Category: Courts

Barrett Unmodified: Moments of Clarity Emerge From The Confirmation of Judge Amy Coney Barrett

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”

Barrett: There Is Nothing Super About The Precedent In Roe v. Wade

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”

Turley Speaks At Brookings On Legislative History and Judicial Interpretation

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”

Douglas Kahn: There Is No Basis To Assume That Barrett Would Strike Down The ACA

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”

Biden Pledges To Make “Roe The Law Of The Land” If Overturned By The Supreme Court

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”

Ginsburg’s Nightmare: The Democratic Plan To Destroy The Supreme Court Of The United States

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”

Michigan Supreme Court Strikes Down Gov. Whitmer’s State of Emergency Order

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”

It Is Time To Dismiss The Flynn Case

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”

“This Idea Of This Presumption Of Innocence Is Over”: New Murder Trial Ordered Due To Prosecutor’s Closing Argument

In a relatively rare move, the U.S. Court of Appeals for the Ninth Circuit overturned a first-degree murder conviction this week due to the inappropriate comments made by the prosecutor that the jury could dispense with notions of the presumption of innocence.  As a criminal defense attorney, I have dealt with this issue of abusive prosecutorial statements in closing arguments.  Yet, courts often do little, if anything, in response. This case could offer a real deterrent for such prosecutorial misconduct.

Continue reading ““This Idea Of This Presumption Of Innocence Is Over”: New Murder Trial Ordered Due To Prosecutor’s Closing Argument”

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:

Continue reading “Judge Amy Coney Barrett On Her Intellect, Not Her Faith”

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”

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.

Continue reading “Democrats Introduce Unconstitutional Act To Limit The Tenure Of Supreme Court Justices”

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]”

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.

Continue reading “Yes, The Senate Can Confirm a New Nominee Before The Election”

A Kid Named Kiki: The Extraordinary Life and Legacy Of Ruth Bader Ginsburg

Below is my column in The Hill newspaper on the death of Associate Justice Ruth Bader Ginsburg. We expect the nomination of her replacement this week and what could be the most heated confirmation process in history.  We may look back at Bork and Kavanaugh as examples of bipartisan tranquility by comparison. As Washington returns to its favorite blood sport, many will continue to mourn the loss of an extraordinary jurist.

Here is the column:

Continue reading “A Kid Named Kiki: The Extraordinary Life and Legacy Of Ruth Bader Ginsburg”