Archive for the Courts Category

The Federal Government, In Practice (September 15, 2014)

Posted in Banks and Banking System, CIA, Civil Rights/Civil Liberties, Congress, Courts, Federal Reserve, Judges, Judicial Arrogance, Judiciary, National Defense Authorization Act / FY 2012, Presidency, USA PATRIOT Act on September 15, 2014 by e-commentary.org

. . .

S          “So the Founding Fathers are blamed for and credited with many things.  Everyone agrees they were inspired by Montesquieu’s notion of the separation of powers providing for executive, legislative and judicial functions.  The division of labor and duties seems so clean and elegant in your civics class.  Yet, in practice, the process is so tainted and untidy.”

T          “In my class, I try to tidy up the mess.  I present this outline of the grand plan on the board to spark discussion:

Post 1787:          Theory:     Practice:

President            34%           30% (implement laws)
Congress             33%           60% (make laws)
Judiciary             33%           10% (interpret laws)
National Bank      0%             0% (inspire debate)

The judiciary was little more than an administrative agency with possibility until the Supreme Court developed the doctrine of judicial review in Marbury v. Madison in 1803.  The political plate tectonics shifted and now we have:

2014:

President                             44% (determines most major domestic and foreign policy initiatives)

Congress                              21% (drives economic activities via substantial ad hoc spending largely for defense, interest and entitlements)

Judiciary                              35% (makes laws)

Federal Reserve                 33% (the private bank with the misleading name establishes monetary policy and directs fiscal policy by default because of Congressional grid lock and thus effectively runs the economy, with little public participation)

National Security State    39% (shapes domestic and foreign affairs via a motley and myriad montage of agencies, contractors, sub-contractors and others with little oversight)

S          “So sixty-eight percent of government policy is imposed by federal judges and the Federal Reserve Board of Governors/Big Bankers who are not elected.”

T          “The Founding Fathers are said to have been anti-democratic.  I know they would be surprised at what has emerged in practice in America.”

S          “So thirty-nine percent of domestic and foreign surveillance and activities are determined by unknown and unaccountable agents and operatives.”

T          “Who knows.”

. . .

S          “So we need to track the federal Debt which is now over 17 Trillion dollars and also the Federal Reserve Debt which is now over 4 Trillion dollars.”

T          “While you are at it, try to fathom the 100s of Trillions of dollars in derivatives that were never on the Founding Fathers’ radar and are off the public radar today.”

S          “That fraud will doom the Republic some day.”

. . .

S          “So the Big Bankers favor war because it is so profitable, so the large number of Big Bankers in power results in an over-production of war.”

T          “Accord.”

. . .

T          “Republicans want a powerful ‘unitary’ President when a Republican is in the White House and an effete President when a Democrat is in the White House.”

S          “And everyone agrees that federal judges are politicians in black robes.”

T          “Accord, young scholar.  See why this is so much fun.”

. . .

[T:  Teacher; S:  Student]

Bumper stickers of the week:

The Declaration of Independence is America’s Original Organic Poem.  The Constitution is America’s Owners’ Manual.  Signed on September 17, 1787.

There is no law.  There is only ideology.

Law Is Politics ; Politics Is Law (July 7, 2014)

Posted in Congress, Courts, Judges, Presidency, Supreme Court on July 7, 2014 by e-commentary.org

. . .

L1          “Based on tradition, Justices are seated by seniority from the center outward on both sides.  Based on current practice, Justices should sit on each side of the political aisle.  The five Republicans should sit on the right wing and the four Democrats should sit on the left wing.”

. . .

L1          “The right wing majority of the Supreme Court reinvigorated its campaign to undermine abortion rights, fox hole by fox hole.”

L2          “They are sly as a fox about it.  When notes are later released, someone may discover that the left wing minority was either intimidated by the right wing or made a concession to the abortion opponents to avoid an even more dishonest opinion by logrolling their votes for less damaging language.”

L1          “Logrolling.  You have got to love it.  Politicians behaving like politicians.”

. . .

L1          “The right wing of the Supreme Court reaffirmed the two-part First Amendment test:  ‘1) Who is making the expression? and 2) What is being expressed?’  That is not what the Founding Fathers intended.”

L2          “The left wing may have used ‘Substantive Due Process’ to shape policy in the past.  The right wing is using the First Amendment to advance its political agenda and silence its critics.”

. . .

L2          “In some cultures, hypocrisy is the greatest crime.  The Supreme Court strikes down a reasonable 35-foot barrier between abortion protesters and those going into a facility after imposing a more than 200-foot buffer around the Court and enforcing it with the Court’s own private army paid for with public funds.”

L1          “What if protestors stood outside Scalia’s house and shouted that he is a ‘fibber’?”

. . .

L1          “The right wing of the Supreme Court underpins its decision on recess appointments on separation of powers doctrines and yet undermines the most fundamental separation of powers.  The Supreme Court – the judicial branch – defined and delineated legislative activities to undermine executive power.”

L2          “Would the Court have reached that decision if the President were a Republican.”

L1          “Maybe not.  Look in the footnotes of the decision for an exception for a Republican President.”

L2          “Look at Bush v. Gore for precedent.  Law is all politics today.”

. . .

Bumper stickers of the week:

Do gay corporations have the constitutional right to engage in mergers and acquisitions or merely civil unions?

There is no law; there is only ideology.

The Supreme Court – The Legislature on the east side of First Street

 

America’s Frazzled First Amendment (January 13, 2014)

Posted in Abortion, Courts, First Amendment, Journalism, National Defense Authorization Act / FY 2012, Newspapers, PATRIOT Act, Press/Media, Rating Agencies, Supreme Court, USA PATRIOT Act on January 13, 2014 by e-commentary.org

. . .

L1        “The right-wing majority on the Supreme Court has devolved a simple formula for First Amendment analysis:  Who is making the statement and what statement is he, she or it making?  A corporation is extended any and all protection that advances its interests and shields it from liability under the guise of the First Amendment.  An individual is extended First Amendment protection only to the extent that his or her speech is acceptable to the right-wing majority on the Supreme Court.”

L2        “With a few exceptions.”

L1        “A few, but very few exceptions.  The oral argument this week at the Supreme Court involving the reasonable and safe distance between protestors and citizens entering an abortion clinic is less about the First Amendment and more about efforts by the right-wing majority to restrict abortion.”

L2        “Restrict abortion by restricting access.”

. . .

L1        “Some bonehead judges shield the fraudulent statements and misrepresentations of rating agencies’ such as Standard & Poor’s, Moody’s and Fitch with First Amendment protection.  A fraudulent statement advanced with the intent to deceive is not entitled to any constitutional protection even if it is advanced by a corporation rather than an individual.”

L2        “The next step by some judges is to insulate any statements however deceptive or fraudulent by other specific industries such as the oil and gas, pharmaceutical, and agricultural industries from liability by bestowing First Amendment protection on them.”

. . .

L2        “The O’Bama Administration has maintained the hostile attitude and increased aggressive actions against whistleblowers and those challenging often illegal government shenanigans.  The executive branch contributes to the problem not to the solution.”

L1        “Their dismissive treatment of the press is taken from Tricky Dick’s play book.  The White House is Fort O’Bama.”

. . .

L1        “Congress could address most of these problems with legislation that most courts would honor and enforce.  Legislation including the USA PATRIOT Act and the National Defense Authorization Act of 2012 should be reviewed and amended.”

L2        “Seems that all three branches are a threat to the people today.”  

. . .

[See the “e-ssays” titled https://e-commentary.org/category/first-amendment/ in particular The Supreme Court On Drugs (June 25, 2007), Bill/Melinda and Warren, It Is Time To Get Into The Game (January 25, 2010), Corporations United (Feb. 15, 2010), In Sexy Opinion, Supreme Court Affirms First Amendment (March 7, 2011) and At War With The First Amendment (February 27, 2012); the “e-ssays” at https://e-commentary.org/category/national-defense-authorization-act-fy-2012/ and https://e-commentary.org/category/usa-patriot-act/; and commentary on rating agencies at https://e-commentary.org/category/rating-agencies-2/.]

Bumper sticker of the week:

My Political Ideas                                            Are Too Complex

To Fit On One                                                  Bumper Sticker

Bulk Collection Of Telephony Data. Again. (December 16, 2013)

Posted in Book Reference, Civil Rights/Civil Liberties, Constitution, Courts, Due Process, First Amendment, FISA, Journalism, Judicial Arrogance, Law, Newspapers, O'Bama, Politics, Press/Media, Privacy, Republican Federal Judge Syndrome on December 16, 2013 by e-commentary.org

. . .

L1        “You never know what a Monday will bring.  A federal judge ruled that the NSA’s bulk collection of Americans’ telephony records likely violates the Fourth Amendment to the U.S. Constitution.”

L2        “You did not hear the word ‘telephony’ in polite parlance two dozen years ago.  The courts must now address the interplay of law with technology far more sophisticated than a pair of soup cans and a string.”

L1        “Most federal judges were ‘Arts and Crafts’ majors in college who may understand Tennyson but really do not understand technology.  Listen to the techs who install IT systems in the state and federal courts.  Some of these judges are still looking for the rotary dial.”

L2        “The government’s reliance on a case from the prehistoric days of telephony – way back in 1979 – is proof positive that the issue must be addressed anew in light of the new technology today.”

L1        “They will need to refer more often to Newton’s Telecom Dictionary than to Black’s Law Dictionary.  That will be fun.”                  

. . .

L1        “Within a fortnight of the Democrats’ decision to require the Senate to ‘advise and consent’ and vote on O’Bama’s appointments to places such as the District of Columbia Circuit Court of Appeals, the decision will have consequences.  One or more of the new appointees could be assigned to the reviewing tribunal.  If there is en banc review of the three panel decision, there are now more Democrats than Republicans.”

L2        “But will the Democrats defer to their benefactor?  Is there another Republican appellate court judge who may be a fan of the Constitution rather than unchecked federal intrusion?  And we always have the five Supremes who will get to chime in.” 

L1        “Who just don’t get it.  They do not even want to admit that the NSA exists.”

. . .

L1        “Judge Leon (Bush II) overcame the always pernicious ‘Republican Federal Judge Syndrome’ that almost always plagues Republican appointees.  Yet the judge once again displays the occupational hazard of these imperial federal judges.  His opinion is snarky, arrogant, condescending, intemperate, and sloppy.  The screed deserves a B+ for intuiting basic truth, a C- for style and an F for arrogance.”

L2        “When you are going to be courageous, you must be flawless.”

L1        “There are more than a few good women and men who are concerned that collecting the metadata is constitutional and may prevent a great catastrophe.”

L2        “But in the final analysis, there is the Constitution.” 

. . .

[See the “e-ssays” titled USA PATRIOT ACT (April 4, 2005), Less Government Regulation Series: Google (Nov. 30, 2009), Boycott Facebook? (August 2, 2010), Brave 1984 Farm: The Best Of All Possible Worlds (March 19, 2012) and Hero or Traitor? (June 10, 2013) and I Spy, You Spy, They Spy (October 28, 2013).]

[See the “e-ssays” titled Judicial Activism: Rogue Republican Judges (January 28, 2013), The Paradox Of The Republican Federal Judge: Republican Federal Judge Syndrome (September 23, 2013) and Past Time: Exercising The “New Clear Option” (November 25, 2013).]

Bumper stickers of the week:

Free Edward Snowden

Pardon Edward Snowden

Bestow a Presidential Medal of Freedom on Edward Snowden

Quash the sub poena issued to James Risen

Free the Press

In a dozen plus years and without a debate or a vote, technology has deprived us of privacy.  With little debate and many hasty votes, Congress has deprived us of privacy at every opportunity.  We as a society should create a rebuttable presumption in favor of privacy even if it appears to sacrifice security.  Our personal insecurities are actually creating greater national insecurity. 

Past Time: Exercising The “New Clear Option” (November 25, 2013)

Posted in Blue States / Red States, Civil War, Congress, Courts, Filibuster, Hypocrisy, Judges, Law, O'Bama, Presidency, Race on November 25, 2013 by e-commentary.org

. . .

P          “It is about time.”

Q         “It’s way past time.”

P          “After stepping on your neck for years, they promise to step on your neck even harder if you try to wrench their foot off your neck.  It may be past time.”

Q         “They have used the logic embraced by the oppressed to oppress the patient and mature legislators.  It’s way past time.”

P          “Why not try to wrench their foot off, because when they get in power, they will be no less vindictive.  Now the oppressed legislators can compel the Senate to adhere to the constitutional duty to advise and consent rather than to delay and deny.”

Q         “Delaying legislation is a legislative prerogative.  The fight today is about denying executive branch appointments and undermining the executive branch.  At core, the fight is over separation of powers and the independence of the presidency.”

. . .

Q         “The war also is being fought over another branch – the courts and the judiciary.  Everyone in the know knows that there is no law, there is only ideology.  They are fighting over which ideologues get to don the wigs and dictate policy from the bench.”

P          “The vote is another skirmish in the continuing Civil War in America.”

Q        “That national experience provides historical perspective and ironic understatement.  Yet the war today isn’t civil.”

P          “At core, the clan of confederates is furious that a Black man is in the White House.”

. . .

[See the article titled http://www.nytimes.com/2013/11/22/us/politics/reid-sets-in-motion-steps-to-limit-use-of-filibuster.html?hp&target=comments&_r=0#commentsContainer.]

[The benchmark price of .22s in November is not available because .22s are not available.]

Bumper sticker of the week:

Mind your Ps and Qs

Commenting On Legal Commentators (November 4, 2013)

Posted in Book Reference, Courts, Education, Law, Law School, Schooling, Writing on November 4, 2013 by e-commentary.org

. . .

L1        “Did Ronald Dworkin ever practice law?”

L2        “Doesn’t seem so.”

L1        “Did H.L.A. Hart ever practice law?”

L2        “Seems that he may have handled a few traffic violations.  Some of them moving.”

L1        “Now I admit that they spouted some pretty city talk and a few inspiring aspirations, but do they have a clue.”

L2        “Does having a clue matter?  Two branches of the ‘Quaint Theory’ of the practice of law.  The say what others want to hear.”

. . .

L1        “Now Benjamin Cordoza did play the game, but he missed the boat.”

L2        “Accord.  The Nature of the Judicial Process should be filed under ‘F’ for ‘Fiction’ or for ‘Fairy Tale.’”

L1        “And given an ‘F’ for failing candidly to explicate the American legal game.”

L2        “He failed in describing how the legal game works, but he succeeded in trying to make the legal system work.”

. . .

L1        “Academic law is more closed and cloistered than any other area of academic pursuit in America.”

L2        “Except a few other areas of academic pursuit in America.”

L1        “Many of the failures of the legal system find their genesis in America’s legal schooling industrial complex.”

. . .

L1        “Did Fred Rodell ever practice law?”

L2        “He did not need to play the game.  He got it.  And got out of the game before ever entering the game.  That takes finesse.”

L1        “Lucky guy.  But he is an anomaly.  The legal schooling complex today would not allow a young Fred Rodell even to labor as an adjunct professor at a night law school.”

L2        “If they would even admit him as a law student.”

. . .

[See the “e-ssay” titled Playin’ The Legal Game (March 28, 2011).]

Bumper stickers of the week:

“There are two things wrong with almost all legal writing.  One is its style.  The other is its content.  That, I think, about covers the ground.”  Fred Rodell

I entered law school already knowing how ‘to think like a lawyer’ and exited law school still knowing how to think like a human being.

Immanentizing The Eschaton: Your Supreme Court And The Great Religious War (October 7, 2013)

Posted in Courts, First Monday In October, Immanentizing The Eschaton, Journalism, Judges, Judicial Arrogance, Law, Newspapers, Supreme Court on October 7, 2013 by e-commentary.org

. . .

L1        “The Supreme Court is engaged in a war between those who do not want to allow others to immanentize the eschaton and those who do want to allow others to immanentize the eschaton.”

L2        “I’ve said that many times.  The five rich White boys – Roberts, Scalia, Thomas, Alito and Kennedy – have already immanentized the eschaton and do not want anyone else except those like them to immanentize the eschaton.”

L1        “They are the Catholic Squad.”

L2        “And the four others also have immanentized the eschaton and yet do want everyone else to be able to immanentize the eschaton.”

L1        “Exactly.  They are the Jewish Squad.  Sotamayer developed concern for the health and welfare of others in her youth and did not immanentize the eschaton until adulthood, so she caucuses with the Jewish Squad.  The Jewish “Big E” Eschaton itself shapes the attitude toward its immanentization.  This life may not be a dress rehearsal.”

L2        “At core, the war at the Supreme Court really is a great religious war.”

. . .

L1        “They are out in left field honing their short game.”

L2        “Yet there are some Catholics who do want to allow others to immanentize the eschaton.  Just none of the current Supreme Beings.”

. . .

[See the other “e-ssays” in the “First Tuesday In October” series at https://e-commentary.org/category/first-monday-in-october/.]

Bumper stickers of the week:

“In a recent series of Pushitzer prize winning articles, ‘El Diablo Times Bugle Leader Follower Post Pre Clarion’ reports that after each one took of them took the ultimate senior status and appeared before an even more Supreme Being, Johnny, Tony, Clarence, Sammy and Tony II each were sent straight to the mines with no health or safety apparatus, no lunch breaks, no overtime pay, no air conditioning and no law clerks – none – to bail them out.”

. . .

“Your surprise is not surprising.  We see that reaction all the time.”  “As you know, we did not even entertain the existence of such an ultimate reality.  And a room with a view and room service.  Just because we lead a virtuous life.”  “Indeed.  Really, it’s quite simple.  From our perspective, we look at how you live your life not what you profess to believe.  And perforce, as you know, we know everything.”

The Paradox Of The Republican Federal Judge: Republican Federal Judge Syndrome (September 23, 2013)

Posted in Courts, Judges, Law, Politics, Republican Federal Judge Syndrome on September 23, 2013 by e-commentary.org

. . .

L1        “They spend their Saturday nights dutifully licking and sealing envelopes containing missives condemning the government on behalf of the Republican Party, then get their coveted federal judgeship, and then spend their career granting every motion and request for relief filed by any government agency or large institution to the detriment of the public and/or an individual.”

L2        “The vexing ‘Paradox of the Republican Federal Judge.’  The Republican Federal Judge condemns the government to get there and represents the government once there.  Leaves you wondering if we could save money by appointing one person to be the U.S. Attorney General and the Federal Judge.”

L1        “In a dispute between an individual and the government, the Republican Federal Judge sides with the government.  In a dispute between an individual and the police, the Republican Federal Judge sides with the police.  In a dispute between an individual and an insurance company, the Republican Federal Judge sides with the insurance company.  In a dispute between an individual and a bank, the Republican Federal Judge sides with the bank.  In a dispute between an individual and a large corporation, the Republican Federal Judge sides with the large corporation.

L2        “I’ve seen that side in practice.”

. . .

L1        “He didn’t even sense the irony of his circumstance.  He supported and financed the Republican Senator who nominated the Republican Federal Judge appointed by the Republican President who could not wait for the Republican U.S. Attorney nominated by the Republican Senator and appointed by the Republican President to file a motion to deny relief to him and assess fees against him in his dispute with the gov-mint.”

L2        “Republican Federal Judge Syndrome.  So many of them are RFJS-Positive.  You can still blame it on the Democrats.”

. . .

[And then there are the exceptions.  http://www.nytimes.com/2013/07/23/us/judge-blocks-north-dakota-abortion-restrictions.html?_r=0 and http://www.nytimes.com/2005/12/21/education/21evolution.html?pagewanted=all.]

[See the “e-ssay titled “You’re fired. Sue me.” (August 13, 2012).]

Bumper sticker of the week:

The law serves the wealthy and well-connected.  At every opportunity.

The Sea Change Is Now A Tsunami (March 11, 2013)

Posted in Constitution, Courts, Equal Protection, Gay Politics, Law, Society, Supreme Court on March 11, 2013 by e-commentary.org

. . .

LS1      “An amicus brief is a ‘friend of the court’ brief filed by someone who is not a party to a case that provides information and argument that may or may not have been advanced by a party to the case.”

N1        “Sounds like a legal way to lobby a court constituted of legal lobbyists for private interests.”

LS1      “In effect.  Before the Supreme Court writes its opinion, it is interested in the opinions of the Owners and others.”

N1        “Who would have guessed.  First the housebroken Republicans came out of the cloak room.  Then the business community came out of the board room.”

LS1      “They realized that inequality is less economically efficient than equality.  Surreal that one can drive from one state in a state of marital bliss to another state and enter into a state of marital banishment.”

N1        “That is bad for business.”

LS1      “No bandwagon has been boarded by as many people in as short a period of time.  Everyone now wants to influence the bench to allow all adults to walk down the aisle.  The train is leaving the station.”

N1        “They say the Supreme Court does not pay attention to the weather, but the Justices do pay attention to the climate.”

LS1      “You don’t need a climatologist to see which way the wind blows.”

N1        “But you do need courage.” 

. . .

[See the “e-ssay” titled Fukushima Daiichied (March 12, 2012) on the anniversary.]

[See the “e-ssay” titled Less Government Regulation Series: Love and Marriage (May 19, 2008).]

[See the articles at http://www.nytimes.com/2013/03/02/business/businesses-refuse-to-arrive-late-on-same-sex-marriage.html?_r=0, http://www.nytimes.com/2013/02/28/business/companies-ask-justices-to-overturn-gay-marriage-ban.html?ref=business, http://www.nytimes.com/2013/02/28/us/politics/gay-marriage-brief-gets-more-republican-support.html?ref=business and http://www.nytimes.com/2013/03/01/us/politics/administration-to-urge-justices-to-overturn-a-gay-marriage-ban.html?ref=business&_r=0.]

Bumper stickers of the week:

“Gay marriage?  Here’s the way I see it.  If I had to get married, then THOSE PEOPLE have to get married.  Fair is fair.”

My wife keeps complaining that I never listen to her . . .  or something like that.

Can someone file an “enemy of the court” brief?

Hate is overrated.

Judicial Activism: Rogue Republican Judges (January 28, 2013)

Posted in Congress, Constitution, Courts, Journalism, Judges, Law, Newspapers, Presidency on January 28, 2013 by e-commentary.org

. . .

1          “I can’t say that I like it.”

2          “Me neither.  Smells bad.”

1          “Why is it that the first thing you recognize is that three Republican federal judges concocted the decision.”

2          “Because that is what Republican federal judges do.”

1          “Congress is dysfunctional and inoperative.  The President tries to do something rational consistent with limited Congressional action.  The Republican federal judges in the judicial branch step in and do their part to pummel and constrain the President and the executive branch.”

2          “Congress established the agencies and Congress authorized the funds and Congress appropriated the dollars and then a minority in Congress plays games to keep the President’s appointments from getting in the saddle to run the Congressionally-approved and authorized and appropriated agencies.”

1          “And undermine the actions of the agencies.”

2          “The Republican federal judges take up the ball and undercut the President and the operation of executive branch agencies by proclaiming that the President is playing games.”

1          “Sort of a new take on the old rope-a-dope one–two punch.  Not pretty.”

. . .

1/2       “Courts are increasingly illegitimate, partisan and dishonest.  The day may come when they may need to be disregarded.”

. . .  

2/1       “Journalists typically note the political party and state of a legislator at the first mention of her or his name in an article.  ‘Congressman Billy Bob Jenkins (R-Uranus).’  Articles about court decisions may refer to the politician who appointed the judge in the last few sentences and thus the insight is often among the first sentences to be edited.  In the interests of full disclosure and recognizing that space is always at a premium, articles should note the President who appointed a federal judge in parens at the first reference to a judge or justice.  ‘Chief Justice John Roberts (Bush II)’.”  

. . .

[See the editorial at http://www.nytimes.com/2013/01/26/opinion/a-court-upholds-republican-chicanery.html?hpwand and the article linked in the piece.]

Bumper stickers of the week:

There is no law; there is only ideology.

Don’t believe anything until it has been officially denied.