China: Supreme People's Court on integration of core socialist values

 关于深入推进社会主义核心价值观融入裁判文书释法说理的指导意见

• 来源：最高人民法院
• 发布时间：2021-02-18 08:54:40
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In order to thoroughly implement the CPC Central Committee on the further integration of socialist core values into the rule of law, the correct implementation of the Civil Code, give full play to the rules of judicial adjudication in national governance, social governance and value-oriented role, to further enhance the credibility and authority of judicial adjudication, and strive to achieve the value of wealth and strength, democracy, civilization, harmony, and strive to pursue freedom, equality, the The value of justice, the rule of law, efforts to practice patriotism, dedication, integrity, friendly values, combined with the actual work of the trial, is to put forward the following views.

　　First, the in-depth promotion of socialist core values into the interpretation of the law in the judgment documents, should adhere to the following basic principles.

　　(A) the combination of the rule of law and moral governance. To Xi Jinping thought of socialism with Chinese characteristics in the new era as a guide, the implementation of Xi Jinping thought on the rule of law, faithful to the Constitution and laws, the organic combination of legal evaluation and moral evaluation, in-depth interpretation of laws and regulations embodied in the national value objectives, social values and civic value guidelines, to achieve the rule of law and moral governance complement each other, complement each other.

　　(2) People-centered. Judgment documents to explain the law should actively respond to the people's new requirements and expectations for fair justice, accurate clarification of the facts, detailed explanation of the legal reasoning, and actively explain the feelings, and strive to reason, and constantly improve the people's satisfaction with judicial decisions, to judicial justice to lead social justice.

　　(C) the organic unity of political, legal and social effects. Based on the times, national conditions, culture, comprehensive consideration of the law, reason, emotion and other factors, strengthen the role of the socialist core values of guidance, and constantly improve the legal identity, social identity and emotional identity of judicial decisions.

　　Second, people's courts at all levels should promote the integration of socialist core values into the interpretation and reasoning of adjudication documents, take socialist core values as important guidelines for understanding the purpose of legislation and legal principles, and as important criteria for testing whether discretionary power is exercised reasonably, so as to ensure accurate determination of facts and correct application of the law. For cases where the results of adjudication are value-led oriented and behavior-regulating, judges should strengthen the use of socialist core values to explain and reason, effectively play the function of judicial adjudication in national governance and social governance of regulation, evaluation, education and leadership, establish rules of behavior with fair adjudication, and cultivate and promote socialist core values.

　　Third, the people's courts at all levels should adhere to the facts as the basis, the law as the criterion. In the interpretation of the law, should be the focus of the dispute, according to the court evidence, cross-examination, court debates and legal investigations, combined with the core socialist values, focusing on the process and reasons for the determination of the facts and application of the law.

　　Fourth, the following cases of adjudication documents, should strengthen the use of socialist core values to explain the law.

 (1) cases involving national interests, major public interests, and widespread social concern

　　(2) Cases involving epidemic prevention and control, rescue and disaster relief, protection of martyrs, righteousness and courage, self-defense, emergency evasion, helping people, etc., which may trigger social moral evaluation

　　(iii) cases involving the elderly, women, children, the disabled and other vulnerable groups, as well as the protection of special groups, where there is a large dispute between the parties to the litigation and may cause widespread social concern.

　　(D) involving public order and morality, customs and traditions, equality of rights, ethnicity and religion, etc., the parties to the lawsuit have a large dispute and may cause widespread concern in society

　　(E) involving new situations, new issues, the need for in-depth interpretation of legal provisions, judicial policies, etc., to lead the social trend and establish value-oriented cases.

　　(F) other cases that should strengthen the use of socialist core values to explain the law.

　　(5) If there are normative legal documents as the basis for adjudication, the judge should first explain the relevant provisions of the normative legal documents in conjunction with the circumstances of the case, and then use the socialist core values to further clarify the legal connotation, clarify the legislative purpose, and discuss the reasons for adjudication in conjunction with the original intent of the law.

Tim Kaine: "I prayed Virginia would end the death penalty" It shows other states how to do the same - The Washington Post

In this opinion piece Senator Tim Kaine celebrates Virginia's elimination of the death penalty.  I understand his gratification that his state which as the capital of the confederacy was the defender of slavery, the executioner of John Brown, and executed more people in its long history than any other state.

I remember the pride I felt when the City of Rome lighted the Colosseum in tribute to New Jersey's legislative repeal of capital punishment in December 2007.  A few months later I organized a day long symposium on repeal at Seton Hall Law School.  The theme was Rabbi Shalom Spiegel's maxim "Justice cools the fierce glow of moral passion by passing it through reflection".  I wrote an introductory essay titled  Herald of Change?  And indeed several states have followed suit, though California and Nebraska took one step forward and one back.

But as I read Kaine's essay I was surprised to learn that he - a former defender in capital cases (and  veteran of the Jesuit Volunteer Corps) - had, while Governor, allowed executions to go forward despite his personal opposition.  Why?  

Could he not have imposed a moratorium?  Virginia Governors serve only one term.  Was he looking forward to running for Senate? Is his acquiescence any different than the New Jersey trial judges and state Supreme Court Justices who acquiesced in the people's legislative will but rigorously reviewed every case?  Employing what Justice John Wallace called "super due process" the New Jersey Supreme Court effectively blocked executions for twenty five years.  Was that complicity in evil, acquiescence or virtuous heeding of the law?  Governor Brendan Byrne had an easy answer.  He vetoed the restoration of the death penalty until term limits pushed him out and traditional Republican moderate conservative Thomas Kean won election.

Notre Dame Professor John Garvey and Amy Coney Barrett (then a Circuit court law clerk) in 1998 proposed that recusal was the right choice for a Catholic judge.  But when Barrett reached the Supreme Court she did not recuse, but allowed the profoundly impaired Lisa Montgomery to be executed for a bizarre and ghastly 2004 killing.  Montgomery was the first woman executed by the federal government United States. 

What does the oath of office require of our officials - judges, Governors and Presidents?  The Supreme Court has held that an order of nuns who object to artificial contraception practiced by their employees may not be compelled to fill out a form declaring entitlement to exemption from providing coverage in their health plans for such medicines.  And the court seems poised to reverse the Third Circuit Court of Appeals which refused to compel Philadelphia to contract with Catholic Social Services which refuses to provide foster care or adoption to unmarried couples or even to same sex married couples of whose union it disapproves.  Is such conscience a command or an option? Was Kaine right to "follow the law" by allowing executions to go forward?  Should he have refused to participate in the capital punishment process?

- GWC

Tim Kaine: Virginia’s ending the death penalty shows other states how to do the same - The Washington Post

By Tim Kaine

Tim Kaine, a Democrat, represents Virginia in the U.S. Senate and was governor of Virginia from 2006 to 2010.

I met my wife, Anne, a native Virginian, in law school in the early 1980s. Idealistic youngsters, we grappled with whether to live in Richmond or my hometown of Kansas City. A key consideration in our choice of Virginia was the Biblical phrase “the harvest is plentiful, but the laborers are few.” There seemed to be so much work to be done here.

As Susan Dunn explains in her book “Dominion of Memories,” Virginia was America’s wealthiest and most populous state until the late 1820s and the producer of a huge percentage of its leaders into the 1840s. But Virginia lost influence toward the end of America’s first century, largely because of its choice to cling to the institution of American slavery it had helped create.

When I arrived in Virginia in 1984 to work as a civil rights lawyer, evidence abounded how much work needed doing. And one of the key struggles was Virginia’s overuse of the death penalty.

Virginia is the death penalty capital of the United States. Beginning with the first execution under a colonial government in 1608, we have executed 1,390 people, more than any other state. Following the Supreme Court’s decision restoring the death penalty in 1976, Virginia has executed more people than any state except Texas. And the painful history exposes the fundamental racism of capital punishment.

In the 19th century, Virginia executed 513 Black people and only 41 Whites. Before the Civil War, the criminal code made certain crimes capital offenses for Black residents that were noncapital offenses for White people. And even after the Civil War, when crimes such as rape were technically capital offenses for everyone, the ultimate punishment was used only against Black people. Fifty-six people were executed for rape or attempted rape in Virginia between 1908 and 1965 — all were Black.

As I began my legal career, I represented death-row inmates on a pro bono basis. One prisoner was executed in 1987; we shared his last meal a few minutes before the state electrocuted him. I represented another executed in 1996, walking him into the death chamber and holding his hand while he was strapped to a table for the state to kill him by lethal injection. These searing experiences, face-to-face with the humanity of my clients, made me pray for the day when Virginia would discard this brutal institution.

Early in my political career, a campaign consultant looked at the cases I had worked on and said, “You clearly never planned on running for office.” And my lifelong opposition to the death penalty became the key political weapon against me in the 2005 governor’s race, with ads featuring victims’ suffering families and claims I wouldn’t even execute Hitler. My victory despite these attacks suggested a softening of the public’s position on the death penalty.

As governor I kept my word to Virginians that I would follow the law by allowing numerous executions to go forward. The days those sentences were carried out were among the worst of my life. But I vetoed many bills expanding the death penalty and helped implement changes to professionalize and better compensate criminal defense attorneys. The combination of shifting popular attitudes and a commitment to high-quality defense teams had essentially halted new death sentences. The last capital conviction in Virginia was 10 years ago, and that case was reversed on appeal.

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Seeing 'Political Grandstanding' in Election Lawsuit, Judge Orders Attorney to Face Grievance Committee | National Law Journal

Seeing 'Political Grandstanding' in Election Lawsuit, Judge Orders Attorney to Face Grievance Committee | National Law Journal

A federal judge in Washington, D.C., ordered that an attorney who filed a long-shot lawsuit over the 2020 election results must face a grievance committee, finding the attorney “has not sufficiently allayed the court’s concerns regarding potential bad faith.”

Attorney Erick Kaardal filed the lawsuit in December on behalf of several Republican state lawmakers and groups, targeting then-Vice President Mike Pence, the Electoral College and other institutions and leaders in an apparent attempt to block President Joe Biden’s win in the 2020 election. U.S. District Judge James Boasberg of the District of Columbia in early January rejected the lawsuit, and suggested it was an act of “gamesmanship or symbolic political gesture.”

Boasberg said in a four-page opinion issued Friday that Kaardal, special counsel for the Thomas More Society’s Amistad Project and an attorney with the Minneapolis-based firm Mohrman, Kaardal & Erickson, had not adequately addressed concerns about “the flimsiness of the underlying basis for the suit.”

Kaardal and his attorneys with the firm Eccleston and Wolf did not immediately return a request for comment.

Oath Keepers - superseding indictment for January 6 Capitol attack

CBS News reports that the United States Department of Justice yesterday day filed a superseding indictment against Thomas Caldwell and eight others associated with the Oath Keepers, a right wing paramilitary organization.  They are charged in a multi-count indictment which alleges that

As described more ful1y herein, CALDWELL, CROWL, WATKINS, SANDRA PARKER, BENNIE PARKER, YOUNG, STEELE, KELLY MEGGS, and CONNIE MEGGS, planned with each other, and with others known and unknown, to forcibly enter the Capitol on January 6, 2021, and to stop, delay, and hinder the Congressional proceeding occurring that day.

 

‘‘U.S. Citizenship Act’’. S.____ Biden Immigration bill posted

MCC21155

A BILL To provide an earned path to citizenship, to address the root causes of migration and responsibly manage the southern border, and to reform the immigrant visa system, and for other purposes. 

1 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

 This Act may be cited as the ‘‘U.S. Citizenship Act’’.

Chafetz: Nixon/Trump: Strategies of Judicial Aggrandizement - Georgetown - forthcoming

Updates Trump sanctioned for fraud in New York September 27, 2023

Trump tax returns released by House Committee. December 2022

The rhetoric of judicial impartiality, of non-partisanship, of separation of powers dominates the language of judges - and of lawyers and acolytes in the press and halls of power.  It is rarely acknowledged that the attractions of power drive judges at least as much as they do elected politicians and the administrative agencies so often disparaged as bureaucracies.

The rhetorical strategy of judges and the lawyers who work in their ambit buries that fact in the language of non-partisanship, rule of law, separation of powers and constitutionalism.  So the recent rulings of the Supreme Court in the Trump tax record cases Trump v. Vance, District Attorney and Trump v. Mazars and Oversight Committee were treated as victories for rule of law over the disgraced now former President.  Some, like Vox's Ian Millhiser, saw the decisions as wins for Trump who would not suffer the embarrassment of pre-election disclosure of his dubious tax returns.

The strings attached to the decisions have to this day prevented disclosure of the former President's shady finances.  That was accomplished by the strings attached by the Supreme Court in both Trump v. Vance and Trump v. Mazars- the decision regarding subpoenas by three congressional committees.  Despite the high rhetoric none was a clean win for disclosure.  Trump's financial records remain in his accountants hands.

Beneath the exalted rhetoric of Chief Justice John Roberts  lies diminution of both President and legislators as competitors for power, a venality in which judges take no part. Roberts warns that legislators may seek to tie down the President like Gulliver by the Lilliputians: 

The interbranch conflict here does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity. The President is the only person who alone composes a branch of government. As a result, there is not always a clear line between his personal and official affairs. “The interest of the man” is often “connected with the constitutional rights of the place.” The Federalist No. 51, at 349. Given the close connection between the Office of the President and its occupant, congressional demands for the President’s papers can implicate the relationship between the branches regardless whether those papers are personal or official. Either way, a demand may aim to harass the President or render him “complaisan[t] to the humors of the Legislature.”  [emph. added -gwc]

Chief  Justice Roberts's Opinion of the Court ends with a dense three page litany of concerns for courts to scrutinize rather than complaisantly allow the elected representatives of the people to decide what they need from Donald Trump's financial records.  The Lilliputian legislators will have to dunk through judicial hoops before they can obtain the information they seek for legislative purposes.

My skepticism about this judicial arrogation of power to vet the elected legislators has been confined to blog posts and discussion questions for my Remedies students.  So I was delighted today to see that Georgetown's Josh Chafetz has gone the full length of the court to compare the courts' actions in Watergate (reserving the high ground for judges while stalling the legislators) with those in the Trump cases where the Supreme Court has raised high the mugs of judicial mead while withholding the performance of their mandates. 

​Chafetz's forthcoming Strategies of Judicial Aggrandizement is a rare treatment of the courts the way others are treated.  We are accustomed to the charge that bureaucracies try to increase their power, that legislatures overreach, and that Presidents tend toward the imperial (thank you Arthur Schlesinger, Jr.).  But rarely does "judicial aggrandizement" get any attention.  I had predicted that the Trump v. Mazars case would yield a minimal remand along the lines of  warning of the dangers of a bill of attainder.  But the  broad inquiry into Congressional purpose prescribed by Roberts is explored carefully by Chafetz.

As often happens the delight comes from the apparent simplicity of historical narrative.  The key is which facts do you choose to compare?  Chafetz details  two chronologies of courts and Presidents - Trump and Nixon.  His narrative - both enlightening and accessible - demonstrates judicial elevation and legislative disparagement as a unifying theme.  The judiciary, like the other two branches, contend for power and seek to expand their terrain.   

We would be much better off if we stopped talking about separation of powers and talked about overlapping and competing powers among the branches, the states and national government, and, god forbid, the electorate.  The Chafetz essay - written with an historian's hand and a journalist's clarity - is a relief to read  - unlike the much too common heavy hand of academic theory  that somehow leaves you farther from the facts rather than closer to the ground.  - GWC​

Nixon/Trump: Strategies of Judicial Aggrandizement

Georgetown Law Journal, Vol. 110, forthcoming 2021

26 Pages Posted:

Josh Chafetz

Georgetown University Law Center

Date Written: February 18, 2021

Abstract

In Trump v. Vance and Trump v. Mazars, the Supreme Court applied very different standards for subpoenas issued for the personal papers of the President, making it easier for a grand jury to acquire such materials than a congressional committee. The two opinions, both authored by Chief Justice Roberts, have been widely praised for suggesting that the president is not wholly above the law; indeed, they have been treated as the second coming of the Nixon Tapes Case.

This Essay argues that while the Trump subpoena cases do have an important kinship with the cases concerning access to White House tapes during Watergate, this similarity is not quite as flattering as commentators imagine. What the cases surrounding access to Donald Trump’s financial records and the cases surrounding access to Richard Nixon’s White House tapes have in common above all else is a project of judicial self-empowerment at Congress’s expense. What distinguishes them, on the other hand, is the immediate result of the two sets of cases: whereas the Nixon Court acted to push a lawless president out of office, the Trump Court acted to ensure that the information sought by other institutional actors could not have electoral consequences for another lawless president.

Keywords: separation of powers, Congress, president, oversight, subpoenas, grand jury, Trump, Vance, Mazars, Supreme Court

Suggested Citation:

Chafetz, Josh, Nixon/Trump: Strategies of Judicial Aggrandizement (February 18, 2021). Georgetown Law Journal, Vol. 110, forthcoming 2021, Available at SSRN:  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3788366

Supreme Court shadow docket: Congress scrutinizes it and considers reform.

We've gotten used to it: the late hours order granting or denying a stay of the Trump rush to execute before the libs take back the White House, the stay of an order issued by a District Judge protecting the rights of border crossing applicants for asylum, the passionate dissent by a Justice.  In his study The Solicitor General and the Shadow Docket University of Texas professor Steven Vladeck documented the great increase of such Supreme Court orders in the Trump Years.  today four experts testified about it before the House Judiciary Committee. - GWC

Supreme Court shadow docket: Congress scrutinizes it and considers reform.

By Mark Joseph Stern//Slate

Over the past few years, the Supreme Court has dramatically altered the way it decides most cases—without acknowledging or justifying this radical shift. More and more often, the justices forgo the usual appeals procedure in favor of rushed decision-making behind closed doors in what’s known as “the shadow docket.” They issue late-night opinions on the merits of a case without hearing arguments or receiving full briefing, and often refuse to reveal who authored the opinion, or even how each justice voted. The public is then left to guess why or how the law has changed and what reasoning the court has embraced. These emergency orders are supposed to be a rare exception; today, however, the court regularly uses them to make law in hugely controversial cases, including disputes over the border wall, COVID-19 restrictions, and executions. On Thursday, the House Judiciary Committee held a hearing to decide what, if anything, Congress can do to address a problem that’s spiraling out of control.

Supreme Court is still sitting on Trump's tax returns, and justices aren't saying why - CNNPolitics

The norm in criminal investigations is that federal courts keep hands off state prosecutors absent compelling evidence of bad faith.  Last year in the Trump tax return cases Trump "lost" at each step up to the Supreme Court which also refused to block the Grand Jury subpoena by the Manhattan District Attorney.  So Trump tried a last ditch `1983' civil rights action to block the subpoena.  The case was quickly dismissed in the District Court, soon affirmed by the Second Circuit.  But that court gave Trump time to file an expedited petition to the Supreme Court which generally acts quickly.  The Manhattan District Attorney - Cyrus Vance, Jr. - agreed not to enforce while the Supreme Court application was pending.  No good deed goes unpunished.  Instead of the usual prompt denial of such a claim the high court has sat on the matter, raising unanswerable questions about why the now former President is not being treated like any other citizen as John Roberts majority opinion said he is. - GWC

Supreme Court is still sitting on Trump's tax returns, and justices aren't saying why - CNNPolitics

By Joan Biskupic

CNN)Lawsuits involving Donald Trump tore apart the Supreme Court while he was president, and the justices apparently remain riven by him.

For nearly four months, the court has refused to act on emergency filings related to a Manhattan grand jury's subpoena of Trump tax returns, effectively thwarting part of the investigation.

The Supreme Court's inaction marks an extraordinary departure from its usual practice of timely responses when the justices are asked to block a lower court decision on an emergency basis and has spurred questions about what is happening behind the scenes.

Chief Justice John Roberts, based on his past pattern, may be trying to appease dueling factions among the nine justices, to avoid an order that reinforces a look of partisan politics. Yet paradoxically, the unexplained delay smacks of politics and appears to ensnarl the justices even more in the controversies of Trump.

The Manhattan investigation, led by District Attorney Cyrus Vance, continues to draw extensive public attention. The grand jury is seeking Trump personal and business records back to 2011. Part of the probe involves hush-money payments Trump lawyer Michael Cohen made to cover up alleged affairs. (Trump has denied those allegations.)

Fei Chang Dao: Man Given Ten Days in Jail for Tencent QQ Posts That "Openly Insulted Leaders of the Party and the State"

There are a lot of things one could say about  this petty disorderly offense for posting an insult of Party leaders on social media. But maybe there is no need to.

Fei Chang Dao: Man Given Ten Days in Jail for Tencent QQ Posts That "Openly Insulted Leaders of the Party and the State"

According to a judgment issued by the Guangzhou Municipal Intermediate People's Court in May 2014 (translated below) Cheng Huaishan was sentenced to ten days administrative detention for using Tencent’s QQ  service to post statements that “openly insulted leaders of the Party and the State.” Cheng’s sentence was imposed by officials at a local police station based their determination that he had violated China’s “Public Security Administrative Punishment Law.”

Congressman Bennie Thompson Sues Trump, Giuliani, Proud Boys Oath Keepers alleging interference

Hon. Bennie G. Thompson, in his personal capacity v. Donald J. Trump, solely in his personal capacity, et al.  Case 1:21-cv-o400  United States District Court for the District of Columbia

 Cause of Action 42 USC 1985 - Violation of the Ku Klux Klan Act

"Defendants Trump, Giuliani, Proud Boys International LLC, and oath Keepers plotted, coordinated, and executed a common plan to prevent Congress from discharging its official duties in discharging its official duties certifying the results of the presidential election...Defendant Trumpacted beyond the outer perimeter of his official duties and therefore is susceptible to suit in his personal capacity."

Sherrilyn A. Ifill: Lawyers Enabled Trump’s Worst Abuses - The New York Times

We have arrived at a time of reflection.  When Barack Obama was elected we felt, just perhaps, we have moved decisively toward that promised land where judgment on character rather than race will carry the day - and that the legacy of our long failures will be reckoned with candidly.  Instead we found him denounced as the Food Stamp President - the implication that he was handing out our money to lazy louts, etc.  Then came the stalemate on immigration reform which many Republicans had championed and had come near passage in Congress.  Mitch mcConnell's pledge was to block Obama's agenda.  Still within the bounds of normal politics.

But then the debacle descending the gilded escalator of Trump Tower.  We were warned of Mexican rapists "they're not sending their best" and four years of successive lows began.  Finally the claim of massive election fraud and a battery of some sixty lawsuits which sought to but did not derail the election results.

NAACP LDF President Sherrilyn A. Ifill looks to South Africa's  Truth & Reconciliation Commission as a model for us to follow - to look at our profession's failures.  - GWC

Opinion | Lawyers Enabled Trump’s Worst Abuses - The New York Times

The legal profession must reckon with its complicity in Trump’s attack on democracy.

By Sherrilyn A. Ifill [President, NAACP LDEF]

Every day, we learn more about the concerted attack on American democracy perpetuated to overturn the results of the 2020 presidential election. But the violent storming of the Capitol was only its most visible and ugly climax. What has become disturbingly and abundantly clear is that whether through former President Donald Trump’s relentless and meritless lawsuits, the plot in the Department of Justice to remove the acting attorney general, or a congressional plan in which members — including two former Supreme Court clerks — perpetuated false unsubstantiated claims of massive voter fraud, lawyers played a central role in enabling the most dangerous assault on American democracy in more than a century.

The appalling conduct of the lawyers at the highest levels of government who behaved so shamelessly in seeking to maintain Mr. Trump in office was not an aberration, but a continuation. Throughout his presidency, lawyers were centrally involved in perpetuating some of its most repugnant excesses. Attorney General Jeff Sessions helped develop the concept of family separation as a migration deterrent. His deputy, Rod Rosenstein, reportedly signed off on applying the policy no matter the age of the child. Sessions’s successor, Bill Barr, misrepresented the Mueller team’s findings and interfered with the sentencing of the Trump advisers Paul Manafort and Roger Stone.

Despite this, there was little condemnation from the leadership institutions of our profession. The American Law Institute invited Mr. Barr to speak just months after his hijacking of the Mueller report, and ensured that there was no opportunity for questions from the audience. And neither judicial nor prosecutors’ associations ever issued condemnatory statements when Mr. Trump incited threats against the Black jury forewoman in Mr. Stone’s case.

The upending of norms and standards carried into the legislative and judicial branches as well. Many cabinet and judicial nominees, beginning with Mr. Sessions himself, made a mockery of the Senate Judiciary Committee confirmation process by providing misleading information on their confirmation questionnaires — which are submitted under penalty of perjury. Neither Mr. Sessions nor other nominees were held accountable for these misrepresentations. Instead, almost all were confirmed.


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The Judiciary Committee — principally made up of lawyers — split along party lines, with many Republican lawyer members recommending the confirmation of Federal District Court nominees who had no discernible litigation experience, and of appellate court and District Court nominees who received rare “not qualified” ratings by the American Bar Association.

During their confirmation hearings, over two dozen Trump administration nominees to the federal bench refused to say that the landmark school desegregation case, Brown v. Board of Education, was correctly decided — despite universal acceptance that Brown is fundamental to the rule of law itself.

Just as the president, members of Congress, and insurrectionists must be held accountable for their actions, the legal profession must urgently take collective stock of why so many prominent legal institutions and leaders were embroiled in supporting one of the most corrupt and destructive presidencies in our history.

There is precedent for this kind of institutional reckoning. The South African Truth and Reconciliation Commission (T.R.C.) hearings were a wrenching confrontation with the brutal reality of apartheid. These hearings — which unfolded before a global audience — were remarkable for their frank, honest, and terrifying accounts of abuses committed by the white supremacist apartheid regime. The T.R.C. hearings were regarded as a necessary confrontation with the full measure of widespread complicity with apartheid, as the country set a new course toward a democratic future.

One of the most important, but less well-known, efforts of the T.R.C. was its institutional hearings, which examined civil society’s role in perpetuating the apartheid regime’s abuses. The three days of legal system-focused proceedings were the most riveting of the institutional hearings — and among the most controversial.

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Editors’ Picks

Our Terrorists Are an Arm of the GOP. Will Biden Say It? - David Lurie - Daily Beast

Forty three Republican Senators voted voted in favor of acquittal of donald Trump for his incitement of an attack on the Capitol, seven to convict and bar Donald Trump from holding office again.  David Lurie, a New York legal and political commentator, discusses the dilemma Joe Biden faces in his campaign for national unity and for compelling people to take responsibility for the chaos they have created and threaten in the future. 

It is a high wire act: prosecution of the principals who inspired the crude coup and the street level mobsters will provoke the claim that it is the sort of revenge cry that Trump threatened but did not carry out, merely waving the bloody "lock her up" shirt.

Key to demonstrating the falsity of such claims of personal revenge will be supporting and strengthening the resolve of the seven GOP Senators who voted to convict Trump of inciting insurrection and thus barring him from holding office again.

But now, as a Capitol Police after action report showed the seditious threats are deadly serious.  The House Managers demonstrated that in last week's impeachment trial which garnered the support of every Democratic and seven Republican Senators.  Some, like the Editorial Board of the New Jersey Law Journal (on which I sit), have called for incoming A.G. Merrick Garland to conduct a "relentless prosecution".  

As Lurie points out, Garland oversaw the prosecutions of the Oklahoma City bombers.  He will face the allegation that he is seeking revenge against McConnell who obstructed and Trump who put Neil Gorsuch in what would have been Garland's seat on the Supreme Court had Obama's nomination of the centrist judge been treated with traditional respect.

We who appreciate the threat have the duty to show our readers, students, and others that it is the fate of the nation that drives us to support prosecutions of the crimes of the Trump misrule.

- GWC

Our Terrorists Are an Arm of the GOP. Will Biden Say It?

By David R. Lurie

***Recognizing the scope of the threat, President Biden has announced that intelligence agencies will conduct a “comprehensive threat assessment” directed at overhauling the government’s response to domestic extremism.

But given that the links between violent extremism and the Republican Party—along with a large segment of the nation’s population—are now wide and deep, the challenge of uprooting domestic extremist networks and their support structure is more daunting than anything the nation has faced for decades, possibly since Reconstruction. Furthermore, unlike in the wake of the Civil War, today’s supporters of insurrection have not been defeated in battle; to the contrary, some are situated in positions of power and influence. And it is a certainty that they will use every lever available to stymie and undermine any substantial law enforcement efforts.

Many leaders of what has become the GOP “establishment” have reason to fear the kind of thoroughgoing investigation of domestic extremism that law enforcement agencies have previously conducted of foreign extremist groups, one that extends to reach the financial and organizational support for domestic extremist networks. It not only appears likely that such inquiries will reach Republican officeholders, but also some of the party’s wealthiest donors, many of whom have previously been able to mask their identities and roles behind dark money conduits like Donors Trust.

One can well expect those with the most to lose from an effective investigation of the nature and scope of domestic extremism will do everything they can to increase the political stakes, and to demonize the investigators, a strategy Donald Trump employed to great effect.

Leaders on the right are already sending out warning flares to their followers, preemptively challenging the legitimacy of such law enforcement efforts. Tucker Carlson has declaimed to his audience that investigations of white supremacist violence will be an investigation of “you,” and asserted that the direction of law enforcement resources against domestic extremism is a threat to the liberty of all on the right.

For his part, Newt Gingrich—who seethed decades ago as Bill Clinton associated his nihilistic attacks on government institutions with then nascent militia violence—has described the calls for action against insurrectionist celebrity Greene as the actions of a “lynch mob.” Even Nikki Haley, who initially criticized Trump’s incitement (to the displeasure of a GOP gathering), is now mocking Biden for “protecting the Capitol from Americans.”

The purpose of these messages is clear: To create a threat that a thoroughgoing offensive against domestic extremism will lead to a conflagration, as the millions who just went to the polls to vote for Trump and other extremist candidates are induced to feel themselves to be threatened, along with those who incited them.

Furthermore, while there is increasing support for a robust and comprehensive response to domestic violent extremism, and talk about devoting additional resources, there also remains an entrenched resistance in the law enforcement community—including within the FBI—to, finally, taking such steps. That resistance must be overcome. Certainly, Biden’s attorney general nominee, Merrick Garland, who oversaw the prosecution of the Oklahoma City bombers, understands the nature of the threat.

Re-reading the Capitol Police Chief's January 6 after action report to Nancy Pelosi

 

Capitol defended against BLM marchers

Capitol police January 6

Former Capitol Chief of Police Steven Sund ten days ago reported to Speaker of the House Nancy Pelosi on the events of January 6.  It is a factual account which provides many of the elements of the narrative brilliantly briefed and presented by the House Impeachment Managers this week.  He recounts in dry prose that the 1200 member Capitol Police battled an "insurrection" for four and half hours before the first 150 members of the D.C. National Guard was sworn in to assist them.  

We saw that hand to hand combat in the videos dramatically presented by the House Managers before an astonished nation this week.

The Managers' presentation fully justified Sund's affirmation that he is " proud of the men and women of the U.S. Capitol Police, the vast majority of whom fought valiantly and risked their lives to protect Members of Congress, their staff, and the Capitol building "

But what should we make of Sund's  statement that "Perfect hindsight does not change the fact that nothing in our collective experience or our intelligence – including intelligence provided by FBI, Secret Service, Department of Homeland Security (DHS) and D.C. Metropolitan Police (MPD) – indicated that a well-coordinated, armed assault on the Capitol might occur on January 6 "

Sund, who retired immediately after the debacle, renders what appears to be a candid account.  The core of it appears here:

  The Intelligence and Inter-Agency Coordination Division (IICD) Daily Intelligence Report assessed “the level of probability of acts of civil disobedience/arrests occurring based on current intelligence information,” as “Remote” to “Improbable” for all of the groups expected to demonstrate on Wednesday, January 6, 2021. In addition, the Daily Intelligence report indicated that “The Secretary of Homeland Security has not issued an elevated or imminent alert at this time….”  

​The Capitol police received intelligence from the "FBI, Secret Service, Department of Homeland Security, and D.C. Metropolitan Police.   Why the intelligence failure?  Sund recounts that the November 4 and December 12 mass pro-Trump rallie​s​ -  MAGA I, and MAGA II -  protests of thousands at the Supreme Court and adjacent Capitol grounds were "handled...successfully".  The 30 year veteran had "never seen anything like the violent insurrection we witnessed on January 6."

How to explain the somnolence of the entire security bureaucracy and their failure to see the threat of what President Trump had promised "will be wild"?  The miscalculation seems to me to be explained by two converging factors .  First, most white military and police personnel voted for Donald Trump and, seduced by his fawning ​flattery, did so again in November.  ​The President's cries of fraud may have been plausible or acceptable to them. 

  Second, incitement by Donald Trump in his last ditch effort to hold office.  Sund reports "the [IICD]assessment indicated that members of the Proud Boys, white supremacist groups, Antifa, and other extremist groups were expected to participate in the January 6th event and that they may be inclined to become violent."  "May be inclined" in retrospect is tragically wrong.  But should it not have been foreseen?  The November 4 and December 12 MAGA marches of tens of thousands had been managed without major incident.  Why should this have been different?  This was the last chance for Donald Trump.  He summoned them for the last possible chance to reverse the vote: stop the count of electoral votes.  He charged them to "go to the Capitol", to "fight like hell otherwise we won't even have a country", adding "And I will be with you", omitting that it would be in spirit only.  He would retreat behind the newly reinforced White House fences.

But how could the assessment of little risk have been reached when in April 2020 we saw heavily armed protestors crowd into the Michigan State Capitol legislative chamber while it was in session?

We watched with alarm in April as armed men – many with semi-automatic military-style weapons in the `open carry' state– unhindered entered the historic State Capitol in Lansing, Michigan.  Some riflemen actually entered the legislative chamber while it met.  When armed hundreds marched on Richmond, Virginia, once the capital of the Confederate States of America rebellion, Donald Trump tweeted LIBERATE Michigan and LIBERATE Virginia.  Seven months later in December six men were indicted in a plot to kidnap Michigan Governor Gretchen Whitmer.

If we saw such behaviour in other countries we would see it as the crumbling of civic order.  But here, sanctioned by the President, it receded quickly from view. And notwithstanding the December indictments the entire Washington, D.C. based law enforcement establishment seems to have suppressed the memory.  

- GWC

Presidential Transition | College of the Holy Cross

Presidential Transition | College of the Holy Cross

Mike Davis’s Forecast for the Left | The Nation

Mike Davis’s Forecast for the Left | The Nation

Second Impeachment Trial Begins: the briefs

 House of Representatives trial brief

Trump Answer

House reply brief

Trial rules adopted by the Senate

Massimo Faggioli - Interview: a Catholic theologian weighs Biden's future with Vatican and US bishops

A Catholic scholar weighs Biden's future with Vatican and US bishops

RNS) — For a decade, Massimo Faggioli has taught a class on U.S. Catholics and politics, most recently at Villanova University where he is a professor of theology and religious studies. But when it started to look increasingly likely that Joe Biden would become the Democratic nominee, Faggioli began to consider how this time in history is a particularly fraught one for a second Catholic U.S. president.

Out of that thinking grew his new book, “Joe Biden and Catholicism in the United States,” published on Inauguration Day.

The book names four U.S. Catholics who have run for president (Al Smith, John F. Kennedy, John Kerry and Biden) and includes a fifth who may be better known than any of these real-life examples: Jed Bartlet, played by Martin Sheen in the 1999-2006 hit TV series “The West Wing.” 

Of these, only Biden has had to deal with a U.S. Conference of Catholic Bishops that is in the midst of what Faggioli calls a “reactionary” revolt. A number of the American bishops and cardinals supported what is described by some as an attempted coup of Pope Francis by former U.S. nuncio Archbishop Carlo Maria Viganò in 2018. Others want to undo the reforms of the Second Vatican Council or notch a victory in the culture war by denying Biden Communion for his support of legal abortion. 

RNS talked to Faggioli about his new book and how Biden might overcome the USCCB’s early hostility and cooperate with Pope Francis. The interview was edited for length and clarity.

You describe Joe Biden as a kind of liminal figure, caught between the 20th and 21st century. Explain what you mean.

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Dorf on Law: Did the Supreme Court Inadvertently Exempt Movies and Other Secular Expressive Activities From COVID Restrictions?

The disparate impact test disparaged for challenges to racial segregation in employment has achieved new life regarding religious freedom, argues Cornell law professor Michael Dorf.  The Court has, he notes reserved heightened scrutiny (fatal in fact strict scrutiny) for state actions that "targeted religion for disfavored treatment".  But now, he notes, the Court's emergent orders in the South Bay United Pentecostal Church v. Newsom, Governor of California and other such cases have moved toward s "disparate impact" standard.  In such cases the State must prove a "compelling" interest that is served by "narrow" means.

Let's look at the "statement" by Neil Gorsuch which elucidates his thinking in a way that the Court's bare bones order does not.  This, he says, is an easy case because

Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses. The State’s spreadsheet summarizing its pandemic rules even assigns places of worship their own row. See App. to Emergency Application for Writ of Injunction... At “Tier 1,” applicable today in most of the State, California forbids any kind of indoor worship. Meanwhile, the State allows most retail operations to proceed indoors with 25% occupancy, and other businesses to operate at 50% occupancy or more.

It is a rudimentary element of justice that like cases should be treated alike.  It is the degree of likeness that is not so easy to determine.  The three dissenters, the liberal holdouts on the Court, argue in an opinion by Elena Kagan that the court should largely leave that to the elected officials of the states who have primary responsibility for protection of the public health and welfare - the so-called `police power'.

Further, the Associate Justice argues in dissent, Governors have access to and in fact rely on experts - Departments of Health and epidemiologists to calculate risk - always a somewhat imperfect calculus.  Judges, lacking such expertise, and insulated from the competing considerations bearing on elected officials, should stay out of this, Kagan unsuccessfully urged.

But "at the margins" as academics are wont to say, surely judges have that power to make their own judgments.  Neil Gorsuch has argued that courts should be "liberat(ed)" to make their own judgments  rather than defer to federal or state administrative agencies.  Such views cast doubt on Alexander Bickel's famous label for the judiciary as "The Least Dangerous Branch".

Whether for purposes of risk-reduction an indoor church service with singing is - in a winnowed congregation - more or less dangerous than shopping at Costco is debatable.  But the question presented in my view is whether the any disparity's permissibility should be answered merely by the casual sort of comparison Gorsuch (and the Court majority) find sufficient to trigger strict scrutiny.  More apt - as Kagan argues is the traditional "rational basis" test long honored since Jacobson v. Massachusetts - a mandatory vaccination case decided in 1905.  For that Courts must weigh the competing views of competent experts, vetted as to admissibility via Federal Evidence Rule 702.  Only judgments found arbitrary, not rational should be set aside.

 But as Dorf notes, the implications may go even further: if religious activities may be excused from public health strictures why not other activities protected by the First Amendment like live concerts, etc.

Is the court willing to say that religious expression is more shielded than other comparable but secular activities?

- GWC

Dorf on Law: Did the Supreme Court Inadvertently Exempt Movies and Other Secular Expressive Activities From COVID Restrictions?

By Michael C. Dorf (Cornell Law School)

***As CJ Roberts observed in the first California case (what I'll call South Bay I), there are public-health-relevant differences between the venues and activities that are subject to lesser restrictions than are worship services; people don't linger in large numbers in grocery stores, for example. By contrast, venues and activities that pose public health risks comparable to those posed by worship services--concerts, movies, and lectures, for example--are subject to the same or stricter restrictions as religious gatherings. In various of the cases, some Justices have pushed back on that point. In the Nevada case, Justice Alito thought that casinos pose a greater public health risk than do worship services but were subject to looser restrictions; Justice Gorsuch makes a related point about singing in the making of Hollywood movies in South Bay II. For what it's worth, I thought Alito's point about casinos was stronger than Gorsuch's about movie singing, given the safeguards in Hollywood but not in casinos or worship services. However, I'll put that factual detail to one side.

I want to focus on the following point in Justice Kagan's South Bay II dissent: 

The restricted activities include attending a worship service or political meeting; going to a lecture, movie, play, or concert; and frequenting a restaurant, winery, or bar. So the activities are both religious and secular—and many of the secular gatherings, too, are constitutionally protected. 

What Justice Kagan means when she says that many of the secular gatherings are also constitutionally protected is that they are also protected by the First Amendment. Political meetings, lectures, movies, plays, and concerts (but presumably not frequenting restaurants, wineries, or bars) are forms of expression protected by the First Amendment. And something very much like the Smith rule applies to protected expression in the same way as it applies to protected free exercise. So, a corporation that produces books and movies can be subject to the same tax, antitrust, and labor laws as a corporation that produces cars and trucks, but a law that singles out expressive activities is subject to strict scrutiny.***

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Arizona Supreme Court opens door to non-lawyer ownership of law firms

 

The Arizona Supreme Court - effective January 1 - has become the first state to  authorize non-lawyer ownership of law firms and other "Alternative Business Structures" including licensed paraprofessionals who can complete forms, represent clients, and speak in court.  Other states, including Utah which has authorized a pilot program, and the California State Bar has conducted a study and recommended similar changes through its Task Force on Access Through Innovation of Legal Services.

The ABA Journal reports that Arizona Vice Chief Justice played a key role with David Byers of the state Administrative Office of the Courts in examining how legal services are delivered.  The task force of the Arizona Supreme Court reported in October 2019:  It recommended that the Court

Eliminate Arizona’s ERs 5.4 and 5.7 and amend ERs 1.0 through 5.3 to remove the explicit barrier to lawyers and nonlawyers co-owning businesses that engage in the practice of law while preserving the dual goals of ensuring the professional independence of lawyers and protecting the public.

Arizona Rule of Professional Conduct 5.4,  - now eliminated - barred nonlawyers from having an economic interest in a law firm or participating in attorney fee-sharing. The task force recommended its elimination and proposed a new "alternative business structure" in which non-lawyers could provide some legal services, even going to court.

“The legal profession cannot continue to pretend that lawyers operate in a vacuum, surrounded and aided only by other lawyers, or that lawyers practice law in a hierarchy in which only lawyers should be owners,” the task force wrote. “Nonlawyers are instrumental in helping lawyers deliver legal services, and they bring valuable skills to the table.”

The Arizona Code of Administration recognizes in Section 2-708 a category called "legal document preparers" who are defined as a person or business entity which is

certified pursuant to this section to prepare or provide legal documents, without the supervision of an attorney, for an entity or a member of the public who is engaging in self representation in any legal matter. An individual or business entity whose assistance consists merely of secretarial or receptionist services is not a legal document preparer.

Also licensed are "legal paraprofessionals" who have been trained and licensed.  They can

Prepare and sign legal documents; b. Provide specific advice, opinions, or recommendations about possible legal rights, remedies, defenses, options, or strategies; c. Draft and file documents, including initiating and responding to actions, related motions, discovery, interim and final orders, and modification of orders, and arrange for service of legal documents; d. Appear before a court or tribunal on behalf of a party, including mediation, arbitration, and settlement conferences where not prohibited by the rules and procedures of the forum; and e. Negotiate legal rights or responsibilities for a specific person or entity.

But the most dramatic development is the Court's decision to allow non-lawyer ownership of law firms.  The story is told in the definitions in Section 7-209:

A. Definitions.

“Alternative business structure” (“ABS”) is a business entity that includes nonlawyers who have an economic interest or decision-making authority in the firm and provides legal services in accord with Supreme Court Rules 31 and 31.1(c).

“Authorized person” means a person possessing:

1. An economic interest in the alternative business structure equal to or more than 10 percent of all economic interests in the alternative business structure; or 2. The legal right to exercise decision-making authority on behalf of the alternative business structure. Examples may include: a sole proprietor of a sole proprietorship, a manager of a limited liability company, an officer of a corporation, a general partner of a general or limited partnership, or a person possessing comparable rights by operation of law or by agreement.

updated 9/30/21 

Russell Wilson accepts the Walter Payton Award

 Awesome.