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What About Gorsuch?

 

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I have had a few people, admittedly not many, ask me what I think of President Trump’s nomination for the Supreme Court. For many voters, this was the reason that they voted for Trump. Specifically, they were concerned about who Hilary Clinton would nominate, if elected President.

So, many were able to put aside other “Trump issues”. It either became a vote of “anybody but Hilary” or “Vote Trump for the sake of the Supreme Court”.  Trump managed to even become the rallying choice of many churchgoers. Others just liked the idea of a Trump Presidency to just “shake things up!”. And here we are!

So who is Neil McGill Gorsuch? It’s easy to see the “resume material” by going to Wikipedia. And during his judicial career, he authored more than 200 decisions while serving as a federal appellate judge for the Tenth Circuit Court of Appeals.

He was included in over 800 judicial votes as part of the appellate majority opinion. Some of his opinions have been in favor of forced arbitration, which usually infers a leaning toward corporations who don’t want to be subject to jury trials. This leaning is also inferred from a 2005 brief that he wrote, while in private practice.

In that brief, he denounced class action lawsuits against corporations, by shareholders. He wrote, “the problem is that securities fraud litigation imposes an enormous toll on the economy, affecting virtually every public corporation in America at one time or another and costing businesses billions of dollars in settlements every year“. Then he took a shot at attorneys who handle these claims by noting that limitations on class action lawsuits by requiring arbitration also have the effect of causing, “the free ride to fast riches enjoyed by securities class action attorneys in recent years … to hit a speed bump”.

I don’t think that anyone could find a judicial nominee that they can totally agree with on all issues. Unfortunately, Senators now seem to find agreement, based on party affiliation.

I guess my fascination relates to the issue of whether judges should be confirmed because of their qualifications, or because of whether a Senator agrees with them on issues.

Past history used to be, that if a President nominated a potential judge, that the Senate would be predisposed to approve them. Because the Constitution does not list any qualifications for service as a Justice; the only consideration is Presidential nomination, and then approval by the Senate.

History has some great stories about the nomination process that includes President Reagan withdrawing the nomination of Douglas H. Ginsburg, because of reports that he had smoked marijuana. Going back to Justice Felix Frankfurter (great name for a Justice), he appeared before the Senate to answer questions as to whether he was a communist. And, Merrick Garland’s 2016 nomination will be an answer to a trivia question.

Will this next confirmation hearing give us more interesting history?

 

And for pic o’ day, this is completely unrelated to anything in the blog, except that it made me smile!

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More Harm Than Good

When David Prowse was hired to play Darth Vader for the first Star Wars movie, he prepared and spoke all of Darth Vader’s lines through the mouth of the suit. It wasn’t until he saw the first screening of the movie, that he learned that all of his lines had been dubbed over by the voice of James Earl Jones.

As we approach President Trump’s Thursday announcement of his Supreme Court nominee, I am reminded of David Prowse in that suit. Trump has stated that he will nominate someone “Like Justice Scalia”. Reportedly, Trump has narrowed down to three possible individuals. (here) If you scan those candidates, you might think like me and wonder “who is going to wear the ‘Scalia suit’?”.

Which brings me to one possible curious obstacle to President Trump’s wall building along the Mexican border. It comes from a majority opinion that Scalia wrote in 2015. (From the Opinion Pages of the NY Times)

Before the Supreme Court, an issue involving the Clean Air Act and whether the Environmental Protection Agency was correct in enforcing a provision to limit mercury emissions from power plants. And more specifically, whether such enforcement should balance the costs of enforcement to the power plants.

Scalia wrote that the EPA must consider the costs in such enforcement and that “No regulation is appropriate if it does significantly more harm than good”. The Secure Fence Act authorizes the Secretary of Homeland Security to take actions to enforce our borders when such actions are “necessary and appropriate”.

Now, this gives us a possible showdown at high noon, sometime in the future. The next Supreme Court Justice will be part of the Court who is expected to be faced with some case involving the”Trump Wall”. Will Scalia’s 2015 reasoning be the Court’s guide? Will the expense of the wall (15-25 billion) not be justified because of the amount of illegal immigrants still entering the U.S.? The cost will be do harm than good?

And for pic o’ day, “On the fence”:

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Supreme Court Thoughts

Some people like to announce things… to the shock of others. This blog deals with the Supreme Court… and their recent case announcement.

What About Bob was an old Bill Murray movie. Maybe I should have called this blog “Should Bob be worried”, based on Bob McDonnell’s court case that was heard in front of the Supreme Court as the last case of the session.

I thought that the case recited below that was heard by the Court a few weeks before the McDonnell appeal might have some analogy; but hopefully for Bob… not similarity. So, here’s some court stuff:

This Supreme Court opinion dealt with the facts of a lower court criminal case, involving a Baltimore body shop, that gave kickbacks to police officers who referred drivers with crashed and damaged cars.

In a 5-3 decision,  the U.S. Supreme Court ruled that although the defendant police officer  did not try to take anything from third parties, he could still be convicted of conspiracy to commit extortion under the Hobbs Act.

Several times between 2009 and 2011,  Officer Samuel Ocasio, while on duty, encouraged auto accident victims to take their cars to the Majestic Auto Repair Shop. The shop reportedly paid police officers a referral fee of between $150 and $300 for each referral. Officer Ocasio was  caught and convicted of three counts of extortion and one count of conspiracy.

His attorneys argued that he could not be charged with conspiring with the owners to get the payments, because a conspiracy conviction would need proof that they tried to extort property from a third party.

The Supreme Court majority opinion, written by Justice Samuel Alito, found that because Ocasio was acting  as a public officer while reaching an agreement with  body shop owners to get cash payments,  and that the conviction should stand. He was joined in the majority by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Their opinion in part read:

In order to establish the existence of a conspiracy to violate the Hobbs Act, the government has no obligation to demonstrate that each conspirator agreed personally to commit—or was even capable of committing—the substantive offense of Hobbs Act extortion,” Alito wrote. “It is sufficient to prove that the conspirators agreed that the underlying crime be committed by a member of the conspiracy who was capable of committing it.”

Justice Clarence Thomas wrote in dissent:

Under a correct understanding of Hobbs Act extortion, it is illogical and wrong to say that two people conspired to extort one of themselves. As explained, in a Hobbs Act extortion case, the only perpetrator is the public official; the payor is a victim and not a participant.”

Another dissent opinion by Justice Sonia Sotomayor, and joined by Chief Justice John Roberts disagreed with the majority’s interpretation of the Hobbs Act. When conspirators want to extort something from someone, she reasoned, they frequently look for victims outside their group.

“’ I But in upholding the conspiracy conviction here, the Court interprets the phrase extorting property ‘from another’ in the Hobbs Act contrary to that natural understanding,” Sotomayor wrote. “It holds that a group of conspirators  can agree to obtain property ‘from another’ in violation of the act even if they agree only to transfer property among themselves. That is not a natural or logical way to interpret the phrase ‘from another’ I respectfully dissent.”

I wonder if that gives us any insight into how the court will rule on our former Governor’s conviction, here in Virginia. Former Governor McDonnell needs those same 5 votes to go his way. A 4-4 tie will only serve to reaffirm his conviction. Like all politicians…he is still looking for the votes.

Court opinions are based on what? Not mood and attitude. As some coaches used to say about how hard practice was going to be, “It’s based on mood and attitude. My mood and your attitude”.

That leads me to our pic o’ day… and some body shop sign humor:

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Consent to Bad Treatment

      You walk into a doctor’s office and they hand you a clipboard and pen. Then, they  ask you to fill out the forms. At the end, you usually find a form called a Consent Form that basically advises you that you are consenting to a whole bunch of stuff when you receive treatment from the doctor.

The big question is whether that consent is binding on you if you sign it. Well, the Virginia Supreme Court, in a dental malpractice case, now tells us that it’s not. You are not consenting to malpractice. The case is styled Fiorucci v. Chinn (McClanahan) No. 131869, Oct. 31, 2014; It originated in the Alexandria Circuit.Court.

The facts of the case showed that during trial, the defendant dentist (through his attorney) sought to introduce the risk of surgery discussion that took place before the dental procedure .

During the trial, the circuit court judge ruled that the risk of surgery discussions between dentist and his patient were not relevant. The Judge would not allow that evidence to be presented to the jury.

The Supreme Court agreed with the trial court judge in ruling that Plaintiff’s awareness of the risks of the extractions was not a defense against his claim that defendant deviated from the standard of care in misdiagnosing the condition of plaintiff’s wisdom teeth or negligently performing the surgery. Evidence of the informed consent discussions was neither relevant nor material to the issue of the standard of care.

The case now affirms that just because we sign that form doesn’t mean that we are saying that we are ok with negligence. Something to think about the next time that they slide that clipboard to you through that little window.

And for our pic o’ day… a bit of medicine:

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A Presidential Restaurant Stop

It is a Supreme Court case pitting the question of freedom of speech versus a question of safety for the President styled Wood v. Moss  (Washington Post) The losing party’s spokesman voiced the following response to the Court’s opinion, “No one disputes that the Secret Service has an overriding interest in protecting the president, but that does not include the right to shield the president from criticism,”  Does that tell you how the Court ruled 9-0?

As summarized in the case review from my VTLA eBlast, “The U.S. Supreme Court has dismissed a lawsuit filed against several Secret Service agents accused of treating critics of President George W. Bush differently than his supporters. In a unanimous decision, the court ruled that ‘the agents were immune from a lawsuit because they had good reason to move the protesters farther away when the president decided to dine on a patio after a 2004 campaign event in Jacksonville, Ore.’.”

In October 2004, during a campaign trail appearance in Oregon, President Bush decided to make an impromptu stop at a local restaurant. About 15 minutes after the President was seated, a noisy protest began. Soon, the anti-Bush crowd was moved away by the Secret Service. Those who were deemed as supporters of the President were not asked to move.

Seven protestors filed suit against the Secret Service agents who were responsible for moving them. They were represented by the American Civil Liberties Union, alleging that because they were treated differently from the other pro-Bush demonstrators, that their right to free speech had been violated.

Justice Ruth Bader Ginsburg wrote the opinion for the unanimous decision, noting that there was no precedent that says that Secret Service agents in a crowd control situation, have a First Amendment obligation to ensure that different viewpoints be kept at comparable distances. As Justice Ginsburg noted, “Nor would the maintenance of equal access make sense in the situation the agents confronted”.

The opinion of the Court also noted that the pro-Bush supporters could not have endangered the President when looking at their location from maps and diagrams. However, the protesters “were within weapons range, and had a largely unobstructed view of the President’s location”.  Thus, the Court’s finding of immunity for the agents.

DID YOU KNOW that a British man legally changed his name to Tim Pppppppppprice, to make it harder for bothersome telemarketers to pronounce? I guess just not answering the phone was not an option.

And for pic o’ day, a funny slant on the Chuck Norris humor:

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The Foil-wrapped Hot Dog

Injury by wiener. Not your usual reported injury. Still, as described by Sports Illustrated, this is the story of a sports injury that is headed to the Missouri Supreme Court.  The Court is deciding whether the “baseball rule” applies to injuries that are caused by a team mascot.

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There is a legal doctrine called the baseball rule that protects sports teams from being sued over fan injuries that are caused by events on the field. This has never been extended to injuries that fans suffer as a result of conduct by a team mascot.

In 2009, the Kansas City Royals mascot Sluggerrr, hit a fan with a foil-wrapped hot dog when he tossed it behind his back and into the stands. John Conner did not see the hot dog and it hit him in his eye. As a result, he has had two surgeries; one to repair a detached retina and the other to remove a cataract that developed. Coomer’s vision is now permanently damaged and he has paid approximately $4800 in medical bills.

The case went to trial and the jury sided with the Royals, determining that Conner knew what was going on around him. Conner appealed and the Court of Appeals vacated the judgment for the Royals but found that a mascot’s conduct was protected, just like getting hit by a foul ball.

Now, the Missouri Supreme Court is going to hear oral arguments on the appeal. This appears to be a case with few prior rulings across the country relating to whether the Royals or any sports team owes any duty to its fans.

Whatever the ruling, this case could have some impact on the future liability of teams and what is considered to be an essential part of a game. The attached article also cites other recent cases that did find some basis for liability.

One 1997 California case found that a mascot’s conduct did not extend as an esssential part of a baseball game. In that case, a minor league baseball team’s dinosaur brushed against a fan, distracting him right before a baseball hit him in the face. That fan suffered several broken bones in his face. So, from a legal viewpoint, the Court will decide the question in Missouri of how far the “baseball rule” extends to protect from liability.

DID YOU KNOW that before 1859, baseball umpires sat in padded rocking chairs behind the catcher, to call balls and strikes.

And for pic o’ day…

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The Illegal Alien Letter

An Indiana lawyer has been suspended for 30 days by the Indiana Supreme Court because of a comment that he used in a letter. (ABA Journal). The lawyer, Joseph B. Barker, wrote a 2009 letter to an opposing counsel to protest a client’s access to his child, in a custody case.

Here’s what the letter said that brought the suspension:

Your client doesn’t understand what laws and court orders mean I guess. Probably because she’s an illegal alien to begin with. I want you to repeat to her in whatever language she understands that we’ll be demanding she be put in JAIL for contempt of court. I’m filing a copy of this letter with the court to document the seriousness of this problem.”

The Indiana Supreme Court ruled that the letter violated ethics rules because it “had no substantial purpose other than to embarrass, burden or delay a third person”.

I know what you are thinking. He should not have used contractions in a formal letter. Wait… that’s not what you are thinking?

DID YOU KNOW that Coca-Cola would be green if coloring was not added to it? I guess I am more surprised that you can bake a ham that has been basted with Coca-Cola, to produce a delicious gravy.  At least that’s what they say!

And for pic o’ day, here’s what you can say today if someone catches you sleeping:

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Judicial Salary Punishment

Years ago, I heard an example of authority in the military. A Navy Chief instructed a newly enlisted sailor that he wanted him to get on his knees and scrub the ship’s deck. The enlisted man had not yet learned the meaning of listening. He gave the chief a look and shook his head that basically said, “make me”. The Navy chief looked at him and said, “Son, I may not be able to physically make you clean the decks, but I can sure make you wish that you had”.

While reading this month’s ABA Journal aricles, I saw a story that reminded me of that Navy Chief. Some Iowa legislators are trying to send that kind message to some Iowa Supreme Court Justices.

A group of conservative state legislators were disturbed that in 2009, the Iowa Supreme Court had ruled to legalize gay marriage. Some of the Justices had already been voted out during a 2010 retention election. Still, four of the Justices that were part of that 2009 opinion were still on the bench. So, these legislators decided that they were going to work to slash their annual pay from $163,200 to $25,000.

Republican Representive Dwayne Alons says that he submitted the salary cut legislation because the court’s decision to legalize gay marriange was an inappropriate “shift of power”, and that these judges and the attorney general were “acting as an oligarchy” when they implemented the juducial opinion; instead of leaving it up to the legislature. Alons and his fellow legislature said that they proposed the salary cut to put the Justices on par with the salaries of legislators.

Alicia Bannon, counsel for the nonpartisan law and policy institute Democracy Progam at the Brennan Center for Justice, cautions against such legislator actions. She expressed that, “These assaults on judicial independence hurt public confidence in the judicial branch. You don’t want them (judges) to worry about being retaliated against for unpopular decisions”. Judge down

Is it a balance of powers or is it an attack on the judiciary, that could jeopardize our American tradition of impartial decision-making?

And for pic o’ day for a Monday, I thought that we needed “Party Time”:

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Justice Scalia’s Opinion

Supreme Court Justice  Antonin Scalia has been under a bit of scrutiny for his opinions and the way the he has expressed himself publicly. He is a Justice who engenders strong feelings from both sides of the political spectrum.  Sunday’s “LA Times” included one writer’s suggestion that Scalia is even “morally reprehensible”.

On the speech circuit at colleges, Justice Scalia is known as an opinionated and colorful speaker. When recently and publicly discussing his dissent opinion on an immigration case, he criticized the policies of the Obama administration, causing the idea to be floated that he might even be a potential future political candidate. This website outlines his known opinions and classifies them as the “Political Courage Test“.

At one recent speaking engagement, the Justice was asked by a questioner whether his dissent opinion showed that he was a bit cantankerous. His response was that, “I’m not cantankerous. I express myself vividly”.

It is quotes like that which make Justice Scalia  an interesting read. In a recent “Trial Magazine”, I saw that he did not take kindly to being told that Seventh Circuit Judge Richard Posner  had commented on his immigration dissent. Judge Posner had mentioned that Scalia’s opinion might even be used in upcoming political ads against Democrats. To that, Scalia replied, “He’s a court of appeals judge, isn’t he? He doesn’t sit in judgment of my opinion as far as I’m concerned.”

For pic o’ day, I have returned to a few that I posted last year. I kept this one because even during the year, I would go to it for a laugh:

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