and Kagan appeared quite close to Scalia as not just a colleague but a friend. I expect that Scalia has left a lasting legacy that will withstand the test of time, as I discuss below. He was a man of principle. One could certainly disagree with those principles, as I sometimes did. However, he left 30 years of opinions that challenged and often changed doctrines in a wide array of areas. These opinions show a depth and scope that sets them apart in the annals of the Court. Liberals and conservatives alike should be able to recognize the impactful and brilliant life of Nino Scalia. Here is the column: Continue reading “SCALIA AND HIS LEGACY”
By Darren Smith, Weekend Contributor
In April 2013 our host published an article featuring Washington State Attorney General Bob Ferguson had sued Barronelle Stutzman, the owner of Arlene’s Flowers and Gifts after she had refused to provide flowers for a gay wedding.
Washington’s consumer protection act bars discrimination on the basis of sexual orientation AG Ferguson sought a $2000 penalty for each violation and to end the business’ allegedly discriminatory practices. The case garnered considerable attention in both the state and nationally in which the religious rights of business owners do not necessarily comport in some cases with antidiscrimination statutes which require equal services be provided for all customers.
After the defendant received an unfavorable ruling at the Superior Court level, her case advanced through the appellate system and now is before the state Supreme Court.
Continue reading “WA Florist Who Refused To Provide Flowers For Gay Wedding Files Brief With WA Supreme Court”
There is a new disturbing video that seems to reaffirm the growing intolerance for free speech on (or in this case near) our campuses. In the confrontation between a preacher named Joshua and University of Texas at Austin police, the preacher was told that, even though he was not on campus, he was still guilty of “offending someone” with this speech and would be given a citation.
Pakistan is the latest Muslim country to ban a holiday as a threat to Islam. In this case, it is not Christmas but Valentine’s Day. The Interior Ministry has proclaimed that the harmless holiday is now deemed an “insult” to Islam and banned by order of Interior Minister Nisar Ali Khan (right). Khan is one of the leading and most senior members of Pakistan Muslim League.
Continue reading “Pakistani Government Bans Valentine’s Day As “Insult” To Islam”
There is a free speech controversy brewing out of Detroit where an unnamed police sergeant is under investigation for expressing his opinion about the controversial Beyonce performance in the halftime show of the Superbowl. Beyonce dressed herself and her dancers like Black Panthers and formed a X in an apparent reference to Malcolm X. Police around the country objected to the glorification of an organization that has advocated violence against police. The sergeant compared the performance to one featuring the KKK on Facebook and is now facing possible discipline.
There is a highly disturbing story out of Mount St. Mary’s University where the adviser to the school newspaper was fired after the newspaper ran a story of how university’s president, Simon Newman (left), had said that the school had to tighten its standards and get rid of less competitive students. He mocked colleagues who were resisting by reportedly saying “This is hard for you because you think of the students as cuddly bunnies, but you can’t. You just have to drown the bunnies.”
The Board of Disciplinary Appeals (appointed by the Texas Supreme Court) has upheld a state licensing board’s decision to disbar former prosecutor Charles Sebesta for his role in convicting an innocent man. Anthony Graves spent 18 years on death row for setting a fire that killed six people. Sebesta’s conduct was shocking but remains a relatively rare example of prosecutors being held accountable in such cases of prosecutorial abuse.
Spanish Puppeteers Alfónso Lázaro de la Torre and Raul García Pérez could be headed to prison after a decision by Judge Ismael Moreno Chamarro. The Court noted that the two men performed for children in a play that included “the hanging of a doll dressed as a judge, the stabbing of policeman, the rape of a nun and her later stabbing with a crucifix”. That is certainly a large measure beyond the Punch and Judy shows that we grew up with. However, the question remains whether such shows, as disgusting as they are, should be turned into criminalized speech or left to civil liability and public pressures.
Continue reading “Spanish Court Orders The Arrest of Puppeteers For Glorifying Terrorism”
By Darren Smith, Weekend Contributor
A California school district faces a lawsuit which has been appealed to the Ninth Circuit were parents of a six-year-old boy having genetic markers for the condition of cystic fibrosis brought suit against the Palo Alto Unified School District claiming the district violated the Americans with Disabilities Act and First Amendment privacy rights of the child.
The case revolves around the issue of genetic discrimination. According to the lawsuit, parents enrolled six-year-old Coleman Chadman at Jordan Middle School. The parents disclosed the genetic marker for Coleman on an interview form requesting information as to the child’s medical conditions. As a result of that disclosure, and other events, Coleman was prohibited from attending school due to DNA markers for cystic fibrosis and not for any condition presently manifesting itself as a diagnosis of cystic fibrosis.
The case demonstrates a worrying problem leading to discrimination based on genetic factors where the expression of certain genes is not a guarantee of having such medical problems yet the discrimination is nevertheless applied.
Continue reading “Sixth Grade Student Allegedly Removed From School Due To DNA Profile”
The University of Connecticut is under fire this week after a report that it would create a living space segregated by race. The school is concerned about the lower graduation rate for black students. So it has arranged for black-only housing to try to maintain a more supportive environment. Others call is segregation and a return to pre-Brown v. Board of Education values. The university has insisted that it is not a separate dorm and that the reports have been overblown, as discussed on Snopes.
Continue reading “Critics: UConn to Create Black-Only Housing (Updated)”
It seems like our allies in Egypt and Turkey have a particular intolerance for cartoonists and satirists in their parallel crackdowns on free speech. In Turkey, the Miss Turkey was arrested for repeating a satirical comparison of President Erdogan to Gollum. In Egypt, a teenager was jailed for cartoons of Muhammad and a leading businessman was attacked for a cartoon of Micky Mouse with a beard. Then there was the three-year sentence given Amr Nohan, a 22-year-old law graduate for posting a Facebook image of President Abdel Fattah el-Sisi with Mickey Mouse-style cartoon ears (shown left). Now a leading cartoonist Islam Gawish, 26, has been arrested in Egypt by the hyper sensitive el-Sisi government.
Continue reading “Leading Egyptian Cartoonist Arrested After Satirizing Ally Of President El-Sisi”
A new citizen videotape has triggered an internal police investigation of Connecticut State troopers who are heard discussing charges for Michael Picard, 27, who was warning citizens of a DUI checkpoint. One of the officers is heard to say “we gotta cover our asses.” The officers are also heard threatening the citizen recording them. The police union has said that the officers acted appropriately.