September 2018 Archives

Senate Bill 54, authored by state Senate leader Kevin de León (D-Los Angeles), in many cases prohibits state and local police agencies from notifying federal officials about the impending release of immigrants in custody who may be deported.

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Crandall said SB54 infringes on local governments' authority to practice policies they know are appropriate for themselves. Cities have a "better view and better ability" to oversee their needs in certain areas, he added.

Though the state may have had good intentions, Crandall said, there are "constitutional protections" for cities from the "ever-extending tentacles" of state rule.

"After hearing more than 30 hours of testimony from Judge Kavanaugh earlier this month, I was prepared to support his nomination based on his view of the law and his record as a judge.  In fact, I commented at the time that had he been nominated in another era, he would have likely received 90+ votes.

When Dr. Ford's allegations against Judge Kavanaugh surfaced two weeks ago, I insisted that she be allowed to testify before the committee moved to a vote. Yesterday, we heard compelling testimony from Dr. Ford, as well as a persuasive response from Judge Kavanaugh. I wish that I could express the confidence that some of my colleagues have conveyed about what either did or did not happen in the early 1980s, but I left the hearing yesterday with as much doubt as certainty.

What I do know is that our system of justice affords a presumption of innocence to the accused, absent corroborating evidence. That is what binds us to the rule of law. While some may argue that a different standard should apply regarding the Senate's advice and consent responsibilities, I believe that the constitution's provisions of fairness and due process apply here as well.

I will vote to confirm Judge Kavanaugh."

While the overview for the FBI Uniform Crime Report for 2017 notes that there was a small decrease in violent crime nationally compared to 2016, a harder look at the data raises some concerns.  The report shows that for the nation as a whole, violent crime was down slightly, with the exception of rape and aggravated assault, which were up slightly.  The report breaks up the nation into four regions: the Northeast, the Midwest, the South and the West. 

Of those regions, referring to the offense rate per 100,000, three had decreases in violent crime and property crime.  The West had an increase in violent crime and a decrease in property crime.   Looking at significant recent changes in state criminal justice policy, states which have legalized recreational marijuana and states which have engaged in major sentencing reform to reduce sentences were more likely to have suffered increases in violent crime that those who have not.  

The U.S. Supreme Court today released its short list of cases taken up at its 2018 end-of-summer conference. A long orders list will be released when the regrettably short-handed Court convenes for the start of its new term on Monday, but if the usual practice is followed it will consist of denials and maybe summary reversals but no new grants for full briefing and argument.

Suspect Arrested in CA Serial Murders:  An illegal alien from El Salvador has been arrested for murdering three homeless men and seriously injuring four others.  Toyin Owoseje of the Independent reports that Ramon Escobar is being held without bail in Los Angeles after his arrest for clubbing a man in the head with bolt cutters in Santa Monica last Monday.  That victim remains in a coma.  In mid September two other men were beaten to death with a baseball bat in downtown LA.  A third victim is in critical condition. Prior to Escobar's arrest, police found bolt cutters and a baseball bat, believed to have been used in attacks on seven people, in his car.  In August, Escobar fled to California from Texas after he became the prime suspect in the disappearance of his aunt and her brother.  Immigration officials report that he has been deported six times between 1997 and 2011. His criminal record includes convictions for robbery, burglary and assault.   

The more remote a memory is in time, the less reliable it tends to be, partly because of decay and partly because recalled memories can be corrupted by new information. New and old memories can be conflated, sometimes emerging as totally false memories. Memories can be warped by leading questions from therapists, lawyers, journalists or others.

My colleague Elizabeth Loftus was able to "implant" false memories in a significant subset of laboratory subjects by showing them an official-looking poster of Disney characters, including Mickey Mouse and Bugs Bunny. Many subjects later remembered meeting Bugs Bunny on a childhood trip to Disneyland. Some of them even reported that Bugs had touched them inappropriately.

That was impossible. Bugs Bunny isn't a Disney character.

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Pundits have drawn a line between Judge Kavanaugh and his accusers, and insisted Americans take sides. But there is a third way: Remain agnostic until you know whether the accusations are backed by independent corroborating evidence. Without corroboration the public--and members of congressional committees--can't know whether a memory is authentic or is a product of some other process.

Deputy Attorney General Rod Rosenstein is set to meet with President Trump Thursday to discuss "recent news stories," the White House said Monday, amid conflicting reports about whether Mr. Rosenstein is set to depart.

Mr. Rosenstein visited the White House Monday morning, and people close to him said he expected to be fired. White House chief of staff John Kelly told officials in the West Wing, however, that Mr. Rosenstein resigned during a meeting late last week, a White House official said.

In a City Journal piece, Heather MacDonald provides some much-needed perspective on the current effort to scuttle the confirmation of Brett Kavanaugh to the Supreme Court.  "If Supreme Court Justice William Brennan were posthumously discovered to have aggressively groped a girl once in high school, should that fact discredit his landmark opinions expanding press freedom, legal protections for criminal defendants, and voting and welfare rights? Would it have been better for the country, from a liberal perspective, if Brennan's judicial career had been derailed from the start?  Ironically, Hillary Clinton had it right when she called her husband's affair with a White House intern a "lapse," notwithstanding that it represented an abuse of workplace hierarchies. Today, of course, Clinton and her supporters are singing a different tune. The late Ninth Circuit Court of Appeals judge Stephen Reinhardt (for whom I clerked), arguably the most liberal judge in the country, was appalled by the treatment of his fellow Ninth Circuit jurist Alex Kozinski, driven off the bench last year by feminists for his juvenile sexual repartee.  Reinhardt told me. It was a tragedy, that privileged law clerks would bring down someone who was fundamentally so good and decent and one of the best judges we have." 

Suzy Loftus, assistant chief legal counsel in the Sheriff's Department and the former president of the city's Police Commission, will file papers Tuesday to challenge [incumbent DA George] Gascón. She's running on the platform that San Franciscans are tired of car break-ins, home break-ins, blatant crime on their sidewalks and a criminal justice system that seems to merely point fingers in response.

In one of the first legal challenges since the #MeToo movement forced the California Legislature to confront its history of dismissing sexual misconduct in its own workplace, the Senate is trying to fend off a former employee's lawsuit with arguments that she's not covered by new whistleblower protections and that the Capitol, as part of the public sector, isn't covered by state labor laws.

The state Senate made the arguments in a recent court response to a lawsuit by a former employee who alleges that the Senate broke eight different laws in firing her several months after she reported that she was raped by a fellow staff member--including laws that prohibit retaliation and require employers to accommodate workers experiencing disabling trauma. The Senate is asking the court to throw out half the allegations in advance of a hearing on Tuesday.

I have no doubt that, if the attack on Dr. Ford was as bad as she says, charges would have been immediately filed with local Law Enforcement Authorities by either her or her loving parents.

Nearly 20 years after he allegedly kidnapped and murdered a Vermont grandmother, accused killer Donald Fell is changing his plea and will avoid the death penalty.

Terry King, 53, was arriving for work at the Rutland Price Chopper in 2000 when police say Donald Fell and Robert Lee carjacked her, drove her to New York and killed her on the side of the road.

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But now there is a plea deal that takes the death penalty off the table. Court documents show Fell will plead guilty to four federal crimes, including carjacking and kidnapping with death resulting. In exchange, he will spend the rest of his life in prison without the possibility of parole.

Rory Little has this post at SCOTUSblog describing the criminal cases on tap, so far, for the upcoming U.S. Supreme Court term.

Kristina Peterson and Peter Nicholas report for the WSJ:

The Senate Judiciary Committee will hold a hearing next Monday with the woman who has accused Supreme Court nominee Brett Kavanaugh of sexual misconduct, according to lawmakers and aides.

The hearing would give the public an chance to hear more about the three-decades-old accusations against Judge Kavanaugh that now threaten to derail his nomination to the high court. The Senate is expected to announce details of the hearing shortly.

Personality tests are hugely popular, though if you ask working psychologists, they'll tell you the results are little better than astrological signs. But a new study, based on huge sets of personality data representing 1.5 million people, has persuaded one of the staunchest critics of personality tests to conclude that maybe distinct personality types exist, after all.

"Through the more than 35 years we have known him, Brett has stood out for his friendship, character, and integrity," the women wrote to the Senate Judiciary Committee. "In particular, he has always treated women with decency and respect. That was true when he was in high school, and it has remained true to this day."

PEACE PRIZE [SPAIN, COLOMBIA] -- Francisco Alonso, Cristina Esteban, Andrea Serge, Maria-Luisa Ballestar, Jaime Sanmartín, Constanza Calatayud, and Beatriz Alamar, for measuring the frequency, motivation, and effects of shouting and cursing while driving an automobile.

REFERENCE: "Shouting and Cursing While Driving: Frequency, Reasons, Perceived Risk and Punishment," Francisco Alonso, Cristina Esteban, Andrea Serge and Maria-Luisa Ballestar, Journal of Sociology and Anthropology, vol. 1, no. 12017, pp. 1-7.

ECONOMICS PRIZE [CANADA, CHINA, SINGAPORE, USA] -- Lindie Hanyu Liang, Douglas Brown, Huiwen Lian, Samuel Hanig, D. Lance Ferris, and Lisa Keeping, for investigating whether it is effective for employees to use Voodoo dolls to retaliate against abusive bosses.

REFERENCE: "Righting a Wrong: Retaliation on a Voodoo Doll Symbolizing an Abusive Supervisor Restores Justice," Lindie Hanyu Liang, Douglas J. Brown, Huiwen Lian, Samuel Hanig, D. Lance Ferris, and Lisa M. Keeping, The Leadership Quarterly, February 2018.

Supreme Court nominee Brett Kavanaugh has responded to the astonishing number of post-hearing written questions -- 1,287 -- mostly submitted by the Democratic members of the Judiciary Committee. Amy Howe has a summary at SCOTUSblog. The full text is at Scribd (registration required).

A crowdfunding website is trying to strong-arm Senator Susan Collins, the Republican from Maine, by giving more than $1 million to her 2020 opponent--unless she opposes Judge Kavanaugh. Donors are asked to make a financial pledge and then enter their credit-card information. As of Tuesday afternoon, 37,425 people had put down $1,041,878.

The fine print makes clear the quid pro quo: "Your card will only be charged if Senator Susan Collins votes for Kavanaugh's confirmation to the Supreme Court." To avoid the money bomb, all Ms. Collins must do is vote "no."

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"I have had three attorneys tell me that they think it is a clear violation of the federal law on bribery," Ms. Collins says. "Actually, two told me that; one told me it's extortion."

Kavanaugh chooses his words very carefully, and this is a dog whistle for going after birth control. He was nominated for the purpose of taking away a woman's constitutionally protected right to make her own health care decisions. Make no mistake - this is about punishing women.

Plaintiffs participated in a Trump for President campaign rally in Louisville in March 2016 . . . with the purpose of protesting. Perceived to be disruptive, they were unceremoniously ushered out after then-candidate Donald J. Trump said, "Get 'em out of here." Plaintiffs were pushed and shoved by members of the audience as they made their exit and now seek damages from Trump alleging his actions amounted to "inciting to riot," a misdemeanor under Kentucky law. The district court denied Trump's motion to dismiss the claim but certified its order for immediate interlocutory appeal. The court identified a two-part question for review: whether plaintiffs have stated a valid claim under Kentucky law and, if so, whether the First Amendment immunizes Trump from punishment under state law. We answer "no" to the first part, because plaintiffs' allegations do not satisfy the required elements of "incitement to riot." As to the second part, we hold "yes," Trump's speech enjoys First Amendment protection, because he did not specifically advocate imminent lawless action. The district court's denial of Trump's motion to dismiss the claim must therefore be reversed.

Brett Kavanaugh acquitted himself ably in his confirmation hearings last week, which is surely one reason that Democrats have resorted to a contemptible attack on him as guilty of federal crimes.

Democrats are smearing the nominee as a perjurer. There are three main allegations, and each is laughably frivolous.

A new judge taking over the 9/11 military tribunal could finally bring "sanity" to the painfully slow prosecution, a sister of a victim and a retired FAA agent who warned of the attack told the Herald.

"It's a travesty this has gone on for so long," said Debra Burlingame, whose brother was one of the pilots murdered 17 years ago Tuesday.

"It makes our country look like fools," she added. "Justice delayed is justice denied."

Army Judge Col. James L. Pohl is retiring on Sept. 30 and has handed the tribunal over to Marine Col. Keith A. Parrella.

He picks up the death-penalty case against 9/11 mastermind Khalid Sheikh Mohammed and four other alleged accomplices.

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"Think of all the adult victims whose parents were alive at the time of the attack. Many are now gone. This has taken too long. It's ridiculous," [Ms. Burlingame] said. "Nobody could have been worse than Judge Pohl. ... I'm hoping the new judge will feel a sense of responsibility."

2. Originalism is wise and nonpartisan.

Studying the Constitution requires diligence and intelligence--especially for those, like Kavanaugh, who are "originalists," paying special heed to what the Constitution's words originally meant when adopted. I too am an originalist. In prioritizing the Constitution's text, history, and structure to discern its principles and to distill its wisdom, we originalists are following in the footsteps of George Washington, Alexander Hamilton, James Madison, John Marshall, Joseph Story, and Abraham Lincoln, among others.

Originalism is neither partisan nor outlandish.⁴. The most important originalist of the last century was a towering liberal Democratic Senator-turned-Justice, Hugo Black, the driving intellectual force of the Warren Court, who insisted on taking seriously the Constitution's words and spirit guaranteeing free speech, racial equality, religious equality, the right to vote, the right to counsel, and much more. Among today's scholars, the originalist cited most often by the Supreme Court is also a self-described liberal and a registered Democrat--yours truly.⁵

The best originalists heed not just the Founders' vision but also the vision underlying its amendments--especially the transformative Reconstruction Amendments and Woman Suffrage Amendment. I believe that Justice Kavanaugh will be in this tradition.⁶ On various vital issues--voting rights, governmental immunities, congressional power to enforce the Reconstruction Amendments--Justice Kavanaugh's constitutional views may well be better for liberals than were Justice Kennedy's.

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But in selecting Mr. Kyl, the GOP governor also chose a man who only has agreed to assume a caretaker role. Mr. Kyl declined to commit to serving into 2020, when a special election is to be held to fill the remaining two years of Mr. McCain's term.

"The reason that I did not want to commit beyond the end of this congressional session is because when I left the Senate almost six years ago I had no intention of returning," Mr. Kyl said. "I needed to be with my family," he said, adding that "in that spirit I am willing to serve certainly through the end of this session at least in order to make sure that the business that is currently ongoing is taken care of."