Wednesday, June 29, 2016

Donald Trump's Judicial Nominees - A Blog Series - Part 1

On May 18, 2016, Donald Trump released a list of eleven names that he would consider as Supreme Court nominees. The list has been heralded as a who’s who of some of the best conservative judges in the country. We are going to be spending some time on this blog looking at the candidates.

The list includes: Steven Colloton of Iowa, Allison Eid of Colorado, Raymond Gruender of Missouri, Thomas Hardiman of Pennsylvania, Raymond Kethledge of Michigan, Joan Larsen of Michigan, Thomas Lee of Utah, William Pryor of Alabama, David Stras of Minnesota, Diane Sykes of Wisconsin and Don Willett of Texas.

This blog will specifically discuss two candidates: Steven Colloton of Iowa and Allison Eid of Colorado. There are many articles out there overviewing the potential SCOTUS candidate’s records but the bulk of them note that this list should make the right very happy. 

Colloton is an exceptionally qualified candidate.

A federal judge on the 8th Circuit U.S. Court of Appeals, Colloton clerked for former Supreme Court Chief Justice William Rehnquist. Collotn [sic] also worked for Independent Counsel Kenneth Starr and in the George W., Bush Justice Department’s Office of Legal Counsel. Friends have described Colloton as a “virtual walking encyclopedia of the law.” But several rulings he has written or supported, including one that allowed religious institutions to avoid providing contraception coverage under Obamacare, have angered progressives. In one case, Colloton voted to uphold a South Dakota law that advised women having abortions that they were at increased risk of suicide. Colloton wrote a separate opinion to underscore that he was not persuaded by the evidence, an American Psychological Association task force. He also has dissented from a string of 8th Circuit rulings that have protected the rights of employees, consumers and other groups. In one dissent, he argued that a city’s policy of using police dogs to bite and hold suspects without warning did not violate the Constitution.

Like many others on the list, Allison Eid is a conservative juggernaut in her own right.

Eid sits on Colorado’s Supreme Court, and is a former clerk to Supreme Court Justice Clarence Thomas, as well as a former Colorado solicitor general. As a state Supreme Court Justice, Eid was backed by “tort reform” supporters and other business interests. Before she took a seat on the court, the Associated Press reported that Eid was ”expected to follow her predecessor’s footsteps in some issues important to conservatives: strictly interpreting the law and working to rein in liability lawsuits seeking huge damages.” 

In addition, Eid was appointed to assist with recording the history of the Supreme Court of the United States.

In 2002, President George W. Bush appointed her to serve on a committee to write the history of the Supreme Court. Colorado’s Republican governor at the time, Bill Owens, then appointed her to serve on the state Supreme Court. She won reelection to the job in 2008, with 75 percent of the vote.

Allison Eid and Steven Colloton have strong conservative track records and an excellent judicial pedigree making them both solid potential candidates to fill the enormous shoes left in the wake of the death of a conservative icon. 

Tuesday, June 28, 2016

Justice Thomas Defends the Rule of Law

In his dissent to the Whole Woman's Health v. Hellerstedt opinion yesterday, Justice Thomas delivered a strong defense of the rule of law (citations omitted):
The majority’s furtive reconfiguration of the standard of scrutiny applicable to abortion restrictions also points to a deeper problem. The undue-burden standard is just one variant of the Court’s tiers-of-scrutiny approach to constitutional adjudication. And the label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right—be it “rational basis,” intermediate, strict, or something else—is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat. . . . 
But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test. . . . Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review. . . . 
These labels now mean little. Whatever the Court claims to be doing, in practice it is treating its “doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied.”  The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case. . . . 
The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear. . . . The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.” 
Justice Thomas' criticism of the Supreme Court's tendency to twist the law or apply indeterminate tests to reach the policy outcome it desires demonstrates, yet again, the importance of fighting for a new justice -- one who respects the rule of law -- to replace Justice Scalia.

Monday, June 27, 2016

Unanimous Supreme Court Rejects "Unrestrained Power for Prosecutors"

This is yet another case in a series of recent cases that we have discussed on this blog indicating a dangerous trend of politicizing justice. It has continued to be a favorite tactic utilized by the left while attempting to silence those with differing opinions. We discussed it when groups attempted to enforce the law of the land , again when the left went after Rick Perry,  then when a leftist AG harassed non-profits involved in scientific research, once again with the current DOJ attorney’s ethics violations in U.S. v. Texas and finally in the Planned Parenthood allegations against David Daleiden.

This has also become a preferred path for those who seek to silence free speech. As a country, we should not support throwing tantrums.  In an unanimous decision, SCOTUS reversed former Virginia Governor Bob McDonnell’s 11 corruption convictions today. Chief Justice Roberts wrote the opinion of the court. The Richmond Times-Dispatch put out an article earlier today discussing some of the finer points of the case (emphasis added).

“The government openly advocates a legal rule that would make a felon of every official at every level of government — from a Cabinet secretary to a janitor — who accepts travel in exchange for public appearances, who has lunch with a lobbyist when both know the lobbyist will pick up the check, who trades campaign contributions for a few minutes of time, or who cleans one classroom with special care because its teacher brings him gift cards,” McDonnell’s lawyers wrote in one of his appeal briefs.

Before McDonnell's case was argued before the Supreme Court, some analysts thought his case suffered a blow with the February death of Justice Antonin Scalia. That left the high court with four justices nominated by Republican presidents and four nominated by Democratic presidents.

[. . .] On April 27, when the Supreme Court heard McDonnell's appeal of his 11 corruption convictions, the justices questioned lawyers about what constitutes “official action” by public officials and expressed concern about giving unbridled power to prosecutors who are probing corruption.

That day, a sometimes frustrated Justice Stephen G. Breyer, who was nominated by President Bill Clinton, looked for a definition that would catch wrongdoers but not give unrestrained power to prosecutors who might bring “ridiculous” cases.

FreedomWorks, Curt Levey, applauded the decision earlier today noting that:

"The job of prosecutors, like other officers in the executive branch, is to objectively enforce the law, not to rewrite or expand the laws to reflect their moral or ideological preferences. The Court's ruling is an important step towards preventing overly zealous or politically motivated prosecutors from criminalizing routine, helpful actions performed for constituents. It is the voters who should decide whether elected officials are conscientious public servants.

James Bopp, Jr., counsel for the Madison Center, is pleased with the decision: 

“The Court rightly recognized the First Amendment chill that would be cast over both constituent and campaign participation if the government can selectively enforce so broad a corruption definition against public officials and candidates associating with voters.  Limiting quid pro quo corruption to exchanges of money or other gifts for official acts ensures the government does not exceed its authority and unconstitutionally silence the speech of its citizens.”

McDonnell was also quick to praise the decision.

Today, a unanimous United States Supreme Court vacated my convictions, and it is a day in which my family and I rejoice and give thanks.

From the outset, I strongly asserted my innocence before God and under the law. I have not, and would not, betray the sacred trust the people of Virginia bestowed upon me during 22 years in elected office.

[. . . ] I am exceptionally grateful to my faithful legal team who zealousy advocated my cause at every step, as well as the authors and signers of the 13 excellent amicus briefs that argued for reversal. 


More and more innocent leaders and organizations are being targeted for expressing their opinions and these attackers relish in the fact that they are working to silence an entire segment of society. The last eight years have seen entire federal organizations turned into partisan attack dogs seeking out any who oppose a certain point of view.  These cases are not about corruption but silencing speech and attacking those who disagree with the political views of the Democrat and DOJ prosecutors. 

Thursday, June 23, 2016

Want to Address Your Legislature? Bring a Checkbook

Given the state’s lengthy history of disdain for federal overreach and several attempted secessions, Texas is the last place in America where you would envision freedom of speech being limited. Yet, that is exactly what has been happening since 1993 according to an article recently published by RNLA Member Joe Nixon on texaslawyer.com.

If you believe the First Amendment to the U.S. Constitution gives you the right to free speech, think again.  In Texas, of all places, political speech comes with a cost: registration and/or paying a fee to the state for the privilege of speaking.

In 1993, the Texas Legislature passed an “ethics” bill designed to eliminate “undue influence” in elections and to require the disclosure of those who paid to play on the political field. To show its serious intent, the Legislature also passed a lobby registration bill because it deemed it important to know who was getting paid to influence legislation and who was paying to influence legislation. Both laws had broad, sweeping definitions so as to leave no loopholes. . . . To secure the most serious intent of this legislation, voters created the Texas Ethics Commission (TEC). . . .

Candidates campaigned in traditional ways.

And then came the Internet.

And with it social media. . . .

Regulating with forms and fines is not just an imposition on speech; it is also the time and cost to defend against a state agency that has openly admitted it is not required to read or follow the U.S. Supreme Court's rulings in favor of free speech.  Under the guise of "disclosure," the TEC seeks to require political speakers pay the toll of registration and regulation.  Speech is just not free in Texas right now.

The article continues to discuss the implications of such a system on a world of ever changing media outlets. The TEC has been exceptionally aggressive in its investigations as well as the process of levying fines against new media outlets such as blogs, similar to this one, that express political opinions or engage in political speech aimed toward influencing legislators. While the courts have certainly made their stance on freedom of speech issues abundantly clear, this is of little consequence to the TEC who consistently seeks to silence those who refuse or simply cannot afford to “literally pay the price to speak.”

Wednesday, June 22, 2016

Fourth Circuit Hears Oral Arguments on North Carolina Voter ID Law and Other Election Integrity Reforms

Yesterday, the Fourth Circuit heard arguments on North Carolina's voter ID law and other election integrity reforms:
The hearing was the latest legal step in a long saga over House Bill 589, passed nearly three years ago by state lawmakers. It was in June 2013 when the North Carolina General Assembly passed a measure that mandated photo identification, reduced early voting, and eliminated same day registration, among other provisions. . . . 
The defense maintains plaintiffs have failed to use statistical evidence to prove discrimination. A ruling from the panel could uphold or undo the controversial law.  
"We had the benefit of the 2014 election and the plaintiffs have said well you can’t just rely on one election – well it’s the only election we have to rely upon," defense attorney Tom Farr said. . . . 
The general election is 20 weeks from these proceedings, and the expectation is that the three judge panel will rule relatively quickly, so that the state Board of Elections will have enough time to prepare.
The District Court had upheld the voter ID law and the other reforms in a strong, carefully considered opinion in April.  According to some reports, the Fourth Circuit panel unfortunately was skeptical of the purpose of the reforms:
Members of a three-judge federal appeals court panel are expressing skepticism that North Carolina's Republican-led legislature's changes to voting laws do not discriminate against minorities.
A recording of the oral argument in NAACP v. McCrory is available here [auto-play recording].  

Tuesday, June 21, 2016

Update from Del. Rob Bell on Virginia Felon Voting Litigation

Yesterday, Delegate Rob Bell shared insights into the litigation challenging Governor Terry McAuliffe's blanket restoration of felon voting rights with RNLA lawyer volunteers.  We have covered Gov. McAuliffe's order and its aftermath here, here, here, and here.

Del. Bell discussed the order, the preparation for litigation, and likely outcomes:
  • Since 1870, the Virginia Constitution has allowed the governor to restore voting rights to felons and governors have, but it has always been done on an individual, case-by-case basis.  Previous governors' legal teams, both Republican and Democrat, concluded that it had to be done that way.
  • McAuliffe's order restored rights to any felon who has completed his or her sentence and finished supervised release, regardless of the crime committed.
  • A particular concern is the effect on jury trials, because in criminal trials, the verdict must be unanimous.
  • In preparation for trial, the legislature hired Cooper & Kirk.  Finding plaintiffs was the hardest part, but they found named plaintiffs at the Clifton Republican women’s club.  
  • In terms of timing, mid-August is drop-dead date because of absentee ballots being printed.  Because of this, they took the case straight to the Supreme Court.  The Court agreed to special session for first time since 1993, and the case will be heard on July 19.
  • 6,000 felons have already registered to vote.  If the restoration order is invalidated, then the governor could still restore voting rights one by one.
  • The strongest argument is one of statutory interpretation: the blanket restoration allows one constitutional provision to survive while another becomes a nullity.  
  • A bipartisan group of 43 Commonwealth Attorneys (representing 60% of citizens) filed an amicus brief on behalf of plaintiffs.  If there had been more time, many more would have joined.
  • There is now a second lawsuit challenging the order filed in circuit court and asking for an injunction.  
  • There are two concerns – the Court rules against the plaintiffs or finds a way to dodge the case (standing, needing evidentiary rulings at circuit court, etc.).  Since there’s another case in circuit court, the Supreme Court will likely take up the case now.
  • In terms of standing, the cause of action is based on a vote dilution claim.  
  • The list of felons to whom rights have been restored has turned out to be a mess.  There are numerous people on the list who shouldn’t be on the list, and at this point the governor can’t fix it; only a court can fix it.

This year's Ed Meese Award winner, Chuck Cooper, will be discussing this litigation on the opening panel at the National Election Law Seminar on August 12-13.

Monday, June 20, 2016

Voter Registration Confusion in Kansas

There is considerable confusion in Kansas regarding the current requirements to register to vote.  State law requires voters to provide proof of citizenship prior to being registered, but that requirement is the subject of ongoing litigation:
Thousands of wanna-be Kansas voters who thought they might not be able to cast ballots for president and other federal officials this year are now eligible to vote in them - but not in state or local races. 
It's part of the latest fallout from lawsuits surrounding the state law that requires prospective voters to provide proof of U.S. citizenship - such as a birth certificate, passport or naturalization papers — when they register. Republican Kansas Secretary of State Kris Kobach is defending the law against multiple legal challenges. 
Supporters of the law say it's important to make sure those who aren't U.S. citizens don't vote. Opponents say non-citizens aren't voting in significant numbers and the real result is making it harder for the poor, the young and the elderly - those who might have trouble getting documents - to vote. 
There are so many legal challenges in play that it's hard to keep track of who can vote and under what circumstances.
Last Tuesday, Kansas began registering people to vote who had not provided the proof of citizenship required under state law.  The 10th Circuit refused to stay a decision holding that Kansas had to register those who registered on a federal form that did not require proof of citizenship, despite the state law requiring proof of citizenship:
Kansas cannot prevent thousands of eligible voters from casting ballots in the November federal election because they didn’t prove they were U.S. citizens when registering to vote at motor-vehicle offices, a federal appeals court ruled Friday. 
The 10th U.S. Circuit Court of Appeals ruling temporarily upholds a court order that required Kansas to allow those individuals to vote in federal elections even though they didn’t provide citizenship documentation when applying or renewing their driver’s licenses, as required under Kansas law. The state has said as many as 50,000 people could be affected.  
Kansas retains a two-tiered system for those who registered without using the federal form, but that system has been questioned by a state court ruling.  The entire situation, and the resulting confusion, in Kansas shows how chaos can result when states' common sense measures to protect their elections are challenged in court.