Below is my column in The Hill on the confirmation of Judge Ketanji Brown Jackson and the death of the confirmation process as a meaningful and substantive process of review. The confirmation hearings continued a long trend towards superficiality and jingoism when it comes to the discussion judicial philosophy and doctrine. Nominees have long been prepped to refuse to answer substantive questions and evade direct responses on judicial philosophy. This did not start with Judge Jackson but it is clear now that our confirmation process is a scripted and shallow exercise for all parties.
Here is the column:
Continue reading “The Jackson Hearings and the Death of the Confirmation Process”
We have previously discussed the disconnect between the rhetoric for court packing and the reality of the court itself. As senators like Elizabeth Warren have called to pack the Court with a liberal majority and others have described it as hopelessly and ideologically divided, the Court itself continues to crank out unanimous or nearly unanimous decisions. This week saw two major cases touching on free exercise and free speech with only one dissenting vote. While justices have publicly condemned the Democratic court packing efforts, the court seems to be again speaking through its opinions. The cases are Ramirez v. Collier and Houston Community College System v. David Buren Wilson.
With the completion of her two days of confirmation testimony, one fact is now clear: Judge Ketanji Brown Jackson insists that she has no judicial philosophy other than a judicial methodology that is essentially identical to her oath of office. Putting aside the legal and linguistic problems with that position, most of the media and legal experts have simply shrugged and moved on. That is curious because just a week ago, many of these same figures went ballistic when I noted that we have little evidence of a judicial philosophy in past decisions by Judge Jackson and it would be one of the key issues in her confirmation hearings. Continue reading “Is it Okay Now to Say There is a Thin Record on Jackson’s Judicial Philosophy?”
We previously discussed concerns over free speech on the campus of the University of North Texas, including the canceling of an event on child gender transitioning. Students and faculty were not content to protest such events but acted to prevent others from hearing opposing views. Now, the university itself has lost a critical motion in a free speech case brought by Mathematics Professor Nathaniel Hiers after his contract was not renewed due to his criticism of the school’s microaggression policies. Judge Sean Jordan ruled that Professor Hiers may proceed to trial on his free speech claim.
Below is my column in USA Today on the confirmation hearings for Judge Ketanji Brown Jackson. For the most part, the hearings remained respectful and civil. I criticized some of the questioning from Republican senators on relevance or tone, but the difference with the prior three nominations was striking in a number of respects. Judge Jackson faced tough questioning on her prior decisions, but there were no giant pictures of alleged future victims or attacks on her religion or family that we saw two years ago. Indeed, as Sen. Cory Booker (D., N.J.), stated “This is not a normal day for America. We have never had this moment before.”
Here is the column: Continue reading ““We Have Never Had This Moment Before”: The Jackson Confirmation Shows Striking Differences From Prior Confirmations”
Before the start of the confirmation of hearings of Judge Ketanji Brown Jackson, one of greatest outstanding questions concerned Jackson’s approach to constitutional and statutory interpretation. “Judicial philosophy” was the very basis that Democratic senators cited in voting against Amy Coney Barrett in 2020. However, within minutes of the start of the hearing, it was clear that Jackson would not discuss her views. Instead, when asked about “judicial philosophy” she responded with descriptions of her “judicial methodology.” It is not the same thing but that evasion was shrugged off by members and commentators alike. Continue reading “No, Judicial Methodology is Not the Same as Judicial Philosophy”
I previously wrote about deep concerns over the FBI investigation of Project Veritas over the missing diary of Ashley Biden, daughter of President Joe Biden. The use of the FBI in a case involving a missing diary is itself difficult to square with its priorities, let alone the different treatment given the New York Times. Now, counsel for Project Veritas has filed a motion detailing what could be a very serious violation of court orders as well as an attack on free speech and free press.
“In passing on this nomination to the Supreme Court, we must also pass judgment on whether or not your particular philosophy is an appropriate one at this time in our history.” Those words in 1987 were a game changer in American confirmations when Democratic senators opposed the Supreme Court nomination of Judge Robert Bork by President Ronald Reagan. While the Senate had long maintained that a qualified nominee would be confirmed despite his judicial philosophy, that changed with Bork. The man who uttered those words was the senator from Delaware: Joe Biden. Continue reading ““Passing Judgment … on Your Particular Philosophy”: Biden’s First Nominee Versus Biden’s Bork Standard”
We have been discussing Russian artists and athletes blackballed for failing to publicly denounce Putin of his invasion of Russia. Despite the support that most of us have expressed for Ukraine against this unprovoked and savage attack, there is a danger that we are losing a war at home against free speech. The Russian invasion has added new allies in a growing anti-free-speech movement to censor and blackball dissenting voices. The latest such controversy involves Sergey Karjakin, a Russian grandmaster who supports the Russian invasion. He has been banned from competitions for six months by the International Chess Federation (FIDE). He has been banned due to the unpopularity of his political views — an act that should be denounced by anyone who values free speech.
In the movie “Dial M for Murder,” the character Mark Halliday explained how he writes about murders: “I usually put myself in the criminal’s shoes and then I keep asking myself, uh, what do I do next?” He admitted, however, that “I’m afraid my murders would be something like my bridge: I’d make some stupid mistake and never realize it until I found everybody was looking at me.”
That appears to be the fate of MSNBC commentator and the Nation’s Justice Correspondent Elie Mystal, who recently accused Sen. Josh Hawley of trying to kill Supreme Court nominee Judge Ketanji Brown Jackson. His weapon: a question about her prior legal positions.
Below is my column in the Hill on the confirmation hearings that start today for Judge Ketanji Brown Jackson. The question is whether there will be a substantive discussion of Jackson’s approach to judicial interpretation and judicial ethics.
Here is the column:
Continue reading “Will Senate Apply the Ginsburg or the Barrett Rule to Judge Jackson?”
Many of us strongly support the fight of Ukraine against the Russian invasion and have commended Ukraine’s President Volodymyr Zelenskyy for the heroic leadership that he has shown in the face of this unprovoked and savage attack. Yet, that support should not shield the country or Zelenskyy from criticism whether it involves filming POWs or cracking down on free speech. The latter concern has arisen after Zelenskyy banned Ukraine’s main opposition party and ten other parties. It is hard to criticize the actions of a nation facing annihilation at the hands of a tyrant. However, Putin is carrying out precisely this type of anti-free speech, counter-democratic crackdown in Russia. Ukraine has the moral high ground in this struggle and should not surrender that ground through its own acts of political censorship and suppression. Continue reading “Zelenskyy Bans Opposition Parties in Ukraine in Blow to Free Speech”
Below is my column in the Hill on a proposal for legislation to address allies supporting Russia through gas contracts. Congress can constitutionally freeze aid to countries undermining sanctions by buying cut-rate gas from the Putin regime. In the meantime, India’s major gas contract pumping money into the Russian economy will not be treated by the Biden Administration as a sanctions violation. Congress can force a bright line on foreign aid that aligns with our public and moral positions on Ukraine. Under its Article I powers, Congress can condition such foreign aid and, if necessary, override a veto from President Joe Biden.
Here is the column: Continue reading “Choosing Sides: The Congress Should Freeze Aid to Countries Buying Russian Gas”
Every recovery program starts with the mantra that the first step in dealing with a problem is to admit that you have a problem.
That cathartic moment seems to have escaped the editors of the New York Times in denouncing a cancel culture that they helped spread in the media. Many of us were both bemused and bothered by the editorial in the New York Times opposing cancel culture. The Times has not been some dedicated antagonist of this culture but rather one of its most unabashed ambassadors. Indeed, one of the most outrageous acts of cancellation by the media was the treatment of Sen. Tom Cotton over his 2020 Times editorial.
Continue reading “Will the New York Times Apologize to Sen. Cotton?”