Category: Constitutional Law

Kuwait: We Are Not Orwellian . . . We Banned Orwell

504px-Coat_of_Arms_of_Kuwait-2.svg1984-Big-BrotherKuwait has continued to remind the world that, despite its advances in the modern world, it remains a religiously orthodox government imposing medieval values on its population.  That fact was on display this week as the government banned such works as “The Little Mermaid” and Michelangelo’s David as unIslamic or indecent.  Sounds Orwellian? Perhaps but Kuwaiti’s would not know it . . .  Orwell’s masterpiece “1984” was also banned.

Continue reading “Kuwait: We Are Not Orwellian . . . We Banned Orwell”

UK’s Highest Court Rules In Favor Of Bakery That Refused To Make Cake Supporting Same-Sex Marriage

England flagLast year, we experienced a national debate over the right of  Colorado cake shop owner Jack Phillips can refuse to make a special cake for a same-sex marriage due to religious objections in the Masterpiece Cakeshop case. I supported the position on Phillips as a matter of free speech as opposed to free exercise.  Now Ireland has had its own challenge which  is remarkably similar to Masterpiece Cakeshop including lower court rulings against the owners at the Ashers bakery, Daniel and Amy McArthur, in Northern Ireland by lower courts. Continue reading “UK’s Highest Court Rules In Favor Of Bakery That Refused To Make Cake Supporting Same-Sex Marriage”

“Horror Has A Face”: Primordial Politics and the Aftermath of the Kavanaugh Confirmation

Below is my column in The Hill newspaper on the aftermath of the Kavanaugh confirmation. It is not that there is no winner and loser as much as both Dr. Christine Blasey Ford and Judge Brett Kavanaugh are both winners and losers.

It will take time to decide which party will benefit, but there is clearly Brett bump for Republicans going into the midterms.  Yet, the confirmation will also continue to resonate Democratic voters.

Continue reading ““Horror Has A Face”: Primordial Politics and the Aftermath of the Kavanaugh Confirmation”

A Bill Comes Due: Reid’s Folly Becomes The Democratic Nightmare

225px-harry_reid_official_portrait440px-Judge_Brett_KavanaughIn 2010, I (and others) criticized the Democratic leadership (including then Majority Leader Harry Reid and many of the continuing Democratic senators) for their use of the “nuclear option” in curtailing the power of the filibuster. I was equally critical of Republican leaders who previously suggested such a course of action. The Democrats acted with little concern that they might ever be in the minority and need this critical power. They muscled through the Affordable Care Act on a marginal vote that cost various members their seats and passed a highly flawed bill that was plagued by problems of bad drafting and poor planning. Moreover, they secured relatively few confirmations to federal office.  The result was the final demise of the filibuster for Supreme Court nominees when the Republicans took power.  The result for the Democrats is Justice Brett Kavanaugh, who was confirmed by a 50 to 48 vote. Continue reading “A Bill Comes Due: Reid’s Folly Becomes The Democratic Nightmare”

Boofed Is The New Borked: How Democrats Laid A Perjury Trap For Brett Kavanaugh

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Below is my column in USA Today on what appears now to be a clear perjury strategy against Judge Brett Kavanaugh that focuses more on his credibility than his alleged criminality.  There are many who have questioned whether Kavanaugh testified truthfully on the meaning of well-known sexual terms as well as his statements on his prior drinking habits.  Clearly, any false testimony would be a barrier to confirmation regardless of the subject.  Yet, this confirmation could create a new term for future nominees: “boofed.”  The questioning on high school lexicon and conduct is a new element in confirmations — precedent that could further degrade our process for selecting Supreme Court justices.

Here is the column: Continue reading “Boofed Is The New Borked: How Democrats Laid A Perjury Trap For Brett Kavanaugh”

Democrats Pledge To Revive A Cadaver Synod To Remove Justice Kavanaugh

downloadBelow is my column in The Hill newspaper on the growing pledges from House and Senate Democratic members to investigation and possibly impeach Brett Kavanaugh if he is confirmed this week.  It would constitute a dangerous and reckless precedent for Democrats to pursue with any new majority.

Here is the column: Continue reading “Democrats Pledge To Revive A Cadaver Synod To Remove Justice Kavanaugh”

Kavanaugh’s “Mad As Hell” Moment Should Not Pass Without Serious Reforms Of The Confirmation Process

UnknownBelow is my column in The Hill newspaper that looks beyond this immediate controversy over the Kavanaugh nomination toward three basic reforms of the confirmation process. With the FBI investigation interviewing witnesses on the first two allegations of sexual assault, it is not clear what new information may surface at the end of the week.  In the interim, it would be useful to discuss the now obvious failure of our confirmation process. I have been a long critic of the process, but the Kavanaugh confirmation process has magnified these flaws to a grotesque degree.

Notably, Kavanaugh now has been given the SNL treatment with a performance by Matt Damon that is that type of comical portrayal that hits hard in public controversy.

Here is the column:

Continue reading “Kavanaugh’s “Mad As Hell” Moment Should Not Pass Without Serious Reforms Of The Confirmation Process”

Maldives Destroys Famed Art Piece As UnIslamic

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(Maldives Police)

The intolerance of art and free expression in many Islamic countries was particularly and painfully evident in the Maldives last week.  A beautiful and powerful underwater sculpture by British artist Jason DeCaires Taylor was ordered destroyed by the government after objections by Islamic leaders for its depiction of human forms.  Ironically, the art highlighted the dire risk of rising sea levels for the Maldives. Instead, its demise will forever symbolize the risk of rising intolerance of religious orthodoxy.  For some tourists who flock to the Maldives, this outrageous attack on art just might be a deterrent to future vacation plans.

Continue reading “Maldives Destroys Famed Art Piece As UnIslamic”

A Clear Preponderance: Fact-Finding By the Senate Requires A Standard Of Review

senate_large_sealBelow is my Hill newspaper column on the unfolding controversy surrounding the allegations of sexual abuse brought against Judge Brett Kavanaugh.  As we wait for the week long FBI investigation to be completed, the question remains the same: what is the standard that should apply to such cases once all of the evidence laid before the Senate?  As the FBI prepares to submit new evidence, the Senate still must articulate a standard of review for that evidence.

Here is the column Continue reading “A Clear Preponderance: Fact-Finding By the Senate Requires A Standard Of Review”

“Necessary in a Democratic Society”: European Court Bars Pro-Life Advocate From Calling Abortion Murder

imagesWe have previously discussed the alarming rollback on free speech rights in the West, particularly in France (here and here and here and here and here and here and here) and England ( here and here and here and here and here and here and here and here and here and here). Much of this trend is tied to the expansion of hate speech and non-discrimination laws.   The Europeans appear committed to this trend of curtailing free speech and subjecting speech to coercive definitions of what the majority deems acceptable.  That commitment was made all the more evident, and chilling, by the decision of the European Court of Human Rights rejecting a German anti-abortion activist’s challenge to court orders enjoining him from referring to abortions as “aggravated murder” and comparing them with the Holocaust.  So now the courts are enforcing speech controls over clearly religious and political viewpoints in Europe. Continue reading ““Necessary in a Democratic Society”: European Court Bars Pro-Life Advocate From Calling Abortion Murder”

Merkely Files To Enjoin Kavanaugh Vote

Jeff_Merkley,_115th_official_photoSen. Jeff Merkley (D-Ore.) filed for an injunction in federal court to stop a final vote on Brett Kavanaugh.  The filing claims that the Republican majority is obstructing  his constitutional duty to give advise and consent on nominees.  The filing is entirely and utterly meritless.  It will be dismissed and is unlikely to receive a hearing on the claim.

Continue reading “Merkely Files To Enjoin Kavanaugh Vote”

Hirono’s Hedge: Kavanaugh Not Entitled To Presumption Of Innocence Due To His Ideological Views

440px-Mazie_Hirono,_official_portrait,_113th_CongressWith the addition of a second woman alleging sexual misconduct of Brett Kavanaugh, it is still not clear what factual disputes will have to be addressed before a final confirmation vote occurs in the Senate. Putting aside questions over late timing of the allegations, there is agreement that the Senate will have to consider both the allegations of Dr. Christine Blasey Ford and the new allegations of Deborah Ramirez. What is far more troubling is the continued disagreement on the standard that Senators should use in considering the allegations. While objecting that their Republican colleagues are not prepared to give the women an “impartial hearing,” various Democratic senators have declared (before any testimony is heard) that they believe Dr. Ford – and thus do not believe Judge Kavanaugh. That is troubling enough, but Sen. Mazie Hirono (D., HI) has introduced a far more troubling element in suggesting that she may decide the factual question on the basis of Kavanaugh’s jurisprudential views. Continue reading “Hirono’s Hedge: Kavanaugh Not Entitled To Presumption Of Innocence Due To His Ideological Views”

Insubordination Versus Obstruction: Has The New York Times Given Trump His Long-Sought License To Clean House At Justice?

Rod_Rosenstein_US_AttorneyBelow is my column in the Hill newspaper of the New York Times story alleging that Deputy Attorney General Rod Rosenstein spoke to this staff near the start of his tenure about secretly taping President Donald Trump and organizing a cabinet effort to oust Trump through the Twenty-Fifth Amendment.  Rosenstein denies the accuracy of the story and some have said that he discussed the possibility in jest.  The New York Times has responded by saying that it was clear that the comments were made seriously and not in jest.

It is still not clear what Trump will do despite many (including myself) arguing that he should not fire Rosenstein.  On Sunday, however, Trump told Geraldo Rivera that this was ultimately the fault of Attorney General Jeff Sessions (who selected Rosenstein) and that “we will make a determination” about what to do about the story.

Here is the column: Continue reading “Insubordination Versus Obstruction: Has The New York Times Given Trump His Long-Sought License To Clean House At Justice?”

A Confirmation On The Brink: Three Scenarios For The Kavanaugh Hearing

440px-Judge_Brett_KavanaughBelow is my column in USA Today on the different outcomes possible in the ongoing Kavanaugh controversy.  These scenarios have become more complex after a hearing was schedule for Monday and then Dr. Christine Blasey Ford announced that she would not appear.  She has declared that the FBI must investigate her allegations of attempted rape as a condition of her testimony.  What is clear is that the last minute allegation has galvanized the Democratic ranked, including Missouri Sen. Claire McCaskall.  Obviously, if Ford does not show up at the hearing the GOP could use the refusal as a basis for treating the allegations as unproven and proceed to a vote on the merits.  If she does show up, Kavanaugh is likely in for one of the most brutal hearings in history.

Here is the column: Continue reading “A Confirmation On The Brink: Three Scenarios For The Kavanaugh Hearing”

Kavanaugh Accuser Goes Public With The Support Of A Polygraph To Support Alleged High School Sexual Assault

download-6For a week, a scandal has grown over an anonymous accusation against Supreme Court nominee Brett Kavanaugh.  I previously wrote about the unfairness of this last minute accusation from an unnamed law professor who declined to be named.  Moreover, the underlying letter has been in the possession of Democrats since July.  Now, the mystery is over:  Palo Alto University professor Christine Blasey Ford has come forward to say that she is indeed the accuser of Kavanaugh.  It appears that the earlier leaks and media reports that this was a Stanford law professor were untrue.  She is shown here from her high school yearbook picture.  Notably, her lawyer has said that she passed a polygraph examination that found her account was truthful.

Continue reading “Kavanaugh Accuser Goes Public With The Support Of A Polygraph To Support Alleged High School Sexual Assault”

Res ipsa loquitur – The thing itself speaks