Stuart Schneiderman mercilessly rubs in what has become increasingly obvious this week: the chosen representative of our nation’s establishment elite is really an ignoramus who’d flunk basic questions from a high school Civics course.
America’s thinking class saw Barack Obama as a light shining in the wilderness.
In deep despair over the coarsening of public discourse during the Dark Ages of the Bush administration, American intellectuals saw Barack Obama as one of their own, someone who could restore their exalted social status and raise the level of deliberative democratic debate.
Obama hadn’t accomplished anything of note; he wasn’t really qualified for the presidency; but he was superbly intelligent, had presided over the Harvard Law Review, had professed Constitutional Law at the University of Chicago Law School, and had authored two brilliant books. …
A few days ago the curtain was drawn and people could see that the Wizard of Oz was not what he claimed to be.
In an effort to get personally involved in Supreme Court deliberations over his signature piece of legislation—Obamacare—our president made it appear that he did not understand the most fundamental doctrine in American jurisprudence.
The former president of the Harvard Law Review, former professor at the University of Chicago Law review managed to mangle an explanation of “judicial review.†As every high school history student knows the doctrine was adumbrated in 1803 by Chief Justice John Jay in the case of Marbury v. Madison.
Obama asserted:
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.
As everyone but Obama knows, Marbury v. Madison established the right of the Supreme Court to strike down Congressional legislation that it deemed unconstitutional.
The Court has done just that on hundreds of occasions.
Andrew McCarthy, in the New Criterion, reviews Conrad Black’s account of how he was financially ruined and jailed for more than two years: A Matter of Principle.
Increasingly [the] “rule of law†is just Big Government’s version of “social justice.†Heroes and villains are assigned their fates in accordance with the vanguard’s transgressive obsessions: income inequality, race, anti-Americanism, etc. The laws, rules and regulations proliferate until no one is invulnerable, reminiscent of Republican Rome’s death throes, when the emperor Nero (as Justice Antonin Scalia recounts in A Matter of Interpretation) posted his edicts high up on the pillars, rendering them impossible to read. Defendants are capriciously selected, made an example of, as much for what they represent as for what they’ve done. If you are a Democratic former National Security Adviser filching classified documents from the national archives or a Black Panther swinging a billy-club outside a polling station, you get our understanding. If you are Big Tobacco or Conrad Black, you’d better get counsel. Quaint notions of culpability are beside the point, because law is not about maintaining order but inculcating “our values.†Guilt and innocence are as irrelevant as the mordantly obvious question that rolled off my underwhelmed lips when the tobacco investigation was broached—How can there be fraud when the commercial activity is legal and everybody’s eyes are open to the risks?
Lord Black found out how, the hard way. He spent over thirty years building modest publishing enterprises into an international powerhouse that answered a market craving for professional reporting coupled with a right-of-center editorial voice. …
Through grit and acumen, though, starting with a small paper he bought for $500, Black and his business partners put together a transcontinental dynamo that became a force in Anglo-American politics and created nearly $2 billion in value.
That delighted most of the shareholders, but not all of them. And here we come to this wrenching tale’s first wolf in sheep’s clothing: the “corporate governance†movement, waving the Orwellian banner of “shareholders’ rights.†In a free market, personal profit is not a sin but an objective, and notions of “value†vary widely—some seeking to maximize quick financial gain, others in a business for the long haul, prioritizing reasonable returns and growth. Economic liberty accommodates this diversity, and the small but salient role of law enforcement is to guard against theft and extortion, while the civil courts referee contractual disputes and tortious misbehavior.
Corporate governance, as the racket styles itself, is a euphemism for the imposition of one-size-fits-all ethics regulations on business practices. It coerces conformance with the vanguard’s professed ideals, subordinating the creation of wealth to trendy, expansive notions of “fairness†and a “good corporate citizenship.†It does this by worsening the metastasis of legal and administrative regimes, whose ominous presence engenders a climate wherein the mere suspicion of wrongdoing, let alone formal accusation, can be a profitable venture’s undoing. …
Black… coins his own neologism to describe the dystopia he makes of modern America: a “prosecutocracy.â€
When he finally got his day in court, Black and his co-defendants destroyed the foundation of the government’s case: There had been no fraud—much less tax fraud and racketeering, a charge the Justice Department usually reserves for hitmen. David Radler, the prosecution’s slippery star witness and Black’s estranged business partner, was ground to pulp in cross-examination. The self-serving amnesia of the independent directors proved incredible in the face of the countless times they were shown to have signed off on the purportedly secret management fees.
The jury acquitted the defendants on the fraud trumpeted by Breeden and echoed by the Justice Department. Yet the government had an escape hatch: the ever-elastic theory of denying “honest services.†…
Black was convicted on three counts of this hopelessly vague offense.
Let’s hope that Lord Black’s comeback, when he is finally released this Spring, and revenge, will be as complete as those of Edmond Dantès.
It doesn’t happen very often, but once in a blue moon you actually find a liberal exhibiting intellectual honesty and standing up for real principles. George State Law Professor Eric Segall has the audacity to tell the readership of Slate that, yes, Elena Kagan really should be recusing herself from participating in the Supreme Court decision on Obamacare. And he is dead right.
Doing the right thing is easy when nothing important is at stake. Doing the right thing is much harder when there is a lot to lose. Elena Kagan is a loyal Democrat who owes her Supreme Court appointment to President Barack Obama.* She is poised to review the constitutionality of Obama’s health care statute, which, if invalidated, might do serious damage to his re-election campaign as well as the Democratic Party. Even though it would be a hard decision to make, Elena Kagan should recuse herself from hearing challenges to the act.
So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the case, while liberals and Democrats take the opposing view. I have been a liberal constitutional law professor for more than 20 years, and a loyal Democrat. I believe the Affordable Care Act is constitutional and that it would be truly unfortunate for the country (and the party) if the court strikes it down. I also recognize that there is a much greater chance of the court erroneously striking down the PPACA if Kagan recuses herself. That said, I believe that as a matter of both principle and law, Kagan should not hear the case.
But what are the odds that she has as much integrity as he does?
“An unwarrantable act without vicious will is no crime at all.” –4 Bl. Comm. 21.
‘Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.’ — Pound, Introduction to Sayre, Cases on Criminal Law (1927).
The Wall Street Journal yesterday published an important article describing the impact of the ever-expanding number of federal crimes, commonly resulting from feel-good legislation passed recklessly with little serious consideration, on one of the fundamental principles of justice, genuine intent.
Even in Classical Antiquity, Roman justice recognized the principle that a defendant needed to possess actual intent to commit a crime to deserve conviction and punishment. In today’s United States, however, citizens cannot possibly be familiar the entire body of federal law and regulation, so the basic principle of mens rea, “a guilty mind,” is commonly eliminated by the dilution of standards.
For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a “guilty mind.”
This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them.
As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time.
Some of the cases described will make your blood boil with indignation.
This is the kind of article which proves the crucial importance of the Wall Street Journal to American society. The Journal commonly substitutes effectively for all the rest of the media combined in addressing the serious issues. Read the whole thing.
The same Supreme Judicial Court that concluded a few years ago that the Massachusetts Constitution of 1780 mandated Gay Marriage has recently concluded that the Bay State can enhance its revenues by charging drivers for contesting traffic tickets.
Motorists issued a traffic ticket in Massachusetts will have to pay money to the state whether or not they committed the alleged crime. According to a state supreme court ruling handed down yesterday, fees are to be imposed even on those found completely innocent. The high court saw no injustice in collecting $70 from Ralph C. Sullivan after he successfully fought a $100 ticket for failure to stay within a marked lane.
Bay State drivers given speeding tickets and other moving violations have twenty days either to pay up or make a non-refundable $20 payment to appeal to a clerk-magistrate. After that, further challenge to a district court judge can be had for a non-refundable payment of $50. Sullivan argued that motorists were being forced to pay “fees” not assessed on other types of violations, including drug possession. He argued this was a violation of the Constitution’s Equal Protection clause, but the high court justices found this to be reasonable.
“We conclude that there is a rational basis for requiring those cited for a noncriminal motor vehicle infraction alone to pay a filing fee and not requiring a filing fee for those contesting other types of civil violations,” Justice Ralph D. Gants wrote for the court. “Where the legislature provides greater process that imposes greater demands on the resources of the District Court, it is rational for the legislature to impose filing fees, waivable where a litigant is indigent, to offset part of the additional cost of these judicial proceedings.”
The court insisted that allowing a hearing before a clerk-magistrate instead of an assistant clerk, as well as allowing a de novo hearing before a judge constituted benefits that justified the cost. Last year, the fees for the clerk-magistrate hearings generated $3,678,620 in revenue for the courts. Although Sullivan raised the issue of due process during oral argument, the court would not rule on the merits of that issue.
It’s easy to see why Elizabeth Warren is a viable candidate in that state.
A man lies injured on the ground in Ealing, west London. He was beaten by rioters for attempting to put out a fire.
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SayUncle produced the best line: What’s the cause of the riot? I’m guessing lack of incoming fire.
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Roger de Hauteville yesterday posted a 2 minute video showing a small line of 8 British riot police retreating from a mob of looters who are hurling the long boards and other pieces of traffic barriers at them. The police line withdraws backward in the direction of another line of police, luckily for them I expect, continuing to face in the direction of the mob and maintaining something resembling a line. Had they turned and run, the mob would probably have been on them. Amazingly, the second line of police never made any move to come to their assistance. At around 1:23 the mob begins to turn back, for no obvious reason that can be discerned from the video. The police make no effort to pursue the now retreating mob.
I’d say that the police response was lacking. Here you have a mob of hoodlums engaged in looting and vandalism making unsafe a public street and attacking police. When the two lines of police consolidated, there were at least 16 cops, a number quite adequate to form a line capable of presenting a solid front. 16 men, armed with nightsticks, carrying shields, and armored by the force of authority, with justice on their side, should have had no problem clearing that street and driving an unorganized crowd comprised of criminal scum right out of there.
If a representative of the criminal element should attempt to use some form of terrorist weapon like a Molotov cocktail, the police ought to shoot him.
All this demonstrates just how thoroughly the political leadership of Western democracies has become unmanned by the anti-morality of the Left. Criminals and looters are now disenfranchised victims of society equipped on the basis of their alleged grievances and resentment with anti-moral authority more powerful than the badges and uniforms of police or the titles and powers of elective office.
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Roger de Hauteville responded to all this by reflecting that the Riot Act in Britain, from 1715 in the time of George I until it was repealed (alas!) in 1973 during the age of imbecility, permitted mayors, bailiffs, or justices of the peace in situations in which twelve or more persons were “unlawfully, riotously, and tumultuously assembled together” to read aloud the following:
Our Sovereign Lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of King George, for preventing tumults and riotous assemblies. God Save the King!
If anyone remained on the street after one hour of the proclamation, the act provided that the authorities could use force to disperse them. Those assisting in the dispersal were specifically indemnified against any legal consequences in the event of any of the rioters being injured or killed.
The act also made it a felony punishable by death for rioters who had been read the proclamation to cause (or begin to cause) serious damage to places of religious worship, houses, barns, and stables.
Why does the British government not do its duty? Because it is the government of a modern Western nation, sunk like the rest of us in trembling, whimpering guilt over class and race.
Through British veins runs the poisonous fake idealism of “human rights†and “sensitivity,†of happy-clappy multicultural groveling and sick, weak, deracinated moral universalism — the rotten fruit of a debased, sentimentalized Christianity.
When not begging for forgiveness and chastisement from those who rightfully despise him, the modern Brit is lost in contemplation of his shiny new car or tweeting new gadget; or else he has given over all his attention to some vapid TV production or soccer team.
I treasure my faint, fading recollections of Britain when she was still, for a few years longer, a nation.
Today Britain is merely a place, a bazaar. Let it burn!
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Left-winger Brendan O’Neill, amusingly, is equally indignant, and sounds exactly like a conservative.
[I]t’s more than childish destructiveness motivating the rioters. At a more fundamental level, these are youngsters who are uniquely alienated from the communities they grew up in. Nurtured in large part by the welfare state, financially, physically and educationally, socialised more by the agents of welfarism than by their own neighbours or community representatives, these youth have little moral or emotional attachment to the areas they grew up in. Their rioting reveals, not that Britain is in a time warp back to 1981 or 1985 when there were politically motivated, anti-racist riots against the police, but rather that the tentacle-like spread of the welfare state into every area of people’s lives has utterly zapped old social bonds, the relationship of sharing and solidarity that once existed in working-class communities. In communities that are made dependent upon the state, people are less inclined to depend on each other or on their own social wherewithal. We have a saying in Britain for people who undermine their own living quarters – we call it ‘s****ing on your own doorstep’. And this rioting suggests that the welfare state has given rise to a generation perfectly happy to do that. …
There is one more important part to this story: the reaction of the cops. Their inability to handle the riots effectively reveals the extent to which the British police are far better adapted to consensual policing than conflictual policing. It also demonstrates how far they have been paralysed in our era of the politics of victimhood, where virtually no police activity fails to get followed up by a complaint or a legal case. Their kid-glove approach to the rioters of course only fuels the riots, because as one observer put it, when the rioters ‘see that the police cannot control the situation, [that] leads to a sort of adrenalin-fuelled euphoria’. So this street violence was largely ignited by the excesses of the welfare state and was then intensified by the discombobulation of the police state. In this sense, it reveals something very telling, and quite depressing, about modern Britain.
The Washington Times’ editorial titled: Obama plays hide the Somali, which argues that the Obama administration hid captured Somali Ahmed Abdulkadir Warsame on a US warship for two months before presenting him for indictment in Federal Court in New York in an end run around a Congressional ban on the transfer of terrorist detainees to US soil.
A Texas mother received a felony conviction, five years probation, parenting classes, a small fine, and a scolding from a judge who has vocabulary problems (“quarrel” for “era”) for spanking her two-year-old daughter.
A judge in Corpus Christi, Texas had some harsh words for a mother charged with spanking her own child before sentencing her to probation.
“You don’t spank children today,” said Judge Jose Longoria. “In the old days, maybe we got spanked, but there was a different quarrel. You don’t spank children.”
Rosalina Gonzales had pleaded guilty to a felony charge of injury to a child for what prosecutors had described as a “pretty simple, straightforward spanking case.” They noted she didn’t use a belt or leave any bruises, just some red marks.
As part of the plea deal, Gonzales will serve five years probation, during which time she’ll have to take parenting classes, follow CPS guidelines, and make a $50 payment to the Children’s Advocacy Center.
She was arrested back in December after the child’s paternal grandmother noticed red marks on the child’s rear end. The grandmother took the girl, who was two years-old at the time, to the hospital to be checked out.
Some people certainly think that spanking children is always inappropriate and excessive. Let’s hope that even more people think that intrusions by the state into relations between parents and children in circumstances not involving grave and serious injury are inappropriate and that everyone would think that a felony conviction over an ordinary spanking is outrageously excessive.
Tennessee has passed a measure making it a crime to transmit by telephone, in writing or by electronic communication an image that would cause “emotional distress†“without legitimate purpose.â€
“Emotional distress” is a standard of practically universal application. Anything at all might cause someone emotional distress, and there is no basis to determine whether someone experiences it, beyond his own say so.
What is and what is not a “legitimate purpose” also constitutes a legal nightmare. Who wants any judge to be permitted to decide what is and what isn’t legitimate?
Liberals are always arguing that we need to inform the American legal system with the superior wisdom of international jurisprudence.
From Brazil, comes the story of a court decision upholding the right of one Ana Catarina Silvares Bezerra, an accountant analyst who is allegedly afflicted with a female equivalent of satyriasis, to achieve personal gratification on company time, using the company’s computer and Internet access, for 15 minutes every 2 hours.
One of the problems with appointing prominent members of a presidential administration to the Supreme Court is the issue that if litigation connected with a piece of legislation or executive order that official had a hand in crafting should subsequently occur, he (or she) might find it necessary to recuse himself from participation in the case.
Recusal is not an optional choice. 28 U.S.C. § 455 specifically states:
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. …
(including)
Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.
Supreme Court Associate Justice Elena Kagan has denied being involved in preparations for court defense of Obamacare while she was serving as Solicitor General, and declined to recuse herself from the Supreme Court decision of April 2011 refusing to “fast-track†for review Virginia’s lawsuit challenging Obamacare.
Judicial Watch sued under the Freedom of Information Act and has obtained documents suggesting that Justice Kagan may have a serious problem here.
According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:
Subject: Re: Health Care Defense:
Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues†refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.â€]
On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.â€
In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?†Hauck asked. “Absolutely right on. Let’s crush them,†Katyal responded. “I’ll speak with Elena and designate someone.â€
However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off†from Obamacare discussions.
For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:
Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG [Solicitor General’s] office was consulted?…
Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.â€
Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.â€
Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.â€
Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.
For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.†The subject of the email was “Health Care.†Another email chain on March 21, 2010, entitled “Health care litigation meeting,†references an “internal government meeting regarding the expected litigation.†Kagan is both author and recipient in the chain.
The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer†to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.
Judicial Watch describes itself as conducting an ongoing investigation of the matter.
The documents obtained so far fail to produce absolute “smoking gun” proof that Kagan violated the law in failing to recuse herself, but all the evidence of collaboration over accounts is extremely suggestive.
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