Monday, February 29, 2016

Republicans spent years fostering a fear of Muslims. Now Trump is exploiting it.

Republicans spent years fostering a fear of Muslims. Now Trump is exploiting it.
by Sarah Posner

By the time Trump launched his campaign in 2015, the Cassandras of a Muslim invasion of America on talk radio, Fox News, and elsewhere had laid his groundwork. Trump sought to exploit the simmering Islamophobia in a series of attention-grabbing moves. In April 2011, during a period when Trump was sending his own investigators to Hawaiito find Obama's birth certificate, he told the Christian Broadcasting Network that the Koran "teaches some very negative vibe."

It would take four more years, during which Islamophobia was on the rise, for Trump to make full political hay of his twinned anti-Obama and anti-Muslim strategy.

The Age of Secular Stagnation | Larry Summers

Slow-going but worth the effort. -gwc
The Age of Secular Stagnation | Larry Summers
What It Is and What to Do About It

February 15, 2016

first published in Foreign Affairs

As surprising as the recent financial crisis [1] and recession were, the behavior of the world’s industrialized economies and financial markets during the recovery [2] has been even more so.

Most observers expected the unusually deep recession to be followed by an unusually rapid recovery, with output and employment returning to trend levels relatively quickly. Yet even with the U.S. Federal Reserve [3]’s aggressive monetary policies, the recovery (both in the United States and around the globe) has fallen significantly short of predictions and has been far weaker than its predecessors [4]. Had the American economy performed as the Congressional Budget Office fore­cast in August 2009—after the stimulus had been passed and the recovery had started—U.S. GDP today would be about $1.3 trillion higher than it is.

Almost no one in 2009 imagined that U.S. interest rates would stay near zero for six years, that key interest rates in Europe would turn negative, and that central banks in the G-7 would collectively expand their balance sheets by more than $5 trillion. Had economists been told such monetary policies lay ahead, moreover, they would have confidently predicted that inflation would become a serious problem—and would have been shocked to find out that across the United States, Europe, and Japan, it has generally remained well below two percent.

In the wake of the crisis, governments’ debt-to-GDP ratios have risen sharply, from 41 percent in 2008 to 74 percent today in the United States, from 47 percent to 70 percent in Europe, and from 95 percent to 126 percent in Japan. Yet long-term interest rates are still remarkably low, with ten-year government bond rates at around two percent in the United States, around 0.5 percent in Germany, and around 0.2 percent in Japan as of the beginning of 2016. Such low long-term rates suggest that markets currently expect both low inflation and low real interest rates to continue for many years. With appropriate caveats about the complexities of drawing inferences from indexed bond markets, it is fair to say that inflation for the entire industrial world is expected to be close to one percent for another decade and that real interest rates are expected to be around zero over that time frame. In other words, nearly seven years into the U.S. recovery, markets are not expecting “normal” conditions to return anytime soon.

The key to understanding this situation lies in the concept of secular stagnation [5], first put forward by the economist Alvin Hansen in the 1930s. The economies of the industrial world, in this view, suffer from an imbalance resulting from an increasing propensity to save and a decreasing propensity to invest. The result is that excessive saving acts as a drag on demand, reducing growth and inflation, and the imbalance between savings and investment pulls down real interest rates. When significant growth is achieved, meanwhile—as in the United States between 2003 and 2007—it comes from dangerous levels of borrowing that translate excess savings into unsustainable levels of investment (which in this case emerged as a housing bubble).

- See more at:

The Scalia Myth by Laurence H. Tribe | NYR Daily | The New York Review of Books

The Scalia Myth by Laurence H. Tribe | NYR Daily | The New York Review of Books

***The indeterminacy of Scalia’s methods, as well as the fact that Scalia himself sometimes abandoned their use in cases where they could have cut against the outcome he sensed was right, should particularly remind those responsible for nominating and confirming his successor that brilliant, personally decent, and ethically respectable judges on any side of a complex and controversial issue can quote scripture to their own purposes and, in the rare instances where scripture has nothing to offer, will craft other ways to tip the scales in favor of the results that simply feel right to them. Justice Scalia drew selectively both on his own favored methods and on those of others, often showing a Swiss-cheese-like respect for precedent (following where the logic of precedent led—except when he thought it unwise to do so) to cast real votes on decisions that had real, sometimes enormous, and occasionally tragic human consequences. His successor will likewise have to draw on a broad variety of interpretive tools and will, likewise, in the most significant and controversial cases, ultimately rely—whether expressly or otherwise—on a personal understanding of the values and vision that the Constitution is best understood to embody.

The selection of a justice to serve for life on the nation’s highest court is far too consequential to be treated either as an abstract referendum on legal methodology or as a game to be played for partisan advantage. For literally the first time in American history, the party in control of the Senate is demanding that the president violate his constitutional duty to nominate someone to fill a Supreme Court vacancy. In the process, the Senate is effectively disabling itself from performing its own constitutional duty, its “Advice and Consent” function, thereby undermining the framers’ brilliant design of a government whose separate parts were to check but never prevent one another from performing their assigned missions. The national debate over who should be the next president might in any event include attention to the kind of justice the people want to see fill the currently vacant seat, but that debate will inevitably be far more generalized and lacking in substance if it cannot center around what is revealed by a particular nominee’s background and in that nominee’s responses to probing questions asked in a Senate hearing.

Nothing could more dramatically demonstrate how momentous the choice of a successor to this justice is to the country, and how especially shameful and hypocritical is the Senate’s refusal even to consider anyone nominated by the incumbent president. The pretense behind this unprecedented maneuver is that only the president whom the nation elects this November to succeed President Obama can legitimately reflect the people’s will. Never mind that President Obama was elected in 2008 and reelected in 2012 and still has nearly a year to serve. The claim is that filling the currently vacant seat in ordinary course would unduly politicize the selection process and the Court itself. That is transparently absurd. Whichever president nominates someone to the seat occupied by Justice Scalia, the selection that is made, and the Senate’s vote to confirm or reject that nominee, will reflect a politically legitimate choice about one kind of future rather than another with respect to the powers, responsibilities, and limits of the levels and branches of government and the values government will be permitted, forbidden, or on occasion compelled to preserve. Justice Scalia’s successor will wield enormous influence on the Court’s decisions in years to come on the broadest imaginable range of matters vital to us all: access to court and avoidance of arbitration in civil cases, meaningful access to adequate legal representation in criminal cases, presidential war powers, voting rights, reproductive choice, gay rights and minority inclusion, racial and religious profiling and the separation of church and state, campaign finance and habeas corpus and the future of such extraordinary and deeply debated forms of punishment as solitary confinement, life imprisonment without parole, and the death penalty.

Many of us yearn for the Court to move in a progressive direction and dread a continuation of the rightward drift that Justice Scalia’s three-decade long presence on the Court facilitated. Even if labels like “liberal” and “conservative” are often oversimplifications, it captures more truth than it obscures to say that the Court is currently composed of four liberals (Justices Ginsburg, Breyer, Sotomayor, and Kagan), three conservatives (Chief Justice Roberts, Justice Thomas, and Justice Alito), and one jurist (Justice Kennedy) who leans sometimes in one direction and sometimes the other way. The Court is exquisitely balanced 4-4 on a wider swath of fundamental questions than at any time since the 1930s.

This crucial constitutional moment—this possible turning point in the life of our republic—calls on all of us, across the political spectrum, to drop the pretense that we have nothing in mind but what we deem the theoretically proper judicial methods, come what may, and simultaneously to resist the unfounded claim that only those who applaud right-leaning outcomes while proclaiming strict adherence to text and history can truly claim the mantle of constitutionalists who believe in the rule of law. That mantle instead belongs to those who are most candid about the non-existence of any ironclad “method” that should, or even can, obviate the necessity for human choices about the demands of justice and the meaning of America.

The greatest justices in our history—from John Marshall to Louis D. Brandeis, from Robert H. Jackson to Earl Warren and William O. Douglas and Thurgood Marshall and William J. Brennan, Jr.—have displayed that candor and have thereby helped make the Union stronger, the country better, and our Constitution more enduring and embracing. We should all welcome the opportunity to take part in a national debate over the values and perspectives we want the next justice to bring to the intricate task of interpreting our Constitution and our laws. But if we shut our eyes, ears, and minds to such questions, or reduce them to vague abstractions, as the Senate is now threatening to do, we will leave our nation’s remarkable constitutional system impoverished and our nation’s uncertain destiny imperiled.

A special place in hell for Chris Christie | xpostfactoid

I don't use the word fascist because I don't think it has any determinable meeting - except for describing Mussolini's movement - which called itself that.
But that aside, thanks for the usual help from Andrew Sprung. - gwc
What it looks like when mainstream leaders fall in behind a fascist | xpostfactoid
by Andrew Sprung
Here is how Christie introduced Trump at a rally in Oklahoma City on Friday. The message is simple and moronic: Trump is "strong." American needs a strongman.
America needs a strong leader who's gonna restore American strength around the world and Donald Trump is that man. America needs a strong leader at home to restore jobs and American confidence to our people, and Donald Trump is that man.. And the Republican party needs a leader who will make sure that Hillary Rodham Clinton never gets within ten miles of the White House, and Donald Trump is that man.
I'm full of optimism for when we get a strong leader in the White House and not the hand-wringing guy we have in the White House right now. Can you imagine the whiplash that America's enemies are gonna feel when they go from a weakling like Barack Obama to a man of strength like Donald Trump.
- See more at:

Sunday, February 28, 2016

I thought i could reason with antonin Scalia

Saturday, February 27, 2016

Does the Biden speech undermine the case for Supreme Court confirmation hearings? - John Witt - Balkinization:

Balkinization: Does the Biden speech undermine the case for Supreme Court confirmation hearings?
by John Witt // Yale Law School
What’s the difference between resisting a Supreme Court nomination during a presidential campaign and resisting one until the next president is in office? The answer is two and a half months -- and a radically transformed conception of the Court.

As readers of this blog will likely know by now, then-Senator Joseph Biden delivered a speech on the Senate floor in June of 1992 warning that in the event of a Supreme Court vacancy, President George H. W. Bush ought not “name a nominee until after the November election is completed.” Biden urged that the Senate consider “not scheduling confirmation hearings on the nomination until after the political campaign season is over.”

Flash forward to 2016. Republicans in the Senate and elsewhere cite the Biden speech in support of their refusal to consider a nomination to fill the seat left vacant by the death of Justice Scalia. The country’s newspapers and commentators have gone along. The New York Times called Biden’s speech “a direct contradiction to President Obama’s position.”

The Times is flat wrong. The Biden speech is no contradiction, but not for the reasons the White House and its allies have asserted. In 1992, Biden’s argument was that action “must be put off until after the election campaign is over.” In our system of government, the end of campaign season does not coincide with the inauguration of the new president. 

 To the contrary, since the enactment of the Twentieth Amendment, the election gives way to a period of two and a half months in which the incumbent president, though to be sure a lame duck, holds all the formal powers of the office, including the power to nominate new justices. Biden’s move was to insist that, until the post-election period, there would be too much partisan rancor to have a full and fair hearing on the merits. After all, that was what mattered: ensuring an evaluation of the next justice on the merits, not according to a partisan political calculus.

Friday, February 26, 2016

Trump’s nationalism is corrosive and dangerous - Gerson - The Washington Post

Trump’s nationalism is corrosive and dangerous - The Washington Post
by Michael Gerson (former principal speechwriter for President George W. Bush)
It is difficult to discern a foreign policy in Trump’s oeuvre of rambling, extemporaneous speechmaking and Twitter pronouncements. He usually communicates without a hint of actual argument. But there is some consistency to his various statements.
Trump believes that U.S. allies in Europe and Asia have become free riders that should defend themselves and pay their own way. He calls the U.S.-Japan Security Treaty unfair. In exchange for the protection of South Korea, he argues, “we get practically nothing.” Mexico is “ripping us off” and purposely sending us criminals. It must be compelled to pay for a continent-wide wall. Trump proposes to “tax China for each bad act” and has raised the possibility of a 45 percent tariff. Vladimir Putin, in contrast, should be given a free hand in the Middle East to go after Sunni radicals and other opponents of the Syrian regime. And the United States should focus on killing terrorists as well as targeting their families for murder, apparently on the theory that war crimes are a demonstration of super-duper toughness.....

Thursday, February 25, 2016

Justice Scalia and the International Order of St. Hubertus

Honor God by Honoring his Creatures
Antonin Scalia wore a West Point style tunic  at Xavier High School - a Jesuit military academy prep school on West 16th Street in Manhattan.  We jokingly called them subway commandos.  Justice Scalia died the way he started: in the company of men who saw themselves as gentlemen practicing the virtues of the martial arts, and patrons of the arts.  At the hunting lodge where he passed was a contingent from the International Order of St. Hubertus. - gwc
International Order of St. Hubertus - About Us
"The International Order of Saint Hubertus was founded in 1695 by Count Franz Anton von Sporck in what was then the Kingdom of Bohemia, then territory of the Habsburg Empire, now the modern Czech Republic.

The Order was a knightly order with an emphasis on hunting and activities related to the pursuit and management of game animals. 

In the Middle Ages and again with the revival of interest in the forms of chivalry in Europe, hunting was considered a basic preparation for warfare and was held among the highest activities a gentleman could pursue. In addition, Count von Sporck was also a prominent patron of music, having commissioned numerous Vivaldi operas and the four Bach minor Masses for performance at his private Opera House in Prague.

The Order counted among its original members Emperor Charles VI and many of the other noble families of the Holy Roman Empire. After nearly 250 years of honorable existence, the Order was banned by Adolph Hitler for refusing to accept Nazis as members after the Anschluss joined Austria to Germany. The biography of Count von Sporck, the Institution of the Order by him and its existence until World War II are chronicled in the History section of this website.

Wednesday, February 24, 2016

Vetting Brian Sandoval: who might (other than Ohio State fans) get super excited about his possible SCOTUS nomination?//Doug Berman Sentencing Law and Policy:

 Could a RINO make it through the Senate Gauntlet and sit in Antonin Scalia's seat? - GWC

Sentencing Law and Policy: Vetting Brian Sandoval: who might (other than Ohio State fans) get super excited about his possible SCOTUS nomination?

by Doug Berman // Ohio State Law School

This afternoon I receive two email news alerts about a new SCOTUS nominee "front-runner": Nevada GOP Gov Brian Sandoval. I had been planning to do a post about Gov Sandoval as an interesting possible SCOTUS candidate over the weekend, but a few folks I spoke with suggested it would be almost silly to imagine Prez Obama nominating a GOP elected official. But, this Washington Postarticle, headlined "Republican governor of Nevada Brian Sandoval being considered for Supreme Court," suggests that at least a few Beltway insiders are having silly thoughts similar to mine. Here are the basics with the Post:

Brian Sandoval, the centrist Republican governor of Nevada, is being vetted by the White House for a possible nomination to the Supreme Court, according to two people familiar with the process. Sandoval is increasingly viewed by some key Democrats as perhaps the only nominee President Obama could select who would be able to break a Republican blockade in the Senate.

Senate Majority Leader Mitch McConnell (R-Ky.) on Tuesday pledged “no action” on any Supreme Court nomination before November’s election, saying the decision ought to be left to the next president. The White House declined to comment Wednesday for this story. White House press secretary Josh Earnest has emphasized in recent days that the president has not arrived at a short list of potential nominees.

The nomination of a GOP governor — albeit one with a bipartisan record — could break that resolve.

Sandoval met Monday with Senate Minority Leader Harry M. Reid, a fellow Nevadan with whom he enjoys cordial relations. A person familiar with the conversation said that while Sandoval told Reid he had not made a final decision on whether he would accept a Supreme Court nomination, he would allow the vetting process to move forward. Another person in Nevada familiar with the process confirmed that the process is underway....

It is unclear how many potential nominees are undergoing White House vetting for the high court vacancy left by Justice Antonin Scalia’s death. Obama was seen last week carrying a thick binder of materials on potential picks to review.

Obama outlined his thinking in a guest posting on SCOTUSblog Wednesday [available here]: “A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court.”

Some Democrats believe that nominating Sandoval could fracture the front of Republican opposition and force McConnell to take up the nomination in this contentious election year. It would also put on the spot a handful of Senate Republicans who are up for reelection in blue states in November.

A Responsibility I Take Seriously : SCOTUSblog

A Responsibility I Take Seriously : SCOTUSblog
by Barack Obama

The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.

It’s also one of the most important decisions that a President will make. Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.

Needless to say, this isn’t something I take lightly. It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum. And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.

First and foremost, the person I appoint will be eminently qualified. He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity. I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.

Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear. There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.

A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court. And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength.

- See more

Tuesday, February 23, 2016

Helen prejean on Scalia

Revanche and the First Black President

The nastiness that characterizes GOP talk about President Obama was also seen in the savagery with which Bill Clinton was pursued...the phony scandals (Whitewater), the conspiracy theories (the Vince Foster `murder'), Monica Lewinsky and the impeachment trial, etc.
We see now that radio trashtalkification has become so routinized that GOP candidates call each other liars, celebrate torture and war crimes, and obstruct governmental processes by threatening to not pay our bills, or to fill a Supreme Court vacancy.  Josh Marshall takes a long look back. - GWC
Revanche and the First Black President
by Josh Marshall // Talking Points Memo

This latest rebuke over the [Supreme] Court feels like another example of how Republicans have not simply opposed President Obama's policies - which is their right and if anything a sign of party discipline - but refuse to accord him the personal respect or respect for the office of President which has been accorded to every other chief executive. And yet for those of us who were adults in the 1990s, it is very hard not to see Republican opposition to Bill Clinton in at least a comparable light.

It is odd to think now, almost a generation after his presidency, after years in which Clinton was embraced as a beloved elder statesman and a sort of wizard of the political arts. But Republican hatred of President Clinton was so unbounded that in some respects it became their own undoing. Everyone remembers today that Clinton had approval numbers in the 60s for much of his second term in office; fewer remember that they only shot to those levels after the outbreak of the Lewinsky scandal and its peak moments.

Monday, February 22, 2016

Dylan Citings in Court - The New York Times

Dylan Citings in Court - The New York Times
by Adam Liptak
WASHINGTON — Justice Antonin Scalia loved opera, but he also had a soft spot for Bob Dylan.
In a 2010 dissent, for instance, he chastised the majority for refusing to answer key questions in a case about sexually explicit text messages because technology was evolving so fast.
“The-times-they-are-a-changin’ is a feeble excuse for disregard of duty,” he wrote.
Justice Scalia was in good company. Mr. Dylan has long been the most cited songwriter in judicial opinions, saidAlex B. Long, a law professor at the University of Tennessee and the author of a 2012 study, “The Freewheelin’ Judiciary: A Bob Dylan Anthology,” published in the Fordham Urban Law Journal.
It was a 2008 dissent from Chief Justice John G. Roberts Jr. that really opened the floodgates, Professor Long said. “Judges’ inclination to go to Dylan has actually increased in the past few years, probably as a result of Roberts’s dissent in that case,” he said.

Dylan citations are booming in other fields as well. A study last year found 213 references to his lyrics in medical papers. (One was called “Nitric Oxide and Inflammation: The Answer Is Blowing in the Wind.”)

Sunday, February 21, 2016

New Social Media Opinions: West Virginia and Colorado | Legal Ethics in Motion

New Social Media Opinions: West Virginia and Colorado | Legal Ethics in Motion
by Professional Responsibility and Ethics Program (PREP) //University of Miami School of Law

Recently, two more states, West Virginia and Colorado, joined the legal ethics conversation regarding social media, issuing opinions that are generally consistent with most other states’ social media opinions.

In September 2015, the Lawyer Disciplinary Board of West Virginia issued new social media and social networking guidelines titled “Social Media and Attorneys.” Specifically, the Board addressed the following topics: attorney competency, taking down posts, avoiding contact with represented persons, contacting unrepresented persons, monitoring third-party reviews and endorsements, protecting confidentiality, honesty in endorsing other lawyers, researching jurors, friending judges, and avoiding inadvertent lawyer-client relationships.
The Board concluded in part that attorneys may not make statements on social media that the attorney knows or reasonably knows will be disseminated publicly and will have “a substantial likelihood of materially prejudicing an adjudicative proceeding,” subject to certain exceptions listed in the rule on trial publicity. Additionally, the Board opined that attorneys may accept client reviews but must monitor the reviews for accuracy. Regarding advising clients on their social media presence, the Board concluded that attorneys may advice their clients to change the privacy settings of their social media pages, but attorneys may not instruct their clients to “destroy, alter, or conceal any relevant content on their social media pages.” Instead, attorneys must take the appropriate steps to preserve the information in the event that it is discoverable or relevant to the clients’ cases.
In a nutshell, both opinions conclude that lawyers must comply with the ethics rules when using social media just as when using other forms of communication.
To read the full West Virginia opinion, click here. To read the full Colorado opinion, click here.

Hiroshima.... was it necessary?

If any nation  today dropped a nuclear bomb we would denounce them as war criminals.  We deserve the same for dropping the atomic bomb on Hiroshima followed quickly by Nagasaki.  Doug Long presents HERE the argument that it was not necessary.
" [July] 1945... Secretary of War Stimson, visiting my headquarters in Germany, informed me that our government was preparing to drop an atomic bomb on Japan. I was one of those who felt that there were a number of cogent reasons to question the wisdom of such an act. ...the Secretary, upon giving me the news of the successful bomb test in New Mexico, and of the plan for using it, asked for my reaction, apparently expecting a vigorous assent.
"During his recitation of the relevant facts, I had been conscious of a feeling of depression and so I voiced to him my grave misgivings, first on the basis of my belief that Japan was already defeated and that dropping the bomb was completely unnecessary, and secondly because I thought that our country should avoid shocking world opinion by the use of a weapon whose employment was, I thought, no longer mandatory as a measure to save American lives. It was my belief that Japan was, at that very moment, seeking some way to surrender with a minimum loss of 'face'. The Secretary was deeply perturbed by my attitude..."
- Dwight Eisenhower, Mandate For Change, pg. 380
In a Newsweek interview, Eisenhower again recalled the meeting with Stimson:
"...the Japanese were ready to surrender and it wasn't necessary to hit them with that awful thing."
Ike on Ike, Newsweek, 11/11/63

Cheering anti-Muslim war crimes, Trump Takes South Carolina GOP Primary

American soldiers during the Moro Campaigns.jpg
American troops battle Philippine
On eve of victory, Trump hails torture and mass murder of Muslim POWs.
The night before his South Carolina victory Donald J. Trump entertained the crowd with a celebration of an American war crime against Muslim rebels in the Philippines. As with so many Trump stories this one is apocryphal . When we defeated Spain we took its colonies - Puerto Rico and the Philippines. The Philippine- American war ensued (1899-1913).  In the Moro Rebellion the U.S. faced bitter opposition on Mindanao from its people who were mainly Muslim. A myth developed that the colonial governor General John Pershing had ordered the mass execution of the Muslim prisoners of war. But, untrammeled by the need to verify any facts, Trump embraced the libel as fact. I'll let him take it from here:
in North Charleston the night before the South Carolina primary: “He took fifty bullets, and he dipped them in pig’s blood. And he had his men load his rifles and he lined up the fifty people, and they shot 49 of those people. And the fiftieth person he said ‘You go back to your people and you tell them what happened.’ And for 25 years there wasn’t a problem, okay?”
Trump added, "So we better start getting tough and we better start getting vigilant, and we better start using our heads or we're not going to have a country, folks."
Trump says waterboarding is "minimal, minimal, minimal torture" compared with the tactics used by Islamic State militants.

Friday, February 19, 2016

Supreme Court vacancies in presidential election years : SCOTUSblog

Supreme Court vacancies in presidential election years : SCOTUSblog
by Amy Howe
In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.

When the Public Defender Says, ‘I Can’t Help’ - The New York Times

Louisiana has the highest incarceration rate in the U.S.  Cardozo Law School Prof. Ellen Yaroshefsky testified that it runs not a justice system but a "processing system".  - gwc
When the Public Defender Says, ‘I Can’t Help’ - The New York Times
by Derwyn Bunton  //Chief Defender for Orleans Parish / Louisiana

New Orleans — ON an ordinary day, the Criminal District Court here begins with a parade of handcuffed and shackled defendants being led out from cages behind the judge’s bench by sheriff’s deputies. They are clad in orange jumpsuits and are almost exclusively African-American men. They rattle and shuffle their way onto benches and into the empty jury box, waiting for the judge.

When their case is called, a lawyer from the public defender’s office will rise and say: “Your Honor, we do not have a lawyer for this person at this time.”

Eight-five percent of these defendants are unable to afford their own lawyer and will need a public defender to represent them. But in New Orleans, where I am in charge of the public defender’s office, we simply don’t have enough lawyers to handle the caseload. Last month, we began refusing new cases.

In a state with one of the nation’s highest poverty rates, the system to defend the poor is broken.

To understand why, look at the other people in the courtroom sitting on benches set aside for the audience. Most of these people aren’t there to watch the proceedings. Many were subpoenaed for failing to pay fines or fees for minor offenses and had to take time from work to appear in court or be charged with contempt. Those fines and fees pay for two-thirds of the Louisiana public defender system. The rest comes from the state.

It is not an exaggeration to say that fines from traffic offenses, which, in Louisiana, can result in jail time, play a big part in determining whether one of those men in the orange jumpsuits receives an adequate defense required by the Sixth Amendment to the Constitution.

Poor people must pay $40 to apply for representation, and an additional $45 if they plead guilty or are found guilty. No other states lean so heavily on fines and fees paid mostly by the poor. And there is a reason for that. The system isn’t working.

Louisiana spends nearly $3.5 billion a year to investigate, arrest, prosecute, adjudicate and incarcerate its citizens. Less than 2 percent of that is spent on legal representation for the poor.

It is little wonder that Louisiana has the nation’s highest rates of incarceration and exoneration for wrongful convictions.


Wednesday, February 17, 2016

Scalia's Legacy // National Catholic Reporter

The mark in The Sting asks Robert Redford "how does he do it?" "He cheats." __ "I know he cheats..HOW does he do it?" The mystery of Antonin Scalia is similar. How does he do it? How does the law always command his favored result? Michael Sean Winters explains: when the speculations about the "original public meaning" of the constitution works for him he is an originalist. When that doesn't help he denounces "legislative history" and goes to the text the way Warner Wolff went to the videotape...selectively. - gwc

Justice Antonin Scalia's Legacy | National Catholic Reporter

by Michael Sean Winters
Justice Antonin Scalia sat on the U.S. Supreme Court for almost thirty years. By standard measures, he was not the most influential justice: When litigators before the high court prepare their arguments, they usually target Justice Anthony Kennedy, not Scalia, because it is Kennedy who is likely to be the swing vote. But, Scalia became the face of a conservative legal movement that not only confronted dominant liberal legal attitudes and perspectives, but also revolutionized what it meant to be a conservative justice. In so doing, the man who thought the court should play a small role in a democracy helped accelerate the transformation of the court into a political football.

Even those of us who disagreed with Scalia found ourselves chuckling at his acerbic questioning and bon mots in dissent. His friendship with Justice Ruth Bader Ginsburg was a constant testimony to the belief, the humane belief, that there are more important things than politics. Fred Rotondaro, chair of Catholics in Alliance for the Common Good, told me yesterday, "I had the good fortune to know and be a friend of Justice Scalia for some 30 years. We agreed on virtually nothing politically but had fun lunches, almost always over Italian food and wine, talking often about Catholic thinkers like Chesterton. On the occasions we would move into political issues, he would needle me without mercy on my left wing politics." Washington has too few friendships like that anymore.

Nonetheless, there is no escaping a verdict on his influence on American jurisprudence, and that verdict is not affected by the fact that he was a good buddy to prominent liberals. He was an advocate of two judicial ideologies, neither of which is intellectually tenable and which conflict with each other. Originalism was Scalia’s core ideological commitment, the idea that the Constitution should be interpreted as it was understood at the time of its ratification. He employed Originalism to question the idea that the Constitution is a "living document," as liberal jurists held.

To be sure, there was a need for a conservative corrective after the high court starting snooping around the “penumbras” of the Constitution. As Justice Elena Kagan said in mourning Scalia’s death, “His views on interpreting texts have changed the way all of us think and talk about the law.” But, whether the Constitution is alive or not, the people whose government it intends to frame are most certainly alive and their circumstances change. Laws that cannot change with the lived circumstances of a people soon become disconnected from reality, and that disconnect will lead to the law being held in derision or ignored.

Nowhere did we see the limits of Originalism more than in his decision in Heller, which struck down both a D.C. ban on handguns and a requirement for trigger locks on all other guns. The Second Amendment, Scalia argued, gave individuals a near-absolute right to bear arms, although he allowed that felons and the mentally ill could be prevented from exercising this right. When the Second Amendment was drafted, the world was a different place. As the Brookings Institution’s Ben Wittes has written:

There are lots of good reasons why our values today might not coincide with those of the Founders on the question of guns. The weapons available today, for one thing, are a far cry from muskets, which could never have yielded the kind of street violence America sees routinely now. On a more esoteric level, the Second Amendment's protection for militias reflected the importance the Founders attached to an armed citizenry as a protection against tyrannical government. This made sense at the time. The Founders had a lot of experience with oppressive rulers and little idea whether the constitutional order they were setting up would remain free; maybe they would need to overthrow it sometime. After more than two centuries of constitutional government, however, it's safe to assume that neither an armed citizenry nor a well-regulated militia really is "necessary to the security of a free State." The opposite seems closer to the truth; just ask the Bosnians or the Iraqis. And elections, it turns out, do the job pretty well. To put the matter simply, the Founders were wrong about the importance of guns to a free society.
This is what Scalia, and his acolytes, can’t admit: That as a matter of “original” historic facticity, the Founders could only assert a right to bear a musket, not a right to bear an assault rifle, because that was all they knew at the time. Nor do we today fear that a standing army is a threat to the Republic. So, it is hard to see how the original intent of the Founders mandated Scalia’s finding in Heller. And, whither his concern to defer to the political branches?

“Ted Cruz is a liar”: Marco Rubio becomes Cruz’s latest target in South Carolina -

Liar, liar, pants on fire used to be a schoolyard taunt - verboten in political speech.  But now it is common -.  After years of trash talk on talk radio the GOP has so degraded that it is how all the candidates talk.  As a trial lawyer even when you had a blatant liar on the stand the word was never used.  That was the conclusion you wanted the jury to draw.  We never used the word.  We prided ourselves on our clever circumlocutions.  "Casual disregard for the truth" was one I liked.  "In the war on drugs, as in every war, truth is the first casualty" was another one I used.  "Lux and veritas - light and truth - that's the motto of Yale University where this witness went to school but we heard little or none of that on the witness stand today".  That was much more fun and much more effective than today's broadsides. - gwc
“Ted Cruz is a liar”: Marco Rubio becomes Cruz’s latest target in South Carolina -
by Sophia Tesfaye

Typically, at this point in a presidential primary cycle, the negative campaigning kicks into high gear as candidates head into the notoriously dirty “First in the South” primary state of South Carolina. However, Donald Trump has been yelling about rapists and calling his rivals idiots for months now, so the campaigns’ turn to the Palmetto state merely continues the long tradition of mudslinging that has marked the GOP Civil War of 2016.

“Ted Cruz is a liar,” opened an email to supporters blasted out by Marco Rubio’s campaign Tuesday night. “First it was lying about Marco on fundamental issues like life and marriage; now Cruz and his supporters’ attempts to slander and distort Marco’s record have reached a new low,” Rubio campaign spokesman Alex Conant wrote. One ad by a pro-Cruz Super Pac was already pulled down this week after a legal review found it misleading in its claim that Rubio supported so-called “sanctuary cities.”

The tragedy of Antonin Scalia: How one of the most brilliant jurists of his generation went so wrong -

The tragedy of Antonin Scalia: How one of the most brilliant jurists of his generation went so wrong -
by Andrew Koppelman // Northwestern U. Law School

Almost everyone either loved Antonin Scalia or hated him. I’m ambivalent. He was a brilliant jurist and a joy to read. He was wrong about same-sex marriage, but Anthony Kennedy, who wrote the somewhat daffy opinion recognizing it, deserved the ridicule Scalia piled onto him. On crucial occasions, however, Scalia’s dedication to judicial restraint, the main theme of his jurisprudence, evaporated. Then he turned into a partisan hack, with no awareness that this had happened. It is precisely because he was a great man that he was sometimes a tragic figure.

The most momentous of these was Bush v. Gore, the case in which the Court, by a 5-4 margin, installed as President the catastrophic George W. Bush, who had lost the popular vote by half a million votes. The vote counting in Florida wasn’t finished, and we will never know how it turned out. The preposterousness of the Court’s reasoning was thoroughly explored, then quickly forgotten, because the decision intentionally had no effect on the later course of constitutional law. From the perspective of judicial restraint, Mr. Bush’s attempt to circumvent the counting of votes should have presented an easy case. The Constitution provides a detailed procedure for selecting the President. That procedure does not authorize the Supreme Court to pick the President it likes. It has no role for the Court at all. Can you imagine what Scalia would have written if Democratic appointees had tried to pull something like this?

And then there is his remarkable dissent in the Obamacare case, where he tried to blow up the entire statute on the basis of a previously unheard-of constitutional objection. That, too, never had any business being in the Supreme Court. The Court decided way back in 1819 that Congress has the power to choose any convenient means for carrying out its enumerated powers. Scalia had never before questioned that. But that has to mean that the mandate to buy insurance is well within Congress’s discretion. Why wasn’t he convinced? Because “there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insur­ance premiums and ensuring the profitability of insurers could be achieved.” Not only does this deny Congress the discretion to decide how to do its job, it doesn’t even make sense in terms of the program’s goals – which, Scalia here forgets, also included reducing the number of Americans who had no health insurance!

Balkinization: Justice Scalia's Orwellian Jurisprudence

Balkinization: Justice Scalia's Orwellian Jurisprudence
by Mark Graber // U Maryland School of Law

by Mark Graber
Antonin Scalia was the most Orwellian jurist in American history. He was one of the most important members of the Supreme Court in American history, but not for any reason he identified. Scalia claimed to champion judicial restraint, originalism and the separation of law and politics. In fact, he was a judicial activist who struck down laws based on a contemporary constitutional vision that he campaigned for aggressively in both legal and political settings.

Scalia's professed adherence to judicial restraint masked a remarkably broad judicial activism. As Thomas Keck documents in THE MOST ACTIVISTSUPREME COURT IN HISTORY (see also Eric Segall’s fine piece in the Wake Forest Law Review), Scalia was among the least restrained justices who ever sat on the federal bench. He voted to declare unconstitutional land-use regulations, environmental regulations, campaign finance regulations, restrictions on speech outside abortion clinics, hate speech regulations, laws limiting state funding to religious organizations, affirmative action policies, majority-minority districts, crucial provisions of the Voting Rights Act of 1965, crucial provisions of the Affordable Care Act of 2010 and many other federal and state enactments. Scalia insisted that the federal government could rarely permit citizens to sue states in federal or state courts or require state officials to implement federal laws. 

Bush v. Gore probably belongs in a class of its own as an instance of judicial activism. Scalia’s last major opinion on the Supreme Court urged the justices to declare unconstitutional local bans on semi-automatic weapons.
Keep reading

Tuesday, February 16, 2016

Monday, February 15, 2016

Chief Justice Roberts Should Renounce GOP Obstructionism

How ACA plugs the holes // Andrew Sprung // xpostfactoid

How the ACA Reversed Two Decades of Declining Coverage for the Working Poor
by Andrew Sprung

I've noted before that while the ACA works best for uninsured people with incomes under 200% of the Federal Poverty Level (FPL),* that's also where the uninsured are concentrated. While just about exactly one third of the U.S. population is below 200% FPL, 55% of the uninsured were below that level in 2013, according to the Census Bureau's Census' Current Population Survey 2015 Annual Social and Economic Supplement.**

A Health Affairs article by Nicole Huberfeld and Jessica Roberts spotlights one reason for the concentration of the uninsured at low income levels. While the availability (or affordability) of employer-sponsored insurance has dropped for all income levels since early this century,

The decreases in coverage were measurably greater for middle- to low-income workers; for example, those earning more than 400 percent of the federal poverty level (FPL) experienced a 2.8 percent drop in employer-sponsored coverage from 2000 to 2011, but people earning less than 200 percent of the FPL experienced a 10.1 percent drop in employer-sponsored coverage.
- See more at:

Tino Cuellar for the Supreme Court?

Sunday, February 14, 2016

Iowa Supreme Court rejects notion that malpractice plaintiff has to show actual innocence in order to support claim against former criminal defense lawyer //Alberto Bernabe // Professional Responsibility Blog:

Professional Responsibility Blog: Iowa Supreme Court rejects notion that malpractice plaintiff has to show actual innocence in order to support claim against former criminal defense lawyer
by Prof. Alberto Bernabe // John Marshall Law School - Chicago
In a many jurisdictions, a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted.  This view has been criticized but still appears to be the majority view.  Yet, I have read recent cases where a few courts have abandoned this view in favor of the minority approach which does not require the convicted defendant (plaintiff in the malpractice claim) to show actual innocence.  The most recent court to so hold was the Kansas Supreme Court, something I reported about a month ago here.

Now comes news (via the Legal Profession blog) that the Iowa Supreme Court has taken the same step.  Actual innocence is no longer required as an element of the cause of action.  The case is called Barker v Capotosto, and it is available here.

How the politics of the next nomination will play out : SCOTUSblog

How the politics of the next nomination will play out : SCOTUSblog
by Tom Goldstein  // Editor in chief - SCOTUS Blog

This post substantially revises and supersedes my earlier one on how the political parties will likely approach the Scalia vacancy, in which I had concluded that Ninth Circuit Judge Paul Watford was the most likely nominee. On reflection, I think that Attorney General Loretta Lynch is more likely. I also think that the Republicans will eventually permit the nomination to proceed on the merits and reject it on party lines.

In thinking about how to respond to the vacancy on the Supreme Court, the administration has two priorities. First, fill the Scalia seat by getting a nominee confirmed. The stakes could not be higher: the appointment could flip the Supreme Court’s ideological balance for decades. Second, gain as much political benefit as possible and exact as heavy a political toll as possible on Republicans, particularly in the presidential election. Precisely because of the seat’s importance, this is the rare time that a material number of voters may seriously think about the Court in deciding whether to vote at all and who to vote for.

Those priorities reinforce each other. The Republican Senate leadership has staked out the position that no nomination by President Obama will move forward. Because Republicans hold the Senate majority, they have the power to refuse to hold confirmation hearings before the Judiciary Committee and/or a floor vote on the nominee. So, any effort to replace Scalia is dead on arrival unless the political dynamic in the country forces Republicans to change their minds and allow the nomination to proceed.

Not surprisingly, Republican priorities are the exact opposite. Fundamental conservative legal victories over the past two decades hang directly in the balance. To take just one example, Ted Cruz is exactly right to say that a more liberal replacement for Justice Scalia is very likely to overturn the Supreme Court’s recent recognition of a Second Amendment right to possess firearms or at least render it a nullity as a practical matter. There are dozens of other examples. Conversely, a Republican appointee would not only preserve those victories but continue the Court’s steady move to the right.

Saturday, February 13, 2016

Justice Scalia’s Death And Implications For The 2016 Election, The Supreme Court And The Nation

Justice Scalia’s Death And Implications For The 2016 Election, The Supreme Court And The Nation
by Rick Hasen
The future composition of the Supreme Court is the most important civil rights cause of our time. It is more important than racial justice, marriage equality, voting rights, money in politics, abortion rights, gun rights, or managing climate change. It matters more because the ability to move forward in these other civil rights struggles depends first and foremost upon control of the Court. And control for the next generation is about to be up for grabs, likely in the next presidential election, a point many on the right but few on the left seem to have recognized.

Justice Antonin Scalia, Who Led a Conservative Renaissance on the Supreme Court, Is Dead at 79 - The New York Times

Left...Antonin Scalia in uniform at Xavier H.S.,
 then a military academy.

Antonin Scalia was Jesuit Xavier High School on West 16th Street in Manhattan. About twenty years ago he was invited to give the annual Founders Day lecture at Seton Hall University, where I had recently started teaching. The law school Dean Ronald Riccio introduced him, saying "if you know anything about Catholic education in the City in the fifties you know that Xavier was at the top, and Justice Scalia was at the top of his class."

I waited my turn on the reception line following the talk. "I graduated from Brooklyn Prep, I said, introducing myself. Ah ha, he said, recognizing a fellow Jesuit-schooled lawyer. "But", I said, I thought all the smart guys went to Regis (where every boy was on scholarship)". He said "I took the test for Brooklyn Prep but had a bad morning and didn't get in". From which I concluded that Antonin Scalia was willing to tell a white lie for the sake of a better story. -GWC

Justice Antonin Scalia, Who Led a Conservative Renaissance on the Supreme Court, Is Dead at 79 - The New York Times
by Adam Liptak

Justice Antonin Scalia, whose transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court, was found dead on Saturday at a resort in West Texas, according to a statement from Chief Justice John G. Roberts Jr. He was 79.

“He was an extraordinary individual and jurist, admired and treasured by his colleagues,” Chief Justice Roberts said. “His passing is a great loss to the Court and the country he so loyally served.”

The cause of death was not immediately released.

Justice Scalia began his service on the court as an outsider known for caustic dissents that alienated even potential allies. But his theories, initially viewed as idiosyncratic, gradually took hold, and not only on the right and not only in the courts.
He was, Judge Richard A. Posner wrote in The New Republic in 2011, “the most influential justice of the last quarter century.” Justice Scalia was a champion of originalism, the theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution. In Justice Scalia’s hands, originalism generally led to outcomes that pleased political conservatives, but not always. His approach was helpful to criminal defendants in cases involving sentencing and the cross-examination of witnesses.

Judicial supremacy and professional responsibility // Wasserman // Prawfs Blawg

Image result for james obergefell
James Obergefell and Chris Geidner

The post-Obergefell same-sex marriage Statement Calling for "Constitutional Resistance" by uber conservative Robert George has found resonance with allies like Justice Antonin Scalia. Some rallied to County Clerk Kim Davis in Kentucky - and Texas Attorney General Ken Paxton has suggested that county clerks may be entitled to exemption from following the Supreme Court's dictates.

Former Scalia clerk and Catholic conservative Kevin Walsh at University of Richmond has acted to support his former mentor by explaining that there is no defiance of law in comparing Obergefell to Dred Scott v. Sanford, that the judiciary is supreme only in its own "department", leaving other departments of government free to pursue their own visions of the Constitution.  Judicial supremacy - the product of Marbury v. Madison as now understood - has long invited celebration and vilification, depending usually on whose oxen have been gored.

Prof. Howard Wasserman who is not in the same ideological camp has embraced the "departmentalism" notion. In my view signing on to Walsh's label is hazardous. Of course every branch of the government participates in the development of thinking within or about the framework of the constitution. But in practice the current slogan as inspired by George - who denounces Obergefell as illegitimate as was Dred Scott   - is a dangerous development.

Those like Chief Justice John Roberts who in dissent denounced Obergefell ("By deciding this question under the Constitution, the Court removes it from the realm of democratic decision") are playing a risky game. The majority decision giving the 2000 presidential election to George W. Bush is subject to the same attack as Roberts makes now. Judicial humility did not prevent Roberts from striking Section 5 of the Voting Rights Act; nor from striking the voluntary racial integration plans of the Seattle public schools. Such decisions cannot be resolved by neutral principles. They require prudential judgments; judiciousness rather than "constitutional resistance" is the better watchword.
In Texas an ethics complaint has been filed against the Attorney General. The tactical wisdom of that is dubious. We can see a judicious approach in the recent order of federal Judge David Bunning in Kentucky. He has declared himself satisfied that his order to provide marriage licenses to all qualified applicants has been met by the office of the county clerk. He did not require that Kim Davis's or even the county's name be on it. Davis substituted "issued by federal court order" for the name of the county.  Bunning, finding that the validity of the licenses is not in doubt, chose deference rather than further confrontation.  Substance over form.  Discretion can be valor.   - gwc

PrawfsBlawg: Judicial supremacy and professional responsibility

by Howard Wasserman

The ethics complaint filed against Texas Attorney General Ken Paxton last summer will proceed to a State Bar investigation. (H/T: Josh Blackman) The complaint stems from a letter Paxton sent to county clerks in the wake of Obergefell, suggesting clerks and justices of the peace may have a religious exemption from issuing licenses or performing marriages to same-sex couples and that they may be able to assert those requests for exemption.

One of the challenges to the model of departmentalism I have been advocating (what Richmond's Kevin Walsh calls "judicial departmentalism") is the many doctrines that reinforce judicial supremacy. State bar regulations appear to be one of them, if this complaint against Paxton goes anywhere. The explicit problem, according to the complaint, is that Paxton ignored Obergefell and the (supposed) supremacy of SCOTUS's interpretation of the Constitution; his legal advice thereby ran afoul of several rules of professional responsibility. In fact, Paxton expressly acknowledged that any clerk or JOP who did this would almost certainly be sued, held liable in light of SCOTUS (and 5th Circuit) precedent, and subject to an injunction that would bind them. He simply recognized the need for that additional step. But that is not good enough; because it is "emphatically the province and duty," etc., an attorney, even one for the State, cannot give advice contradicting such judicial declarations. If this is what the regulations mean, they leave no room for departmentalism or for independent constitutional judgment in non-judicial actors; they instantiate judicial supremacy as the sole understanding for all attorneys, public or private.

On one hand, that could be permissible and appropriate. If a state legislature wants to establish judicial supremacy as the guiding principle for its attorneys, (so that, for example, the obligation to not advise a client to disobey a legal obligation includes obligations established in judicial decisions to which the client is not a party), it can do so. On the other hand, the automatic acceptance or presumption of judicial supremacy into the rule, without more, seems difficult to square. And somewhat unfair to impose without further warning or clear statement.