Trump claims he can defy Constitution and end birthright citizenship

(THIS ARTICLE IS COURTESY OF CNN)

 

Trump claims he can defy Constitution and end birthright citizenship

Washington (CNN)President Donald Trump offered a dramatic, if legally dubious, promise in a new interview to unilaterally end birthright citizenship, ratcheting up his hard-line immigration rhetoric with a week to go before critical midterm elections.

Trump’s vow to end the right to citizenship for the children of non-citizens and unauthorized immigrants born on US soil came in an interview with Axios released Tuesday. Such a step would be regarded as an affront to the US Constitution, which was amended 150 years ago to include the words: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”
Trump did not say when he would sign the order, and some of his past promises to use executive action have gone unfulfilled. But whether the President follows through on his threat or not, the issue joins a string of actions intended to thrust the matter of immigration into the front of voters’ minds as they head to polls next week.
A day earlier, the President vowed in an interview on Fox News to construct tent cities to house migrants traveling through Mexico to the US southern border. His administration announced the deployment of 5,200 troops to protect the frontier as the “caravan” continues to advance. And the President has warned of an “invasion” of undocumented immigrants if the border isn’t sealed with a wall.
Still, the threat of ending birthright citizenship amounts to another escalation in Trump’s hard-line approach to immigration, which has become his signature issue.
“We’re the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits,” Trump said in an interview for “Axios on HBO.”
Several other countries, including Canada, have a policy of birthright citizenship, according to an analysis by the Center for Immigration Studies, which advocates for reducing immigration.
“It’s ridiculous. It’s ridiculous. And it has to end,” he continued.
The step would immediately be challenged in court. Some of Trump’s previous immigration executive orders, including an attempt to bar entry to citizens from some Muslim-majority countries, came under legal scrutiny after a chaotic drafting process. At the same time, the President has derided his predecessor Barack Obama for taking executive actions to block some young undocumented immigrants from deportation, a step Trump said was a presidential overstep.
The American Civil Liberties Union slammed Trump’s proposal Tuesday morning.
“The president cannot erase the Constitution with an executive order, and the 14th Amendment’s citizenship guarantee is clear,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project. “This is a transparent and blatantly unconstitutional attempt to sow division and fan the flames of anti-immigrant hatred in the days ahead of the midterms.”
The White House did not provide additional details of the planned executive order on Tuesday morning.
“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” he said, adding that he has run it by his counsel. “You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order,” Trump said.
The President didn’t provide any details of his plan, but said that “it’s in the process. It’ll happen.”
The interview is a part of “Axios on HBO,” a new four-part documentary series debuting on HBO this Sunday, according to the news site.

In face of midterm elections, Fla. GOP candidate’s words on slavery should scare everyone

(THIS ARTICLE IS COURTESY OF THE USA TODAY NEWSPAPER)

 

In face of midterm elections, Fla. GOP candidate’s words on slavery should scare everyone

Excuse of past wrongs not just about Constitution. Falls in line with attitude that hurts immigrants, minorities and shapes ideas about police duties.

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As midterm elections loom, candidates’ every move (including their history) is being watched. It’s no shock, then, that former Rep. Ron DeSantis, the GOP candidate for Florida’s gubernatorial race, has been facing backlash this month for his 2011 book, “Dreams from our Founding Fathers: First Principles in the Age of Obama.”

One of the book’s many racist rants centers on the argument that first black Supreme Court justice, Thurgood Marshall, a highly esteemed intellectual, was mistaken in his claim that the Constitution was fundamentally flawed due to its silence on the abolition of slavery.

DeSantis criticizes Marshall’s castigation as one that “overshadows the numerous and long-lasting political achievements embodied in the structural foundations of the government that have nothing to do with the institution of slavery.”

But the Constitution, as a founding document that influences every aspect of how we live, should not be interpreted as a whole, but rather picked apart and scrutinized. It should be viewed through a lens that takes into account the social and political context of our time. An integral part of our history and progress as a nation is the ability to recognize past wrongs and atrocities, not excuse them.

Continuing to place people who hold outdated, racist beliefs in positions of power only perpetuates the collective amnesia that America suffers in regards to its racist history. Works like DeSantis’ book are modern-day propaganda, spinning the events of our country’s past to try to forge a sense of nationalism in the face of evil.

Books like DeSantis’ are dangerous to everyone.

With each one comes the resurgence of a vicious cycle in which those who are skeptical about the existence of racism are confirmed in their beliefs, feeling empowered to be ignorant in a world where ignorance can be one of the most dangerous forms of violence for minorities.

What message does it send to the rest of the country — especially the staggering number of women and people of color running for office — when we elect people who have shown us with their actions and words that they do not care about all of their constituents?

Though the argument could be made that DeSantis’ book is several years old and that the candidate may have changed, this is only one of several racially charged controversies DeSantis has been involved in leading up to and during his gubernatorial run. Less than 24 hours after clinching the Republican nomination, he warned voters not to “monkey this up” by choosing his opponent, Andrew Gillum, whose election would make him the first black governor of Florida.

DeSantis’ racially insensitive comments directly layer into the very platform he is running on — including his stance on immigration and sanctuary cities. He has made it publicly clear that he would punish any Florida city that adopts sanctuary policies preventing officers from cooperating with the federal government on immigration. He also strongly supports building a border wall. Ironically, had similar ideas been held by our country’s earlier legislators, DeSantis’ family would not have been able to immigrate.

DeSantis is keenly aware of the current political climate and the demographic of his voters. His selective ignorance about racism is a key strategy in his gubernatorial run. It depends on the votes of those who claim to be skeptical that racism exists to place him in a position of power — a position that would endanger minority communities across Florida.

The election of DeSantis would not only confirm the belief that racism isn’t real, it would also confirm that Florida is actively accepting and promoting bigotry with no consequences. This kind of environment further emphasizes that, so long as you’re a person of color, your voice will not be heard and you will likely never have a chance to make a change. It establishes a level of hostility that opens the gates for racism and hatred to fester like a disease, plaguing our country more and more each time bigotry is voted into office.

Pride in our country and the recognition that discrepancies in power and resources exist are not mutually exclusive ideas.

This election season, ask more of your fellow voters. Encourage those around you to elect candidates who will work in the best interests of all their constituents, not just the ones who are mirror images of themselves.

Ask that we, as a country, think critically about the entirety of America’s past and use that history as a stepping stone toward a more progressive, more equal future.

Ben Crump is a nationally known civil rights attorney and advocate and is the founder and principal of Ben Crump Law.

Folks: How Do We Personally Believe In The Independence Of OUR OWN: Supreme Court?

Folks: How Do We Personally Believe In The Independence Of OUR OWN: Supreme Court?

 

Well Folks, do We? This is a case where 1/3 of Our National Government is in the hands and minds of just 9 of Our own People. I personally would not want to have to be a judge, at any level. Not with all the sins that I know that I have  committed. I don’t want to have to have a job of being a Judge where what the 9 of you say, is final. Folks, that’s just like being one step away, or below, God! I am not saying that this Job can’t be done, but to be Truly Independent of the Other 2 Branches of Our Government, at every level is necessary. To me, and I know that I could be wrong, but I believe that in Our Country’s Supreme Court Job Description, that Job Description is to make sure that all Laws are Constitutional! Now again, do the Nine Folks we now have on The Nations Top Court realize the weight upon each of them to be in charge of 1/3 of Our Government? Personally, there is no way, no amount of money that could get me to want that Job. Think of the pressure on all 9 of these folks to be, Honest. Has Our Nations Supreme Court become nothing but pawns of Big Politics, and Big Money? Do you have the Intelligence, and the Morals, do you Mr. Kavanaugh? What are you walking into Mr. Kavanaugh, do you really know? Well folks, as a very dear friend of mine used to say once in a while, “we shall see what we shall see.” Fore without an independent Supreme Court, there is no Democracy and as little as 9 people holds in their hands the weight of 1/3 of the Constitutional Government. Their sort of like those “Super Delegates” the Democrats been hosting, aren’t they? Except if you can totally control one of these 3 Branches of our Government, 9 people could control our Country. How much weight is on Mr. Kavanaugh? How much weight is on all 9 of these people? As I said earlier, I wouldn’t want this job no matter what the pay. When we add in the reality that another 1/3 of Our Government is in the hands of just One Person. Folks this means that 2/3 of Our whole Government is the Hands of 10 people. That is too much power if those positions aren’t filled with quality persons, now who decides what “Quality” is. Now Folks, does this help you see why I would not want to ever have to be in the place of one of these nine Folks.

Over Turning Supreme Court Rulings

Over Turning Supreme Court Rulings 

 

If you live here in the U.S. and you pay any attention to the national news you probably know of a man named Brett Cavanaugh who is President Trumps hand-picked Judge to fill the Supreme Court vacancy created by the retirement of Justice Kennedy. Quite honestly the more I dig into the life and character of Judge Cavanaugh the less I want to see him confirmed by the Senate for this post. In this article I am not going to get into all of the reasons that I believe he is a very bad choice to be on the Bench but I am going to discuss the politics being injected into the choosing of Supreme Court Justices these days. As most of you probably know there are nine Justices that sit on the Bench and they are appointed to lifetime positions.

 

Of the eight current Justices it is considered that 4 are ‘liberal’ and 4 are ‘conservative,’ so this makes this 9th members spot very important to the politicians, both Republicans and Democrats. The Republicans want to get Mr. Cavanaugh confirmed before the mid-term elections that are being held in 7 weeks because they know if the Democrats are able to take control of the Senate that a ‘conservative’ like Mr. Cavanaugh will not happen because the Democrats would have the votes to block it. One of the big reason that the Republicans want Mr. Cavanaugh on the Bench is because they want to get some existing laws changed and they could do it with a 5 to 4 margin in the Supreme Court.

 

Laws that the Republicans want over turned are things like ‘Roe V Wade’ which legalized abortion back in 1973, Gay marriage and ‘The Affordable Care Act/Obama Care.’ To me I have always felt that the purpose of the Supreme Court is for them to decide what is legal or not legal via the U.S. Constitution. The Court was set up by our Nations Founding Fathers about 240 years ago in an attempt to eliminate politics from the decision-making process of what is Constitutionally legal, or not. The term being thrown around in the Senate hearings is “precedent”, meaning, Judge Cavanaugh, do you believe in it? Judge, do you believe that once a law is in place that has been voted on by prior Supreme Court Justices should not be ‘revisited’? The purpose of these 9 Justices is for them to make their decisions on what our Nations Constitution says, not on what their personal likes or dis-likes are nor what their political view points are.

 

Don’t get me wrong, I personally believe that there have been Supreme Court decisions in the past that I think were bad decisions, ones that I wish the Court had ruled differently on like Roe V Wade. There is another Court decision from about 1963 where a Court ruling made it to where District Attorneys can not be criminally or materially sued for their Court decisions. The 1963 Ruling was because the Justices at the time believed that D.A.’s would always be honest and would never do things like obstruct justice in court decisions. I have often wondered if those Justices were actually that naive, or really just that stupid. But, I believe that once a Supreme Court Decision has been made that said decision should not be able to be ‘revisited’, that ‘precedent’ should always hold. Yet the validly of this line of though depends on all Supreme Court Justices, on every case, on every vote to be made by their interpretation of the Nations Constitution, if this is not what they are doing then in my opinion it is they who are breaking the laws of the every Constitution they have sworn to uphold.

Sen. Booker Releases Judge Kavanaugh Doc’s Republicans Trying To Hide From Public

(THIS ARTICLE IS COURTESY OF THE HUFFINGTON POST)

 

Cory Booker Releases Confidential Documents During Kavanaugh Hearing

Hawaii’s Sen. Mazie Hirono followed Booker’s threat to publish formerly confidential documents with her own release during the third day of hearings.
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Sens. Cory Booker (D-N.J.) and Mazie Hirono (D-Hawaii) released formerly confidential emails from Supreme Court nominee Brett Kavanaugh about racial profiling and racial discrimination at the start of the third day of confirmation hearings on Thursday, around an hour after threatening to do so.

The dramatic move appeared to defy Republicans who had shielded the documents from public view, and it seemed to risk breaking Senate rules. Senate Judiciary Committee staffers for Republican and Democratic officials told The Washington Post, however, that the committee cleared the documents for public viewing before either senator posted them to their websites. A spokesman for Bill Burck, the Republican lawyer overseeing the approvals, also told the publication that the emails Booker released were cleared last night.

The precise timing is not yet clear.

A spokesman for Booker said in a statement that the senator and unnamed Democratic colleagues “were able to shame the committee” into releasing the documents. Yet a spokeswoman for Hirono told HuffPost the senator did not ask the committee to release the emails that she made public around 10:30 a.m. before she published them online. Hirono did not know they would be cleared for public release, the spokeswoman said.

Booker was the first to threaten to make the documents public, saying he would “knowingly violate” the rules and accept any punishment for his action, which he considered to be civil disobedience. Booker said the emails, taken from Kavanaugh’s time in the Bush White House, do not pose a threat to national security.

Sen. Cory Booker (D-N.J.) asks Supreme Court nominee Brett Kavanaugh a question during a confirmation hearing on Wednesday.

THE WASHINGTON POST VIA GETTY IMAGES
Sen. Cory Booker (D-N.J.) asks Supreme Court nominee Brett Kavanaugh a question during a confirmation hearing on Wednesday.

Sen. Mike Lee (R-Utah) said the emails Booker referenced had, in fact, just been deemed non-confidential, saying “the process worked.” Lee offered to work with Democrats in the committee to make other confidential documents public, too.

When Sen. John Cornyn (R-Texas) reminded Booker that he could lose his seat for breaking Senate rules, prior to the documents’ release, Booker responded: “Bring it.”

At the hearing, Sen. Richard Blumenthal (D-Conn.) argued that all the committee confidential documents should be publicly released, saying, “We are literally trying to get at the truth here.”

Booker’s documents, released Thursday afternoon, reveal that while Kavanaugh “generally” supports “race-neutral” security measures, the nominee also believed there was an “interim” question on whether to use racial profiling before neutral security measures are deployed. The emails between White House staffers were sent from mid-2001 and early 2002.

Messages released by Hirono reference unspecified government programs. Kavanaugh said in June 2002 that any such programs “targeting” native Hawaiians “as a group” are “subject to strict scrutiny” and “of questionable validity under the Constitution.” Hirono said in the hearing that her “colleagues from Alaska should be deeply troubled” by the nominee’s views because they would also apply to native Alaskans. Republican Sen. Lisa Murkowski from Alaska is seen as a possible swing vote in the confirmation process.

Booker’s colleagues Sens. Dick Durbin (D-Ill.) and Hirono also rallied around him, pledging their support in the event Booker faced “retribution,” as Durbin put it. Hirono said she would “defy anyone.”

“You want everything to be made public? All your emails? I don’t think you do,” Senate Judiciary Chairman Chuck Grassley (R-Iowa) responded at the hearing.

Sen. Dianne Feinstein (D-Calif.) jumped in to argue that the process of categorizing documents as committee confidential was far from transparent and perhaps unfair.

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“There is no process for ‘committee confidential,’” she said, adding that Democrats were not consulted in the decision to make certain documents private.

The release was in line with what progressive groups urged Democratic senators to do Wednesday: Go around Grassley and release the 141,000 pages of documents from Kavanaugh’s record that are not permitted for public release or public discussion. Members of the committee can read and discuss the documents among themselves, but they cannot question Kavanaugh on their contents in the hearings.

Read the documents that Booker released below. Hirono also uploaded documents, which are now on her website.

Republican Senator Don’t Care That Judge Kavanaugh Lied Under Oath At Least Twice

(THIS ARTICLE IS COURTESY OF THE HUFFINGTON POST)

 

Sen. Leahy: Withheld Emails Show Brett Kavanaugh May Have Perjured Himself

“There is simply no reason they can’t be made public,” Leahy said.

Sen. Patrick Leahy (D-Vt.) said Wednesday that emails being withheld by Senate Republicans show that Supreme Court nominee Brett Kavanaugh may have lied under oath during his prior confirmation hearings in 2004 and 2006.

The Democrat claimed that six emails from Kavanaugh’s time in the George W. Bush White House may contradict testimony Kavanaugh gave when being confirmed for his federal judgeships. But according to Leahy, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has labeled the emails as “committee confidential,” meaning they can’t be released to the public.

“There is simply no reason they can’t be made public,” Leahy said during confirmation hearings Wednesday.

Sen. Patrick Leahy

@SenatorLeahy

We have discovered evidence that Judge Kavanaugh misled the Senate during his 2004 and 2006 hearings. Truthfulness under oath is not an optional qualification for a Supreme Court nominee. Watch as I question him here: https://www.judiciary.senate.gov/meetings/nomination-of-the-honorable-brett-m-kavanaugh-to-be-an-associate-justice-of-the-supreme-court-of-the-united-states-day-2 

Nomination of the Honorable Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of…

United States Senate Committee on the Judiciary

judiciary.senate.gov

Leahy’s assertion shined a bright light on the fact that committee Republicans are rushing the judge’s nomination through without disclosing a huge number of documents related to his work in the White House counsel’s office under Bush.

Grassley only requested between 10 and 15 percent of the documents from Kavanaugh’s time in Bush administration, and only 7 percent ― 457,000 documents ― have been provided to the committee. Of the documents that have been turned over, Grassley is refusing to publicly release 189,000. The committee asked for no records from Kavanaugh’s time as White House staff secretary.

Sen. Patrick Leahy (D-Vt.) questions Supreme Court nominee Judge Brett Kavanaugh.

CHIP SOMODEVILLA VIA GETTY IMAGES
Sen. Patrick Leahy (D-Vt.) questions Supreme Court nominee Judge Brett Kavanaugh.

The six emails in question related to a scandal from 2002 and 2003 in which a Republican Judiciary Committee staffer named Manny Miranda stole emails from the committee’s Democrats that included strategy memos about how they would question Bush’s judicial nominees.

Leahy alleged that Kavanaugh, in his role preparing those judicial nominees for their confirmation hearings, knew he had received these stolen emails from Miranda detailing the Democrats’ strategy on the nomination of Priscilla Owen to the U.S. Court of Appeals for the Fifth Circuit. Kavanaugh claimed in both his 2004 and 2006 confirmation hearings that if he did receive those documents, he “never knew or suspected” that they were stolen.

Under tough questioning by Leahy on Wednesday, Kavanaugh stated that what he said in 2004 and 2006 was “100 percent accurate.” Leahy’s line of questioning first focused on three emails that are available to the public, then later alluded to the six emails that are not.

Leahy brought up an email sent on July 19, 2002, from Miranda to Kavanaugh and another Bush official that, according to the senator, asked “why the Leahy people were looking into financial ties between two special interest groups and Priscilla Owen.”

Kavanaugh proceeded to read the email and concluded, “I don’t really have a specific recollection of any of this, senator, but it would have not have been unusual [to say] … ‘The Leahy people are looking into this and the Hatch people are looking into that.’”

Then Leahy asked about a January 2003 email.

“Mr. Miranda forwarded you a letter from me and other Judiciary Democrats to then-Majority Leader Tom Daschle,” the senator said. “The letter was clearly a draft. It had typos and it wasn’t signed. Somebody eventually leaked its existence to Fox News.”

Judge Brett Kavanaugh reads from an email sent to him when working at the White House while answering questions from Sen. Pat

WIN MCNAMEE VIA GETTY IMAGES
Judge Brett Kavanaugh reads from an email sent to him when working at the White House while answering questions from Sen. Patrick Leahy.
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“Here’s the thing,” Leahy continued. “You had the full text of my email in your inbox before anything was said about it publicly. Did you find it at all unusual to receive a draft letter from Democratic senators to each other before any mention of it was made public?”

Kavanaugh pointed out that the only reply he made to this particular email was asking, “Who signed this?” According to Kavanaugh, this meant that he did not realize that the document was a draft and, therefore, remained oblivious that the document had been stolen.

Leahy then wanted to know if Miranda ever asked Kavanaugh to meet outside of the White House or the Capitol.

“I can’t rule that out,” Kavanaugh answered.

Leahy continued, “Did he ever hand you material separately from what would be emailed back and forth?”

“I don’t know the answer to that, senator,” Kavanaugh said before hemming and hawing about how sometimes the Democrats and Republicans on the committee worked together.

After his failure to remember whether he met with or received documents by hand from Miranda, Leahy asked Kavanaugh about another specific email. This was the first allusion to confidential emails the committee was not disclosing to the public.

“When you worked at the White House did anyone ever tell you they had a mole that provided them with secret info?” Leahy asked.

Kavanaugh said he didn’t “recall the reference to a mole.”

Leahy got more specific: “You never received an email from a Republican staff member with information claiming to come from spying?”

“I’m not going to rule anything out,” Kavanaugh said, echoing previous denials. “If I did, I wouldn’t have thought the literal meaning of that.”

“Wouldn’t that surprise you that you got an email saying that they got that from somebody spying?” Leahy pressed.

Kavanaugh, realizing that Leahy was talking about a document without revealing it, responded with his own question: “Well, is there such an email, senator?”

This led Leahy to turn to Grassley: “We’d have to ask the chairman what he has in the confidential material.”

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) shouts at Leahy as he questioned the lack of disclosure of Kavana

WIN MCNAMEE VIA GETTY IMAGES
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) shouts at Leahy as he questioned the lack of disclosure of Kavanaugh’s documents.

Grassley responded angrily that all of the documents that the committee has made public from Kavanaugh’s time in the White House counsel’s office are publicly available online. Leahy replied that the email he referenced is marked “committee confidential.” Grassley, angrily yelling, declared that 80 percent of the emails the committee got from the archives are available to the public.

Leahy replied to both Kavanaugh and Grassley: “I’m concerned because there is evidence that Mr. Miranda provided you with materials that were stolen from me. And that would contradict your prior testimony. It’s also clear from public emails … that you had reason to believe that materials were obtained inappropriately at the time.”

“Mr. Chairman, there are at least six documents that you consider committee confidential that are directly related to this, including three documents that are already public,” Leahy added. “These other six contain no personal information. No presidential-act-restricted material. There is simply no reason they won’t be made public.”

Grassley said that he would produce the documents Leahy referenced: “He’s going to get what he wants. And I think there’s five of them.”

Unresolved recusal issues require a pause in the Kavanaugh hearings

(THIS ARTICLE IS COURTESY OF THE BROOKINGS INSTITUTE)

 

REPORT

Unresolved recusal issues require a pause in the Kavanaugh hearings

Laurence H. TribeHon. Timothy K. Lewis, and Norman Eisen

This paper explains why the Constitution as originally designed by the framers requires the Supreme Court nomination of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to be put on hold. It takes no view on his ultimate confirmation. But as one of the authors has elsewhere explained,[1] it offends the structure the framers created for a president who is facing mounting personal liability under our Constitution and laws to choose one of the judges in his own case.

Or more likely, multiple cases. Never before in the history of presidential nominations of Supreme Court justices have there been so many matters of the deepest personal impact to the president that may come before the Supreme Court.

Never before in the history of presidential nominations of Supreme Court justices have there been so many matters of the deepest personal impact to the president that may come before the Supreme Court.

In addition to legal and procedural questions surrounding possible impeachment proceedings, there are a staggering array of issues with which the nominee may well be presented owing to the historically unprecedented fact that his patron the president was a named subject and, but for hesitation to indict a sitting president, could well have been a target,[2] in a criminal investigation at the very time that he handpicked the judge—reportedly after White House consideration of the judge’s views on some of these very issues. As detailed below, those issues include:

  • Whether a president can use the pardon power to shield himself from criminal liability;
  • Whether a president can be charged with obstructing justice;
  • Whether a president can defy a subpoena for testimony;
  • Whether a president can be criminally indicted;
  • Whether a president can unilaterally fire a special counsel without cause; and
  • Related civil matters involving a president’s personal interests.

The need for a pause is particularly strong here, where the judge, as we also explain below, holds views that, while formally denying that presidents are above the law, amount to affirming that proposition as a practical matter—and where the deliberate confirmation process needed at a minimum to examine those views has been rushed and, in our view, broken. All of the authors of this paper have either been before the Senate for confirmation, worked on Supreme Court or other confirmations, or both. We have never seen anything like this hurried and defective process for such an important nomination.

In this paper, we advance an additional constitutional ground that strongly counsels that there be a hiatus. Although the Constitution provides no process for making a binding and enforceable determination that a particular Supreme Court Justice take no part in the consideration and decision of a specific case or set of cases, it does not follow that the Constitution, read with fidelity to its structure and its purposes and in light of the precedents construing its implications, has nothing to say on the matter to a justice who was worthy of confirmation in the first instance. On the contrary, we believe the Constitution instructs that a judge nominated to the Court in the situation that currently confronts Judge Kavanaugh recuse himself from the full swath of cases presenting the issues of personal presidential liability this paper identifies—and that precedent demands he do so now, as other nominees have done under far less compelling circumstances. The confirmation hearings should therefore be halted so these issues can be explored and proper recusals agreed to after due deliberation, including full production of the judge’s documents so his views can be thoroughly probed.

Our position is based upon first principles of our system of justice under the law, reinforced by a trio of Supreme Court precedents in the past decade establishing the parameters of constitutionally mandatory recusal—parameters that are triggered by the unique circumstances of Judge Kavanaugh’s situation. Those cases are Caperton v. A.T. Massey Coal Co.Williams v. Pennsylvania, and Williams-Yulee v. Florida Bar, which we describe in detail below. They have reflected two key constitutional principles that should dictate the outcome of recusal questions: judges must step aside when there is either a “serious risk of actual bias” or where there is an independent and compelling government-wide interest in protecting against the appearance of bias regardless of whether that appearance compromises the particular rights of any litigant. That includes the paramount interest at stake in this case of protecting the public faith in the judicial system as a cornerstone of the legal process as a whole and as a guardian of the rule of law.

While these precedents and the principles they embody have not yet been applied to require a Supreme Court justice to recuse, they plot a trajectory that points unmistakably in that direction. As we explain below, both principles clearly compel recusal here. Bias and the appearance of bias are powerfully implicated by the unique confluence of factors in this case.

If, moreover, we are to believe press reports[3] that Judge Kavanaugh will refuse to commit now to recuse, he will be repudiating the guidance of the Constitution before he ever sits on the Court, inasmuch as recusal is mandatory if our understanding of the Constitution is correct. The seriousness of the matter is highlighted by the fact that other nominees have, as we explain below, committed to the Senate to recuse on substantially lesser grounds. This is after all no routine nomination but a lifetime appointment as one of nine individuals who determine the course of our justice system and the shape of the laws under which all of us will live, and as one who may, among other things, determine the fate of the president who nominated him and potentially of the presidency itself.

If the foregoing press reports are accurate, they further warrant our view that the Kavanaugh nomination should be delayed until the relevant legal issues overhanging the sitting president are resolved—and that the hearings set to begin on September 4, 2018, should not be taking place at this time. That pause must include further production of documents relating to the nominee’s White House service, a process that to date contrasts starkly with the timely and transparent production of documents regarding Justice Elena Kagan’s prior White House service when the Senate was considering her nomination to the Court.[4] To date, only a small fraction of the requested Kavanaugh materials have so far been made available on the hasty schedule gratuitously set by the Senate majority. Unlike with Kagan’s nomination, where no White House documents were withheld on privilege grounds,[5]101,921 of the Kavanaugh documents were abruptly withheld, without adequate explanation of the privilege assertions made in conclusory form, late on the last business eve before the hearings were to begin.[6] The Senate must have adequate time to review those documents as well as the documents that have already been produced, including 42,000 pages produced on the eve of the first day of the hearing.[7]

Download the paper.

Authors

The Hon. Timothy K. Lewis

Hon. Timothy K. Lewis

Counsel – Schnader Harrison Segal & Lewis LLP

U.S. Court of Appeals for the Third Circuit, 1992-99

FOOTNOTES

  1. 1Laurence H. Tribe, The Founding Fathers Wouldn’t Want Kavanaugh’s Confirmation to ContinueWashington Post, Aug. 24, 2018, available athttps://www.washingtonpost.com/opinions/the-founding-fathers-wouldnt-want-kavanaughs-confirmation-to-continue/2018/08/24/5184ece6-a70b-11e8-8fac-12e98c13528d_story.html.
  2. 2Barry H. Berke, Noah Bookbinder, and Norman Eisen, Presidential Obstruction of Justice: The Case of Donald J. Trump, 2nd Ed., Brookings, Aug. 22, 2018, available at https://www.brookings.edu/research/presidential-obstruction-of-justice-the-case-of-donald-j-trump-2nd-edition/.
  3. 3See Alexander Mallin and Katherine Faulders, Kavanaugh Won’t Commit to Recusal from Trump, Mueller Related MattersABC News, Aug. 31, 2018, available at https://abcnews.go.com/Politics/kavanaugh-commit-recusal-trump-mueller-related-matters/story?id=57534501.
  4. 4See Senator Patrick Leahy, Letter to Senator Jeff Sessions, Jun. 23, 2010, available at https://www.leahy.senate.gov/press/leahy-responds-to-republican-requests-for-more-kagan-documents-from-archives (noting that vast majority of requested paper records had been produced to the Committee two weeks before the start of confirmation hearings and the email records were produced one week prior)SCOTUSblog Briefing Paper, Elena Kagan – Privilege and Release of Kagan DocumentsSCOTUSBlog, June 30, 2010, available at: http://www.scotusblog.com/wp-content/uploads/2010/06/Kagan-issues_privilege-June-301.pdf.
  5. 5See Senator Leahy, Jun. 23, 2010 (noting that the Obama Administration had not invoked executive privilege and the Clinton Library had withheld fewer than 2,000 documents on “personal privacy” grounds).
  6. 6Ariane de Vogue, Trump Admin Withholds 100,000-Plus of Kavanaugh DocumentsCNN, Sept. 1, 2018, available at https://www.cnn.com/2018/09/01/politics/trump-kavanaugh-bush-supreme-court-documents/index.html.
  7. 7Fred Barbash and Seung Min Kim, Hours before Kavanaugh nomination hearings, Bush lawyer releases 42,000 pages of documents to Judiciary CommitteeWashington Post, Sept. 3, 2018, available at https://www.washingtonpost.com/news/morning-mix/wp/2018/09/03/hours-before-kavanaugh-nomination-hearings-bush-lawyer-releases-42000-pages-of-documents-to-judiciary-committee/.

Trump Blasts Sessions Because Sessions Obeyed The Law–How Ignorant, How Sick

(THIS ARTICLE IS COURTESY OF ‘POLITICO NEWS’)

 

Trump blasts Sessions over charges against GOP congressmen ahead of midterms

Updated 

President Donald Trump on Monday attacked his Justice Department for indicting two Republican congressmen ahead of this fall’s midterm elections, admonishing Attorney General Jeff Sessions for potentially robbing the GOP of “two easy wins” in November.

“Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department,” the president wrote on Twitter. “Two easy wins now in doubt because there is not enough time. Good job Jeff.”

Trump has made a habit of tweeting insults at Sessions ever since the attorney general recused himself from oversight of special counsel Robert Mueller’s Russia probe in March 2017. But Monday’s jabs marked an extraordinarily brazen suggestion by the president that America’s chief law enforcement officer should have weighted the political repercussions of the indictments against the basic integrity of the U.S. justice system.

According to a March 2012 Justice Department memorandum from then-Attorney General Eric Holder: “Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

Rep. Chris Collins of New York and Rep. Duncan Hunter of California — the first two lawmakers to endorse the president’s 2016 bid for the White House — were indicted last month. Both were in the middle of reelection campaigns in districts that are now considered competitive in a season where Republicans were already playing defense.

Sarah Isgur Flores, a spokeswoman for the Department of Justice, declined to comment on the president’s online remark.

Collins and his son were charged as part of an insider trading scheme, and the third-term congressman from the Buffalo area faces multiple counts of securities fraud, as well as charges of wire fraud and lying to investigators. He has since suspended his re-election campaign and will attempt to remove his name from the ballot.

Hunter and his wife are accused of improperly using hundreds of thousands of campaign dollars as a personal slush fund for expenses including family vacations and dental work.

Hunter, a five-term incumbent, is also accused of filing false campaign reports and wire fraud. Unless he were to pass away before Aug. 31, California Republicans will not be able to replace him on the ballot in his San Diego-based district this November, according to the California Secretary of State’s office.

Trump ripped into Sessions again in a tweet posted minutes later Monday, suggesting that the attorney general, who was confirmed over “no” votes from all but one Democratic senator, is sure to win favor from Capitol Hill’s minority party for prosecuting the two GOP House members.

“The Democrats, none of whom voted for Jeff Sessions, must love him now. Same thing with Lyin’ James Comey,” Trump posted. “The Dems all hated him, wanted him out, thought he was disgusting – UNTIL I FIRED HIM! Immediately he became a wonderful man, a saint like figure in fact. Really sick!”

The Hypocrisy Belongs To Some In The “LGBT” Community, Not To The Chicago Cubs

The Hypocrisy Belongs To Some In The “LGBT” Community, Not To The Chicago Cubs

 

This morning I had every intent to write an article about fallen Senator John McCain and I hope that I will still have the energy to do so after I finish this article first. I got up out of bed about 4 A.M. this morning and came out to my computer aiming to write the McCain article but as is normal I read some of the events I find on my computers main pages first. You know, things like I want to know if our “Mafia in Chief President” has started anymore new wars before I try to get my day started. To the best of my knowledge he has not so I then went on to some MLB Web-Sites as I am still somewhat of a baseball fan, not as much as when I was a kid, but it is still my favorite sport. I read an article from Yahoo-Sports that changed my thoughts about my first column today. My article about John McCain is still more important to me but it is going to be a mostly ‘positive’ article and this one on the Cubs (my life long favorite team) has more negative energy in it so I have decided to write this one first, to get the negatives out of my thought patterns.

 

In an article dated yesterday afternoon (August 26th, 2018) on Yahoo-Sports written by Blake Schuster was an article about the recent trade that the Chicago Cubs made with the Washington Nationals for second baseman Daniel Murphy. Even though I have known of Mr. Murphy for several years I have only known of him from a ‘Baseball-Stats’ prospective, nothing about his personal life, either good or bad. By his stats I would say that I consider him an above average overall second baseman so I had no problem with the Cubs trading for him. But here is the ‘rub’ of the Yahoo-Sports article, evidently about 3 years ago he made some comments about the LGBT-Gay lifestyle that still to this day offends many folks who believe that this lifestyle is a perfectly fine way of life. Guess what folks, not everyone on the planet happens to agree wit you about it being an ‘okay’ way to live. Learn to deal with this reality, it is you being the hypocrites here, not Mr. Murphy.

 

About 3 years ago Mr. Murphy evidently said that he “disagreed with the gay lifestyle” so now it seems that many people in that community really do not like him. This seems to even go to the extent that they would prefer that Mr. Murphy wasn’t able to earn a living in his preferred profession as a major league baseball player. There is a rather large group of people in the Chicago land area who call themselves the “Out At Wrigley” LGBT organization. Yesterday was the ’18th annual LGBT original MLB Gay Day.’ As it turns out (I did not know of this fact until I read this Yahoo article) that one of the Ricketts family who owns the Cubs is an openly gay lady, Ms. Laura Ricketts. Some folks in the LGBT groups decided to wait to give their opinion on the trade for Mr. Murphy until Ms. Laura weighed in with her opinion on the issue. Other folks within the LGBT community there in the Chicago Land area weren’t quite so kind or patient. There will be some folks who read this article who will be mad at me and even call me a hypocrite and some other names for writing this article and for daring to have an opinion different from their own concerning the LGBT life style. My official opinion is that “I, just like Mr. Murphy, do disagree with the LGBT-Queer Lifestyle being an okay lifestyle.”

 

There are many who may well say things along the line of “why should I give a damn about what you have to say, your just an old white boy in Kentucky.” To this I say, exactly. Why should you care what I have to say if I disagree with you, but then again why am I suppose to care what you think or feel about this issue either? Now a third line of thought on this ‘caring’ issue, why should you or I care what Mr. Murphy’s thoughts or feelings are on this issue? He is a baseball player, concerning the Cubs trade for him, only what he does on the field should matter to any of us. Now, if Mr. Murphy was wearing a bright neon tea-shirt in the pregame fielding and batting practice that blared out something like “I hate Gay people” then yes, you should probably take offence to him doing that. Personally I would take offence to him doing that myself, just as I would if he or any other player decided to wear a dress out on the field. He is there to play baseball, he is paid to play baseball, if he has an opinion that is different from yours or mine on the “Gay issue,” so what!

 

There are probably a few folks in their anger at me for not having the same opinion as their, or for daring to state my beliefs who will bring up other ‘incidents’ to see if I feel the same way toward those folks. What I am getting at is that some folks will, in their anger, say things like, well I bet you would be okay with Murphy if he was a wife beater or a child molester too, as long as he was a good baseball player. Folks, that is stupid, being a wife beater or being a child molester is actually illegal, disagreeing with you about if a person agrees with or disagrees with your LGBT lifestyle is not ‘yet’ illegal. We do have something in the Constitution of the United States (First Amendment) saying that we the people are allowed to have free speech in this Country whether you happen to like it or not. Not everyone is going to agree with you, or me, on everything, grow up, learn to deal with reality just as those who don’t agree with you also have to do!

UN Warns Brazil Government About Excluding Former President Lula From Election

(THIS ARTICLE IS COURTESY OF BRAZIL 24/7 NEWS)

 

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