Below is my column in the Wall Street Journal on President Joe Biden’s promise almost two years ago that he would only consider a black female for the first vacancy on the Supreme Court. The column produced a significant response from commentators. However, in all of the commentary that followed the column, no one is contesting the primary point: that this type of exclusionary rule has been found unconstitutional or unlawful in schools or businesses. While there may be legitimate points of distinction with a Court appointment, there is little discussion of why we should use a threshold exclusionary rule for admission to the highest court that the Court would not allow in any admission to a school or business. It is worth discussing even if one believes that the Court membership is a type of bona fide occupational qualification or if one simply rejects the very premise of the Court’s barring such criteria in past cases. The benefit of having a diverse Court is obvious but, if we want to use an express exclusionary rule, we should be able to discuss why it is appropriate for the Court and those institutions or businesses barred in past case.
Instead, commentators suggested that I ignored that prior presidents made such preferential picks. That is not true. My point was that Biden’s pledge was entirely unnecessary since he could have stated that he wanted to appoint a black female without barring consideration of other candidates on the basis of their race or gender. It is the difference between a preferential and exclusionary process. Commentators insisted that Ronald Reagan, Donald Trump, and George H.W. Bush made the same pledge. That is also false. While seeking to appoint women and African Americans, none of the three excluded other races or genders from consideration and had diverse short lists. Yet, even if they did, the question remains: should admission to the Court be based on an exclusionary threshold qualification that the Court has rejected as unconstitutional or unlawful for schools and businesses?
Here is the column: Continue reading ““This the Constitution Forbids”: Biden’s Race and Gender Criteria for the Court Were Rejected By The Court in Past Cases”
On October 5, 2021, the site Above the Law ran a story by Senior editor Kathryn Rubino about what she described as a vehemently racist law student who was given a prestigious clerkship by William H. Pryor Jr., chief judge of the United States Court of Appeals for the Eleventh Circuit. Above the Law has a long history of attacking conservatives, free speech advocates, and others deemed right of center. This story (which appeared earlier on sites like Mediaite) was perfect from that perspective and lit up the liberal media. That included a column by Washington Post’s Ruth Marcus asking “Why is a prominent federal judge hiring a law clerk who said she hates Black people?” The problem is that the Second Circuit found little evidence that it is true. The question is whether the accused student, Crystal Clanton, will now sue ATL, Mediaite, and other media outlets for defamation.
Continue reading “Second Circuit Refutes Allegations Involving Law Clerk in Mediaite, Above the Law, and Other Publications”
Below is my column in the Hill on upcoming year for the Supreme Court. The Court’s docket is likely to put the institution at ground zero of a heated election year. Major decisions on abortion and gun rights are expected by June 2022. Even with Chief Justice John Roberts denouncing attempts at “inappropriate political influence” on the Court, the threats of Court packing and other measures are likely to become even more shrill as these decisions rollout in the new year.
Here is the column: Continue reading “Tick, Tick, Tick…: The Supreme Court Readies an Explosive Docket for 2022”
Chief Justice John Roberts used his year-end report on New Year’s Eve to denounce the threats being made against the Court and its members by Democratic politicians and groups, including threats to pack the Court to force an immediate liberal majority. Roberts referred to such threats as efforts to exercise “inappropriate political influence” on the Court in contravention of our constitutional values and traditions. Continue reading ““Inappropriate Political Influence”: Chief Justice John Roberts Responds to Threats Against the Court”
Below is my column in The Hill on the recent bills proposed in Florida and California on immigration and guns. The bills are the latest examples of “gotcha legislation,” though the Florida bill could raise some interesting legal questions if Gov. Ron DeSantis moves forward with his plan on relocating undocumented persons to Delaware.
Here is the column: Continue reading “The Rise of Gotcha Legislation: Newsom and DeSantis are Legislating Soundbites and Voters are Loving it.”
California Gov. Gavin Newsom thrilled many this weekend by saying that his administration will model a new law on Texas’ abortion ban that would let private citizens sue anyone who makes or sells assault weapons or ghost guns. It won’t work. Legally, that is. It will be hugely successful politically, but not without costs to the state and potential litigants. Continue reading “Send Lawyers, Guns, and Money: Newsom Calls For Gun Ban Modeled on Texas Abortion Law”
The Supreme Court issued decisions today in the pending issues in Whole Woman’s Health v. Jackson and United States v. Texas. As anticipated in the earlier column, the Supreme Court did not grant an injunction and dismissed the Biden Administration’s lawsuit. The Court again rejected the notion of enjoining the judge and clerk but it did identify some private parties who can be sued as part of a pre-enforcement action. That represents a partial victory for pro-choice litigants, but the Court returned to a single track for its abortion review. That track originates in Mississippi, not Texas. Dobbs will remain the key decision on reproductive rights and is likely to answer many of the questions in the ongoing Texas litigation. Continue reading “Supreme Court Rejects Injunction of Texas Abortion Law But Allows the Challenge to Proceed in Lower Court”
Below is a version of my column in The Hill on the statement of Justice Sonya Sotomayor on the “stench” of politics in the oral argument in Dobbs v. Jackson Women’s Health Organization, a challenge to the Mississippi abortion law. The statement seemed directed at Sotomayor’s three new colleagues and the effort to use the new court composition to seek the reduction or overturning of Roe v. Wade.
Here is the column: Continue reading “Court on a Hot Tin Roof: Airing Out “the Stench” from the Oral Argument Over Abortion”
Judge Bruce Schroeder has banned MSNBC from the Kenosha County Courthouse following an incident where an employee allegedly followed the bus with the jurors. It is difficult to express how moronic such a decision would be for a network. (For the record, I once worked for NBC/MSNBC as a legal analyst. I have also worked for CBS, BBC, and currently Fox). Update: NBC issued a statement below.
Continue reading “MSNBC Banned From Rittenhouse Trial [Updated]”
The case against Kyle Rittenhouse just got a little smaller. I recently wrote a column stating that the sixth count appeared to be based on a factually and legally inapplicable provision of Wisconsin law. I could not understand how the judge could allow the count to go to jury. Indeed, I am mystified how the prosecutors could have secured the count on the basis of the provision. This is the loss of the least serious charge, but prosecutors lost more than just a misdemeanor conviction in the decision. Continue reading “Court Dismisses Sixth Count Against Rittenhouse”
In covering the motions hearing last week in the trial of Kyle Rittenhouse, I noted a surprising comment from Judge Bruce Schroeder that he had “spent hours” with the Wisconsin gun law and could not state with certainty what it means in this case. The statement could effectively knock out the misdemeanor gun possession count — the one count that could still be in play for the jury after the prosecution’s case on the more serious offense appeared to collapse in court. A close examination of that provision reveals ample reason to question not just its meaning but its application to this case.
Continue reading “Was Rittenhouse’s Possession of the AR-15 Unlawful?”
I recently wrote a column on the legal challenges to President Joe Biden’s vaccine mandate issued through OSHA. Not only is the use of OSHA regulations unprecedented for imposing a national vaccine mandate, I noted that Chief of Staff Ron Klain went to Twitter to herald the use of OSHA as a “work around” the constitutional limitations placed on President Biden. I asked how a court would respond to such an admission. We have to wonder no more. Late Friday, the United States Court of Appeals for the Fifth Circuit cited Klain’s comment in its decision enjoining the mandate. Continue reading “When “Work Arounds” Don’t Work: The Fifth Circuit Cites Biden’s Chief of Staff In Rejecting Vaccine Mandate”