In Keeping With His Efforts To Further The Careers Of Women In The Law Profession…

The Federalist Papers reported today:

Brett Kavanaugh, the newest Supreme Court justice, just made history, even though he’s been on the job barely 24 hours:

A day after the bitter fight over his nomination ended in his elevation to the Supreme Court, Justice Brett M. Kavanaugh was in his new chambers on Sunday, preparing for the arguments the court is to hear as it enters the second week of its term. …

Justice Kavanaugh met with his four law clerks, all women — a first for the Supreme Court — in chambers that had until recently been occupied by Justice Samuel A. Alito Jr., who has moved to Justice Anthony M. Kennedy’s old chambers. …

Justice Kavanaugh said in his testimony last month that he had started to take action to address the underrepresentation of women among law clerks after reading a 2006 article in The New York Times noting that only seven of 37 Supreme Court clerks were women.

“A majority of my 48 law clerks over the last 12 years have been women,” he told the Senate Judiciary Committee. “In my time on the bench, no federal judge — not a single one in the country — has sent more women law clerks to clerk on the Supreme Court than I have.”

Indeed, as Liptak notes, he can expect to see some familiar faces:

This term, six of his former clerks are working at the Supreme Court, double the number of any other appeals court judge. Four of them are women.

The article also notes that Brett Kavanaugh has also appointed more African-Americans than Ruth Bader Ginsburg has in her entire career.

The article also mentions Judge Kavanaugh’s role in helping women become law clerks at the Supreme Court:

On the D.C. Circuit, Kavanaugh hired 25 women and 23 men as law clerks. His four clerks from 2014 to 2015 were women, and 21 of the 25 he hired went on to U.S. Supreme Court clerkships. His 48 clerks represented diverse background and viewpoints.

With Kavanaugh’s elevation, law school graduates lose an opportunity for an appellate clerkship with one of the top “feeder judges” to the justices who are now his colleagues.

Kavanaugh sent 39 of his 48 clerks to the Supreme Court, including clerks serving justices in the current term. Although most of those clerks have gone to the conservative justices—with Chief Justice John Roberts Jr. hiring 13, the largest number—Kavanaugh sent two each to justices Sonia Sotomayor and Elena Kagan, and one to Stephen Breyer. No former Kavanaugh clerk has gone on to clerk for Justice Ruth Bader Ginsburg.

The man the Democrats and the media attempted to paint as a monster who abused women turns out to be one of the major mentors of women working in the law profession in Washington. So much for the honesty and reliability of information provided by the Democrats and the media.

A Different Take On The Constitutionality Of ObamaCare

The Daily Caller posted an article today about changes made to ObamaCare by Congress. The article reminds us that in 2017, the Republican-majority Congress did not have the votes to repeal the ACA, but did set the individual mandate penalty at zero. They didn’t repeal it, but they took the teeth out of it.

The article then reminds of the Supreme Court’s decision on ObamaCare:

In 2012, the five conservative justices on the United States Supreme Court (including Chief justice John Roberts) held that key portions of the Affordable Care Act (ACA) exceeded Congress’s constitutional authority under the Commerce Clause. But, Chief Justice Roberts then joined the four liberal justices on the Court in upholding the ACA as a tax under Congress’s taxing power because it generated revenue for the federal government.

The question then becomes, “If ObamaCare is no longer generating revenue, is it still a tax?’ If it is no longer a tax, does it still fall under the Commerce Clause?”

The article states:

A recent op-ed at The Federalist claims that striking down the ACA would be “judicial activism.” The article doesn’t defend the ACA as constitutional, but argues that conservatives shouldn’t ask “unelected judges to do what elected members of Congress took great pains to avoid.”

Such a broad view of “judicial activism” would render virtually any judicial review out of bounds. More importantly, it is contrary to the very system of checks and balances set up by the Founders in the Constitution. There is no Constitutional duty to persuade a majority of Congress to stop violating the Constitution—that’s what makes it a written constitution in the first place.

The article concludes:

And there is the rub. Judicial activism, rightly understood, is when a court tries to exercise the legislative function — i.e., when a court writes laws instead of saying what the law is. But asking courts to carve out the unconstitutional provisions from laws is exactly that. Advocating for severability asks the judicial branch to judge the law Congress should have written, not the one it did. A more restrained approach would be to strike down the whole law and let Congress decide whether it wants to pass the law again without the unconstitutional provisions included.

An old saying goes something like: “When you mix a cup of sewage in a barrel of wine, you end up with a barrel of sewage and have to throw the whole thing out.” To extend the metaphor, courts shouldn’t be in the business of sifting through a law to pick the sewage out of the wine, they should throw the whole thing out. Striking down unconstitutional laws is not judicial activism, and it is well within the role of the judiciary to strike the entire ACA as such.

It is definitely time to get rid of the barrel of sewage!

Better Late Than Never

Yesterday The Washington Free Beacon reported on a Supreme Court ruling that happened on Tuesday.

The article reports:

The court ruled Tuesday that Obama appointee Lafe Solomon illegally served as acting general counsel to the National Labor Relations Board from 2010 to 2013. Solomon, who once violated the agency’s ethics rules, should have vacated the position in accordance with the Federal Vacancies Reform Act of 1998 (FVRA) after the Senate refused to take up his nomination to serve as permanent general counsel in 2011, the court found in a 6-2 opinion authored by Chief Justice John Roberts. The appointment was an “end-run around” the Constitution.

“We cannot cast aside the separation of powers and the Appointments Clause‘s important check on executive power for the sake of administrative convenience or efficiency,” the majority ruled.

The case came to the court after the NLRB filed unfair labor practice charges against an Arizona-based ambulance service, Southwest General, following union complaints.

David Phippen, a management-side labor attorney at the firm Constangy, Brooks, Smith & Prophete, said the decision clarifies the meaning of the FVRA.

“The case is a reminder that the language of the FVRA statute means what it says and must be followed, not ignored by Presidents, as appeared to be the case here,” Phippen said in an email. “The decision … appears to make it somewhat more difficult for Presidents to put ‘her or his people’ into important agency positions unilaterally, i.e.,  without approval of the Senate.”

The article notes that Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg were the only Justices who dissented from the majority vote.

On another note, the media spin on this story is very interesting. While The Washington Free Beacon focused on the case and the fact that the actions of President Obama were unconstitutional, Yahoo News posted the following headline about the story:

Supreme Court restricts Donald Trump’s power to fill temporary government posts

This case had nothing to do with Donald Trump, although it will prevent him from ignoring the Constitution, as President Obama did.

Voter Identification

I have listened to statements that voter identification laws are racist, that conservatives want to suppress the vote, and that there is no voter fraud in America. None of that is true. However, there are people who genuinely believe that the above is true, and that is a problem. Voter registration groups have not always been honest. There are numerous videos on YouTube by Project Veritas and others showing how easy it is to commit voter fraud. Recently I heard a man from an organization that is working to stop voter fraud talk about bus loads of people brought into North Carolina from other states to register to vote as if they were residents. During the voting, people claiming to be those people show up at the polls and vote. Remember, a fraudulent vote cast in any election means that a legal vote may not count. It is time to be on the alert for voter fraud and to prosecute it to the full extent of the law.

Now about the voter identification thing that is going on in North Carolina. In the primary election this year, a picture identification was required to vote in North Carolina. Voter turnout was actually higher than it had been in the last two primary elections. Voter identification does not in any way suppress the vote. I would also like to point out that in today’s world, a photo id is not something unusual. Admittedly, not everyone drives, but most people at some point in their lives have to cash a check, enter a federal building, or purchase certain drugs, alcohol, or cigarettes. I have a basic prescription that the drug store asks for photo identification every time I fill. When I buy some allergy medications, I have to show photo identification. Voter identification is not a burdensome requirement–it is a requirement that ensures that every legal vote counts.

So where are we with the North Carolina law? The Daily Haymaker updated the story today.

The article reported:

Governor Pat McCrory has formally requested U.S. Supreme Court Chief Justice John Roberts to stay a ruling by the Fourth Circuit and reinstate North Carolina’s Voter ID law.

“Today we have asked Chief Justice John Roberts to stay the Fourth Circuit’s ruling and reinstate North Carolina’s Voter ID law,” said Governor McCrory. “This common sense law was upheld by the U.S. District Court. Our Voter ID law has been cited as a model and other states are using similar laws without challenges.

“Allowing the Fourth Circuit’s ruling to stand creates confusion among voters and poll workers and it disregards our successful rollout of Voter ID in the 2016 primary elections. The Fourth Circuit’s ruling is just plain wrong and we cannot allow it to stand. We are confident that the Supreme Court will uphold our state’s law and reverse the Fourth Circuit.”
 
A formal petition asking the Supreme Court to hear the case will follow this request for a stay.

The article further reports:

This IS actually a great move on McCrory’s part.  IF Roberts grants a stay, voter ID can stay alive for the November voting.  An appeal of the 4th circuit’s ruling will be filed by the state with the high court. It likely won’t be heard until 2017.  (However, we may have governor Cooper and attorney general Stein to deal with by then.)  

If this all works the way McCrory hopes, it will mean a lot less chaos and confusion on Election Day –two “crops” the Alinskyites and BluePrinters have been sowing in the state for four years now.  

Stay tuned. Just a note–I am for the suppression of all illegal votes–that’s why I support voter identification laws.

Recent Quotes From The Supreme Court

There have been some major cases decided by the Supreme Court in recent days. Paul Mirengoff has posted a number of quotes from the Justices in recent blog articles (here and here). The quotes have to do with the Housing Authority Case and the Gay Marriage Case. In each case, Mr. Mirengoff states that he feels that the Justices were not fully aware of the unintended consequences of their rulings.

In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Mr. Mirengoff points out that both sides of the ruling were aware of the possible consequences.

Justice Alito stated:

No one wants to live in a rat’s nest. Yet in Gallagher v. Magner, 619 F. 3d 823 (2010), a case that we agreed to review several Terms ago, the Eighth Circuit held that the Fair Housing Act (or FHA) could
be used to attack St. Paul, Minnesota’s efforts to combat “rodent infestation” and other violations of the city’s housing code. The court agreed that there was no basis to “infer discriminatory intent” on the part of St. Paul.

Even so, it concluded that the city’s “aggressive enforcement of the Housing Code” was actionable
because making landlords respond to “rodent infestation, missing dead-bolt locks, inadequate sanitation facilities, inadequate heat, inoperable smoke detectors, broken or missing doors,” and the like increased the price of rent. Since minorities were statistically more likely to fall into “the bottom bracket for household adjusted median family income,” they were disproportionately affected by those rent increases, i.e., there was a “disparate impact.” Id., at 834.

The upshot was that even St. Paul’s good-faith attempt to ensure minimally acceptable housing for its poorest residents could not ward off a disparate impact lawsuit.

Today, the Court embraces the same theory that drove the decision in Magner. This is a serious mistake. The Fair Housing Act does not create disparate-impact liability, nor do this Court’s precedents. And today’s decision will have unfortunate consequences for local government,
private enterprise, and those living in poverty. Something has gone badly awry when a city can’t even make slumlords kill rats without fear of a lawsuit.

Makes sense.

Justice Kennedy also saw the risk in the decision:

Without adequate safeguards at the prima facie stage, disparate-impact liability might cause race to be used and considered in a pervasive way and “would almost inexorably lead” governmental or
private entities to use “numerical quotas,” and serious constitutional questions then could arise.

The litigation at issue here provides an example. From the standpoint of determining advantage or disadvantage to racial minorities, it seems difficult to say as a general matter that a decision to build low-income housing in a blighted inner-city neighborhood instead of a suburb is discriminatory, or vice versa.

If those sorts of judgments are subject to challenge without adequate safeguards, then there is a danger that potential defendants may adopt racial quotas—a circumstance that itself raises serious constitutional concerns.

Somehow we have substituted the concept of equal outcome for equal rights.

In the gay marriage decision, there are serious questions as to whether the rights of Bible-believing Christians will be abandoned in favor of the new definition of marriage.

Justice Kennedy writes:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.

Justice Roberts wrote:

The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.

There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

The First Amendment of the U.S. Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

It is my belief that in the future, when people who hold a Biblical view of marriage attempt to freely exercise their religion in the public square or their place of business, that freedom is going to be taken away from them, particularly in the area of a Biblical view of marriage. This happened in Massachusetts after the courts ruled that gay marriage was legal–the Catholic adoption agencies were forced to close down because adopting a child to a same-sex couple was against their religious belief. We may see that happen all over the country as a result of this ruling. I hope I am wrong, but I don’t think I am.

The Right Answer To The Wrong Decision

The Hill reported yesterday that Rep. Brian Babin (R-Texas) has introduced a bill into the House of Representatives that would require the Supreme Court Justices to participate in ObamaCare. I agree with that, but while we are at it, let’s include Congress and the President.

The article reports:

Babin’s potential legislation would only let the federal government provide healthcare to the Supreme Court and its staff via ObamaCare exchanges.

“By eliminating their exemption from ObamaCare, they will see firsthand what the American people are forced to live with,” he added.

His move follows the Supreme Court’s ruling Thursday morning that upheld the subsidies under ObamaCare that are provided by the government to offset the cost of buying insurance.

All government officials and employees should be required to live under the laws they pass and uphold. We have had enough of ‘one law for me and one law for thee.’

 

The Challenges To ObamaCare Continue

Fox News reported yesterday that the Supreme Court may be taking another case regarding ObamaCare.

The article reports:

Liberty University, a Christian college in Virginia, has been fighting the employer mandate since the law was enacted, while challenging the law on other constitutional grounds. The school got as far as the 4th Circuit Court of Appeals, which refused to hear the merits of the case. That federal court decided that the original Liberty University lawsuit was barred because of the Anti-Injunction Act, which would block any challenge to a “tax” before a taxpayer actually pays it, in this case referring to the penalties associated with failing to obtain health insurance. 

In June, the Supreme Court ruled that the Anti-Injunction Act did not serve as a barrier to lawsuits challenging the health care law. On that basis, Liberty University immediately petitioned the court to allow it to renew its original case.

On Monday, the Supreme Court noted the university’s renewed request and gave the administration 30 days to respond to the request, suggesting that the justices are taking the Liberty request seriously.

ObamaCare is bad law, and I suspect that if the majority party in Washington changes in November it will be repealed and replaced. I hope so.

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The Supreme Court Has Spoken

About an hour ago, the Supreme Court released its decision on the Patient Protection and Affordable Care Act. My source for this article is an Ed Morrissey article at Hot Air. The comments on the article are as interesting as the article. Some of the comments:

You haven’t purchased a GM vehicle, Comrade. Better get moving on that. You don’t want to get taxed, do you?” — BHO

Can new taxes be passed with just a reconciliation vote?  talkingpoints on June 28, 2012 at 10:47 AM

In my opinion: with the Medicaid expansion clause, if States decide not to expand Medicaid, HHS cannot take their Medicaid funds away. Hence, if half the country doesn’t choose to participate, the Feds can’t force them to. I believe this will effectively kill the bill.

Keep calm and vote Romney.

At this time, the stock market has fallen about 150 points since the announcement. Most Americans have 401k plans that have just been negatively impacted by this decision.

Ed Morrissey reports:

After months and months of focusing on Anthony Kennedy as the weak link in the conservative chain at the Supreme Court, it turns out that Chief Justice John Roberts was the one the Right needed to fear.  With the more centrist Kennedy dissenting, Roberts signed off on the individual mandate in ObamaCare, not as part of Congress’ power under the Commerce Clause, or even the ludicrous reference to the “Good and Welfare Clause” from some Democrats, but from the more mundane and substantial power to tax.  The opinion actually ruled that the mandate violates the Commerce Clause, but as a tax that no longer matters.

The only good thing about this decision is that it will energize those Americans who believe in individual rights. This now becomes a major election issue with the debate being between those people who still believe they are entitled to a free lunch and those people who realize that someone always has to pay for a free lunch.

Upholding the law means that all the lawsuits concerning the freedom to practice religion will go forward. Some of these cases will probably also wind up at the Supreme Court. It will be interesting to see what happens next.

The future of America will depend on what happens in November. Vote!

 

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The Next Battle In The Healthcare War

On Thursday, Matt Sheffield posted an article at CNS News about the next step in the war over Obamacare. Although it is not at all a sure thing, there are many people who feel that the Supreme Court will strike down the law as unconstitutional because it requires all Americans to purchase a product whether they want to or not. Mr. Sheffield points out that the left is already preparing for the next battle. He cites some recent statements by left-leaning pundits:

If the Supreme Court strikes down the individual mandate in Obamacare, the result will be higher insurance premiums and, “we’ll just blame Republicans for it,” says Democratic strategist Bob Beckel, appearing on the Wednesday edition of Fox News’ The Five.

…Andrew Koppelman, writing in Salon today, asserted that the arguments against the individual mandate amount to nothing more than “silliness,” and said the “silly” arguments “nonetheless seemed to sometimes move Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Samuel Alito.”
 
…Steven Rosenfeld, writing at AlterNet, says Republicans “don’t want to fix our broken healthcare system.” He writes: “The Republican Party again showed its petulant, “party-of-no” face on Tuesday as lawyers representing 26 red states and conservative think-tanks told the U.S. Supreme Court that nobody should be forced have health insurance—even if people carrying insurance end up subsidizing the defiantly uninsured who get ill.
 
The Supreme Court is expected to release its decision sometime in June or July. Prepare for healthcare to be a major issue during the 2012 election. Be ready to listen carefully as very little of what you hear may actually be true.
 
 
 
 
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The Supreme Court Rules On Lutheran School Teacher Firing

On Wednesday, Christianity Today posted an article about the recent Supreme Court decision regarding the firing of a school teacher in a Lutheran School. The court ruled that the teacher was a ‘minister’ and could not sue the church after she was fired in 2005.

The article reports:

“The First Amendment provides, in part, that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,'” Chief Justice John Roberts wrote in the unanimous opinion. “We have said that these two Clauses ‘often exert conflicting pressures,’ and that there can be ‘internal tension … between the Establishment Clause and the Free Exercise Clause.’ Not so here. Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.”

This is an important ruling. The article points out how this ruling may impact some recent decisions regarding religious groups on college campuses:

If the government can’t tell a church or religious group to accept or reject a minister, he asks, “How then it can be constitutional for a public university to tell religious student groups what criteria they can and cannot use in selecting their leaders? Does this decision have a penumbra that strengthens the freedom of religious organizations more broadly? That remains to be seen–yet the language and the unanimity of the decision are encouraging.”

Kim Colby, senior counsel for the Christian Legal Society’s Center for Law and Religious Freedom, was similarly encouraged. “This decision should help religious groups that are being charged with ‘religious discrimination’ when they require their leaders to agree with their statement of faith,” she said. “In a conflict between nondiscrimination laws and religious liberty, religious liberty prevailed. Nondiscrimination laws serve vital and good purposes in our society. But they have been increasingly misused to harm religious liberty in a number of contexts over the past decade.”

The CLS lost a Supreme Court battle last year when the justices ruled 5-4 that a California law school can bar groups that require leaders to sign a statement of faith.

The battle for freedom to allow religious groups to be religious is just beginning. If I started a bridge club, I would want the people joining to be interested in playing or learning to play bridge. It makes no sense to allow someone to join a bridge club if they are only interested in playing hearts or poker (or even volleyball). That is not discrimination–it is common sense. Sometimes you have to discriminate–not because you are being unfair, but because you are protecting a common interest. A bridge club that plays hearts or poker (or volleyball) really does not make a lot of sense. 

 

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