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Lesson 3: Judge-Shopping Must Be Curbed

Here is the third lesson to be learned from the debacle noted this morning.

Plaintiffs seeking to enjoin government actions have way too much choice where to file their suits.  Further, there is not enough control on conflicting decisions when it comes to injunctions.

The WSJ article noted in a previous post this morning reports on the development of the strategy of the opponents:

Democratic attorneys general and their aides held a series of conference calls. They agreed to mount separate lawsuits across the country. The goal: try lots of different arguments to block the ban in hopes that one of them would succeed.

Minnesota's attorney general, Lori Swanson, joined the Washington lawsuit. New York Attorney General Eric Schneiderman joined the American Civil Liberties Union's case in federal court in Brooklyn. Massachusetts Attorney General Maura Healey did the same with an ACLU case in Boston.

Not only did they throw as much against the wall as they could to see what stuck, they threw it against as many walls as they could, and it only needed to stick to one.  Judge Gorton in Boston declined to extend his earlier, temporary block of the executive order, but Judge Robart in Washington did block it, and the result was that it was blocked.  Conceivably, a group of persons opposed to some government action could file coordinated suits in every district in the country, and they would only have to win one to get a halt for the time being.

Even when only one suit is filed, broad venue rules and "related case" rules give the challengers too much leeway to steer cases to the judges they know will be favorable to them.  The habeas corpus "fast track" regulations were held up for over three years by order of a judge with no jurisdiction in a case steered to her in exactly that manner.

Congress should take a hard look at the rules regarding venue in cases that seek nationwide injunctions.  "Venue" sounds like a boring subject, but this case illustrates how much it can matter.

Lesson 1: Line and Staff

Here is the first lesson to be learned from the debacle noted this morning.

The chief executive of an organization of any size has two kinds of subordinates.  In the military, the commanders of the component units are the "line," while the people in the chief commander's office are the "staff."  Other organizations may use different terminology, but the distinction is always there in one form or another.

Relying too much on the staff and not keeping the line officers in the loop is a major error.  In the very early days of the Trump Administration, some of the important line positions were vacant, and some still are, because of stalling in the Senate.  The Acting Attorney General at the time of the travel restriction executive order was a dyed-in-the-wool leftist holdover from the Obama Administration.  The extent to which the Secretary of Homeland Security was in the loop has been the subject of conflicting reports.

President Trump nominated some solid people to head the government departments, and the confirmations are coming in now, albeit delayed.  He needs to use them and listen to them.  That is not to say he shouldn't listen to his staff also, just not exclusively.

A Debacle and a Learning Moment

The WSJ has this editorial titled Trump's Judicial Debacle noting a number of ways that the Administration and the courts were both wrong. "President Trump's immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy."

The editorial goes to explain several ways the Ninth Circuit decision is wrong and how the Administration seemed ill-prepared to defend the order.  At the end, the editorial has some worthwhile thoughts on what to do now.

There are lessons to be learned from this debacle, though.  I will note a few of them in separate posts.
Yesterday I said the Administration should, in addition to rewriting the travel restriction executive order, take the present case up to the Supreme Court.  That was based on a legal assessment that the Ninth Circuit decision is wrong.  (See also Rivkin & Casey in today's WSJ.)

In addition to the reasons that I gave yesterday, let me add that the claim that this order is a "Muslim ban" is absurd.  Based on data from the Pew Center, I estimate that the seven countries in question have only 11% of the world's Muslim population.  If one wanted to ban a whole group of people, an action that only affects one out of nine of the group is not the way to go about it.

However, sometimes there are strategic reasons for not taking a position.  Even though the decision is wrong, and clearly so in my opinion, there may not be five votes on the present eight-member Supreme Court to overturn it.  Affirmance by an equally divided court is a nothingburger, and that would be a real possibility.

Finally, and perhaps most importantly, the presence of this very hot-button case in the Supreme Court would give the Democrats and the left-leaning media ammunition in the critically important confirmation battle for Judge Gorsuch.  The Democrats will ask him about the case or questions closely related to the case, he will decline to answer, and even though that declination is quite proper it will look evasive on camera.  The Dems will still try to use it, of course, but their efforts will be less effective if it is behind us.

Sometimes you have to cut your losses and move on.  While the Administration's legal position is correct, taking the case up to SCOTUS may not be strategically wise.

Update:  The Ninth Circuit this afternoon ordered briefing on whether to hear the case en banc.
Wondering why the Senate leadership has not held the confirmation vote for Jeff Sessions as Attorney General yet?  Ted Barrett and Tom LoBianco at CNN suggest an answer.

The nomination of Betsy DeVos for Secretary of Education has been scheduled for tomorrow.  Two Republican Senators have bailed.  If the vote is 50-50, Vice President Pence will cast the tie-breaking vote, the first such Veep vote on a cabinet nominee in history.

If that vote came in the gap between Senator Sessions resigning from the Senate to take the helm at DoJ and Gov. Bentley's naming of a successor, Ms. DeVos's nomination would go down 50-49.

Sessions Nomination Moves to the Floor

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The Klan's main goal in life is to deprive black people of the ordinary rights of citizenship, dignity and equality that white people take for granted.  At its best  --  "best" being viewed from the Klan perspective  --  the organization attacks not merely the rights but the lives of African Americans.  Jim Crow was a substantial accomplishment, sure, but the crown jewel was lynching!  Why merely intimidate blacks when you can murder them?

Even now, when the Klan has been mostly subdued (but cf. Dylann Roof), murder of black men is still a national scandal.  The culprit has changed, however.  It's not the machinations of the Klan.  It's a poisoned culture in our big cities, north and south, that tolerates and breeds drug dealing, thugishness, violence and murder.  Young black men are, to a grossly disproportionate extent, its victims.

The Klan must be thrilled.  They now have a whole culture, not merely in the South but across the country, that will do their work for them.  Liberals hold dithering conferences to talk to each other in Very Earnest Tones about "compassion" while murder of black people skyrockets.

But danger is lurking.  Indeed, it comes up in a Senate hearing tomorrow.
This Politico article pretty much lays it on the line:  

Senate Democrats are going to try to bring down President Donald Trump's Supreme Court pick no matter who the president chooses to fill the current vacancy.

With Trump prepared to announce his nominee on Tuesday evening, Sen. Jeff Merkley (D-Ore.) said in an interview on Monday morning that he will filibuster any pick that is not Merrick Garland and that the vast majority of his caucus will oppose Trump's nomination. That means Trump's nominee will need 60 votes to be confirmed by the Senate.

I have only a question and a comment.  The question is what happened to the urgent cry, heard only very recently, that, "We have to end the partisan gridlock in Washington and learn to compromise!"  The comment is that, under the current Democratic stance, Antonin Scalia, one of the greatest legal minds in American history, would not be considered, much less confirmed, for his own seat.  

To Nuke or Not to Nuke?

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Democratic Leader Sen. Chuck Schumer has signaled intransigence on confirming a Supreme Court nominee. He has said that Democrats would refrain from using the filibuster against a "mainstream" candidate, but made it clear that what he means by "mainstream" is a jurist who buys the legal and "living Constitution" agenda of the last Administration.  It is, to say the least, improbable that President Trump will put forward such a nominee. Accordingly, a filibuster seems likely at this point.

According to this article from the Hill, Majority Leader Mitch McConnell is reluctant to part with Senate tradition by ending the filibuster for Supreme Court nominees (i.e., by "going nuclear").

Earlier, I made one suggestion about how this might be handled.  A person well-acquainted with Senate procedures now makes another. 

Counterproductive Intolerance

Barbara Smith describes a sudden change in her attitude in this article in the WSJ.

At best, I had been a lukewarm and silent Trump supporter, a Goldwater-Reagan-George W. Bush girl who had decided to attend the ball mostly for the opportunity to wear a fancy dress. But when my heels hit the sidewalk that second time, I committed: I would now back President Trump.

Sessions Confirmation Delayed

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Seung Min Kim reports for Politico:

The powerful panel officially agreed to delay the official committee vote on his nomination due to requests from Democrats, who said they wanted more time to review Sessions and the paperwork surrounding his nomination. The vote will now be Jan. 31, and his nomination will head to the Senate floor after that.
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With support from Republicans, Sessions is expected to be confirmed when his nomination comes to the Senate floor, despite limited Democratic support.

White House Website

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The White House website was switched over in a flash about an hour ago.  The techies were ready.  Naturally, I went to the law enforcement page first.  Here is the last paragraph:

It is the first duty of government to keep the innocent safe, and President Donald Trump will fight for the safety of every American, and especially those Americans who have not known safe neighborhoods for a very long time.
I like that "first duty" line.  I have been saying similar things for a long time.  I also like the recognition that it is people of modest means who suffer most from crime.  I've said that a lot also.  The well-heeled can wax eloquently about giving thugs fourth chances from the safety of their safe neighborhoods, gated communities, and sophisticated security systems.  Regular folks need to take a more practical view of human nature.

The Senate Judiciary Committee will vote on the nomination of Jeff Sessions to be Attorney General next Tuesday.

DOJ Inspector General to Investigate Comey

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JIm Comey, a friend and former colleague of mine from the US Attorney's Office, will be investigated by the Justice Department's Inspector General.

Comey was in an impossible position in this election.  The very worthwhile tradition in the Department and the FBI is not to influence a campaign  --  something a free country must honor.  But, as Paul Mirengoff describes here, Comey was damned no matter what he did.

Comey would have conferred a big advantage on Trump if he had decided to recommend prosecuting Clinton -- a decision that, in my view, would easily have been defensible.

Comey would have conferred a big advantage on Clinton if, having decided against prosecuting her, he had declined to explain the basis of his decision to the American people and to Congress, and then refused to meet his promise to advise Congress if the FBI re-opened its investigation. A refusal to explain would have created the false impression that Clinton had not acted with great carelessness.

By taking a middle course -- not prosecuting but being transparent -- Comey probably came as close as he could have to not tilting the election in favor of either candidate. This doesn't mean he acted properly. It does suggest that, if one recognizes the full context of Comey's actions and the complexity of the situation, they are not really inconsistent with the "don't help or hurt a candidate" tradition he is accused of violating.

Blocking Supreme Court Nominees

"Where you stand depends on where you sit."  That is an old and very true adage in government, equally applicable to both parties.

Is it outrageous to block consideration of a Supreme Court nominee indefinitely and leave the ninth chair empty?  For nearly 10 months now we have heard that from our friends on the left side of the aisle.  Now we have a new statement from Senate Minority Leader Charles Schumer, as Kristina Peterson reports in the WSJ.

Mr. Schumer told reporters Wednesday that if Mr. Trump were to send up a mainstream nominee, Democrats would "give them a very careful look." But if "they're out of the mainstream, we will fight them tooth and nail," he said.
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When asked if Democrats would be comfortable leaving the ninth seat open on the Supreme Court, Mr. Schumer said "absolutely."

So, it's only outrageous if the other side does it.  And how is "mainstream" defined?

Mr. Schumer declined to comment on the merits of the list of possible high-court justices that Mr. Trump released during his campaign. But the Democratic leader said on MSNBC Tuesday night that it was unlikely Democrats would embrace any Supreme Court nominee from Mr. Trump that Republicans could support.
How did we come to a situation where nominees unacceptable to one party include all of those acceptable to the other?

Was Trump's Election a Surprise?

In the conventional sense, absolutely.  Very few pollsters or pundits predicted it.  I sure didn't.  And in a sense, the polls were close to correct:  Ms. Clinton won the national plurality by nearly 2.9 million votes.

In another sense, though, Trump's victory was the culmination of at least three trends we could have seen coming.  Two have been mentioned before on this blog: Clinton was broadly unpopular and seen as dishonest; and the country had lost faith in many of its institutions and in Washington, DC, in particular.  Hillary was nothing if not the consummate Washington insider, running in a year where that was, to put it mildly, no advantage.

But there is a third trend less often mentioned.

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