Tuesday, August 8, 2017


      So, maybe you think it can’t get worse? Maybe Trump’s Obamacare-repeal failure has you giddy and you’re looking forward to another victory over the Republican’s tax cut (please don’t call it tax reform) plan? Well, you need to stop looking at the trees, entrancing as they may be. Look at the forest, instead, specifically at the grove tucked behind that hill. We call that particular grove the Senate Judiciary Committee and it’s a busy, busy, busy place.

      Thus far, Don the Con has appointed 34 individuals – 27 men and 7 women – to positions on the Court of Appeals or the District Court. With 100 to go, he will, before he finishes his first term, have appointed 15% of the judges who sit on those courts.

      Let’s take a look at three of these appointees.

      Kevin Newsome, nominee for the 11th Circuit. In 2000, Newsome’s law review article likened Roe v. Wade to Dred Scott vs. Sandford. Decided in 1857, Judge Roger Taney’s opinion in Dred Scott included his belief, which became law when the decision was announced, that “a black man has no rights that a white man is bound to respect.” Newsome served for a time as Alabama’s Solicitor General, where he expressed his disappointment with a Supreme Court decision (Roper vs. Simpson) that made it unconstitutional to execute juveniles like George Stinney, who was electrocuted at age 14. Stinney deserved every volt, of course, because he murdered two little white girls. That no corroborating physical evidence existed was a mere technicality. Alabama, by the way, is one of only a few states that doesn’t provide free lawyers to its death-row prisoners. You wanna appeal? Read a law book.

      John Bush, nominee for the Court of Appeals: John Bush has an easily-accessed history. Under the pseudonym, G. Morris, he maintained a blog entitled Elephants in the Bluegrass. On October 7, 2008, G. Morris posted the following:

      “The government of Kenya is holding WND (World Net Daily) staff reporter Jerome Corsi in custody at immigration headquarters after police picked him up at his hotel just prior to a scheduled news conference in which he planned to announce the findings of his investigation into Barack Obama’s connections to that country.”

      Want more?

      “The two greatest tragedies in our country’s history – slavery and abortion – relied on similar reasoning and activist judges on the Supreme Court.”

     If this posting was about slavery, I’d explain that the right to own slaves was protected in our founding document, specifically by the three-fifths clause, the fugitive slave clause and a clause that secured the continuation of the international slave trade for a minimum of twenty years. But this posting is not about slavery or the Constitution. I move on.

      Amy Coney Barrett, nominee for the U.S. Court of Appeals. Barrett clerked for Antonin Scalia and worked for a time at the law firm of Miller, Cassidy, Larocca & Lewin, which merged into Baker, Botts. From private practice, she migrated to Notre Dame’s law school. She is now a full professor.

      Barrett’s time in private practice was short, but in the main she represented white collar defendants on the hook for defrauding the government. She was also on the team that represented George Bush in Bush vs. Gore. Neither activity condemns her, of course. You’d hardly expect Donald Trump to appoint the lead counsel for the American Civil Liberties Union. But there is one element of her background that should give us pause.

      As conservative overall as Alito, Thomas and Gorsuch, Barrett has taken her jurisprudence to a new extreme. Neither prior decisions (stare decisis) or even the law itself, as written, should take precedence over a judge’s religious beliefs. In an article entitled “Catholic Judges in Capital Cases,” she condemned William Brennan (a fellow Catholic) for writing, “There isn’t any obligation of our faith superior” to the judicial oath. “We do not,” she added, “defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”

      Handpicked by the Federalist Society and Heritage Action, the rest of Trump’s nominees all fit neatly into a circle of judges who view the post-Civil War period as the golden age of American jurisprudence. The Federalist Society is packed with similar thinkers. They will describe this era, if you should run into one at a cocktail party, as a time when the court defended liberty as the framers understood it. That may be true, but the liberty was only for the rich and powerful – as the rich and powerful were the only Americans represented at the Constitutional Convention in Philadelphia. Yes, the Field Court, named for Stephen Johnson Field, voided nearly all attempts to regulate the workplace, but liberty for individuals was hard to come by. Censorship of every kind prevailed, along with laws against blaspheming the Sabbath, public indecency, interracial marriage, sodomy, illegal assembly and the union shop. And then there’s vagrancy. Throughout this period, which lasted from the end of the Civil War until, at the earliest, the start of the New Deal, you could be imprisoned for not having a job. What kind of liberty is that?

      That, my friends, is the kind of liberty the Supreme Court had in mind when they defended the sacred right of corporations to back their speech with cold, hard cash. The more, the better.

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