In a 51-43 <a href="https://www.senate.gov/legislative/LIS/roll_call_votes/vote1181/vote_118_1_00166.htm" target="_blank" rel="noopener">vote</a>, the U.S. Senate confirmed the attorney who argued for the Mississippi abortion clinic in the landmark Dobbs v. Jackson Women’s Health Organization to a federal appeals court Tuesday.
Julie Rikelman, who <a href="https://www.cnn.com/2023/06/20/politics/julie-rikelman-senate-confirmation-federal-judge/index.html" target="_blank" rel="noopener">lost</a> the most important case of her career in Dobbs, will sit on the U.S. Court of Appeals for the First Circuit, which covers Puerto Rico and most of New England. The 51-year-old is <a href="https://www.vox.com/2023/6/20/23760777/julie-rikelman-confirmed-first-circuit-abortion-dobbs-supreme-court" target="_blank" rel="noopener">seen</a> by many as America’s “preeminent abortion rights attorney.”
“Throughout her career, Ms. Rikelman has demonstrated a commitment to upholding what was settled precedent by defending Roe v. Wade and has committed to following all current and future Supreme Court precedents on the bench,” Sen. Joe Manchin (D-WV) said in a <a href="https://www.manchin.senate.gov/newsroom/press-releases/manchin-supports-rikelman-nomination-for-first-circuit-court-of-appeals" target="_blank" rel="noopener">statement</a> supporting her nomination.
Rikelman’s nomination was supported unanimously by Senate Democrats, including two self-described “pro-life Democrats,” Sens. <a href="https://www.manchin.senate.gov/newsroom/press-releases/manchin-statement-on-scotus-decision-to-overturn-roe-v-wade" target="_blank" rel="noopener">Manchin</a> and <a href="https://www.politico.com/story/2018/07/02/casey-abortion-pennsylvania-midterms-689505" target="_blank" rel="noopener">Bob Casey</a> (D-PA). The Democrats were joined by two pro-abortion Republicans, Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK).
The attorney has been the senior litigation director for the <a href="https://reproductiverights.org/about-us/" target="_blank" rel="noopener">Center for Reproductive Rights</a>, a radical pro-abortion group, since 2011.
President Joe Biden <a href="https://www.axios.com/2023/06/20/senate-confirms-dobbs-lawyer-federal-judge" target="_blank" rel="noopener">nominated</a> Rikelman in July 2022, shortly following her failure in Dobbs, but Judiciary Committee Republicans were able to stall her nomination because of the 50-50 split in the Senate. Now that Democrats <a href="https://www.axios.com/2023/06/20/senate-confirms-dobbs-lawyer-federal-judge" target="_blank" rel="noopener">have</a> a numerical majority, they can push through left-wing judicial appointees more quickly over Republicans’ objections.
During her confirmation hearing, Sen. Ted Cruz (R-TX) <a href="https://twitter.com/SenTedCruz/status/1572663570696912904" target="_blank" rel="noopener">characterized</a> Rikelman as “an extreme zealot advocating for abortion.” Sen. Josh Hawley (R-MO) <a href="https://www.youtube.com/watch?v=0FyPvRA0YP4" target="_blank" rel="noopener">grilled</a> Rikelman’s past writings <a href="https://www.huffpost.com/entry/opinion-rikelman-myrick-supreme-court-crisis-pregnancy-abortion_n_5b3398c2e4b0cb56051e0aaa" target="_blank" rel="noopener">characterizing</a> pro-life crisis pregnancy centers as “faux clinics that pose as real medical facilities” and <a href="https://www.scotusblog.com/2017/12/symposium-first-amendment-cannot-justify-lying-women/" target="_blank" rel="noopener">claiming</a> they cause “women [to] suffer concrete harms to their health.”
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The new judge also committed to applying the Dobbs decision “faithfully” in her judicial work, saying, “The rule of law itself depends on lower courts following Supreme Court precedent.&#8221;
The Mississippi clinic Rikelman represented <a href="https://www.cbsnews.com/news/jackson-womens-health-closes-last-mississippi-abortion-clinic-roe-v-wade/" target="_blank" rel="noopener">closed</a> in Summer 2022 after Mississippi’s trigger law went into effect following Rikelman’s unsuccessful attempt to <a href="https://www.oyez.org/cases/2021/19-1392" target="_blank" rel="noopener">convince</a> the U.S. Supreme Court that abortion was a “fundamental right” under the Constitution. The Mississippi statute bans abortion except in cases of rape or to preserve the life of the mother.
Despite Rikelman’s notoriety for her work on abortion cases, it is unlikely she will significantly impact the current abortion jurisprudence. Abortion cases make up a very small amount of cases federal courts hear, and she has no jurisdiction over any of the red states whose abortion bans are caught in court.

Supreme Court Hears Mississippi Abortion Case

Attorney Who Defended Abortion Clinic In Dobbs Ascends To Federal Judgeship

Abortion

Courts

Joe Manchin

Josh Hawley

Judicial Branch

Ted Cruz

U.S.

U.S. Senate

Sen. <a href="https://www.dailywire.com/topic/dianne-feinstein" target="_blank" rel="noopener">Dianne Feinstein</a> (D-CA) released a new statement Thursday afternoon regarding her continued absence from the Senate as she battles health problems, saying that her departure has not slowed down Democrats&#8217; ability to confirm judges to federal courts.
The statement from Feinstein, 89, comes as she has faced calls in recent weeks from Democrats and Republican presidential candidate Nikki Haley to resign while she continues to recover in California from a case of the shingles.
&#8220;The Senate continues to swiftly confirm highly qualified individuals to the federal judiciary, including seven more judicial nominees who were confirmed this week. There has been no slowdown,&#8221; Feinstein said. &#8220;This includes the confirmation of Judge Wesley Hsu to the Central District of California. He will make an outstanding jurist and I&#8217;m proud to see him join the federal bench.&#8221;
&#8220;While the Senate Judiciary Committee has advanced eight strong nominees during my absence, I&#8217;m disappointed that Republicans on the committee are blocking a few from moving forward,&#8221; she continued. &#8220;I&#8217;m confident that when I return to the Senate, we will be able to move the remaining qualified nominees out of committee quickly and to the Senate floor for a vote.&#8221;
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New statement from Feinstein doesn’t say when she will return to Washington but asserts “there has been no slowdown” in judicial confirmations while she’s been absent.
“I’m confident that when I return to the Senate, we will be able to move the remaining qualified nominees&#8230;” <a href="https://t.co/9MsufAqtIk">pic.twitter.com/9MsufAqtIk</a>
&mdash; Andrew Desiderio (@AndrewDesiderio) <a href="https://twitter.com/AndrewDesiderio/status/1654214731404570625?ref_src=twsrc%5Etfw">May 4, 2023</a></blockquote>
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Senate Republicans blocked a plan by Democrats last month to quickly replace Feinstein on the Senate Judiciary Committee after Senate Majority Leader Chuck Schumer (D-NY) sought unanimous consent for a resolution that would allow Ben Cardin, a Democrat who is the senior senator from Maryland, to take Feinstein’s place.
“She’s a dear friend and we hope for her speedy recovery and return back to the Senate. With all due respect, my colleague, Sen. Schumer, this is about a handful of judges that you can’t get the votes for,” Sen. Lindsey Graham (R-SC) said, <a href="https://www.cnn.com/2023/04/18/politics/schumer-senate-feinstein-vote-cardin/index.html" target="_blank" rel="noopener">per CNN</a>.
As Graham indicated, central to the debate are nominees to federal courts around the country. By mid-February, the Senate confirmed more than 100 judicial appointments, meaning that in two years, President Joe Biden was <a href="https://abcnews.go.com/Politics/biden-appointed-105-federal-judges-outpacing-trump-obama/story?id=97200133" target="_blank" rel="noopener">outpacing his immediate predecessors</a>. Any effort to reshape the federal judiciary ran into a roadblock when Feinstein became a no-show on Capitol Hill.
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Daniel Chaitin contributed to this report.

Feinstein

Dianne Feinstein Releases New Statement On Her Absence From The Senate

California

Congress

Dianne Feinstein

Politics

The <a href="https://www.dailywire.com/topic/judiciary">United States Court of Appeals for the District of Columbia</a> has <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/524B3B5CED10789D8525889900538BAB/$file/21-5289-1958452.pdf">ruled</a> that Congress has the <a href="https://www.dailywire.com/topic/constitution">constitutional</a> authority to request the tax returns of former <a href="https://www.dailywire.com/topic/donald-trump">President Donald J. Trump</a>.
Since 2019, the House of Representatives Ways and Means Committee has <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/524B3B5CED10789D8525889900538BAB/$file/21-5289-1958452.pdf">attempted</a> to gain access to Trump&#8217;s tax returns from the Internal Revenue Service (IRS), along with the returns from several of his businesses. While Trump was president, the Department of Treasury stated that it would not comply with the request on several legal grounds. Congress sued, and as the lawsuit made its way through court, Trump lost re-election to then-candidate Joe Biden. After Biden&#8217;s inauguration, Congress again requested Trump&#8217;s tax returns in June 2021. This time, Biden&#8217;s Treasury Department stated it would comply.
Trump&#8217;s legal team intervened to block the committee from obtaining his records. However, the U.S. District Court of D.C. dismissed Trump&#8217;s assertions, and in turn, his team appealed the case.
The U.S. Court of Appeals affirmed the District Court&#8217;s ruling on Tuesday.
In reaction to the decision, the Ways and Means Committee&#8217;s official account tweeted, &#8220;We expect to receive the requested tax returns and audit files immediately.&#8221;
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🚨 🚨 🚨 BREAKING: The DC Court of Appeals has just ruled that the law is on our side in seeking Trump&#39;s tax returns. We expect to receive the requested tax returns and audit files immediately.<a href="https://t.co/FYzFzYrxF8">https://t.co/FYzFzYrxF8</a>
&mdash; Ways &amp; Means Committee (@WaysMeansCmte) <a href="https://twitter.com/WaysMeansCmte/status/1557029202158915585?ref_src=twsrc%5Etfw">August 9, 2022</a></blockquote>
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As part of Trump&#8217;s opposition to Congress, his legal team argued that the request for his tax returns was &#8220;politically motivated.&#8221;
However, the court <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/524B3B5CED10789D8525889900538BAB/$file/21-5289-1958452.pdf">found</a> that the committee &#8220;has identified a legitimate legislative purpose that it requires information to accomplish. At this stage, it is not our place to delve deeper than this. The mere fact that individual members of Congress may have political motivations as well as legislative ones is of no moment.&#8221;
&#8220;Indeed, it is likely rare that an individual member of Congress would work for a legislative purpose without considering the political implications,&#8221; the court added. &#8220;The statements of individual Committee members and members who are not part of the Committee provided by the Trump Parties do not change this. The courts do not probe the motives of individual legislators. These motives are explicitly protected by the Speech or Debate Clause.&#8221;
Trump&#8217;s team also argued that the request violated &#8220;the separation of powers principle,&#8221; but the court did not agree with that objection either.
&#8220;The 2021 Request seeks information that may inform the United States House of Representatives Committee on Ways and Means as to the efficacy of the Presidential Audit Program,&#8221; the court <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/524B3B5CED10789D8525889900538BAB/$file/21-5289-1958452.pdf">said</a>. &#8220;Further, the Request did not violate separation of powers principles under any of the potentially applicable tests primarily because the burden on the Executive Branch and the Trump Parties is relatively minor.&#8221;
Trump&#8217;s legal team can appeal the decision.
This is a developing story; Please check back for updates.
&nbsp;

LIV Golf Invitational – Bedminster – Day One

Federal Appeals Court Rules Congress Can Go After Trump’s Tax Returns

Federal Appeals Court Rules Congress Can Go After Trump's Tax Returns

Court

Donald Trump

Judiciary

A prominent gun control measure proposed by both Democratic and Republican lawmakers is unlikely to withstand judicial scrutiny, considering recent precedent.
Many of the perpetrators of recent mass shootings were below the age of 21, including the <a href="https://www.dailywire.com/news/breaking-shooting-at-texas-elementary-school-leaves-at-least-15-dead">Uvalde</a>  and <a href="https://www.dailywire.com/news/buffalo-mass-shooting-suspect-had-been-flagged-as-troubled-a-year-ago-report">Buffalo</a> shooters, aged 18, and the <a href="https://www.nbcnews.com/news/us-news/police-respond-shooting-parkland-florida-high-school-n848101">Parkland</a> shooter, aged 19.
<a href="https://www.atf.gov/firearms/qa/does-customer-have-be-certain-age-buy-firearms-or-ammunition-licensee">Federal law</a> already prohibits the sale of pistols to citizens under 21, but young adults can purchase rifles in <a href="https://www.thetrace.org/2022/05/uvalde-mass-shooting-ar15-age-restriction/">44 states</a> — and some are <a href="https://www.thecity.nyc/2022/5/25/23142050/hochul-raise-age-ar15-rifles-gun-control">calling for new legislation</a> that would change that.
Representative Adam Kinzinger <a href="https://www.dailywire.com/news/gop-congressman-claims-raising-age-to-purchase-guns-to-21-is-a-no-brainer">called the proposed measure</a> a “no-brainer”, stating that. “We know that the human brain develops and matures a lot between the ages of 18 and 21. We just raised, without really so much as a blink, the age of purchasing cigarettes federally to 21.”
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Republican Rep. Adam Kinzinger tells <a href="https://twitter.com/jonkarl?ref_src=twsrc%5Etfw">@jonkarl</a> that raising minimum age for gun purchases to 21 “is a no brainer&quot; to him.
“If you look at the Parkland shooting, you look at Buffalo, you look at this shooting, these are people under the age of 21.” <a href="https://t.co/Ndo3NsrFp7">https://t.co/Ndo3NsrFp7</a> <a href="https://t.co/mBpxDBiyJF">pic.twitter.com/mBpxDBiyJF</a>
&mdash; This Week (@ThisWeekABC) <a href="https://twitter.com/ThisWeekABC/status/1530916688153169920?ref_src=twsrc%5Etfw">May 29, 2022</a></blockquote>
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However, earlier this month the 9th Circuit Court of Appeals <a href="https://www.latimes.com/california/story/2022-05-11/federal-court-rules-california-ban-on-gun-sales-to-people-under-21-unconstitutional">struck down</a> a very similar restriction in California, which banned the sale of semi-automatic rifles to young adults, with the 2-1 majority <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/11/20-56174.pdf">arguing</a> that the policy constituted an arbitrary violation of the 2nd amendment rights of adult citizens.
“America would not exist without the heroism of the young adults who fought and died in our revolutionary army,” Judge Ryan D. Nelson wrote for the majority. “Today we reaffirm that our Constitution still protects the right that enabled their sacrifice: the right of young adults to keep and bear arms.”
With <a href="https://www.wbur.org/news/2022/05/27/supreme-court-gun-control-massachusetts-impacts">consensus</a> on the bench shifting towards a broader defense of gun rights, age based restrictions on the right to purchase long guns seem unlikely to stand.
Adam Winkler, a law professor  commenting on the California case for the Los Angeles Times, called the 9th circuit’s ruling “ a harbinger of things to come,” stating that “In the coming years, the courts seem certain to strike down numerous gun safety measures in the name of the 2nd Amendment.”

Guns

Proposed Gun Sale Ban For Citizens Under 21 Unlikely To Withstand Judicial Review

Gun Control

Gun Rights

Gun Sales

Supreme Court

President Joe Biden <a href="https://www.dailywire.com/news/joe-biden-to-nominate-ketanji-brown-jackson-to-supreme-court-report">selected</a> Judge Ketanji Brown Jackson to replace retiring Supreme Court Justice Stephen Breyer. Progressive legal groups hailed the nomination as a groundbreaking historical first, while conservatives say Jackson is a judicial activist who will substitute her own views for those of the Founding Fathers. Ketanji Brown Jackson has worked as a lawyer in private practice supporting the abortion lobby, served as a public defender, and helped lead a federal board that reduced sentences for criminals.
Who is Judge Ketanji Brown Jackson, how has she ruled, and what does she believe? Here are the facts you need to know.
Ketanji Brown Jackson’s views on controversial issues
Abortion: Ketanji Brown Jackson <a href="https://www.scotusblog.com/2022/02/profile-of-a-potential-nominee-ketanji-brown-jackson/">represented</a> NARAL Pro-Choice America, the League of Women Voters, and the Abortion Access Project of Massachusetts during her time in Boston’s Goodwin Procter law firm. In 2001, she helped <a href="https://casetext.com/case/mcguire-v-reilly-7">write</a> an amicus brief supporting a Massachusetts law that barred pro-life advocates from setting foot within six feet of any individual or vehicle that is within 18 feet of an abortion facility. Jackson’s record has earned her the fierce opposition of female leaders in the pro-life movement.
“We expect her to be a reliable vote for the far left and the Biden administration’s radical abortion agenda,” said <a href="https://marchforlife.org/">March for Life</a> president Jeanne Mancini.
“We have no doubt she will work with the most pro-abortion administration in history to enshrine abortion on demand nationwide in the law,” said <a href="https://sba-list.org/">Susan B. Anthony List</a> president Marjorie Dannenfelser. “With the Court’s decision in Dobbs expected this summer, the stakes have never been higher in the fight to protect unborn children and their mothers and let the people decide this issue through their elected representatives, not unelected judges.”
Crime: Ketanji Brown Jackson served as vice chairman of the U.S. Sentencing Commission during the Obama administration. In April 2014, the commission propounded the “Drugs Minus Two” rule, which lowered the punishment for all drug-related crimes by two offense levels. The rule, which applied to an estimated <a href="https://www.themarshallproject.org/2015/07/23/federal-prisons-could-release-1-000-times-more-drug-offenders-than-obama-did">46,000</a> convicts, allowed judges to reduce convicts’ drug sentences <a href="https://www.ussc.gov/sites/default/files/pdf/amendment-process/materials-on-2014-drug-guidelines-amendment/20140724_FAQ.pdf">by an average of two years and one month</a>. “The result of the Sentencing Commission’s proposal will be to reward drug traffickers and distributors who possessed a firearm, committed a crime of violence, or had prior convictions,” <a href="https://dailycaller.com/2015/07/22/thousands-of-violent-felons-to-be-released-in-november-under-new-sentencing-guidelines/">wrote</a> Senator Chuck Grassley (R-IA) and then-Rep. Bob Goodlatte (R-VA) at the time.
Immigration: In September 2019, Judge Ketanji Brown Jackson wrote a <a href="https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2019cv2369-40">120-page ruling</a> (Make the Road New York v. McAleenan) that the Trump administration could not expand its use of “<a href="https://www.politico.com/news/2019/09/28/judge-blocks-trump-fast-track-deportations-007717">expedited removal</a>”: that it could not fast-track the deportation of illegal aliens who had been in the country less than two years. Jackson ruled that the Trump administration should have considered the “potentially serious implications” its order would have on illegal aliens and not merely focus on “the perceived shiny bright spots” of the policy.
She also said the administration did not hold a public comment period on the policy, it had <a href="https://www.politico.com/news/2019/09/28/judge-blocks-trump-fast-track-deportations-007717">effectively</a> engaged in “decision making by Ouija board or dart board, rock/paper/scissors, or even the Magic 8 Ball.” The D.C. Circuit <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/F398C868A41E007D85258590004E10B3/$file/19-5298-1848499.pdf">overturned</a> her decision. Immigration and Nationality Act Section 237 (a)(1)(B) explicitly <a href="https://www.fairus.org/issue/border-security/illegal-immigration-crime">states</a>, “Any alien who is present in the United States in violation of this Act or any other law of the United States is deportable.”
Funding teen sex programs: When the Trump administration cut off $200 million in federal funding to the Teen Pregnancy Prevention Program, which teaches <a href="https://www.dailywire.com/news/trump-cuts-funding-teen-pregnancy-programs-left-paul-bois">children as young as 10 to use condoms</a> and other contraceptives without emphasizing abstinence, Judge Jackson <a href="https://casetext.com/case/healthy-futures-texas-v-dept-of-health-human-servs">ruled</a> that the funding must continue. In April 2018, Judge Jackson questioned the right of the elected leaders to deny grant recipients and “suddenly say ‘<a href="https://www.washingtonpost.com/world/national-security/the-real-reason-president-trump-is-constantly-losing-in-court/2019/03/19/f5ffb056-33a8-11e9-af5b-b51b7ff322e9_story.html">too bad, so sad</a>.’” She called the Trump administration’s argument that the government should be able to determine who receives government grants “weird” before ordering the funding be restored.
Government bureaucracy and labor unions: In 2018, President Donald Trump <a href="https://federalnewsnetwork.com/hiring-retention/2018/05/what-changes-and-doesnt-under-trumps-new-employee-removal-executive-order/">issued</a> three executive orders that would reduce the power of public sector unions and make it easier to fire employees for poor performance. They also ordered employees to spend at least 75% of their time on “agency business.” Trump limited the use of “<a href="https://www.heritage.org/budget-and-spending/commentary/trump-cracking-down-wasted-time-and-money-the-va">official time</a>,” which allows government bureaucrats to use government resources to conduct union business during working hours, <a href="https://www.heritage.org/jobs-and-labor/commentary/trump-executive-orders-are-surprisingly-popular-federal-employees">at taxpayers’ expense</a>.
He also said the government would not negotiate with labor unions on issues where it was not legally required to do so. In August 2018, Judge Ketanji Brown Jackson issued a <a href="https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv1261-58">119-page decision</a> eviscerating those orders, denying most of Trump’s actions (American Federation of Government Employees v. Trump). She admitted that, while Trump’s action did not “specifically and directly conflict with individual statutory prescriptions” (i.e., he did not violate the law), it so “diminishes the scope of bargaining” that, it seemed to Jackson, Trump’s orders are no longer “a good-faith effort.” The D.C. Court of Appeals once again <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/81BFA36379FFE7A185258439004F8C8A/$file/18-5289-1797318.pdf">overturned</a> Jackson’s decision, ruling that Jackson lacked jurisdiction to rule on the case.
Jackson’s <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/7B60B8352A5EE0A9852587DC00533AA7/$file/20-1396-1933161.pdf">first appellate opinion</a>, issued in February on behalf of a three-judge panel, compelled government agencies to negotiate working conditions with labor unions.
Biography
Judge Ketanji <a href="https://www.wsj.com/articles/biden-taps-ketanji-brown-jackson-for-supreme-court-11645797644">Onyika</a> Brown Jackson was born in Washington, D.C., on September 14, 1970, and raised in Miami. The 51-year-old is related by marriage to former Speaker of the House Paul Ryan (R-WI), who introduced her during her 2012 confirmation hearings to the federal bench. She earned a bachelor’s degree in government and her law degree from Harvard. From 1999 to 2000, she clerked for Justice Stephen Breyer, whom she would replace if she is confirmed. She is married to Georgetown surgeon Patrick Jackson and has two daughters, Talia and Leila.
President Barack Obama named Jackson to the federal bench in 2012, and the Senate approved her nomination by a voice vote in March 2013. She authored <a href="https://www.wsj.com/articles/biden-taps-ketanji-brown-jackson-for-supreme-court-11645797644">more than 550 opinions</a>, which were <a href="https://news.bloomberglaw.com/us-law-week/circuit-pick-jacksons-reversals-a-likely-target-for-senate-gop">frequently overturned</a> on appeal. President Obama interviewed her for the 2016 Supreme Court vacancy but settled on Merrick Garland.
President Joe Biden nominated Jackson to take Garland’s seat on the U.S. Court of Appeals for the D.C. Circuit in March 2021. The nomination marked her as a likely Supreme Court nominee, as Justices Clarence Thomas, Brett Kavanaugh, former justices Ruth Bader Ginsburg and Antonin Scalia, as well as Chief Justice John Roberts, had all served on the D.C. circuit. The U.S. Senate confirmed Jackson to the appeals court last June 14 by a <a href="https://www.senate.gov/legislative/LIS/roll_call_votes/vote1171/vote_117_1_00231.htm#position">53-44 vote</a>. Three Republicans — Susan Collins of Maine, Lindsey Graham of South Carolina, and Lisa Murkowski of Alaska — voted to confirm Jackson. Jackson wrote her <a href="https://www.nationalreview.com/bench-memos/judge-ketanji-brown-jacksons-first-appellate-opinion/">first appeals court decision</a> last month.
On Friday, Biden kept his campaign promise to name the first black woman to the U.S. Supreme Court, a pledge that proved pivotal to winning the support of Rep. Jim Clyburn (D-SC) during the South Carolina primary. Although Clyburn <a href="https://www.dailywire.com/news/report-clyburn-floating-south-carolina-judge-for-future-scotus-vacancy">preferred</a> the more moderate J. Michelle Childs, a South Carolina native, Jackson has other “fans within the Congressional Black Caucus, the influential group of lawmakers who also has the president’s ear,” <a href="https://www.politico.com/news/2022/02/23/who-is-ketanji-brown-jackson-bio-facts-background-political-views-00010970">according</a> to Politico. Jackson was also on the <a href="https://demandjustice.org/supreme-court-shortlist/">short list</a> of <a href="https://www.influencewatch.org/non-profit/demand-justice/">Demand Justice</a>, which has been called a “liberal dark money” group and is focused on packing the nation’s courts with judicial activists.
&#8220;With the intended nomination of Ketanji Brown Jackson, Joe Biden has made it clear that his top priority is paying back the left-wing dark money network that spent over one billion dollars to help elect him and Senate Democrats,&#8221; said Carrie Severino, the president of the <a href="https://judicialnetwork.com/">Judicial Crisis Network</a>.
Competence
Judge Jackson’s supporters point to her Ivy League education, recent bipartisan confirmation, and experience on the bench as proof she is “<a href="https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/webratingchart-117.pdf">well qualified</a>.” But many others question Jackson’s abilities.
“People on the right don’t think Brown Jackson is stellar intellectually,” <a href="https://www.washingtontimes.com/news/2022/feb/11/conservatives-target-judge-brown-jackson-worst-cho/">said</a> Curt Levey, president of the <a href="https://committeeforjustice.org/">Committee for Justice</a>. Ed Whelan, who holds the Antonin Scalia Chair in Constitutional Studies at the <a href="https://eppc.org/">Ethics and Public Policy Center</a>, said that “Jackson is not highly regarded as a judge” and has “a middling reputation. This criticism, I’ll emphasize, is on grounds of quality, not ideology.”
Republicans will have to contend with remarks from then-Speaker of the House Paul Ryan, who <a href="https://www.nytimes.com/2022/01/26/us/politics/ketanji-brown-jackson-supreme-court.html">called</a> Jackson (whose husband is the twin brother of Ryan’s brother-in-law) “clearly qualified” and “an amazing person.”
Prospects of confirmation
Jackson appears to face little or no Democratic opposition inside the evenly divided Senate, even from its more centrist members. Before Jackson’s nomination, Senator Joe Manchin (D-WV), who calls himself “pro-life,” has <a href="https://www.newsweek.com/everything-joe-manchin-has-said-about-bidens-supreme-court-nomination-1674984">said</a> he is “anxious” to fill the Supreme Court vacancy, even with someone “more liberal than me,” provided the nominee has “a sound thought process.” Senator Kyrsten Sinema (D-AZ) has also <a href="https://kyma.com/news/2022/02/25/politicians-comment-on-judge-ketanji-brown-jacksons-nomination-for-supreme-court/">signaled</a> her openness to voting for Jackson.
Senator Dick Durbin (D-IL) has said he plans to confirm Jackson before the Senate’s Easter break in April.
Conservatives continue to warn against the dangers of confirming Judge Jackson to the Supreme Court. “She is by all accounts a liberal judge. I think she’s the choice of the radical Left,” said former Vice President Mike Pence on Friday.
“President Biden is selecting a judicial activist for the Supreme Court,” said Kelly Shackelford of the <a href="https://firstliberty.org/">First Liberty Institute</a>. “Her record from the beginning of her career shows hostility to religious liberty, free speech, and other constitutional rights. The American people do not want a liberal extremist on the Supreme Court. If confirmed, Judge Jackson’s judicial activism will place the constitutional rights of all Americans in jeopardy.”

Jackson

Who Is Ketanji Brown Jackson? Everything You Need To Know About Biden’s SCOTUS Pick

Ketanji Brown Jackson

Readers Pass

The Supreme Court continues to be one of the central issues driving every modern presidential election. The death or retirement of a single Supreme Court Justice can send shockwaves through our entire society, stirring up stunning levels of vitriol, hyperbolic rhetoric, and aggression. But how did we get here? Why is the Supreme Court so important?
The Authority of the Supreme Court
The United States Supreme Court “is the highest tribunal in the nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.” 
Article III of the United States Constitution establishes the federal judiciary.
<blockquote>“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” </blockquote>
Congress has the power to decide how to organize the Supreme Court, with the Judiciary Act of 1789 establishing 6 justices. This number has fluctuated over time, from a low of 5 to a high of 10. Since the Circuit Judges Act of 1869, there have been 9 justices on the court, with a Chief Justice and 8 Associate Justices.
Article III, Section II outlines the court’s jurisdiction, which allows certain cases to be tried directly before the court, and for appeals to be considered regarding almost any other case that involves a matter of constitutional and/or federal law. 
<blockquote>“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;&#8211;to all cases affecting ambassadors, other public ministers and consuls;&#8211;to all cases of admiralty and maritime jurisdiction;&#8211;to controversies to which the United States shall be a party;&#8211;to controversies between two or more states;&#8211;between a state and citizens of another state;&#8211;between citizens of different states;&#8211;between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”</blockquote>
Article II Section II provides the president — with the support of the Senate — with the ability to appoint judges to the Supreme Court.
<blockquote>“He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”</blockquote>
Why is the Supreme Court so powerful?
The best-known, and arguably the most impactful, power of the Supreme Court is “judicial review.” The case of Marbury v. Madison in 1803 first established the Court’s ability to strike down any Legislative or Executive act as “unconstitutional” if it is deemed to violate the text of the Constitution. 
Therein lies the rub. While the United States Constitution is a concrete document, the action of interpreting it is often abstract. The subjectivity of interpretation possessed by each Supreme Court Justice means that the same text can be “interpreted” in a variety of ways. There are originalist justices, who believe that there is some form of original intent or meaning which remains unchanged in the words of the Constitution. Then there are those who interpret the Constitution as a vague &#8220;living document&#8221; which morphs based on the society of its time. Then there are those who see the Constitution as a barrier to underlying political objectives which must therefore be traversed rather than respected.
The style of interpretation possessed by its members is what makes the Supreme Court such a politically contentious issue. When we analyze the potential implications of judicial review through the lens of genuine intellectual disagreement or partisan cynicism, history is replete with examples of devastatingly consequential judicial decisions which had entirely legislative outcomes.
Legislative power through the judicial branch
In Dred Scott v. Sandford (1857), the Supreme Court determined that the Constitution was supposedly not meant to include American citizenship for black people. In Roe v. Wade (1973), the Supreme Court concluded that the Constitution somehow protects a woman’s freedom to have an abortion under the banner of “protecting privacy.” In Obergefell v. Hodges (2015), the Supreme Court declared that same-sex marriage was guaranteed by the Due Process Clause and Equal Protection Clause of the 14th Amendment. These landmark decisions, with vast legislative and societal results, were determined by nine unelected members of the judicial branch.
Apart from whether or not these individual decisions — and many others — are right or wrong, the broader issue is that the Supreme Court can be deliberately misused as a tool of “progress” to bypass the inconvenient barrier of legislative process. For this reason, those who view the Constitution as either a “living document” which can be molded to their perspective or as an obstacle see the Supreme Court as a prize which must be won. In return, those who wish to defend the Constitution must also fight to protect it from such judicial abuse.
Over the decades, political activists have discovered that it is immeasurably more efficient to achieve their political desires with the support of a handful of unelected and politically-motivated lawyers than the support of the House of Representatives, the Senate, and the White House. Ultimately, it is up to us to demand that the legislative branch do their job, and it is up to us to protect the Constitution.

Pro-Abortion outside Supreme Court

Why Is The Supreme Court So Important?

Constitution

A new documentary is currently making the rounds of limited release that explores the life of U.S. Supreme Court Justice Clarence Thomas. &#8216;Created Equal: Clarence Thomas in his Own Words&#8217; offers its viewers a unique perspective on one of America’s most contentious and quietly brilliant men.
Thomas has, of course, been a contentious figure in American politics ever since his confirmation hearing in 1991 — when President George H. W. Bush nominated him for the position of Supreme Court associate justice. Thomas was quickly accused of sexually harassing a female subordinate, Anita Hill, earlier in his career. While the FBI quickly ruled out the claim, her testimony was leaked to the public and devolved into a heated series of public sexual harassment hearings prior to his confirmation.
The movie doesn’t pretend that it isn’t taking a stance on Justice Thomas’s innocence. If anything, his accusation draws immediate comparisons in the movie to the conspicuously similar accusations made 27 years later against then-Supreme Court nominee Brett Kavanaugh. Alas, in the scheme of lionizing Supreme Court justices, a single documentary about Justice Thomas pales in comparison to the multitude of biopics and documentaries made about progressive darling Justice Ruth Bader Ginsberg.
&#8216;Created Equal&#8217; is a documentary that merely puts his perspective in the spotlight. It’s primarily composed as a one-on-one sit-down interview with the now 71-year-old justice as he reflects on his life, politics, and his stances on constitutional law. Anyone who has read his memoir, &#8216;My Grandfather’s Son,&#8217; will likely be familiar with some of the highlights of his journey — but for first-time viewers, his life will likely be rather striking. Born in rural Georgia during segregation, Justice Thomas endured both poverty and unimaginable racial prejudice.  He was largely sheltered from the worst of it via his relationship with his grandfather, who put him to work as a part-time laborer and a farmer with strict standards and expectations. After a falling out with his grandfather, he underwent a period of radicalization amidst the turmoil of the Civil Rights Movement and moved politically to the far-left. After graduating from College of the Holy Cross and subsequently Yale Law School, he eventually received a job working with the attorney general of Missouri, and future Republican U.S. senator, John Danforth.
While most of the back half the documentary deals with the results of his Supreme Court nomination and subsequent confirmation, the first half ends up being the more revealing half. Seeing his path from the most oppressed rungs of American society to becoming an associate justice is nothing short of inspiring. He is, in every respect, the embodiment of the American dream. His position of power now is a reflection of a lifetime of struggle, hard work, and self-reflection as he grew into the man he is today.
Seeing him grow from a leftist into the most famously conservative man on the Supreme Court is equally fascinating. That journey, though less fraught than his upbringing, required years of intellectual wrestling with his leftist tendencies as he developed his originalist stance on constitutional interpretation. After years of attending political conventions and arguing with friends, he developed a strong sense of constitutional fidelity birthed from his love for the Founders and their vision for an American government.
That immense wellspring of knowledge about the nature of the American Founding subsequently gives Thomas&#8217;s perspective of his confirmation hearings a rather hilarious undercurrent. Watching him explain how then-Senator Joe Biden’s (D-DE) contortions of political theory amounted to little more than an attempt to make him reveal his positions on abortion is nothing short of hilarious. The Democrats&#8217; line of interrogation during the Senate confirmation hearings was clearly nothing but an attempt to make him stumble as part of the Left’s effort to destroy a black man holding, as Thomas puts it, the &#8220;wrong&#8221; opinions.
Being black and a conservative always put Justice Thomas at odds with the progressive Left. Given his Catholic faith, as well as his personal stances against forced busing and welfare, he drew immense amounts of acrimony from those who hated him well before Anita Hill made her accusations known. Thomas is, in every respect, the kind of public figure the Left should hold up as a success story for the black community. Yet the Left casually dismisses him as a race traitor. Thomas is clearly still bothered by some of the horrifically racist rhetoric that has been used against him throughout his career.
For bringing much of this history to the public’s attention, &#8216;Created Equal&#8217; is a vitally important piece of both journalism and history. Thomas’ stories feel all too familiar in an age of #MeToo accusations and racial identitarianism. Much of the vitriol he spent his career fighting sadly remains a stubborn fact today. The perspective he brings to life, law, and morality is immensely valuable and inspiring. To this day, his name is invoked on the Left as an example of a prominent man being let off the hook for sexual impropriety. The film makes clear Thomas’ name, reputation, and beliefs were dragged through the mud. Thankfully, such a horrific show didn’t destroy the man. He is today as humble, intelligent, proud, faithful, and patriotic as he’s ever been.

US-JUSTICE-SUPREME-COURT-GROUP-PHOTO

HUMMEL: ‘Created Equal’: New Documentary Sheds Light On The Life Of Justice Clarence Thomas

Clarence Thomas

Conservatism

Hollywood

Leftism

As The Daily Wire <a href="https://www.dailywire.com/news/trump-considering-dramatic-expansion-of-terrorist-nations-added-to-travel-ban-list">previewed weeks ago</a> and as has also been rumored for much of this current week, the Trump administration on Friday imposed travel restrictions on six new countries.
&#8220;President Donald Trump is expected to reveal an expansion of his controversial travel ban on Friday, the same day he could be acquitted in his impeachment trial and just days ahead of the president’s annual State of the Union address,&#8221; Politico <a href="https://www.politico.com/news/2020/01/30/trump-travel-ban-expansion-109659">reported</a> yesterday. &#8220;The expected announcement — confirmed by two people familiar with the matter — had initially been planned for this past Monday to coincide with the three-year anniversary of the original order, which restricted travel from several majority-Muslim nations.&#8221;
On Friday afternoon, The Wall Street Journal <a href="https://www.wsj.com/articles/trump-administration-imposes-new-travel-restrictions-on-six-countries-11580500874?emailToken=ee9c4d96fd7222587f6a95ea5366a1faJTb2EUg+d0M9bUrQCrIOQzQ91WSepUbYHQgY9Wk%2F8tABR%2F6914m7UCcOGLZysxL+RosZfgYd3Lb8J2OSgyyjyduSEnQYimX%2FldifLfWwadKmtNJ7tcwwfsnO5mS8469GWPrBhircuAoxdsFvkggkYQ%3D%3D&amp;reflink=article_whatsapp_share&amp;fbclid=IwAR03FzpEH7xWpUAx8Zyh0wkm5hGE__rlQ_gQW9NIAzsU5wuLbIvKnm8_tAc">confirmed the news</a>. The six new countries to have various types of travel restrictions imposed upon them are Nigeria, Eritrea, Myanmar, Kyrgyzstan, Sudan, and Tanzania.
&#8220;Citizens from Nigeria, Eritrea, Myanmar and Kyrgyzstan won’t be allowed to apply for visas to immigrate to the U.S. under the policy, which the Trump administration said was designed to tighten security for countries that don’t comply with the U.S. minimum security standards or cooperate to prevent illegal immigration,&#8221; the Journal reports. &#8220;Two other countries, Sudan and Tanzania, will be barred from participating in the diversity visa lottery, which randomly awards green cards to 50,000 immigrants from underrepresented countries annually. Many of the recipients are from African countries.&#8221;
Specifically, Nigeria, Eritrea, Myanmar and Kyrgyzstan will have the issuance suspended of all visas that might lead to permanent residency, according to <a href="https://www.reuters.com/article/us-usa-immigration-ban/trump-to-expand-travel-ban-to-six-additional-countries-u-s-official-idUSKBN1ZU2WD">Reuters</a>.
Overall, &#8220;[t]he six countries [added today] will join a list of seven nations, most of them Muslim-majority, that faced significant travel restrictions under President Trump’s original travel ban, issued in 2017,&#8221; the Journal continues. Those original seven nations were Iran, Libya, Somalia, Syria, Yemen, Venezuela, and North Korea.
That original travel ban was ultimately upheld by the U.S. Supreme Court in the attention-grabbing 2018 case of <a href="https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf">Trump v. Hawaii</a>.
&#8220;By its plain language, [8 U.S.C.] §1182(f) grants the president broad discretion to suspend the entry of aliens into the United States,&#8221; Chief Justice John Roberts wrote for a bare 5–4 Court majority. &#8220;The president lawfully exercised that discretion based on his findings — following a worldwide, multi-agency review — that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the [Immigration and Nationality Act], and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language.&#8221;
The addition of countries with Trump administration-imposed travel restrictions placed upon them surely has a political element, and can likely be viewed as an attempt by the president to help shore up his base in the lead-up to November&#8217;s election. But the primary rationale seems to be a more emotionally detached attempt to buttress homeland security.
“These countries for the most part want to be helpful, want to do the right thing,” said Chad Wolf, acting Secretary of the Department of Homeland Security, according to the Journal. “But for a variety of reasons, they failed to meet those requirements we laid out.”

Passport on the desk of an American businessman

BREAKING: Trump Admin Adds New Travel Restrictions For Six Countries

Department of Homeland Security

Illegal Immigration

Immigrants

Immigration

John Roberts

Lawsuit

Muslim Immigration

Famed Harvard Law School professor emeritus Alan Dershowitz, a key part of President Donald Trump&#8217;s impeachment legal defense team, is under fire for a line of argumentation he has advanced this week on the Senate floor.
“Every public official that I know believes that his election is in the public interest,” Dershowitz said on the floor, as <a href="https://www.politico.com/news/2020/01/29/impeachment-q-and-a-moments-that-mattered-109272">reported</a> by Politico. “And if a president did something that he believes will help him get elected — in the public interest — that cannot be the kind of quid pro quo that results in impeachment.”
According to Politico (which, incidentally, uses the term &#8220;unitary executive theory&#8221; while clearly <a href="https://twitter.com/josh_hammer/status/1222991659417448448">not understanding what it means</a>), Dershowitz&#8217;s contention is &#8220;well outside the mainstream of legal scholars.&#8221; The National Law Journal, which is widely read within the legal profession, also has a paywalled <a href="https://www.law.com/nationallawjournal/2020/01/30/complete-nonsense-scholars-denounce-dershowitzs-trump-trial-arguments">piece today</a> entitled, &#8220;&#8216;Complete Nonsense&#8217;: Scholars Denounce Dershowitz&#8217;s Trump Trial Arguments.&#8221;
But it is those &#8220;scholars&#8221; who are, in fact, the ones peddling nonsense. Alan Dershowitz is emphatically correct. A president&#8217;s <a href="https://www.wsj.com/articles/the-corrupt-motives-doctrine-11580343258?mod=e2two">subjective motives</a> and <a href="https://www.nytimes.com/2020/01/23/opinion/trump-impeachment-defense.html">nebulous fusion</a> of political and national interests cannot transform <a href="https://nypost.com/2020/01/17/trumps-ukraine-money-holdup-doesnt-make-for-an-impeachable-breach-of-the-law/">constitutionally lawful conduct</a>, such as a president engaging in a core foreign policy function, into an impeachable offense.
What&#8217;s more, a &#8220;quid pro quo,&#8221; if conducted within the context of a political actor carrying out his constitutional authority, amounts to constitutionally protected free speech. I made this argument in November both here at <a href="https://www.dailywire.com/news/hammer-there-is-one-terrific-impeachment-defense-that-the-white-house-is-not-making">The Daily Wire</a> and at the <a href="https://nypost.com/2019/11/26/why-trumps-ukraine-demands-werent-remotely-illegal/">New York Post</a>.
&#8220;In 2014, a Texas grand jury indicted then-Gov. Rick Perry for supposedly abusing his official capacity when he threatened to withhold $7.5 million in funding for the Travis County district attorney’s public integrity unit unless the troubled DA ­resigned her post,&#8221; I wrote at the Post. This was clearly a &#8220;quid pro quo,&#8221; but it was one executed in the context of Gov. Perry exercising his authority clearly vested in him by the Texas Constitution. Therefore, I noted that &#8220;an illustrious and ideologically diverse group of legal scholars &#8230; argued that the First Amendment protects a governmental official’s right to threaten taking a lawful action to attain a preferred political outcome.&#8221; They were vindicated:
<blockquote>The Texas Court of Criminal Appeals, which is the Lone Star State’s highest court for criminal cases, agreed. “Public servants have a First Amendment right to engage in expression, even threats, regarding their official duties,” the court held. “Many threats that … public servants make as part of the normal functioning of government” would be criminalized under the special prosecutor’s legal theory, the court continued.</blockquote>
Returning to the current impeachment of President Trump, Democrats would be hard-pressed to argue that constitutionally protected free speech can somehow fit the &#8220;high crimes and misdemeanors&#8221; impeachment criterion of Article II. After all, political exchanges for political value are utterly commonplace in our politics: Every high school civics student learns about the congressional practice of <a href="https://www.dictionary.com/browse/logrolling">logrolling</a>.
And it is simply implausible to argue that a political actor&#8217;s exercising his constitutional authority and engaging in constitutionally protected free speech could somehow become impeachable due to the &#8220;corrupt&#8221; or &#8220;mixed&#8221; nature of that political actor&#8217;s subjective motives. A couple of hypothetical examples should suffice.
In our first hypothetical, a president running for re-election has become particularly interested in prosecuting and deporting Nazis — not &#8220;alt-right&#8221; dolts, but actual, living Nazis. This is something that <a href="https://www.washingtonpost.com/world/2018/08/21/us-deports-former-nazi-guard-germany-says-many-more-are-under-investigation/">still happens</a> in America today. In our hypothetical, the president who has suddenly deemed the prosecution and deportation of Nazis a compelling national interest is fighting hard to win Florida, where he is polling neck-and-neck with his rival. He is set to campaign next week in Florida, and is hoping to make inroads with Florida&#8217;s large Jewish community. At the same time, it turns out that the particular high-profile Nazi the president wants to prosecute and deport is elusive, but a certain European country — let&#8217;s call it Ukraine — has highly pertinent information about that Nazi&#8217;s whereabouts. Is it modern Democrats&#8217; contention that the president cannot here delay foreign aid disbursement to Ukraine and only release the aid on the condition that Ukraine pledges to assist the president hunt down the specific Nazi of his ire?
In our simpler second hypothetical, the facts on the ground are the precise same as they are in real life, but for one tiny difference: Joe Biden is not seeking the 2020 Democratic Party presidential nomination. Is it really modern Democrats&#8217; contention that Biden&#8217;s mere presence in the 2020 Democratic field (1) outright immunizes him and his son from public scrutiny about past activities, (2) ties the president&#8217;s hands with respect to ferreting out corruption in Ukraine, and (3) turns constitutionally protected free speech into activity so nefarious so as to be impeachable?
The Democrats&#8217; theory of impeachment is implausible. Worse, it would set an exceedingly dangerous precedent for future partisan impeachments. In our messy system of American politics, there is no such thing as a fine line distinguishing the personal from the national. A political actor, while engaging in constitutionally permissible conduct, is fully within his right to pursue a policy that he simultaneously believes to be in both the national and his personal interest.

Alan Dershowitz at Senate impeachment trial

HAMMER: Alan Dershowitz Is Right. ‘Mixed Motive’ Presidential Quid Pro Quos Are Not Impeachable.

Alan Dershowitz

Foreign Policy

Impeachment

Ukraine

On Tuesday evening, Daily Wire Editor-at-Large Josh Hammer, a constitutional attorney by training who previously served as a judicial law clerk on the U.S. Court of Appeals for the Fifth Circuit, <a href="https://www.youtube.com/watch?v=G-HnMAHs3-c">joined</a> “Tipping Point With Liz Wheeler” on One America News Network (OANN) to discuss the news from earlier this month that a divided Fifth Circuit panel, in the case of <a href="http://www.ca5.uscourts.gov/opinions/pub/19/19-40016-CR0.pdf">U.S. v. Varner</a>, denied a motion from a biological male litigant who formally moved to have the panel address him using female pronouns.
Earlier this month, Hammer <a href="https://www.dailywire.com/news/culture-war-in-the-courts-federal-appeals-panel-divides-on-transgender-pronouns/">summarized</a> and briefly opined upon the case for The Daily Wire, referencing the &#8220;fascinating&#8221; development that Trump nominee Judge S. Kyle Duncan&#8217;s majority opinion used male pronouns, whereas Clinton nominee Judge James L. Dennis&#8217;s dissent used female pronouns:
<blockquote>Alas, the latest and most disputatious, headline-grabbing front of our ceaseless culture war has fully hit the federal judiciary. &#8230;
Ultimately, Duncan concluded, “[c]ourts would have to do the same. We decline to enlist the federal judiciary in this quixotic undertaking.” &#8230;
Good for Judge Duncan for both adhering to the letter of the law and for defiantly standing athwart the modern cultural Left’s pernicious insistence on gaslighting the American citizenry into thinking that words may not mean what they so clearly do, in fact, mean.</blockquote>
Earlier this week, prior to the OANN appearance with Wheeler, Hammer also wrote a <a href="https://www.nationalreview.com/2020/01/transgender-pronouns-fifth-circuit-rejects-them-and-lie-they-stand-on/">column</a> about the case for National Review:
<blockquote>To capitulate to the Pandora’s box of transgender pronouns is to pretend that, exceedingly rare intersex exceptions aside, there is more to sexual differentiation than the duality of chromosomal male and chromosomal female. To yield to the soft tyranny of transgender pronouns is to pretend that gender dysphoria is an anodyne lifestyle on which societal legitimacy should be conferred, not a psychological malady requiring compassion and psychological treatment. It is to act as if simple words that have meant the same thing for centuries can change their meanings overnight without ruinous consequence for the language’s durability. It is to encourage the <a href="https://time.com/5767844/transgender-youth-legislation/" target="_blank" rel="noopener noreferrer" data-reader-unique-id="21">premature sexualization</a> of children and accede to <a href="https://transcare.ucsf.edu/article/information-testosterone-hormone-therapy" target="_blank" rel="noopener noreferrer" data-reader-unique-id="22">often irreversible</a> tampering of their hormones. It is to undermine the ancient Hippocratic oath: “First, do no harm.” Paul McHugh, professor of psychiatry at Johns Hopkins, maintains that to encourage “surgical intervention is in reality to collaborate with and promote a mental disorder.”</blockquote>
Wheeler and Hammer touched upon many of the same substantive themes during the OANN TV appearance, with Hammer stating that Judge Duncan&#8217;s fearless majority opinion made him a &#8220;very proud Fifth Circuit alum&#8221;:
<blockquote>You know, I finished clerking on the U.S. Court of Appeals for the Fifth Circuit barely over a year ago, so I&#8217;m very familiar with this court. I know both Judge Duncan and Judge Jerry Smith, who was also in the majority, personally, actually. Judge Duncan, Trump nominee — a wonderful jurist based in Baton Rouge, Louisiana.
So basically what happened here was a very unusual procedural posture. I mean, this took the format of an order — it was more of an order than a traditional &#8220;case&#8221; or &#8220;controversy,&#8221; we might say. But the litigant formally moved to be addressed by a transgender pronoun, which is very unusual. Certainly, in my time clerking, I never came across something like that. That is not a typical motion that as a judge or a law clerk, you see on a day-to-day basis &#8230; [but] I was a very proud Fifth Circuit alum when I saw this opinion.</blockquote>
Wheeler said that she agreed with &#8220;every word&#8221; of Hammer&#8217;s.
WATCH:
<iframe loading="lazy" title="Court Rules on Gender Pronouns" width="500" height="281" src="https://www.youtube.com/embed/QVp0Vdif0KA?feature=oembed" frameborder="0" allow="accelerometer; autoplay; encrypted-media; gyroscope; picture-in-picture" allowfullscreen></iframe>

Hammer OANN 1.28.20

WATCH: Hammer On ‘Tipping Point With Liz Wheeler’: The Fifth Circuit Rejects Transgender Pronouns

LGBTQ

Transgender

The reach of the First Amendment is extensive in securing the religious liberty of individuals and organizations, including colleges and universities.
This week, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/2F28720A8D5A2275852584FD005931E0/$file/18-1063-1825902.pdf">Duquesne University of the Holy Spirit v. NLRB</a>. When Duquesne refused to bargain with a group of adjunct faculty seeking to unionize, the National Labor Relations Board (NLRB) stepped in, recommending that the union be certified. But, in a decision authored by Judge Thomas B. Griffith, the D.C. Circuit rejected the NLRB’s jurisdiction over the Catholic university.
Duquesne distinguishes itself as “Catholic University in the Spiritan Tradition.” Its mission statement reads simply: “Duquesne serves God by serving students.” Like many religious colleges and universities, Duquesne’s commitment to its religious identity permeates throughout its entire campus. Adjunct faculty are a critical part of that mission.
Jude Griffith notes from the outset that our Constitution restrains government agencies from excessive involvement with religious organizations. “The Establishment Clause,” he writes, “limits governmental involvement in the affairs of religious groups, and the Free Exercise Clause safeguards the freedom to practice religion, whether as an individual or as part of a group.”
That is critical, he said, because it means religious institutions retain the independence required to pursue religious activity, inculcate its religious identity, and teach according to its religious tradition. Indeed, he notes, “For many Americans, religion cannot be exercised apart from religious organizations.” Thus, their institutions must be — and are — protected by the First Amendment. After all, the Constitution is meant to restrain government, not empower its creep into every aspect of our lives.
Nonetheless, the NLRB has been trying since the 1970s to assert its regulatory control over religious schools. Thankfully, the courts have thus far roundly rejected those efforts. In the seminal case, NLRB v. Catholic Bishop of Chicago, the U.S. Supreme Court explained that it is teachers who hold a critical role in fulfilling the mission of a religious school — whether or not any individual teacher provides actual religious instruction.
Thus, the Court in Catholic Bishop observed that even minimal involvement by the NLRB in a church-operated school presents a “significant risk that the First Amendment will be infringed.”
That logic would later be extended to higher education through subsequent decisions, which led the D.C. Circuit to create what it labeled a “bright-line test” that exclusively determines whether the NLRB may impose its jurisdiction upon a religious institution. If a religious institution (a) holds itself out as religious to the public, (b) is a not-for-profit institution, and (c) is religiously affiliated, the NLRB has no jurisdiction. Period.
But, in Duquesne, the NLRB ignored that test, opting instead to create its own rule requiring an institution to prove that its faculty in question actually perform a religious function. This would demand that a religious institution essentially prove the sincerity and sufficiency of its religious convictions — and that of its faculty.
Judge Griffith rightly explains the danger of the NLRB’s unilateral rule: “Defining which [faculty] roles qualify would be far outside the competence of [NLRB] members and judges.”
The importance of this decision cannot be understated. Its immediate impact should be welcomed by religious colleges and universities around the country. Furthering the autonomy of religious institutions to be unapologetically religious and free from government intrusion is an unambiguous goal of the First Amendment.
In the 2000 decision of Mitchell v. Helms, the U.S. Supreme Court noted that a court’s inquiry into the sincerity of a citizen’s religious views is “not only unnecessary but also offensive.” Likewise, to permit a government agency to require Duquesne to subject itself to examination by an independent federal agency like the NLRB that demands the university prove the authenticity of their religious mission is unnecessary and offensive.
Yet something is missing in all of this. Where are those who advocate the strict separation of church and state? Ought they not to be first in line to agree that the NLRB — a government agency — has no business involving itself in governing the affairs of a religious institution? Or is their mythical wall of separation merely one-sided, to be opposed only when the religious wander into the public arena?
The Duquesne decision reminds us that government agencies — despite nearly four decades of decisions against them — will often attempt to arrogate to themselves greater, and more intrusive, authority over religious institutions. Thankfully, this federal court has rightly checked that bloat. In doing so, it has made the promise of the First Amendment all the more meaningful for religious institutions.
&nbsp;
Jeremy Dys (<a href="https://twitter.com/jeremydys">@JeremyDys</a>) is Special Counsel for Litigation and Communications for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all Americans. Read more at <a href="https://firstliberty.org/">FirstLiberty.org</a>.

Close-Up Of Lady Justice Statue

DYS: The Nation’s Second-Highest Court Preserves Religious Liberty

First Amendment

Religion

Since its founding in 1982, <a href="https://fedsoc.org">The Federalist Society</a> (FedSoc), the nation&#8217;s leading conservative/libertarian legal group, has been a simply <a href="https://www.amazon.com/Federalist-Society-Conservatives-Took-Liberals/dp/082651877X">remarkable</a> <a href="https://www.amazon.com/Ideas-Consequences-Conservative-Counterrevolution-Development/dp/0190933747/ref=asc_df_0190933747/?tag=hyprod-20&amp;linkCode=df0&amp;hvadid=366282406038&amp;hvpos=1o1&amp;hvnetw=g&amp;hvrand=8992389821330317855&amp;hvpone=&amp;hvptwo=&amp;hvqmt=&amp;hvdev=c&amp;hvdvcmdl=&amp;hvlocint=&amp;hvlocphy=9026920&amp;hvtargid=pla-796690064135&amp;psc=1&amp;tag=&amp;ref=&amp;adgrpid=78795692560&amp;hvpone=&amp;hvptwo=&amp;hvadid=366282406038&amp;hvpos=1o1&amp;hvnetw=g&amp;hvrand=8992389821330317855&amp;hvqmt=&amp;hvdev=c&amp;hvdvcmdl=&amp;hvlocint=&amp;hvlocphy=9026920&amp;hvtargid=pla-796690064135">success story</a>. And due to its breathtaking success in inculcating constitutionalist fidelity in a generation of law students and genuinely impacting the shape of the federal judiciary, it is perhaps true that no organization alive today better encapsulates the <a href="https://en.wikipedia.org/wiki/Vast_right-wing_conspiracy">&#8220;vast right-wing conspiracy&#8221;</a> that once drew the ire of a younger Hillary Clinton.
The Left, which holds a special disdain for FedSoc due to both its influence and its success in countering the erstwhile ubiquitous (and still <a href="https://www.theamericanconservative.com/dreher/ucla-professor-bainbridge-hero-of-diversity/">overwhelming</a>) leftist groupthink pervading the legal profession, has been on a particularly vicious anti-FedSoc warpath throughout the entirety of the Trump presidency. The Trump administration&#8217;s judicial nomination machine is a <a href="https://www.washingtonpost.com/politics/one-in-every-four-circuit-court-judges-is-now-a-trump-appointee/2019/12/21/d6fa1e98-2336-11ea-bed5-880264cc91a9_story.html">behemoth</a>, and the Left despises the organization most responsible for steering this new generation of judges toward the direction of constitutional originalism. Indeed, the Left would like nothing more than to take down FedSoc.
Unless Supreme Court Chief Justice John Roberts now intervenes, the Left may come about as close to achieving its goal as it could feasibly get.
The <a href="https://www.uscourts.gov/topics/judicial-conference-united-states">Judicial Conference of the United States</a>, an arcane body <a href="https://www.law.cornell.edu/uscode/text/28/331">established by Congress</a> and led by the chief justice of the Supreme Court, is responsible for helping establish the national policy guidelines that govern the administration of the federal courts. In addition to the chief justice, the Conference consists of a <a href="https://www.law.cornell.edu/uscode/text/28/331">cross-section of judges</a> from the many federal courts.
Alas, the Conference is arcane no longer. Over the past week, the Conference&#8217;s Committee on Codes of Conduct, which oversees federal judicial ethics, has forced a national conversation by launching an absolute wrecking ball of a <a href="http://eppc.org/wp-content/uploads/2020/01/Guide-Vol02B-Ch02-AdvOp11720OGC-ETH-2020-01-20-EXP-1.pdf">draft advisory opinion</a>. The Committee, which is <a href="https://www.wsj.com/articles/judicial-political-mischief-11579652574">chaired by</a> Judge Ralph Erickson of the Eight Circuit Court of Appeals, has 15 total <a href="https://www.nationalreview.com/bench-memos/re-draft-judicial-ethics-opinion-favors-aba-over-federalist-society-and-acs/">members</a>: Eight Democratic presidential nominees, five Republican presidential nominees, and two others (a bankruptcy judge and a magistrate judge).
The Committee&#8217;s advisory opinion, if formally implemented by the Committee, would &#8220;advise[] that formal affiliation&#8221; with both FedSoc and the <a href="https://www.acslaw.org">American Constitution Society</a> (ACS), FedSoc&#8217;s (<a href="https://www.wsj.com/articles/more-judicial-political-mischief-11579825335">much</a>) more <a href="https://www.nationalreview.com/bench-memos/judicial-campaign-to-silence-federalist-society-part-1/">overtly political</a> progressive counterpart, &#8220;is inconsistent with&#8221; the governing Code of Conduct for United States Judges. Specifically, the Committee states that &#8220;although neither [FedSoc nor ACS] is a &#8216;political organization'&#8221; under the Code, &#8220;their activities nevertheless implicate [the Code&#8217;s] broad prohibition against political activity&#8221; — whatever that is supposed to mean. What&#8217;s worse, the draft opinion also holds that federal judges&#8217; law clerks and staff attorneys must not join either FedSoc or ACS. But on the other hand, membership with the <a href="https://www.dailywire.com/news/hammer-who-cares-about-the-abas-judicial-nominee-ratings">leftist</a>, <a href="https://www.nationalreview.com/bench-memos/draft-judicial-ethics-opinion-favors-aba-over-federalist-society-and-acs/">remarkably biased</a> American Bar Association (ABA) &#8220;does not raise these same concerns and is not necessarily inconsistent with the Code.&#8221;
Where to begin?
First, as has been pointed out by both The Wall Street Journal <a href="https://www.wsj.com/articles/more-judicial-political-mischief-11579825335">editorial board</a> and the Judicial Crisis Network&#8217;s <a href="https://www.nationalreview.com/bench-memos/judicial-campaign-to-silence-federalist-society-part-1/">Carrie Severino</a>, there is simply no comparing FedSoc and ACS in terms of their respective levels of &#8220;political activity.&#8221; I have been a (literally) card-carrying FedSoc member since I began law school at the University of Chicago, was a three-year board member of my law school&#8217;s <a href="http://federalist.uchicago.edu">chapter</a>, and now serve as a FedSoc <a href="https://fedsoc.org/contributors/josh-hammer">campus speaker</a>. I am intimately familiar with this organization, and have benefitted from it in many different ways. In short, there is no such thing as a FedSoc &#8220;position&#8221; on any given legal, let alone political, issue. The organization stands for one unifying proposition and one unifying proposition only: Words, as used in legal texts such as constitutions and statutes, have discernible meanings. That is truly it. FedSoc routinely hosts debates where one member debates another; what&#8217;s more, constitutional originalists ourselves frequently disagree when it comes to interpreting any number of constitutional or statutory provisions. By contrast, at the time of the Brett Kavanaugh Supreme Court nomination battle, ACS&#8217;s president <a href="https://www.wsj.com/articles/more-judicial-political-mischief-11579825335">publicly opposed</a> the nominee. ACS also flaunts specific legal briefs, has an aggressively politicized <a href="https://twitter.com/acslaw">social media</a> presence, and issues press releases on such über-politicized things as <a href="https://www.acslaw.org/press_release/u-s-senate-must-place-principles-above-politics-in-impeachment-process/">presidential impeachment</a>. As such, any comparison between FedSoc and ACS amounts, as the Journal&#8217;s editorial board recently <a href="https://www.wsj.com/articles/judicial-political-mischief-11579652574">put it</a>, to a &#8220;false equivalence.&#8221;
Second, even holding aside the organizations&#8217; competing merits and demerits, attempting to neuter both FedSoc and ACS in one fell swoop harms FedSoc and the cause of constitutional originalism far more than it harms ACS and the cause of &#8220;living constitutionalism.&#8221; ACS was founded 19 years after FedSoc, and it has never come even remotely close to FedSoc in terms of influence, prestige, network, membership, or any of the other metrics by which to assess organizations such as these. There are multiple reasons for this. Liberals have controlled the legal academy, the federal judiciary, and the legal profession alike for most of the past century. FedSoc, accordingly, was founded to help supply a hugely under-served market: Right-leaning law students and lawyers. FedSoc, and the law professors and judges who came up through its ranks, thus presents a desperately needed counterweight to the sclerosis of leftist legal academia. ACS&#8217;s entire mission is therefore effectively duplicative and unnecessary; at the time of ACS&#8217;s founding, the Left still dominated the legal profession. Furthermore, FedSoc&#8217;s overwhelmingly simple and easily relatable <a href="https://fedsoc.org/about-us">mission statement</a> also stands in sharp contrast to the nebulous, transparently outcome-oriented nostrums <a href="https://www.acslaw.org/about-us/">peddled by ACS</a>. The inclusion of FedSoc as a subject of the Committee&#8217;s wrath — and, by downstream effect, a subject of increased ostracism on the law school campus — would thus disproportionately undermine the academic and intellectual integrity of legal education and the legal profession much more than does the inclusion of ACS.
Third, it is ludicrous for the Committee to let the ABA off the hook. The ABA, which has brazenly <a href="https://www.nationalreview.com/bench-memos/the-confirmation-process-that-was-then-this-is-trump/" data-reader-unique-id="10">attempted</a> to <a href="https://www.dailywire.com/news/hammer-who-cares-about-the-abas-judicial-nominee-ratings">claim</a> many high-profile Trump judicial nominee <a href="http://www.abajournal.com/news/article/seventeen_judicial_nominees_advance_to_the_senate_including_two_rated_not_q" data-reader-unique-id="11">scalps</a>, is institutionally controlled by leftist trial lawyers and bigwig Democratic Party donors. The ABA, unlike FedSoc, &#8220;<a href="https://www.wsj.com/articles/judicial-political-mischief-11579652574">takes positions on countless legal subjects, invariably on the political left</a>.&#8221; The ABA has a &#8220;House of Delegates&#8221; that, going back to the 1970s, <a href="https://www.nationalreview.com/bench-memos/another-self-inflicted-wound-for-the-aba/">actually passes many resolutions</a> taking formal positions on all the hot political issues of the day. Surprise, surprise: The ABA always comes down on the left side of a given issue. As Severino <a href="https://www.nationalreview.com/bench-memos/judicial-campaign-to-silence-federalist-society-part-2/">observes</a>, the ABA&#8217;s <a href="https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/legisslist-august-2019.pdf?logActivity=true">current list</a> of “Legislative Policies” advances actual legislative proposals &#8220;spanning such varied subjects as admiralty law, criminal procedure, energy, medical malpractice, public contracts, and tax.&#8221; It even files legal briefs on cases on issues as highly charged as <a href="https://www.americanbar.org/content/dam/aba/administrative/news/2019/12/june-v-gee-amicus.PDF">abortion</a>. There is no sane world in the ABA is somehow less &#8220;political&#8221; than FedSoc, which does precisely none of the above — preferring instead to focus on preaching the scandalously bold sole message that texts ought to be interpreted according to their original public meanings.
Finally, and arguably most importantly, the career consequences of this proposed Committee opinion for law students, law clerks, and young lawyers alike is nothing short of tragic. Marking FedSoc with such an institutional scarlet letter as this would tremendously disincentivize those at the start of their legal careers from joining the organization, lest they be seen as too &#8220;political&#8221; for the judges who might one day look to hire them for prestigious clerkships. As such, fewer law students will populate FedSoc chapters, and the powerful national FedSoc network of law students, lawyers, academics, and judges would be depleted as the risk-averse among us run for the hills en masse. Right-leaning law students hoping to clerk for right-leaning judges would be put at a tremendous disadvantage, as they would have diminished opportunities to network and formally interact with those who might hire them; left-leaning law students, of course, would hardly be hurt at all by the slap to ACS, because the clerkship hiring bureaucracies in elite law schools are already unilaterally stacked leftward. Intellectual diversity in the classroom will also be hurt, as lonesome conservative students might be less willing to voice their viewpoints out of fear they might harm their career advancement than they otherwise would be. As a consequence, the Committee&#8217;s ostensible attempt to de-politicize the judiciary would have the unintended consequence of only further politicizing the state of legal discourse at the nation&#8217;s law schools, and within the legal profession more broadly, by ensuring that there is no viable counter-programming to stand athwart otherwise-monolithic legal leftism.
The Committee&#8217;s proposed draft opinion amounts to nothing less than a travesty. By purportedly attempting to de-politicize the judiciary, the Committee has inadvertently risked only further politicizing and tearing asunder the legal profession. But it is not yet too late. Chief Justice Roberts, who heads the Judicial Conference, can still not-so-subtly tell Judge Erickson and the rest of the Committee to preemptively put the kibosh on this destructive endeavor. For the sake of all parties involved, Roberts — who values perhaps nothing more than he does institutional integrity and preservation of the federal courts&#8217; alleged de-politicization —  must take a brief break from his Senate impeachment trial presiding officer duties and do so immediately.

Chief Justice John Roberts

HAMMER: Chief Justice Roberts Must Overrule The Judiciary’s Proposed Assault On The Federalist Society

Academia

Brett Kavanaugh

Federalist

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